Virginia Lawyers Weekly//September 7, 2023
Virginia Lawyers Weekly//September 7, 2023//
Because plaintiffs asserting claims for retaliation under the Americans with Disabilities Act, or ADA, are only entitled to equitable remedies, the court joined every other circuit to consider the issue in holding that ADA-retaliation plaintiffs are not guaranteed a jury trial by the Seventh Amendment.
While working an IT position at Enterprise Services LLC, Jeffrey Israelitt says he was discriminated against because he has disability — an arthritic big toe. After he was fired, he brought claims under the ADA.
At the summary-judgment stage, the district court held that Israelitt does not have a “disability,” and so it rejected every claim except retaliation. And, after reasoning that the Seventh Amendment does not guarantee a jury trial for ADA-retaliation plaintiffs, the district court struck Israelitt’s jury-trial demand. Following the bench trial, the district court entered judgment for Enterprise Services.
There is no evidence that Israelitt’s toe condition impacts his walking in any non-minor way. In fact, the record reveals quite the opposite: Israelitt often walked at length—unassisted—for both business and pleasure. So Israelitt does not have a “disability” within the meaning of the ADA. Thus, despite citing an outdated regulation requiring a “significant restriction,” the district court was right to reject Israelitt’s discrimination, wrongful discharge, failure to accommodate and hostile work environment claims at summary judgment.
This leaves only Israelitt’s retaliation claim. The district court held that most of Enterprise Services’s allegedly retaliatory actions — specifically, removing Israelitt from the daily calls and excluding him from the D.C. conference and Florida trip — were not adverse enough to qualify as unlawful retaliation since they did not cause significant harm. Because retaliatory adverse actions must cause significant harm to be actionable, the district court properly rejected those adverse actions.
The EEOC disagrees. It argues the district court applied the wrong standard. Retaliation claims require showing that a plaintiff suffered a “materially adverse” action. The district court did not use the word “material” in its opinion. Nor did it expressly discuss whether Enterprise Services’s actions would have “dissuaded a reasonable worker” from taking a protected action — the Supreme Court’s standard for a materially adverse action.
But the district court was correct that Israelitt’s discrimination claims failed absent a showing that Enterprise Services’s actions caused him some significant detriment. It may not have specifically used the term “materially adverse.” But by looking for “significant” harm that could have existed beyond the scope of the workplace, the district court stayed true to the “materially adverse” standard. Because Israelitt could not show significant harm resulting from the non-termination actions, those bases for the retaliation claim failed.
The Seventh Amendment’s guarantee has been extended “to all suits, whether at common law or arising under federal legislation, where legal rights are involved.” Every circuit court to answer that question, including this circuit in unpublished opinions, has held that ADA retaliation plaintiffs are not entitled to legal damages.
This court now adopts that reading in a published opinion. That means ADA-retaliation plaintiffs are not guaranteed a jury trial by the Seventh Amendment. And the ADA itself doesn’t provide that right either. Accordingly, Israelitt had no right to present his retaliation claim to a jury.
Israelitt finally argues that the district court erred in holding that he did not prove causation at trial. His challenge boils down to an argument that the district court improperly considered an exhibit that was not admitted into evidence during trial.
While it’s true the district court cited an exhibit that was not admitted at trial, that was one of many pieces of evidence the district court relied on in reaching its determination. Even if the performance review was inadmissible evidence the court should not have considered, this court cannot say that the district court clearly erred in holding that Israelitt could not establish causation.
Israelitt v. Enterprise Services LLC, Case No. 22-1382, Aug. 16, 2023. 4th Cir. (Richardson), from DMD at Baltimore (Gallagher). Levi S. Zaslow for Appellant. James P. Driscoll-MacEachron for Amicus Curiae Equal Employment Opportunity Commission. Heather Folsom Crow for Appellee. VLW 023-2-231. 25 pp.