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USCA1 Opinion

August 21, 1995


UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

____________________

No. 95-1168

DONALD HOGAN,

Plaintiff, Appellee,

v.

BANGOR AND AROOSTOOK RAILROAD COMPANY,

Defendant, Appellant.

____________________

No. 95-1169

DONALD HOGAN,

Plaintiff, Appellant,

v.

BANGOR AND AROOSTOOK RAILROAD COMPANY,

Defendant, Appellee.

____________________

ERRATA SHEET

The opinion of this court issued on August 18, 1995 is amended


follows:

On the cover sheet, substitute "On Appeals" for "On Appeal".

On the cover sheet, substitute "for Bangor


Company" for "for appellant".

and Aroostook Railr

On

the

cover

sheet,

substitute

"for

Donald

appellee".

UNITED STATES COURT OF APPEALS


FOR THE FIRST CIRCUIT

Hogan" for

"

____________________

No. 95-1168

DONALD HOGAN,

Plaintiff, Appellee,

v.

BANGOR AND AROOSTOOK RAILROAD COMPANY,

Defendant, Appellant.

____________________

No. 95-1169

DONALD HOGAN,

Plaintiff, Appellant,

v.

BANGOR AND AROOSTOOK RAILROAD COMPANY,

Defendant, Appellee.

____________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF MAINE

[Hon. Eugene W. Beaulieu, U.S. Magistrate Judge]


_____________________

____________________

Before

Selya, Cyr, and Lynch, Circuit Judges.


______________

____________________

James E. Howard, with


________________

whom M. Katherine Willard


_____________________

Gallagher were on brief, for appellant.


_________
William J. Kelleher for appellee.
___________________

____________________
August 18, 1995
____________________

and Phoebe
_______

LYNCH, Circuit Judge.


LYNCH, Circuit Judge.
_____________

an employee return

views as

Disabilities

action

brought

difference of

medical

was fit gave rise

to this

under

Act ("ADA"), 42 U.S.C.

the

Americans

with

12101 et seq., and the


__ ____

Human Rights Act ("MHRA"), Me. Rev. Stat. Ann. tit. 5,

4561

et seq. (West 1989).


__ ____

plaintiff Donald

in this

Circuit on

imposed

by 42 U.S.C.

statute is

damages

A jury verdict in

Hogan of $400,000, reduced

court to $200,000, gives

the

out of a

to whether the employee

discrimination

Maine

to work

An employer's refusal to let

rise to a case of

the meaning of

1981a(b)(3).

clear, the

to $200,000

is

by the district

first impression

the cap

on ADA

damages

Because the language of

reduction of

affirmed.

favor of the

The

the jury

award of

challenges of

the

defendant

Bangor

and

Aroostook

Railroad

("BAR")

to

the

sufficiency of the evidence to support the $200,000 award and

to the additional back pay

as

is

Hogan's challenge

award of $70,684.29 are rejected,

to the

denial

of his

motion for

BAR since 1970,

suffered a

prejudgment interest.

Hogan, a

trackman for

collapsed lung while at work in February 1992.

to remove a

lobe of his lung, Hogan was told on May 20, 1992

by Dr. Cabot that he was fit to return to work.

BAR's

After surgery

Chief

Medical

Officer

and

family

Dr.

Sagall,

practitioner,

examined Hogan and, based on what he professed to be abnormal

pulmonary

function tests,

concluded Hogan

was not

able to

return to his physically demanding job.

that Hogan

Dr. Sagall believed

suffered from bullous disease

and emphysema, and

that this increased Hogan's risk of lung collapse.

Despite

mounting medical evidence to the contrary,

Dr. Sagall clung to his

years.

Hogan's

belief for more than two and

physician,

Dr.

Cabot,

examination

again repeated that Hogan

feeling Dr.

Cabot did

based

was fit.

not understand how

on

a half

later

Dr. Sagall,

strenuous Hogan's

job was, again

Sagall,

told Hogan he could not return

however, failed

to

discuss Hogan

to work.

with Dr.

Dr.

Cabot,

failed to ascertain if Dr. Cabot did misunderstand the nature

of

the job, and failed to

revealed whether

Hogan in

bullous disease.

until

January

directed

so

addition, CAT-scan

1992 would

fact suffered from

Indeed, Dr. Sagall did

1993,

to do

have x-rays done which would have

after

by the

Hogan had

Railway

not request x-rays

brought

suit,

when

Retirement Board.

In

results available to Dr.

have disclosed, if

emphysema and

Sagall in March

reviewed, that Hogan

did not

suffer from emphysema.

By

an

January 1993 BAR had been given an opinion from

acknowledged pulmonary

specialist,

Dr. Oldenburg,

that

Hogan could return to work.

swaying BAR than did

This opinion fared no better in

Dr. Cabot's opinion.

Dr.

Sagall again

felt no need to contact Dr. Oldenburg and discuss Hogan.

-33

In October 1993, BAR requested that Hogan undergo a

Functional

Capacity

Test

prepared

specifically

for

him.

There was no guarantee that if Hogan passed the test he would

be

allowed to

return to work.

Hogan

refused to

take the

test.

In November 1994, after trial had started and after

examinations

by

both

Dr.

Oldenburg and

Dr.

Sagall,

BAR

kept

out of

work

reinstated Hogan to his job as trackman.

In

despite

the period

that

Hogan was

his doctors' opinions that he was fit, Hogan and his

family were forced to live on a fraction of his former income

as family

him that

breadwinner.

he was

Dr. Sagall's

disabled

and the

repeated statements to

disability was

permanent exacerbated Hogan's depressed state.

probably

The

awarded

damages.

jury found in Hogan's favor

him $200,000

The district

$200,000

($100,000

pursuant

to

the

1981a(b)(3).

back pay.

district

each in

court

punitive and

in compensatory

court then reduced

compensatory

statutory

In addition,

As an

under the ADA and

cap

and

Hogan's award to

$100,000

imposed

by

Hogan was awarded

alternative recovery under

awarded Hogan

the

same back

42

punitive)

U.S.C.

$70,684.29 in

the MHRA,

pay

the

award of

$70,684.29 plus $5,000 in civil penal damages.

Hoping to retain the $400,000 award, Hogan

argues,

based solely on an improbable reading of the statute, that 42

-44

U.S.C.

1981a(b)(3) imposes

a cap of $200,000 on

of damage award, and not on the sum of the two.


___

of 42 U.S.C.

The language

1981a(b)(3) provides:

The sum

of

awarded

under this

losses,

emotional pain,

the

mental anguish,
other

each type
____

amount

loss

nonpecuniary

of

section

compensatory
for future

pecuniary

suffering, inconvenience,

of enjoyment
losses,

and

punitive damages awarded under this


not exceed . . . $200,000.

damages

of

life,

and

the

amount

of

section, shall

The district court correctly read

"[t]he

sum of the

amount of compensatory damages

the amount of punitive damages .

$200,000."

the provision as

. . . and

. . shall not exceed .

. .

The only other court to have considered the issue

thus far has

reached the

same conclusion.

Employment
Opportunity
Commission
_____________________________________

See U.S. Equal


___ ___________

v.

AIC
Security
_______________

Investigations, Ltd., 823 F. Supp. 571, 576 (N.D. Ill. 1993),


____________________

rev'd in part on other grounds, 55 F.3d 1276 (7th Cir. 1995).


______________________________

The

compensatory

punitive

statutory

statute is clear on

its face that

damages (including its

damages shall

interpretation

not exceed

begins

the sum of

various components) and

$200,000.

with the

"The

language

task of

of the

statute, and statutory language must be accorded its ordinary

meaning."

Gately v.
______

1221, 1228 (1st

Commonwealth of Massachusetts,
_____________________________

Cir. 1993),

cert. denied, 114


____________

(1994).

"[W]hen a statute

judicial

inquiry into the statute's meaning,

S. Ct.

speaks with clarity

-55

2 F.3d

1832

to an issue

in all but the

most

extraordinary

circumstance, is

finished."

Estate of
_________

Cowart v. Nicklos Drilling Co., 112 S. Ct. 2589, 2594 (1992).


______
____________________

The reduction

$100,000

on

each

type of

district court simply

jury award

also

jury award from

damage

award

U.S.C.

2106, see
___

slip op.

at

jury's award

cap.

8 (1st

Exercising our

United States v.
_____________

Cir. Aug.

done by

the

The original

authority

under 28

Garafano, No. 95-1127,


________

7, 1995),

of $200,000 in compensatory

court's award of $100,000

$200,000 to

damages alone would

we reinstate

the

damages, for which

sufficient evidence as described

the district

was

to accommodate the cap.

of $200,000 for compensatory

satisfy the

there is

of the

below, and vacate

in punitive damages,

thus

obviating the

need to reach

the question

of punitive

damages.

BAR argues that

damages

the jury's

was excessive and should

compensatory damages

appraisal of

is excessive

the damages

award of

compensatory

be reduced.1

An award of

if it exceeds

actually incurred.

a rational

See Linn
___ ____

Andover Newton Theological School, Inc., 874 F.2d 1,


________________________________________

Cir. 1989).

"Generousness

justify

appellate

an

of a jury's award does

court

in setting

it

v.

6 (1st

not alone

aside."

Id.
___

____________________

1.

BAR argues that the reduced jury award of $100,000 in

compensatory damages was excessive.

Since we have reinstated

the full jury award of $200,000 on compensatory damages, we


treat BAR's arguments on the $100,000 of compensatory damages
as applying to the full amount.

-66

(quoting

Kolb v. Goldring, Inc., 694 F.2d 869, 871 (1st Cir.


____
______________

1982)).

BAR argues

Hogan did not

prove emotional distress

sufficient to warrant the damages award.

The jury,

however,

awarded compensatory damages not only for emotional distress,

but

also

for inconvenience,

enjoyment of life.

mental

anguish,

and loss

of

Until his reinstatement in October 1994,

Hogan was repeatedly and

incorrectly kept from a job

held for twenty-two years.

During the almost

he had

two and a half

years he was kept out of work, Hogan, who was married and had

two

young children,

benefits

had

shoe

saw his

annual

plummet to $13,000 with no benefits.

previously cared for their

factory

insurance.

in

As

order

for

the district

he was "disabled" and

$28,000 and

His wife, who

children, went to

the

family

court noted,

difficult financial situation."

Hogan

income of

to

work in a

have

they were

medical

in "a

The company doctor had told

that it was

highly unlikely he

would ever be able

had

had most

to return to

of his

result, became

physical labor, the job

adult life.

depressed, withdrawn,

Hogan,

very upset

and gave up

he

as a

his usual

activities.

His pulmonary specialist described him as "quite

depressed."

The evidence was adequate to support the

See
___

v.

Bolden
______

award.

Southeastern Pennsylvania
Transportation
___________________________________________

Authority, 21 F.3d 29, 33 (3d Cir. 1994).


_________

-77

BAR

Functional

also argues

Capacity

that

Evaluation

Hogan's refusal

Test

to take

("FCE")

specially

designed for him, in September 1993, constituted a failure to

mitigate back pay damages, and that the district court

in not so ruling.

unconditional

employer's

An employee's rejection of

job

offer

potential

circumstances.

back

does

pay

end

liability,

Ford Motor Co.


________________

Opportunity Commission,
______________________

the

erred

an employer's

accrual

absent

of

the

special

v.

Equal Employment
_________________

458 U.S. 219, 241

(1982); Morris v.
______

American National Can Corporation, 952


___________________________________

Cir. 1991).

had to

was

was to

BAR

did

202 (8th

If Hogan had taken and passed the FCE, he still

proceed to further

required to obtain a

argument

F.2d 200,

tests and if he

clearance from Dr.

fails because it was

by no means

be reinstated to his job

not

meet

cleared those he

its

Sagall.

BAR's

clear that Hogan

upon completion of the FCE.

burden

of

showing

it

made

an

unconditional job offer, much less its burden of showing that

the

district

Hogan undertake

and

court (which

believed

the testing regime was

untimely to boot)

offer of reinstatement,

erred.

In the

BAR's suggestion

that

a litigation tactic,

absence of a concrete

the period of back

pay accrual does

not end.

Hogan finally argues that the district court abused

its discretion

his back pay

in not

awarding him prejudgment

award under federal

law.

interest on

Whether

prejudgment

-88

interest

discretion

is needed to make

of the

a plaintiff whole

district court.

is within the

See Conway
___ ______

v. Electro
_______

Switch Corp.,
_____________

825

F.2d 593,

602

(1st

Cir.

district court

did not abuse its discretion

1987).

The

in not awarding

Hogan prejudgment interest here where the award of damages is

almost three times the size of the back pay award.

We

interest

do

not

reach

under the MHRA

Hogan's

claim

because Hogan

of

admits he

prejudgment

failed to

seek such interest from the district court, and he may not do

so initially on appeal.

See, e.g., CMM Cable Rep., Inc. v.


___ ____ _____________________

Ocean Coast Properties. Inc., 48


______________________________

F.3d

618, 622

(1st Cir.

1995)

ask

the trial

court for

relief

("A

that

party who

it

available is not

neglects to

might

reasonably

have

entitled to importune the

to grant that relief.").

thought

would

be

court of appeals

We vacate the district court's award of $100,000 in

punitive damages,

reinstate the jury's award

compensatory damages,

and affirm

issues.

No costs to either party.

-99

of $200,000 in

the judgment on

all other