Gagliardo v. Connaught Lab Inc

Opinions of the United

2002 Decisions States Court of Appeals

for the Third Circuit

11-22-2002

Gagliardo v. Connaught Lab Inc

Precedential or Non-Precedential: Precedential

Docket No. 01-4045

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PRECEDENTIAL

Filed November 22, 2002

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-4045

JANE A. GAGLIARDO;

JOHN GAGLIARDO

v.

CONNAUGHT LABORATORIES, INC.,

Appellant

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 97-cv-00768)

District Judge: The Honorable Yvette Kane

Submitted Under Third Circuit LAR 34.1(a)

October 29, 2002

Before: NYGAARD, GARTH and MICHEL,*

Circuit Judges.

(Filed: November 22, 2002)

_________________________________________________________________

* Honorable Paul R. Michel, Circuit Judge, United States Court of

Appeals for the Federal Circuit, sitting by designation.

Carl J. Greco, Esq.

4th Floor

327 North Washington Avenue

Professional Arts Building

Scranton, PA 18503

Counsel for Appellant

Patrick J. Reilly, Esq.

Gross McGinley LaBarre & Eaton

33 South 7th Street

PO Box 4060

Allentown, PA 18105

Counsel for Appellees

OPINION OF THE COURT

MICHEL, Circuit Judge.

Plaintiff-appellee Jane Gagliardo ("Gagliardo") sued

Connaught Laboratories, Inc. ("CLI") for employment

discrimination in the United States District Court for the

Middle District of Pennsylvania. After a trial, the jury found

CLI’s dismissal of Gagliardo violated both the Americans

with Disabilities Act ("ADA"), 42 U.S.C. S 12101 et seq., and

the Pennsylvania Human Relations Act ("PHRA"), 43 Pa.

Cons. Stat. S 955 et seq., and awarded Gagliardo 2.5

million dollars. CLI appeals the district court’s denial of its

motion for judgment as a matter of law ("JMOL"), denial of

its motion for a new trial or remittitur, and denial in part

of its motion to alter or amend the judgment to comply with

42 U.S.C. S 1981a(b)(3)(D) (limiting the damage amount

recoverable under the ADA).

We affirm the district court’s judgment in all respects

challenged before us.

I.

Gagliardo began working for CLI in 1987. In 1992 she

became a customer account representative and continued

in that capacity until her dismissal. Gagliardo’s

responsibilities in that position included receiving calls,

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handling accounts, answering customers’ questions, and

supporting the sales force. Gagliardo was also responsible

for a special project -- the handling of military orders. For

most of her years with CLI, Gagliardo was by all accounts

a capable employee.

Gagliardo’s life began to change in 1992 or 1994 when

she was diagnosed with Multiple Sclerosis ("MS").1

Gagliardo’s symptoms varied over time and included muscle

spasms, fatigue, and numbness in her hands, back, and

legs. The most severe of these symptoms was Gagliardo’s

fatigue. The fatigue affected her ability to think, focus, and

remember. All of Gagliardo’s symptoms were subject to

being exacerbated by stress.

These symptoms began affecting her at work in 1995,

after which she requested the lowering of the temperature

in her workspace as an accommodation. Thereafter,

Gagliardo began to make mistakes at work. In November of

1995 Gagliardo discussed the burden of her military orders

project with her then-supervisor, Wayne Neveling,

expressing concern that this burden was adversely affecting

her ability to do other required work. After that

conversation, Neveling endeavored to analyze the effect of

the military orders on Gagliardo’s performance -- a task

that was never completed.

Beginning in February 1996, Gagliardo’s new supervisor,

Judith Stout, took Gagliardo through the CLI disciplinary

process for poor job performance. Getting first an oral

warning, Gagliardo then received a written caution,

retraining, probation, and ultimately dismissal. Throughout

this process, Gagliardo continued to believe she could

reduce her mistakes if the military orders responsibility was

taken away from her, but this never happened. Also during

this process, Gagliardo met with Christine Kirby, CLI’s

manager of employee communications and human

resources information systems. It was Kirby’s responsibility

to counsel CLI employees and managers on the

_________________________________________________________________

1. MS is a permanent disorder of the brain and spinal cord in which the

body identifies the covers of the nerves as foreign and attacks them. As

a result, the nervous system of the afflicted person does not function as

it should.

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requirements of the ADA. In Gagliardo’s conversations with

Kirby, Gagliardo indicated that her MS was interfering with

her job performance. Kirby, herself an MS sufferer, later

acknowledged that removal of the military project would

have been a reasonable accommodation, but also

acknowledged that CLI had not provided that

accommodation. CLI terminated Gagliardo’s employment on

May 29, 1996 because of her continued errors and failure

to follow procedures.

In July of 1996 Gagliardo filed a complaint alleging

disability and age discrimination with the Pennsylvania

Human Relations Commission. Gagliardo later sued CLI in

the United States District Court for the Middle District of

Pennsylvania alleging discrimination under both the ADA

and the PHRA. The case was tried to a jury in September

2000.

The jury returned a verdict in favor of Gagliardo on both

the ADA and PHRA claims and awarded her $2,000,000 in

compensatory damages and $500,000 in punitive damages.

After trial CLI filed a motion to alter or amend judgment to

comply with 42 U.S.C. S 1981a, motion for JMOL, and a

motion for a new trial or remittitur. The district court

granted in part and denied in part the motion to alter or

amend (lowering the punitive damages award to $300,000),

but denied CLI’s other motions. The court’s decisions were

filed on September 28, 2001.

On October 29, 2001 CLI appealed to this court. We have

jurisdiction pursuant to 28 U.S.C. S 1291.

II.

We have plenary review of a district court’s order denying

JMOL. Warren v. Reading Sch. Dist., 278 F.3d 163, 168 (3d

Cir. 2002). Accordingly, we apply those standards that the

district court applied. JMOL under Fed. R. Civ. P. 50 is

appropriate only where, "viewing the evidence in the light

most favorable to the non-movant and giving it the

advantage of every fair and reasonable inference, there is

insufficient evidence from which a jury could reasonably

find liability." Id. (quoting Fultz v. Dunn, 165 F.3d 215, 218

(3d Cir. 1998)). On appeal, CLI asserts that JMOL as to

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liability was appropriate because, they argued, Gagliardo

failed to make out a prima facie case under the ADA and

PHRA.2

To establish a prima facie case under the ADA a plaintiff

must show: (1) she is disabled within the meaning of the

ADA; (2) she is otherwise qualified to perform the essential

functions of the job; and (3) she has suffered an adverse

employment decision because of discrimination. Taylor v.

Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999).

CLI challenges only the first element, that being whether

Gagliardo was disabled.

The ADA defines "disability" as: "(A) a physical or mental

impairment that substantially limits one or more of the

major life activities of such individual . . . or (C) being

regarded as having such an impairment." 42 U.S.C.

SS 12102(2)(A)-(C) (2000). At trial, Gagliardo presented

evidence relevant to both (A) and (C) above, and on appeal

CLI challenges its sufficiency as to both claims. With regard

to (A), the district court, in its order denying JMOL,

determined that "[t]he chronic fatigue and resulting

forgetfulness brought on by multiple sclerosis prevented

Plaintiff from participating in major life activities of thinking

and remembering." In addition, as to (C), the court

concluded "[t]estimony of company representatives

established that Plaintiff had a record of an impairment

and was regarded as disabled." On appeal, CLI fails to

persuade us that the district court erred in its

determinations that sufficient evidence supported the jury’s

verdict.

CLI first argues that Gagliardo offered no proof she was

limited in any major life activity. Gagliardo, however,

submitted evidence she was limited in the major life

activities of concentrating and remembering (more

generally, cognitive function). Our court has held that such

activities are major life activities. See Taylor , 184 F.3d at

_________________________________________________________________

2. Because liability under the PHRA is premised upon language similar

to that of the ADA and because that language is generally interpreted in

accordance with the judicial construction of the ADA, we address only

the language of the ADA in our analysis. See Kelly v. Drexel Univ., 94

F.3d 102, 105 (3d Cir. 1996).

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307 (holding thinking is a major life activity); see also

EEOC Guidelines, 29 C.F.R. S 1630.2(i), and Department of

Health and Human Services Rehabilitation Act Regulations,

45 C.F.R. S 84.3(j)(2)(ii) (listing examples of major life

activities, including learning and working).

CLI next argues that the testimony fails to show

Gagliardo was "substantially limited" in the activities of

concentrating and remembering. CLI cites the recent

Supreme Court case of Toyota Motor Manufacturing,

Kentucky, Inc. v. Williams, 122 S. Ct. 681 (2002), in which

the Court held that "to be substantially limited in

performing manual tasks, an individual must have an

impairment that prevents or severely restricts the individual

from doing activities that are of central importance to most

people’s daily lives. The impairment must also be

permanent or long-term." Id. at 691 (citing 29 C.F.R.

SS 1630.2(j)(2)(ii)-(iii) (2001)). In the EEOC’s regulations,

"substantially limited" is defined as: "Significantly restricted

as to the condition, manner or duration under which an

individual can perform a particular major life activity as

compared to the condition, manner or duration under

which the average person in the general population can

perform that same major life activity." 29 C.F.R.S 1630.2(j).

The regulations list several factors for evaluating whether

someone is "substantially limited": "(i) The nature and

severity of the impairment; (ii) The duration or expected

duration of the impairment; (iii) The permanent or long

term impact, or the expected permanent or long term

impact of or resulting from the impairment." Id.

S 1630.2(j)(2).

Contrary to CLI’s assertions, we hold that Gagliardo did

present witnesses from whose testimony a jury could

reasonably conclude she was substantially limited in her

ability to concentrate and remember. First, Gagliardo’s

physician, Dr. Barbour, testified that there was no cure for

MS and that the MS produced Gagliardo’s fatigue. Dr.

Barbour also expressed his opinion as an expert that

Gagliardo was substantially limited in her ability to, among

other things, learn, work, and think. Second, Gagliardo

testified she experienced muscle spasms and fatigue. Third,

four of Gagliardo’s coworkers testified as to her fatigue and

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muscle spasms. Fourth, Gagliardo produced evidence that

her supervisor recognized her memory and concentration

problems, having provided Gagliardo with video and audio

tapes to assist Gagliardo in overcoming her memory

problems. Lastly, Gagliardo’s son and her husband

similarly testified that she was often fatigued and had

trouble concentrating and focusing.

Therefore, we conclude that there was sufficient evidence

that Gagliardo was "disabled" within the meaning of the

ADA to support the jury’s verdict. Because of this

conclusion, we need not address Gagliardo’s alternative

theory that CLI regarded her as being disabled. We affirm

the district court’s denial of CLI’s motion for JMOL.

III.

We review de novo a district court’s interpretation of a

statute. Idahoan Fresh v. Advantage Produce, Inc., 157 F.3d

197, 202 (3d Cir. 1998). The statute at issue limits the

damages available to a claimant under certain federal

statutes, including the ADA. 42 U.S.C. S 1981a(a)(2) (2000).

The "cap" applies to both punitive and compensatory

damages and depends on the number of persons employed

by the defendant. Id. S 1981a(b)(3). The specific cap

applicable in this case is $300,000. Id.S 1981a(b)(3)(D).

Gagliardo sued under the ADA, which is subject to the cap,

and the PHRA, which is not. The jury did not apportion

damages between the claims, instead granting a general

verdict of $2,000,000 in compensatory and $500,000 in

punitive damages. On CLI’s motion to alter or amend the

judgment, the district court applied the federal cap to only

the punitive damages,3 lowering them to $300,000, and

apportioned all the compensatory damages to Gagliardo’s

PHRA claim. Thus, on appeal we are presented with the

issue of whether the statutory cap of S 1981a applies to the

entirety of the damages where the jury awarded them

_________________________________________________________________

3. The district court rightly concluded that the jury awarded the punitive

damages under plaintiff ’s ADA claim -- and therefore subjected them to

the S 1981a cap -- because punitive damages are not available under the

PHRA. See Hoy v. Angelone, 691 A.2d 476, 483 (Pa. Super. Ct. 1997).

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unapportioned between a capped federal claim and a

virtually identical, uncapped state claim.

On appeal, CLI argues the district court’s apportionment

constituted reversible error because, according to CLI,

S 1981a applies to all similar claims in a single lawsuit. On

this issue of first impression in our circuit, we instead

accept the sound reasoning of the district court and two of

our sister circuits and hold that S 1981a does not prevent

a claimant from recovering greater damages under a state

law claim that is virtually identical to a capped federal

claim. Passantino v. Johnson & Johnson, 212 F.3d 493, 510

(9th Cir. 2000) (discussing Title VII and the Washington

Law Against Discrimination); Martini v. Fed. Nat’l Mortgage

Ass’n, 178 F.3d 1336, 1349-50 (D.C. Cir. 1999) (discussing

Title VII and the District of Columbia Human Rights Act). In

Passantino and Martini, the courts focused on the effect a

broader application of S 1981a would have on recovery

under state law claims corresponding to capped federal

claims. Both courts recognized the federal law at issue,

Title VII, contained an express prohibition against limiting

state remedies. Passantino, 212 F.3d at 510; Martini, 178

F.3d at 1349-50. Importantly, the ADA also contains such

a prohibition: "Nothing in this chapter shall be construed to

invalidate or limit the remedies, rights, and procedures of

any Federal law or law of any State . . . that provides

greater or equal protection for the rights of individuals with

disabilities than are afforded by this chapter." 42 U.S.C.

S 12201(b) (2000). Here, the PHRA, with its similar

language and applicability, clearly provides a cause of

action nearly identical to that of the ADA. The fact that the

PHRA does not contain a damages cap further indicates

that it was intended to provide a remedy beyond its federal

counterpart, the ADA. As the courts in Passantino and

Martini recognized, subjecting such state law claims to the

federal cap would effectively limit a state’s ability to provide

for greater recovery than allowed under the corresponding

federal law. Passantino, 212 F.3d at 510; Martini, 178 F.3d

at 1349-50. Imposing such a limitation would violate the

federal law’s prohibition on limiting state remedies. Id.

As noted by the Ninth Circuit in Passantino and the trial

court, a district court’s obligation to uphold lawful jury

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awards whenever reasonable further supports the

apportionment of damages between the state and federal

claims present here. Passantino, 212 F.3d at 510; see also

Motter v. Everest & Jennings, Inc., 883 F.2d 1223, 1230 (3d

Cir. 1989). In this case, given the similarity of the claims

and the jury’s unapportioned award of damages, it is

reasonable to infer that the jury intended to award its

entire verdict to Gagliardo. Because there is no cap under

the PHRA, it was entirely reasonable for the trial court to

apportion the damages so as to allow Gagliardo to recover

the entire jury award, as reduced by the district court.

In light of this reasoning, we are not persuaded by CLI’s

offering of contrary authority. Two of these cases are easily

distinguishable because they involve multiple federal

claims. Smith v. Chicago Sch. Reform Bd., 165 F.3d 1142,

1148 (7th Cir. 1999) (discussing claims under 42 U.S.C.

S 1981 and Title VII); Hudson v. Reno, 130 F.3d 1193, 1196

(6th Cir. 1997) (analyzing claims under Title VII, the Equal

Pay Act, 29 U.S.C. S 206(d), and the Privacy Act, 5 U.S.C.

S 552a). Moreover, these cases simply do not stand for the

propositions CLI argues. Indeed, the issue in Smith and

Hudson was whether a party could recover under separate

and distinct episodes of discrimination in a single lawsuit

under a federal cause of action that was subject to the

S 1981a cap. Smith, 165 F.3d at 1150; Hudson, 130 F.3d at

1199. In Hudson, the district court had found in favor of

the plaintiff only on her Title VII claims; thus the issue

before the Sixth Circuit was whether the S 1981a cap

applied to each claim or to the lawsuit as a whole. Hudson,

130 F.3d at 1196, 1199-1200 (denying plaintiff recovery of

damages above cap where jury awarded $250,000 for sex

discrimination, $500,000 for retaliation, and $750,000 for

the constructive discharge). Similarly in Smith , the Seventh

Circuit did not remand the plaintiff ’s S 1981 claim, holding

instead that her evidence could not support such a claim.

Smith, 165 F.3d at 1149. Therefore, its discussion of

S 1981a was limited to whether the cap applied to each

claim or incident of discrimination under Title VII. Id. at

1150 (denying recovery beyond the S 1981a cap where

plaintiff contended she had three claims of discrimination

-- one for each school that discriminated against her); see

also id. at 1148 ("The bulk of the damages depends on

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S 1981, because a Title VII award is subject to a statutory

cap.") Both courts relied on the plain language of S 1981a

to conclude that the cap limited recovery per lawsuit under

the capped federal statute, rather than per claim. Smith,

165 F.3d at 1150-51; Hudson, 130 F.3d at 1200-01. The

issue presented in the case at bar is wholly different.

Gagliardo is not attempting to circumvent the damages cap

by asserting multiple claims of discrimination under a

federal law; rather she urges the apportionment of the

jury’s verdict between two nearly identical causes of action,

one under a federal law and one under a state law.

The one case CLI cites that is on point is Oliver v. Cole

Gift Centers, Inc., 85 F. Supp. 2d 109 (D. Conn. 2000). In

Oliver, the district court, on defendant’s post-verdict

motion, declined to apportion damages between Title VII

and the Connecticut Fair Employment Practices Act. Id. at

114. The court acknowledged it was going against the

weight of authority, but found apportionment would be

inappropriate because it "would contravene the policies

underlying both the Congressional limitation on recovery

under Title VII and the limitation on punitive damages

under Connecticut law." Id. Although CLI urges us to adopt

the Oliver court’s reasoning and holding, we decline. Rather

than contravening any federal or state policy, we instead

conclude that our decision "to permit [Gagliardo] to benefit

from the remedy provided by state law does not conflict

with the congressional purpose of making [Federal]

employment discrimination awards reasonable, and is

expressly provided for in the statute." Luciano v. Olsten

Corp., 912 F. Supp. 663, 675 (E.D.N.Y. 1996).

In sum, we hold that S 1981a does not prohibit

apportionment of damages between claims, one under a

capped federal statute and another under a corresponding

uncapped state statute, so that the verdict winner gets the

maximum amount of the jury award that is legally

available. We base our holding on the ADA’s explicit

language which prohibits limiting state remedies, the policy

of upholding reasonable jury verdicts, and the power of

persuasive authority from two other circuit courts.

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IV.

We review a district court’s denial of a motion for a new

trial for abuse of discretion. Olefins Trading, Inc. v. Han

Yang Chem. Corp., 9 F.3d 282, 289 (3d Cir. 1993).

Similarly, we review a district court’s denial of a motion for

remittitur for an abuse of discretion. Starceski v.

Westinghouse Elec. Corp., 54 F.3d 1089, 1100 (3d Cir.

1995). A court may grant a new trial "where a miscarriage

of justice would result if the verdict were to stand." Olefins,

9 F.3d at 289 (citations and quotations omitted). On

appeal, CLI asserts three grounds for a new trial: (1) the

trial court’s failure to adopt two proposed jury instructions;

(2) the jury’s improper award of punitive damages; and (3)

the jury’s award of damages was so disproportionate to the

injury that it "shocks the conscience of the court." We

address each in turn.

A.

CLI takes issue with the district court’s refusal to adopt

two of its proposed jury instructions. First, CLI states that

the court should have instructed the jury that Gagliardo

was an "at-will employee" and therefore CLI was free to

terminate her employment so long as it wasn’t for

discriminatory reasons. As the court below noted, the

authority CLI cited does not require a district court to give

such a charge. See Pivirotto v. Innovative Sys., Inc., 191

F.3d 344 (3d Cir. 1999). In Pivirotto the plaintiff in a Title

VII case argued the district court’s inclusion of a similar

charge constituted reversible error. Id. at 350. This court

held otherwise, noting that although the inclusion of an at-

will instruction was not erroneous, "[t]he better practice

may be for a district court to not give such an instruction

in a statutory discrimination suit." Id. at 350 n.2. Thus, no

cited authority holds that inclusion of this charge is a legal

necessity. Further, CLI offers no specific reason or facts

demonstrating that this charge was necessary in this case.

Second, CLI contends the district court erred in not

instructing the jury that the mere diagnosis of MS does not

establish a statutory disability. CLI claims this instruction

was necessary because the court did instruct the jury that

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MS is an impairment within the meaning of the ADA. This

instruction was not prejudicially erroneous, however,

because the court also instructed the jury that the

disability must substantially limit a major life activity.

Hence, the jury was fully aware that the impairment itself

did not establish a disability within the meaning of the

ADA. Looking at the instructions as a whole, we hold the

district court did not abuse its discretion by failing to

include the requested clarifying instruction.

B.

CLI also claims there was insufficient evidence relevant to

punitive damages to submit the question to the jury and

that the jury failed to follow the instruction in awarding

such damages. Punitive damages are available under the

ADA when "the complaining party demonstrates that the

respondent engaged in a discriminatory practice . . . with

malice or with reckless indifference." 42 U.S.C.

S 1981a(b)(1) (2000). These terms focus on the employer’s

state of mind and require that "an employer must at least

discriminate in the face of a perceived risk that its actions

will violate federal law." Kolstad v. Am. Dental Ass’n, 527

U.S. 526, 535-36 (1999).

As the trial court concluded, Gagliardo produced

sufficient evidence of CLI’s reckless indifference toward her

statutory disability rights. Gagliardo presented evidence

that CLI -- through its employees -- was aware she had

MS. For example, Gagliardo produced evidence that her last

supervisor, Judith Stout, and CLI’s human resources

representative, Christine Kirby, discussed Gagliardo’s MS

prior to Gagliardo’s dismissal. Gagliardo also produced

evidence that Stout requested information concerning MS.

She also offered evidence that she advised CLI of the

limitations her condition imposed on her ability to perform

her job and that a high level CLI employee -- herself an MS

sufferer -- counseled Gagliardo regarding the impact of the

disease. In addition, Gagliardo produced evidence that she

had requested accommodation on multiple occasions and

that CLI refused to act on any of those requests. Finally,

Gagliardo demonstrated that CLI was aware of her federal

disability rights, as Christine Kirby testified she was

12

familiar with the ADA and responsible for ensuring CLI

followed the ADA. In sum, there was sufficient evidence to

support the jury’s award of punitive damages.

C.

CLI argues chiefly that the excessiveness of the jury’s

award mandates a new trial or remittitur. The jury awarded

$2.0 million in compensatory damages and another

$500,000 (later reduced to $300,000) in punitive damages.

Gagliardo’s expert testified her economic loss was $450,000

so we assume the remaining $1.55 million of the jury’s

verdict on compensatory damages was for pain and

suffering. CLI attacks only these emotional damages on

appeal, arguing their excessiveness compels either a new

trial or remittitur.

To recover emotional damages a plaintiff must show"a

reasonable probability rather than a mere possibility that

damages due to emotional distress were in fact incurred [as

a result of an unlawful act]." Spence v. Bd. of Ed., 806 F.2d

1198, 1201 (3d Cir. 1986). The district court found this

standard to be met because Gagliardo produced evidence

from her co-workers and family demonstrating the effects

her problems with CLI had on her life. This testimony tied

Gagliardo’s pain and suffering to her early employment

problems after she was diagnosed with MS and detailed

their subsequent worsening effect on her life. The testimony

demonstrated the effects of the mental trauma,

transforming Gagliardo from a happy and confident person

to one who was withdrawn and indecisive. Because this

evidence establishes a reasonable probability that Gagliardo

incurred the emotional damages, we hold that the trial

court did not abuse its discretion by allowing the jury’s

verdict to stand. See id. Therefore, we affirm the district

court’s denial of CLI’s motion for a new trial. In addition, in

light of this evidence we also hold the trial court did not

abuse its discretion in finding the jury’s verdict is not so

excessive as to be unsupportable or offend the conscience

of the court, and therefore denying remittitur. See, e.g.,

Gumbs v. Pueblo Intern., Inc., 823 F.2d 768, 771 (3d Cir.

1987) ("This court has noted that our review of this

question is severely limited: we may disturb the district

13

court’s determination only if the verdict is so grossly

excessive as to shock the judicial conscience.") (citations

and quotation marks omitted).

In sum, we affirm the district court’s denial of CLI’s

motion for a new trial or for remittitur.

V.

For the foregoing reasons, we affirm the judgment of the

district court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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