Chapman v. Olymbec USA, LLC.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

WESTERN DIVISION

AMBER CHAPMAN, )

)

Plaintiff, )

)

v. ) No. 2:18-cv-02842

)

OLYMBEC USA, LLC, )

)

Defendant. )

ORDER

Plaintiff Amber Chapman brings this action for disability

discrimination and retaliation against Defendant Olymbec USA,

LLC (“Olymbec”). (ECF No. 8.) Before the Court is Olymbec’s

Motion for Partial Summary Judgment, filed on December 20, 2019.1

(ECF No. 31.) Chapman responded on January 24, 2020. (ECF No.

36.) Olymbec replied on February 7, 2020. (ECF No. 40.)

For the following reasons, Olymbec’s Motion is DENIED in

part and GRANTED in part.

I. Background

Olymbec is a property management company that owns and

manages a portfolio of industrial, office, retail, and

residential properties. (ECF No. 29 ¶ 6.) In August 2016,

1 Olymbec styles its motion as a “Motion for Summary Judgment,” (ECF

No. 32), but in application it is a motion for partial summary

judgment.

Olymbec hired Chapman to work as a dispatch coordinator. (ECF

No. 41 ¶ 1.) In July 2017, Chapman was promoted to

administrative assistant. (Id. ¶ 3.) On the afternoon of

January 29, 2018, Chapman had a disciplinary meeting with

Olymbec’s general manager, Jordana Berger, and Chapman’s direct

supervisor, Jenny Cupp. (Id. ¶ 4.) Later that night, Chapman

sent Berger an email titled “A Piece to the Puzzle”, which said:

After much thought and consideration, I feel that for you

to completely understand a few pieces to the puzzle, I have

to disclose a very personal matter to you. I live with and

battle severe depression. I have what my doctor has

diagnosed as biopolar. I am on medication, and have been

for many years. Which is why I go to the doctor every 3

months, sometimes a month after an appointment if medicine

is modified.

Recently, my medicine was changed entirely due to the

skyrocketing insurance prices. Changing medication after

years of being on the same medication can cause mood

changes and behaviors. The medicine I was recently put on

is not working like it should. In fact, this past Friday

my doctor increased my dosage for my depression and gave me

anxiety medication.

I am disclosing this information to you to help you

understand that while I may seem “upset” or “unhappy” at

times, in reality, I am just trying to make the best out of

the mental illness that plagues me.

Mental illness is not an easy subject to discuss. Nor is it

really anyone’s business. But I have accepted my

disability and I have worked extremely hard to not let it

affect my work or life. But sometimes it’s impossible for

it to not affect things.

I do not want your sympathy, nor do I want to discuss this

further than this email. I just felt that you needed to

know so that you can have some understanding to the times

that I am “unhappy” or “upset.”

(ECF No. 38-2) (transcribed without alteration). On January 30,

2018, Chapman met again with Berger. (ECF No. 41 ¶ 10.) Later

that morning, Berger issued a formal written reprimand to

Chapman for alleged acts of insubordination that had occurred on

January 15, 2018, January 22, 2018, and January 29, 2018. (Id.

¶¶ 12, 13; see also No. 38-3.)

On February 1, 2018, Chapman requested, and was approved by

Berger, to leave work early. (ECF No. 41 ¶¶ 16, 18.) The

parties dispute the justification for Chapman’s request to leave

early. Chapman contends that she asked to leave to pick up her

kids and run some “personal errands.” (Id. ¶ 16.) Olymbec

contends that Chapman asked to leave because “there was a

medical emergency concerning [Chapman’s] father-in-law and no

one was available to pick her children up from the school bus at

2:45 p.m.” (Id.)

Chapman left work around 2:15 p.m. and went to Memphis’s

Equal Employment Opportunity Commission office, located at 1407

Union Avenue, to file a complaint about discriminatory treatment

against Olymbec. (Id. ¶¶ 20, 21, 25; No. 39-2 at 198:19-20.)

Olymbec owns and manages the building at 1407 Union Avenue.

(ECF No. 41 ¶ 22.) While there, Chapman ran into co-worker

Shirley Mason. (Id. ¶ 23.) After talking with Chapman, Mason

sent an email to Berger at 4:14 p.m., in which Mason said her

conversation with Chapman “left [Mason] with the impression

[Chapman] was visiting the EEOC which is on the 9th floor.”

(Id. ¶¶ 26-27; see also No. 38-4.)

The next day, February 2, 2018, Olymbec, through Berger,

terminated Chapman. (ECF No. 41 ¶¶ 29, 30.) The parties

dispute the reason for Chapman’s termination. Chapman contends

that Berger’s exact words were: “You breached my trust for going

to the EEOC at 1407 Union and for filing a discrimination

charge.” (Id. ¶ 32.) Olymbec contends that Berger terminated

Chapman for being dishonest and breaching Berger’s trust. (Id.

¶ 28.)

On December 7, 2018, Chapman brought claims against Olymbec

for disability discrimination and retaliation under the

Americans With Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et

seq., and the Tennessee Disability Act (“TDA”), Tenn. Code Ann.

§§ 8–50–103 to 104. (ECF No. 1.) Chapman filed her First

Amended Complaint (“FAC”) on February 20, 2019. (ECF No. 8.)

Olymbec filed its Answer to Chapman’s FAC on November 12, 2019.

(ECF No. 29.) On December 20, 2019, Olymbec moved for partial

summary judgment. (ECF No. 31.)

II. Jurisdiction & Choice of Law

The Court has federal question jurisdiction. Under 28

U.S.C. § 1331, district courts have original jurisdiction “of

all civil actions arising under the Constitution, laws, or

treaties of the United States.” Chapman asserts a right to

relief against Olymbec for disability discrimination and

retaliation in violation of the ADA. (ECF No. 8 at 21.) Those

claims arise under the laws of the United States.

The Court has supplemental jurisdiction over Chapman’s TDA

claims. See 28 U.S.C. § 1367(a). Those claims derive from a

“common nucleus of operative fact” with Chapman’s federal claims

against Olymbec. See United Mine Workers of Am. v. Gibbs, 383

U.S. 715, 725 (1966); Soehnlen v. Fleet Owners Ins. Fund, 844

F.3d 576, 588 (6th Cir. 2016); see also 28 U.S.C. § 1367(a).

State substantive law applies to state-law claims brought

in federal court. See Erie R.R. Co. v. Tompkins, 304 U.S. 64

(1938). Where, as here, there is no dispute that a certain

state’s substantive law applies, the court will not conduct a

choice-of-law analysis sua sponte. See GBJ Corp. v. E. Ohio

Paving Co., 139 F.3d 1080, 1085 (6th Cir. 1998). The parties

assume in their respective motions and memoranda that Tennessee

substantive law applies to Chapman’s TDA claims and ground their

arguments accordingly. (ECF No. 32 at 4; No. 36 at 6-7.) The

Court will apply Tennessee substantive law to Chapman’s state-

law claims.

III. Standard of Review

Under Federal Rule of Civil Procedure 56, a court must

grant a party’s motion for summary judgment “if the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). The moving party must show that the nonmoving

party, having had sufficient opportunity for discovery, lacks

evidence to support an essential element of her case. See Fed.

R. Civ. P. 56(c)(1); Peeples v. City of Detroit, 891 F.3d 622,

630 (6th Cir. 2018).

When confronted with a properly supported motion for

summary judgment, the nonmoving party must set forth specific

facts showing that there is a genuine dispute for

trial. See Fed. R. Civ. P. 56(c). “A ‘genuine’ dispute exists

when the plaintiff presents ‘significant probative evidence’ ‘on

which a reasonable jury could return a verdict for her.’” EEOC

v. Ford Motor Co., 782 F.3d 753, 760 (6th Cir. 2015) (en banc)

(quoting Chappell v. City of Cleveland, 585 F.3d 901, 913 (6th

Cir. 2009)). The nonmoving party must do more than simply “show

that there is some metaphysical doubt as to the material

facts.” Lossia v. Flagstar Bancorp, Inc., 895 F.3d 423, 428

(6th Cir. 2018) (quoting Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986)).

Although summary judgment must be used carefully, it “is an

integral part of the Federal Rules as a whole, which are

designed to secure the just, speedy, and inexpensive

determination of every action[,] rather than a disfavored

procedural shortcut.” FDIC v. Jeff Miller Stables, 573 F.3d

289, 294 (6th Cir. 2009) (quotation marks and citations

omitted).

IV. Analysis

Olymbec asks the Court to decide as a matter of law

that: (1) Chapman does not have viable causes of action for her

TDA discrimination and retaliation claims; (2) Chapman is not

entitled to compensatory damages, punitive damages, or a jury

trial for her ADA retaliation claim; and (3) Chapman’s

compensatory and punitive damages for her ADA discrimination

claim are statutorily capped at $50,000. (ECF No. 32 at 1-2.)

A. TDA Causes of Action

The TDA prohibits private employers from discriminating

against employees, including firing, “based solely upon any

physical, mental or visual disability of the applicant . . . .”

Tenn. Code Ann. § 8–50–103(b). Tennessee law also prohibits

“[r]etaliat[ing] or discriminat[ing] . . . against a person

because such person has opposed a practice declared

discriminatory . . . or because such person has made a charge,

filed a complaint, testified, assisted or participated in any

manner in any investigation, proceeding or hearing . . . .”

Tenn. Code Ann. § 4-21-301(a)(1).2

2 Tennessee Code Annotated § 4-21-301(a)(1) is part of the Tennessee

Human Rights Act (“THRA”). The TDA incorporates the definitions and

remedies provided by the THRA. See Barnes v. Goodyear Tire & Rubber

Co., 48 S.W.3d 698, 705 (Tenn. 2000) (citing Forbes v. Wilson Cty.

Emergency, 966 S.W.2d 417, 420 (Tenn. 1998)), abrogated on other

Olymbec argues that “Chapman’s TDA claims must be

dismissed . . .” because “[t]he TDA does not require employers

to provide otherwise qualified employees a reasonable

accommodation.” (ECF No. 32 at 4.) Olymbec’s argument is

premised on its contention that Chapman’s TDA disability

discrimination and retaliation claims necessarily depend on

proving a “reasonable accommodation” element. (See id.) They

do not.

The TDA does not require employers to provide otherwise

qualified employees a reasonable accommodation. Bennett v.

Nissan N. Am., Inc., 315 S.W.3d 832, 841–42 (Tenn. Ct. App.

2009) (“In fact, the TDA elements are very similar to those of

the ADA, but do not include a ‘reasonable accommodation’

component.”) (citing Roberson v. Cendant Travel Servs., Inc.,

252 F. Supp. 2d 573, 583 (M.D. Tenn. 2002)); see also Cardenas-

Meade v. Pfizer, Inc., 510 F. App’x 367, 369 n.3 (6th Cir.

2013). Chapman does not allege failure to accommodate. Her

disability discrimination claim requires her to prove: “(1) that

[she] was qualified for the position; (2) that [she] was

disabled; and (3) that [she] suffered an adverse employment

action because of that disability.” Bennett, 315 S.W.3d at 841

grounds by Gossett v. Tractor Supply Co., 320 S.W.3d 777 (Tenn. 2010).

The statutory basis for TDA retaliation causes of action is through

the THRA. See Baker v. Windsor Republic Doors, 414 F. App’x 764, 779

(6th Cir. 2011) (citing Tenn. Code Ann. § 8–50–103(b)(2)).

(citing Barnes v. Goodyear Tire & Rubber Co., 48 S.W.3d 698, 705

(Tenn. 2000), abrogated on other grounds by Gossett v. Tractor

Supply Co., 320 S.W.3d 777 (Tenn. 2010)). Chapman’s retaliation

claim requires her to prove: “(1) that [she] engaged in an

activity protected by [Tennessee law]; (2) that the exercise of

[her] . . . rights was known by [Olymbec]; (3) that, thereafter,

[Olymbec] took an employment action adverse to [her]; and (4)

that there was a causal connection between the protected

activity and the adverse employment action.” Cardenas-Meade,

510 F. App’x at 372. Because Chapman brings claims that do not

require a “reasonable accommodation” element, (see ECF No. 36 at

7), Olymbec’s argument that her TDA claims must be dismissed

because “the TDA does not require employers to provide otherwise

qualified employees a reasonable accommodation” is not germane.3

In its reply, Olymbec argues that Chapman’s TDA claims

should be dismissed because Chapman has relied on allegations

and has not cited any facts in the record. (ECF No. 40 at 2.)

That argument is unpersuasive because Olymbec has not carried

its initial burden of proving that it is “entitled to judgment

as a matter of law” by showing that “there is no genuine dispute

3 Because requesting a reasonable accommodation is a protected

activity, it is possible for a federal disability retaliation claim to

have a “reasonable accommodation” element (e.g., when an employee is

terminated because she requested a reasonable accommodation). See

Burress v. City of Franklin, 809 F. Supp. 2d 795, 815 (M.D. Tenn.

2011) (citing Baker, 414 F. App’x at 776–77 & n.8). That is not the

case here.

as to any material fact.” Fed. R. Civ. P. 56(a); Fantroy v.

Vann, 2015 WL 5244342, at *4 (E.D. Mich. Sept. 8, 2015) (“As the

moving parties, the Defendants have the initial burden to show

that there is an absence of evidence to support [Plaintiff’s]

case.”) (citing Selhv v. Caruso, 734 F.3d 554 (6th Cir. 2013)).

Olymbec argues only that “[it] was not required to provide

Chapman with a reasonable accommodation under Tennessee

law . . . .” (ECF No. 32 at 4; see also No. 40 at 1-2.)

Whether Olymbec failed to accommodate Chapman’s disability is

not an element of her disability discrimination or retaliation

claims. Olymbec has not shown that there is no significant

probative evidence to support the elements of Chapman’s TDA

claims. Olymbec’s Motion for Partial Summary Judgment on

Chapman’s TDA claims is DENIED.

B. Right to a Jury Trial, Compensatory Damages, and Punitive

Damages for Chapman’s ADA Retaliation Claim

Olymbec contends that, as a matter of law, Chapman is not

entitled to compensatory damages, punitive damages, or a jury

trial for her ADA retaliation claim. (ECF No. 32 at 5-8; No. 40

at 2-3.) Chapman responds that the relevant case law supports

those remedies. (ECF No. 36 at 8-9.) She argues that, as a

practical matter, she is entitled to a jury trial on her TDA

claims and her ADA discrimination claim and that the remedies

for those claims include compensatory and punitive damages.

(Id. at 9.) She argues that bifurcating her ADA retaliation

claim from her other claims would be an inefficient use of

judicial resources. (Id.)

Several statutes are at issue. See U.S. Dep’t of Treasury

v. Fabe, 508 U.S. 491, 500 (1993) (“‘The starting point in a case

involving construction of [an Act], like the starting point in

any case involving the meaning of a statute, is the language of

the statute itself.’”) (quoting Grp. Life & Health Ins. Co. v.

Royal Drug Co., 440 U.S. 205, 210 (1979)). The anti-retaliation

provision of the ADA provides:

(a) Retaliation. No person shall discriminate against any

individual because such individual has opposed any act or

practice made unlawful by this chapter or because such

individual made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding,

or hearing under this chapter.

. . . .

(c) Remedies and procedures. The remedies and procedures

available under sections 12117, 12133, and 12188 of this

title shall be available to aggrieved persons for

violations of subsections (a) and (b), with respect to

subchapter I, subchapter II and subchapter III,

respectively.

42 U.S.C. § 12203(a) & (c). Section 12117(a), referenced in

§ 12203(c), cross-references and provides that available

remedies include those in Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000e–4, et seq. (“Title VII”). Section

2000e–5(g)(1) of Title VII provides that a court may order

certain “equitable relief as the court deems appropriate,” but

it does not allow a court to order compensatory or punitive

damages. 42 U.S.C. § 2000e–5. In 1991, however, Title VII was

amended to expand the remedies available under § 2000e–5(g)(1)

to allow compensatory and punitive damages for claims brought

under specific, referenced provisions. See 42 U.S.C.

§ 1981a(a)(2). Two of the relevant, referenced provisions

are: (1) “section 102 of the [ADA] (42 U.S.C. § 12112)” (i.e.,

ADA intentional discrimination claims); and (2) “section

102(b)(5) of the [ADA]” (i.e., ADA failure-to-accommodate

claims). Id.4 The ADA’s anti-retaliation provision, 42 U.S.C.

§ 12203, is not explicitly referenced in 42 U.S.C.

§ 1981a(a)(2).

The majority interpretation is that Congress’s decision not

to refer specifically to the ADA’s retaliation provision

4 The full text of 42 U.S.C. § 1981a(a)(2) provides:

In an action brought by a complaining party under the powers,

remedies, and procedures set forth in section 706 or 717 of the

Civil Rights Act of 1964 (as provided in section 107(a) of the

Americans with Disabilities Act of 1990 (42 U.S.C. 12117(a)), and

section 794a(a)(1) of Title 29, respectively) against a

respondent who engaged in unlawful intentional discrimination

(not an employment practice that is unlawful because of its

disparate impact) under section 791 of Title 29 and the

regulations implementing section 791 of Title 29, or who violated

the requirements of section 791 of Title 29 or the regulations

implementing section 791 of Title 29 concerning the provision of

a reasonable accommodation, or section 102 of the Americans with

Disabilities Act of 1990 (42 U.S.C. 12112), or committed a

violation of section 102(b)(5) of the Act, against an individual,

the complaining party may recover compensatory and punitive

damages as allowed in subsection (b), in addition to any relief

authorized by section 706(g) of the Civil Rights Act of 1964,

from the respondent.

(§ 12203) in § 1981a(a)(2) -- as it did other statutory claims

(including other ADA claims) -- demonstrates the absence of an

intent to extend compensatory and punitive damages to ADA

retaliation claims. See Alvarado v. Cajun Operating Co., 588

F.3d 1261, 1268-70 (9th Cir. 2009); Kramer v. Banc of Am. Sec.,

LLC, 355 F.3d 961, 965 (7th Cir. 2004) (“Because claims of

retaliation under the ADA (§ 12203) are not listed, compensatory

and punitive damages are not available for such claims.

Instead, the remedies available for ADA retaliation claims

against an employer are limited to the remedies set forth in

§ 2000e–5(g)(1).”), cert. denied, 542 U.S. 932 (2004); Bowles v.

Carolina Cargo, Inc., 100 F. App’x 889, 890 (4th Cir. 2004)

(adopting the holding of Kramer without analysis) (unpublished

per curiam); Rhoads v. FDIC, 94 F. App’x 187, 188 (4th Cir.

2004) (same) (unpublished per curiam).

The minority view reads § 1981a(a)(2) “in light of [the]

context, structure, and related statutory provisions” of the

ADA, and concludes that, because “the retaliation provision of

the ADA contains no remedy of its own” and relies on the other

remedies of the ADA, including the ADA’s discrimination

remedies, “it was unnecessary for Congress to separately mention

retaliation in § 1981[a(a)(2)]” and that it “is fair to assume

that the expansive effect of § 1981[a(a)(2)] applies equally to

claims under [the ADA’s discrimination provision] as it does to

retaliation claims by virtue of the fact that the remedies

available for retaliation claims incorporate, and are

coextensive with, the remedies available under [the ADA’s

discrimination provision].” See Edwards v. Brookhaven Sci.

Assocs., LLC, 390 F. Supp. 2d 225, 236 (E.D.N.Y. 2005)

(citations omitted); Baker v. Windsor Republic Doors, 635 F.

Supp. 2d 765, 767-71 & n.3 (W.D. Tenn. 2009) (holding similarly

and collecting cases), aff’d on other grounds, 414 F. App’x 764

(6th Cir. 2011).5

Olymbec argues that the majority view controls. (ECF No.

32 at 5-8; No. 40 at 2-3.) Chapman argues that the minority

view controls. (ECF No. 36 at 8-9.) Chapman relies on the

affirmance of Baker to support her argument. (Id.) The court

in Baker expressly held “that § 1981a(a)(2) extends compensatory

damages to ADA retaliation claims. . . .” 635 F. Supp. 2d at

771. The court reasoned that § 1981a(a)(2) was ambiguous under

the doctrine of absurdity, see generally John F. Manning, The

Absurdity Doctrine, 116 Harv. L. Rev. 2387 (2003), finding that

it would be absurd for Congress to have intended compensatory

5 No circuit courts have expressly interpreted the relevant statutes

the way the minority of district courts have. The Second, Eighth, and

Tenth Circuits have affirmed compensatory and punitive damage awards

for ADA retaliation claims. Those decisions addressed only whether

there was sufficient evidence to award damages and did not discuss the

relevant issue here. See, e.g., Salitros v. Chrysler Corp., 306 F.3d

562, 575 (8th Cir. 2002) (punitive damages); Foster v. Time Warner

Entm’t Co., 250 F.3d 1189, 1196–98 (8th Cir. 2001); Muller v.

Costello, 187 F.3d 298, 314 (2d Cir. 1999); EEOC v. Wal–Mart Stores,

Inc., 187 F.3d 1241, 1244–45 (10th Cir. 1999).

damages to be available for ADA intentional discrimination

claims brought under § 12112, but not for ADA retaliation claims

brought under § 12203, “considering that [both § 12112 and

§ 12203] codify identical causes of action for retaliation.”

635 F. Supp. 2d at 771.

Baker relied on the Supreme Court’s decision in Gomez-Perez

v. Potter, 553 U.S. 474 (2008), which held that “[the Age

Discrimination in Employment Act’s (“ADEA”)] federal-sector

provision’s prohibition of ‘discrimination based on age’ []

likewise proscrib[ed] retaliation.” See Baker, 635 F. Supp. 2d

at 769-70 (quoting Gomez-Perez, 553 U.S. at 481). Baker relied

on Gomez-Perez for the implicit proposition that, “unless a

statute states otherwise, prohibitions against intentional

discrimination are meant to include retaliation claims.” See

id. at 771 (citing Gomez-Perez, 553 U.S. at 481). Baker applied

that proposition and held that compensatory damages were

available for ADA retaliation claims. 635 F. Supp. 2d at 771.

On appeal, this Circuit affirmed the district court, but

expressly declined to address whether the ADA proscribes

compensatory damages because the jury’s decision to award

compensatory damages could be upheld under the relevant

Tennessee statute. Baker, 414 F. App’x at 779-80.

Baker is unpersuasive. Broad use of the absurdity doctrine

has been trenchantly criticized. See Laura R. Dove, Absurdity

in Disguise: How Courts Create Statutory Ambiguity to Conceal

Their Application of the Absurdity Doctrine, 19 Nev. L.J. 741,

754 (2019). For the reasons articulated by the Ninth Circuit in

Alvarado, the Court also finds Baker’s reliance on Gomez-Perez

misplaced. See Alvarado, 588 F.3d at 1269.

The Court agrees with the majority line of cases. The text

of § 1981a(a)(2) is not ambiguous. It explicitly states the

specific provisions of the ADA for which compensatory and

punitive damages are available (i.e., 42 U.S.C. §§ 12112 and

12112(b)(5)). 42 U.S.C. § 1981a(a)(2). It does not reference

42 U.S.C. § 12203. Expressio unius est exclusio alterius.

“[W]hen legislation expressly provides a particular remedy or

remedies, courts should not expand the coverage of the statute

to subsume other remedies.” Nat’l R.R. Passenger Corp. v. Nat’l

Ass’n of R.R. Passengers, 414 U.S. 453, 458 (1974). Although

perhaps an “oversight” by Congress, Infantolino v. Joint

Industry Board of Electrical Industry, 582 F. Supp. 2d 351, 362-

63 (E.D.N.Y. 2008), and although “little apparent logic

underlies a rule precluding an award of compensatory and

punitive damages in ADA retaliation cases where such damages are

available in Title VII retaliation cases [and ADA discrimination

cases], the Court’s analysis is confined to the statutory

language, and any alteration of the rule must come from

Congress.” EEOC v. Faurecia Exhaust Sys., Inc., 601 F. Supp. 2d

971, 976 (N.D. Ohio 2008) (citing Sink v. Wal-Mart Stores, Inc.,

147 F. Supp. 2d 1085, 1101 (D. Kan. 2001)).

The reasoning of the majority of courts that have

addressed this issue is persuasive. See, e.g., Alvarado, 588

F.3d at 1268-70; Kramer, 355 F.3d at 965. The Court adopts

their reasoning as its own. Chapman is not entitled to

compensatory and punitive damages for her ADA retaliation claim.

She is not entitled to a jury trial on that claim. Osborn v.

Griffin, 865 F.3d 417, 460 (6th Cir. 2017) (no right to jury

trial where the only relief sought is “equitable in nature”).

Olymbec’s Motion for Partial Summary Judgment on this issue is

GRANTED.

C. Statutory Cap for ADA Discrimination Claim

Chapman seeks, inter alia, more than $300,000 in

compensatory and punitive damages for her claims. (ECF No. 8 at

5 ¶ 3(g).) Olymbec asks this Court to determine as a matter of

law that the amount of compensatory and punitive damages for

Chapman’s ADA discrimination claim is statutorily capped at

$50,000 because Olymbec employed fewer than 100 employees during

the relevant time. (ECF No. 32 at 8-9) (citing 42 U.S.C.

§ 1981a[(b)](3)(A)). Chapman argues that there is a genuine

dispute of material fact about the number of Olymbec employees,

which precludes summary judgment. (ECF No. 36 at 10.)

Alternatively, Chapman argues that the “integrated enterprise

doctrine” supports a finding that Olymbec employs between 201

and 500 employees, raising the statutory cap to $200,000. (See

id. at 10-11); 42 U.S.C. 1981a(b)(3)(C). As a further

alternative, Chapman asks the Court to grant additional

discovery on this issue under Federal Rule of Civil Procedure

56(d). (ECF No. 36 at 11.)

Forty-two U.S.C. § 1981a(b)(3) caps the amount of

compensatory and punitive damages a plaintiff can receive for

discrimination claims brought under the ADA. Szeinbach v. Ohio

State Univ., 820 F.3d 814, 820 (6th Cir. 2016). The cap is

determined by “a sliding scale that varies with” the number of

employees the employer employed during the period in which the

discrimination took place. Hall v. Consol. Freightways Corp. of

Delaware, 337 F.3d 669, 676 (6th Cir. 2003). For employers who

have “more than 14 and fewer than 101 employees” the cap is

$50,000. 42 U.S.C. § 1981a(b)(3)(A). For employers who have

“more than 100 and fewer than 201 employees” the cap is

$100,000. Id. at § 1981a(b)(3)(B). For employers who have

“more than 200 and fewer than 501 employees” the cap is

$200,000. Id. at § 1981a(b)(3)(C). The defendant bears the

initial burden of proving the number of employees. Sommers-

Wilson v. Samsung SDI Am., Inc., 2019 WL 1556343, at *1 (E.D.

Mich. Apr. 10, 2019) (citing Herring v. SCI Tenn. Funeral

Servs., LLC, 2018 WL 2399050, at *6 (E.D. Tenn. May 24, 2018)).

If the defendant satisfies its burden, the burden shifts to the

plaintiff to refute the defendant’s proof or “prove that the

number of employees should also include the employees at some

other entity.” Id. (citing Shipley v. Hypercom Corp., 2012 WL

12872905, at *8 n.15 (N.D. Ga. Apr. 10, 2012) (collecting

cases)).

A decision on this issue would be premature. Motions to

apply § 1981a(b)(3)’s statutory cap to jury verdicts are

normally brought and decided by courts at the post-trial stage

as motions for remittitur and/or motions for alteration of

judgment. See, e.g., Sommers-Wilson, 2019 WL 1556343, at *1;

Williams v. Sims Bros., 889 F. Supp. 2d 1007, 1007 (N.D. Ohio

2012); Quinn v. Pipe & Piling Supplies (U.S.A.) Ltd., 2011 WL

2470063, at *1 (W.D. Mich. June 20, 2011); Hamlin v. Charter

Twp. of Flint, 965 F. Supp. 984, 988 (E.D. Mich. 1997); see also

Parrish v. Sollecito, 280 F. Supp. 2d 145, 155 (S.D.N.Y. 2003)

(“[O]nly after a verdict is submitted, the trial court must

ensure that any award complies with the relevant statutory

maximums applicable.”) (citing Luciano v. The Olsten Corp., 110

F.3d 210, 221 (2d Cir. 1997)); 2 Americans with Disabilities

Practice & Compliance Manual § 7:437 (“The jury may award

whatever amount of damages it sees fit, and then, after the

verdict is submitted, the trial court must ensure that any award

complies with the relevant statutory maximums applicable,

reducing the award if necessary.”).

“‘A court, in its discretion in shaping the case for trial,

may deny summary judgment as to portions of the case that are

ripe therefor, for the purpose of achieving a more orderly or

expeditious handling of the entire litigation.’” Jacob v.

Killian, 437 F. App’x 460, 467 (6th Cir. 2011) (quoting Powell

v. Radkins, 506 F.2d 763, 765 (5th Cir. 1975) (citation

omitted)). Because Olymbec’s liability and the amount of

compensatory and punitive damages, if any, have yet to be

determined, deciding this issue post-judgment would achieve a

“more orderly” resolution. See Jacob, 437 F. App’x at 467.

Olymbec’s Motion for Partial Summary Judgment on this issue is

DENIED.

Chapman asks the Court to allow her to conduct further

discovery under Rule 56(d). (ECF No. 36 at 11.) She submits by

affidavit that the “specific reasons” she “cannot present facts

essential to justify opposition” is because “to date, [Olymbec]

has not provided any discovery or documents related to its

number of employees or interrelated nature of its business

operations with [Olymbec Global,] and “[p]ursuant to [Olymbec’s]

Initial Disclosures, no documents or information related to the

amount of employees Olymbec was claiming were provided to me as

a party.” Fed. R. Civ. P. 56(d); (ECF No. 38-6 ¶¶ 7, 8.)

Olymbec responds that it raised the statutory cap in its Answer

as an affirmative defense, (ECF No. 29 at 6), and Chapman “chose

not to conduct any discovery on th[e] issue.” (ECF No. 40 at 5

n.3.)

The deadline for discovery in this case was November 22,

2019. (ECF No. 26.) Before that deadline, the parties took

depositions of Chapman and Berger. (ECF Nos. 39-1, 39-2.)

During her deposition, Berger was specifically asked about the

structure of Olymbec USA, its relationship to Olymbec Global,

and the number of employees the Memphis office of Olymbec USA

employed. (ECF No. 39-1 at 10:8-11:10; 104:12-105:9.) Chapman

had ample opportunity to discover evidence about her integrated

enterprise theory and the number of employees that Olymbec USA

employed. (See id.) Chapman has not shown good cause for

extending discovery. See York v. Tenn. Crushed Stone Ass’n, 684

F.2d 360, 363 (6th Cir. 1982). Chapman’s request for additional

discovery is DENIED.

V. Conclusion

For the foregoing reasons, Olymbec’s Motion for Partial

Summary Judgment is DENIED in part and GRANTED in part.

So ordered this 23rd day of April, 2020.

/s/ Samuel H. Mays, Jr.

SAMUEL H. MAYS, JR.

UNITED STATES DISTRICT JUDGE