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TABLE OF CONTENTS

Certificate of Interested Persons and Corporate Disclosure Statement.. C-1 of 1

Table of Authorities.......................................................................................... ii

Statement of Interest......................................................................................... 1

Statement of the Issues..................................................................................... 1

Statement of the Case....................................................................................... 2

A. Statement of Facts............................................................................. 2

B. Jury Verdict and Post-Trial Orders.................................................... 5

Summary of Argument..................................................................................... 6

Argument.......................................................................................................... 7

A. The jury instruction correctly spelled out Bralo’s responsibility for notifying Spirit Airlines that he needed a reasonable accommodation under the ADA.................................................................................................. 7

B. A court may not consider the size of a punitive damages award in determining whether to order front pay................................................. 10

Conclusion...................................................................................................... 13

Certificate of Service

TABLE OF AUTHORITIES

Cases

*Castle v. Sangamo Weston, Inc., 837 F.2d 1550 (11th Cir. 1988)................. 11

Commissioner of Internal Revenue v. Schleier, 515 U.S. 323 (1995)................ 11

EEOC v. W&O, Inc., 213 F.3d 600 (11th Cir. 2000)....................................... 11

Gaston v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361 (11th Cir. 1999). 8

Gray v. Bostic, 625 F.3d 692 (11th Cir. 2010)................................................ 10

*Holly v. Clairson Indus., LLC, 492 F.3d 1247 (11th Cir. 2007)...................... 7

Humphrey v. Memorial Hosps. Ass’n, 239 F.3d 1128 (9th Cir. 2001)............... 9

Hybert v. Hearst Corp., 900 F.2d 1050 (7th Cir. 1990)................................... 12

Jakubowski v. Christ Hosp., Inc., 627 F.3d 195 (6th Cir. 2010)........................ 9

Kostad v. Am. Dental Ass’n, 527 U.S. 526 (1999)........................................... 10

*Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340 (11th Cir. 2000)............... 11

Roddy v. City of Villa Rica, Ga., 536 Fed. App’x 995 (11th Cir. 2013)............ 9

Rodriguez-Torres v. Caribbean Forms Mfr., Inc., 399 F.3d 52 (1st Cir. 2005) 12

Spurling v. C&M Fine Pack, Inc., 739 F.3d 1055 (7th Cir. 2014)..................... 9

Taylor v. Phoenixville Sch. Dist., 184 F.3d 296 (3d Cir. 1999).......................... 9

Trans World Airlines, Inc. v. Thurston, 469 U.S. 111 (1985)........................... 11

U.S. v. Hialeah Housing Auth., 418 Fed. App’x 872 (11th Cir. 2011)............. 7

Virgo v. Riviera Beach Assocs., Inc., 30 F.3d 1350 (11th Cir. 1994)............... 11

Walther v. Lone Star Gas Co., 952 F.2d 119 (5th Cir. 1992).......................... 12

Weaver v. Casa Gallardo, Inc., 922 F.2d 1515 (11th Cir. 1991)

(superseded by statute on other grounds).............................................. 11

Williams v. Valentic Kisco, Inc., 964 F.2d 723 (8th Cir. 1992)........................ 12

Statutes

Americans with Disabilities Act, 42 U.S.C. § 12101 et seq............................... 1

42 U.S.C. § 1981a(b)(1).................................................................................. 10

Rules and Regulations

*29 C.F.R. § 1620.2(o)(3)................................................................................. 8

Fed. R. App. P. 29(a)........................................................................................ 1

Other Authorities

*EEOC Enforcement Guidance, Reasonable Accommodation and

Undue Hardship Under the Americans with Disabilities Act,

2006 WL 4673363 (current through Aug. 2009)..................................... 8

*EEOC Enforcement Guidance, Small Employers and

Reasonable Accommodation, 1999 WL 33305877 (1999)...................... 8

*EEOC Enforcement Guidance, The Americans with Disabilities Act:

Applying Performance and Conduct Standards to Employees

With Disabilities, 2008 WL 4786697 (Sept. 25, 2008)........................... 8

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission (“EEOC”) is charged by Congress with interpreting, administering, and enforcing Title I of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. This appeal challenges an Eleventh Circuit pattern jury instruction for failure to provide a reasonable accommodation under the ADA, and the cross-appeal challenges the district court’s refusal to award front pay based on the size of the punitive damages award. The EEOC has a strong interest in ensuring that courts not apply an unduly restrictive standard for granting a reasonable accommodation under the ADA, and also has a strong interest in ensuring that victims of discrimination are fully compensated. Accordingly, the EEOC offers its views to the Court. The EEOC files this brief pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure.

STATEMENT OF THE ISSUES

1. Pursuant to the ADA, did the district court correctly instruct the jury that Bralo had to prove “that he requested an accommodation” and not, as Spirit Airlines proposed, that he requested “the specific accommodation which he now claims Spirit Airlines should have provided him”?

2. Did the district court erroneously refuse to award front pay based on the size of the punitive damages award?

STATEMENT OF THE CASE

This is an appeal from a jury verdict in favor of Bralo and a cross-appeal from the district court’s refusal to award front pay.

A. Statement of Facts

Serge Bralo was the aircraft maintenance manager for Spirit Airlines. (R.182 at 60-61) He supervised up to eight mechanics, whom Bralo described as being “the ones running around doing all the work.” (R.183 at 53) Bralo occasionally provided hands-on assistance to the mechanics but much of his job involved observing them, making sure they had all the parts they needed for repairs, and filling out paperwork. (R.183 at 54-55; R.184 at 105) He testified that lifting was not an essential function of his job although he sometimes lifted things when he saw that a mechanic was struggling. (R.183 at 62-63) Occasionally he had to climb up into an aircraft, get down into the engine compartment, and make sure that the mechanics were performing the work properly. (R.184 at 99)

Bralo developed sciatica and a herniated disc, causing excruciating back pain. (R.183 at 66-67) He took Family and Medical Leave Act (“FMLA”) leave to address his medical issues. (R.183 at 67) After nine and one-half weeks, his doctor sent Spirit a note stating that Bralo could return to work “at limited duty reduced schedule to accommodate physical therapy, lifting limited to 20 pounds, and avoid repetitive bending and stooping.” (R.182 at 80-81)

Bralo called Aggie Lang, Spirit’s leave administrator, and expressed his desire to return to work as soon as possible. (R.184 at 110) Lang never spoke with Bralo or his managers about his essential job functions or potential accommodations that would allow him to carry out those functions. (R.182 at 61) Instead, she told Bralo that Spirit had no light duty for people injured off the job and that he could not return until he was “100 percent.” (R.183 at 74) She urged Bralo to contact his doctor to have the restrictions removed. (R.184 at 134) She also told Bralo’s supervisor that Bralo could not return absent a full duty release with no restrictions. (R.182 at 88-89)

Lang did not send Bralo a “fit for duty” form for his doctor to complete until six weeks later, after Bralo had already hired an attorney. (R.182 at 92-93) By then, Bralo had called Lang to discuss accommodations multiple times, she had avoided or cut short most of his phone calls, and she had repeatedly told him that he had to be “100 percent.” (R.183 at 74-79) Lang refused to communicate with Bralo’s attorney. (R.182 at 119) Bralo did not understand the point of having his doctor fill out the “fit for duty” form when he knew that he was not “100 percent” and therefore he did not submit the form to his doctor. (R.183 at 136, 141) Even if Spirit might have considered offering a reasonable accommodation at this point, Lang did not communicate that message to Bralo. (R.183 at 140-41) One week after sending Bralo the “fit for duty” form, Lang terminated him. (R.182 at 120, 131)

In district court, Spirit argued that the ADA did not require it to accommodate Bralo because Bralo had never asked for a reasonable accommodation. (R.182 at 35, 82, 135) The doctor’s note describing his inability to lift, stoop, or bend, Lang explained, was not a request for an accommodation but simply a list of his physical ailments. (R.182 at 115, 140-41) Lang testified that in order for Spirit to consider an accommodation request, it would have to know specifically what type of job change an individual desired, the duration of the requested accommodation, and whether the individual would pose a risk to himself or others. (R.182 at 82, 100, 115)

Had Bralo requested an accommodation, Lang testified in court, she would have given him a “fit for duty” form right away for his doctor to complete. (R.182 at 53-54) This is the process that she used for employees who were injured on the job and were eligible for light duty positions. For those employees, she testified, once she received a doctor’s description of their limitations, she forwarded the description to the employee’s supervisor and asked what could be done to enable the employee to get back to work. (R.182 at 148)

Spirit asked the district court to instruct the jury: “Mr. Bralo must prove by a preponderance of the evidence that he requested the specific accommodation which he now claims Spirit Airlines should have provided him.” (R.124-1 at 30-31; R.184 at 193-96) Instead, the district court followed the Eleventh Circuit pattern jury instructions and told the jury: “Mr. Bralo must prove by a preponderance of the evidence that he requested an accommodation.” (R.185 at 52 (emphasis added); 11th Cir. Pattern Jury Instr. 4.10)

B. Jury Verdict and Post-Trial Orders

The jury found for Bralo on his ADA claim and awarded him $150,000 in backpay, $10,000 in compensatory damages, and $375,000 in punitive damages. (R.95 at 6) Spirit moved for remittitur and/or a new trial. (R.123)

The district court denied Spirit’s motion for a new trial. (R.153) The court observed:

[I]t is simply inconceivable that any business, particularly one as successful as Spirit, would handle a valuable employee in such an uncommunicative manner. At every step Ms. Lang did no more than the bare minimum to shift the communications burden to Bralo. On any number of occasions Ms. Lang could have simply called Bralo and clarified matters. When Bralo brought a lawyer in Ms. Lang could have called the lawyer to discuss the matter. Ms. Lang could even have called Bralo and said, “Serge, we want to get you back to work because we need you, why are you getting a lawyer involved?” Ms. Lang’s conduct communicated a very different message: Spirit wants to get rid of this employee and his health gives us the opportunity to do just that. Those actions spoke louder than all Ms. Lang’s self-serving testimony. Spirit’s counsel made valiant efforts to present those facts in the best light possible for Spirit, but counsel could not change those basic facts. Spirit Human Resources, in the form of Ms. Lang, was not there to help Serge Bralo.

(R.148 at 12) The court partly granted and partly denied Spirit’s motion for remittitur. (Id. at 15) Pursuant to statutory caps, the district court reduced the compensatory and punitive damages to $300,000. The court also reduced the backpay award to $136,773. (Id.) The court denied Bralo’s motion for front pay, holding that the punitive damages award fully compensated him for his injuries. (R.149 at 2)

Summary of Argument

The district court properly instructed the jury on Bralo’s burden for requesting a reasonable accommodation. Spirit Airlines’ proposed instruction, that Bralo had to request “the specific accommodation which he now claims Spirit Airlines should have provided him,” does not comport with the law. The jury instructions correctly permitted the jury to find that Bralo requested a reasonable accommodation and that Spirit Airlines violated the ADA by not providing one.

With respect to front pay, the district court erred by factoring in the size of the punitive damages award. Binding precedent holds that because punitive damages are not compensatory in nature, they may not be considered in deciding whether to award front pay.

Argument

A. The jury instruction correctly spelled out Bralo’s responsibility for notifying Spirit Airlines that he needed a reasonable accommodation under the ADA.

The district court’s jury instruction was correct. Because the ADA does not require magic words, Bralo did not have to say “reasonable accommodation” or reference the ADA in order to put Spirit on notice that he needed an adjustment to perform the essential functions of his job. This Court has recognized that a reasonable accommodation request need not be formal or specific. “[If] an employee tells her supervisor ‘I’m having trouble getting to work at my scheduled starting time because of medical treatments I’m undergoing,’” this Court observed, “[t]his is a request for a reasonable accommodation.” Holly v. Clairson Indus., LLC, 492 F.3d 1247, 1261 n.14 (11th Cir. 2007) (citing EEOC enforcement guidance).

Properly understood, “a request as straightforward as asking for continued employment is a sufficient request for accommodation.” Id. (quoting Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 694 (7th Cir. 1998)); see also U.S. v. Hialeah Housing Auth., 418 Fed. App’x 872, 876 (11th Cir. 2011) (applying ADA standards to Fair Housing Act and holding that employer’s reasonable accommodation duty is triggered when it has “enough information to know of both the disability and desire for an accommodation”). EEOC guidelines are clear on this point. See EEOC Enforcement Guidance, Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, § 902 intro, 2006 WL 4673363, at question #1 (current through Aug. 2009) (“to request accommodation, an individual may use ‘plain English’ and need not mention the ADA or use the phrase ‘reasonable accommodation’”); EEOC Enforcement Guidance, The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities, 2008 WL 4786697, at text accompanying n.12 (Sept. 25, 2008) (“an employee only has to say that she requires the employer to provide her with an adjustment or change at work due to a medical condition”); EEOC Enforcement Guidance, Small Employers and Reasonable Accommodation, 1999 WL 33305877, at question #1 (1999) (“an individual may use ‘plain English’ and need not mention the ADA or use the phrase ‘reasonable accommodation’”).

Spirit’s proposed jury instruction wrongly placed the entire burden on Bralo of explicitly spelling out his request for an accommodation (presumably by using the words “reasonable accommodation”) and of proposing how, precisely, Spirit could accommodate him. This proposed instruction ignores Spirit’s obligation to help explore potential accommodations. See 29 C.F.R. § 1620.2(o)(3) (directing employers to engage in interactive process); Gaston v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1364 (11th Cir. 1999) (citing with approval EEOC interpretive guidance stating that after employee has requested reasonable accommodation, employer must make reasonable effort to determine appropriate accommodation).

As Judge Cole of the Sixth Circuit has explained, “the fact that an employee does not perfectly convey to his employer the precise accommodation that would allow him to do his job prior to termination does not mean, as a rule, that the employer did not know that the employee could perform his work with a reasonable accommodation.” Jakubowski v. Christ Hosp., Inc., 627 F.3d 195, 204-05 (6th Cir. 2010) (Cole, J., concurring) (emphasis in original); see also Spurling v. C&M Fine Pack, Inc., 739 F.3d 1055, 1062 (7th Cir. 2014) (employer must help to identify appropriate accommodation for a qualified individual”); Humphrey v. Memorial Hosps. Ass’n, 239 F.3d 1128, 1138 (9th Cir. 2001) (same); Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 320 (3d Cir. 1999) (same). Roddy v. City of Villa Rica, Ga., 536 Fed. App’x 995, 1000 (11th Cir. 2013), which Spirit cites in support of its proposed instruction, is wrongly decided, is an outlier opinion in this Court, and, as a non-binding decision, need not be followed. Accordingly, this Court should disregard it.

The jury in this case had sufficient evidence to find that Spirit violated the ADA by failing to reasonably accommodate Bralo’s disability. Bralo adequately notified Spirit that he was seeking a reasonable accommodation by providing a doctor’s note spelling out the conditions under which he could return to work and by repeatedly calling Lang to express his interest in returning. (R.182 at 80-81; R.184 at 110) Had Bralo been injured on the job, Lang testified, she would have immediately consulted with his manager to identify potential job modifications that could get him back to work. (R.182 at 53-54, 148) The ADA required her to do the same for Bralo.

B. A court may not consider the size of a punitive damages award in determining whether to order front pay.

Although an award of front pay is within the discretion of the district court, “when a district court commits an error of law in deciding how to exercise its discretion, that court has, by definition, abused its discretion.” Gray v. Bostic, 625 F.3d 692, 693 (11th Cir. 2010). By relying on the size of the punitive damages award to deny front pay, the district court improperly merged two distinct remedies and erroneously treated punitive damages as serving a compensatory purpose. This legal error constitutes an abuse of discretion.

Punitive damages are intended to punish an employer for “malice or . . . reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1). The standard for awarding punitive damages is higher than the standard for awarding compensatory damages; an employer must not only engage in intentional discrimination, but must do so “in the face of a perceived risk that its actions will violate federal law.” Kolstad v. Am, Dental Ass’n, 527 U.S. 526, 536 (1999). The Supreme Court has drawn a sharp distinction between punitive and compensatory purposes. “If [punitive] damages were designed to compensate . . . victims,” the Supreme Court said, “we see no reason why the employer’s knowledge of the unlawfulness of his conduct should be the determinative factor in the award of liquidated damages.” Commissioner of Internal Revenue v. Schleier, 515 U.S. 323, 332 n.5 (1995); see also Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 125 (1985) (liquidated damages under federal age discrimination statute are punitive in nature).

Front pay, in contrast, is an equitable remedy used for a finite period in lieu of reinstatement when circumstances make reinstatement inappropriate in a particular case. EEOC v. W&O, Inc., 213 F.3d 600, 619 (11th Cir. 2000). Unlike punitive damages, front pay – when ordered – is not subject to statutory caps. Id. at 619 n.10. Rather, like back pay, front pay is intended to help “make whole” victims of discrimination. Virgo v. Riviera Beach Assocs., Ltd., 30 F.3d 1350, 1363 (11th Cir. 1994).

Because front pay is a form of “make whole” relief, district courts may decline to award it when a plaintiff does not need it to be made whole. Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1529 (11th Cir. 1991) (superseded by statute on other grounds). Whether a plaintiff can be made whole without it depends on his “remedial package,” which consists of his compensatory and equitable relief. Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340, 1349 & n.13 (11th Cir. 2000).

Punitive damages, which serve an entirely different purpose, are not part of the calculus. Thus, “a liquidated damages award does not influence whether or not front pay is also awarded.” Id.; see also Castle v. Sangamo Weston, Inc., 837 F.2d 1550, 1562 (11th Cir. 1988) (“liquidated damages are not meant to replace equitable relief ”).

Allowing punitive damages to offset front pay, as some other jurisdictions do, [1] provides a windfall to employers whose misconduct justifies the punitive damages. Such employers have two obligations: to make their victims whole, and to undergo additional punishment designed to deter them from future wrongdoing. The fact that punitive damages incidentally benefit the victim does not justify depriving the victim of the make-whole relief to which he is entitled.

Conclusion

The district court properly instructed the jury regarding reasonable accommodation but improperly considered the award of punitive damages in denying front pay. For the foregoing reasons, the EEOC respectfully asks this Court to affirm the jury verdict and reverse the denial of front pay.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

CAROLYN L. WHEELER

Acting Associate General Counsel

LORRAINE C. DAVIS

Assistant General Counsel

s/ Gail S. Coleman

____________________________

GAIL S. COLEMAN

Attorney

U.S. EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M Street, NE, Room 5SW24L

Washington, DC 20507

(202) 663-4055

gail.coleman@eeoc.gov

[1] See Rodriguez-Torres v. Caribbean Forms Mfr., Inc., 399 F.3d 52, 67 n.15 (1st Cir. 2005); Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir. 1992); Williams v. Valentic Kisco, Inc., 964 F.2d 723, 730 (8th Cir. 1992); Hybert v. Hearst Corp., 900 F.2d 1050, 1056 (7th Cir. 1990).