Case No. 15-30970

 

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________________________

 

KRISTIE A. MASCARELLA,

 

Plaintiff-Appellee Cross-Appellant

v.

 

CPLACE UNIVERSITY SNF, L.L.C., doing business as Affinity

Nursing & Rehab Center; TRADITIONS SENIOR MANAGEMENT, INCORPORATED,

 

Defendants-Appellants Cross-Appellees

_______________________________________

cons w/ 16-30146

 

KRISTIE A. MASCARELLA,

 

Plaintiff-Appellee

v.

 

CPLACE UNIVERSITY SNF, L.L.C., doing business as Affinity

Nursing & Rehab Center; TRADITIONS SENIOR MANAGEMENT, INCORPORATED,

 

Defendants-Appellants

_______________________________________

 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF LOUISIANA

No. 3:13-CV-642, Hon. Shelly Deckert Dick, Presiding

_______________________________________

 

BRIEF OF U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLEE

CROSS-APPELLANT KRISTIE MASCARELLA AND AFFIRMANCE

P. DAVID LOPEZ                                                U.S. EQUAL EMPLOYMENT

General Counsel                                         OPPORTUNITY COMMISSION

                                                                   Office of General Counsel

JENNIFER S. GOLDSTEIN                      131 M St. NE, Fifth Floor      

Associate General Counsel                          Washington, D.C. 20507

                                                                   (202) 663-4699

LORRAINE C. DAVIS                              anne.king@eeoc.gov

Assistant General Counsel                         Attorneys for amicus curiae

                                                                    U.S. Equal Employment

ANNE W. KING                                        Opportunity Commission

Attorney    

SUPPLEMENTAL CERTIFICATE OF INTERESTED PERSONS

 

Case No. 15-30970

 

KRISTIE A. MASCARELLA,

Plaintiff-Appellee Cross-Appellant

v.

 

CPLACE UNIVERSITY SNF, L.L.C., doing business as Affinity

Nursing & Rehab Center; TRADITIONS SENIOR MANAGEMENT, INCORPORATED,

Defendants-Appellants Cross-Appellees

_______________________________________

cons w/ 16-30146

 

KRISTIE A. MASCARELLA,

Plaintiff-Appellee

v.

 

CPLACE UNIVERSITY SNF, L.L.C., doing business as Affinity

Nursing & Rehab Center; TRADITIONS SENIOR MANAGEMENT, INCORPORATED,

Defendants-Appellants

_______________________________________

 

The undersigned counsel of record certifies that the following listed persons and entities as described in the fourth sentence of 5th Cir. R. 28.2.1 have an interest in the outcome of this case.  These representations are made in order that the judges of this court may evaluate possible disqualification or recusal.

1.       U.S. Equal Employment Opportunity Commission

         

Amicus Curiae

 

2.       P. David Lopez

          Jennifer S. Goldstein

          Lorraine C. Davis

          Anne W. King

 

Attorneys for Amicus Curiae U.S. Equal Employment Opportunity Commission

 

s/ Anne W. King___________

                                                          Attorney of record for the

Equal Employment

Opportunity Commission

 

TABLE OF CONTENTS

 

SUPPLEMENTAL CERTIFICATE OF INTERESTED PERSONS.................. i

 

TABLE OF AUTHORITIES............................................................................. v

 

STATEMENT OF INTEREST......................................................................... 1

 

STATEMENT OF THE ISSUES...................................................................... 1

 

STATEMENT OF THE CASE......................................................................... 2

 

I.          Factual Background............................................................................... 2

 

II.         District Court Decisions and Jury Verdict............................................ 9

 

SUMMARY OF THE ARGUMENT.............................................................. 10

 

ARGUMENT.................................................................................................. 11

 

I.      This court should affirm the jury’s verdict on Mascarella’s failure-to-accommodate and retaliation claims.......................................................................................... 11

 

A.        Traditions and Affinity misunderstand applicable law in attempting to undermine the jury’s verdict on Mascarella’s failure-to-accommodate claim, and the record supports the jury’s verdict............................................................................................ 11

 

1.         Failure to provide appropriate restroom....................................... 12

 

2.         Failure to provide accessible parking space.................................. 15

 

B.        The record supports the jury’s determination that Traditions and Affinity retaliated against Mascarella because of her requests for accommodations.............. 18

 

II.         This court should affirm the jury’s damages award............................ 20

 

A.       This court should affirm the jury’s award of punitive damages to Mascarella based on evidence of disability-based animus and misrepresentations............... 20

 

B.        Compensatory and punitive damages are available for retaliation claims under Section 503(a) of the ADA....................................................................... 23

 

III.       The district court correctly employed the test for integrated enterprise that applies in civil rights suits............................................................................................ 29

 

CONCLUSION............................................................................................... 31

 

CERTIFICATE OF SERVICE....................................................................................

 

CERTIFICATE OF COMPLIANCE...........................................................................

 

STATUTORY ADDENDUM.....................................................................................

 

 

TABLE OF AUTHORITIES

 

Cases

 

Alvarado v. Cajun Operating Co.,

.. 588 F.3d 1261 (9th Cir. 2009)..................................................................... 24

 

Baker v. Windsor Republic Doors,

.. 635 F. Supp. 2d 765 (W.D. Tenn. 2009)..................................................... 26

 

Bruso v. United Airlines, Inc.,

.. 239 F.3d 848 (7th Cir. 2001)....................................................................... 23

 

Burlington N. & Santa Fe Ry. Co. v. White,

.. 548 U.S. 53 (2006)................................................................................ 27, 28

 

CBOCS W., Inc. v. Humphries,

.. 553 U.S. 442 (2008).................................................................................... 28

 

Crandon v. United States,

.. 494 U.S. 152 (1990).................................................................................... 25

 

Dalton v. R & W Marine, Inc.,

.. 897 F.2d 1359 (5th Cir. 1990)..................................................................... 30

 

Deffenbaugh-Williams v. Wal-Mart Stores, Inc.,

.. 188 F.3d 278 (5th Cir. 1999)................................................................. 21, 22

 

Edwards v. Brookhaven Sci. Assocs., LLC,

.. 390 F. Supp. 2d 225 (E.D.N.Y. 2005)......................................................... 26

 

EEOC v. Chevron Phillips Chem. Co.,

.. 570 F.3d 606 (5th Cir. 2009)........................................................... 15, 17, 19

 

EEOC v. E.I. Du Point de Nemours & Co.,

.. 480 F.3d 724 (5th Cir. 2007)....................................................................... 21

 

EEOC v. Fed. Express Corp.,

.. 513 F.3d 360 (4th Cir. 2008)....................................................................... 23

EEOC v. LHC Grp., Inc.,

.. 773 F.3d 688 (5th Cir. 2014)................................................................. 15, 17

 

EEOC v. Serv. Temps Inc.,

.. 679 F.3d 323 (5th Cir. 2012)....................................................................... 11

 

EEOC v. Wal-Mart Stores, Inc.,

.. 187 F.3d 1241 (10th Cir. 2009)............................................................. 23, 26

 

Foster v. Time Warner Entm’t Co.,

.. 250 F.3d 1189 (8th Cir. 2001)..................................................................... 26

 

Freudensprung v. Offshore Tech. Servs., Inc.,

.. 379 F.3d 327 (5th Cir. 2004)....................................................................... 30

 

Gomez-Perez v. Potter,

.. 553 U.S. 474 (2008).................................................................................... 27

 

Green v. Adm’rs of the Tulane Educ. Fund,

.. 284 F.3d 642 (5th Cir. 2002)....................................................................... 22

 

Hardin v. Caterpillar, Inc.,

.. 227 F.3d 268 (5th Cir. 2000)................................................................. 21, 22

 

Hollowell v. Orleans Reg’l Hosp. LLC,

.. 217 F.3d 379 (5th Cir. 2000)....................................................................... 30

 

Humphrey v. Mem’l Hosps. Ass’n,

.. 239 F.3d 1128 (9th Cir. 2001)..................................................................... 16

 

Jackson v. Birmingham Bd. of Educ.,

.. 544 U.S. 167 (2005).................................................................................... 28

 

Jackson v. Tanfoglio Giuseppe, S.R.L.,

.. 615 F.3d 579 (5th Cir. 2010)....................................................................... 30

 

Jay v. Intermet Wagner Inc.,

.. 233 F.3d 1014 (7th Cir. 2000)..................................................................... 17

 

Klebe v. Univ. of Tex. Health Sci. Ctr. at San Antonio,

.. 450 F. App’x 394 (5th Cir. 2011)............................................................... 19

 

Kolstad v. Am. Dental Ass’n,

.. 527 U.S. 526 (1999).................................................................................... 21

 

Kramer v. Banc of Am. Sec., LLC,

.. 355 F.3d 961 (7th Cir. 2004)....................................................................... 24

 

Lee v. Clinical Research Ctr. of Fla., L.C.,

.. 2004-CA-0428 (La. App. 4 Cir. 11/17/04); 889 So. 2d 317........................ 31

 

Matthews v. A-1, Inc.,

.. 748 F.2d 975 (5th Cir. 1984)....................................................................... 18

 

Miles-Hickman v. David Powers Homes, Inc.,

.. 613 F. Supp. 2d 872 (S.D. Tex. 2009)........................................................ 24

 

Mogenhan v. Napolitano,

.. 613 F.3d 1162 (D.C. Cir. 2010)................................................................... 17

 

Muller v. Costello,

.. 187 F.3d 298 (2d Cir. 1999)........................................................................ 26

 

Nat’l R.R. Passenger Corp. v. Morgan,

.. 536 U.S. 101 (2002).................................................................................... 18

 

Passantino v. Johnson & Johnson Consumer Prods., Inc.,

.. 212 F.3d 493 (9th Cir. 2000)....................................................................... 23

 

Reed v. NeoPost USA, Inc.,

.. 701 F.3d 434 (5th Cir. 2012)....................................................................... 19

 

Rubinstein v. Adm’rs of the Tulane Educ. Fund,

.. 218 F.3d 392 (5th Cir. 2000)................................................................. 20, 22

 

Rumler v. Dep’t of Corr.,

.. 546 F. Supp. 2d 1334 (M.D. Fla. 2008)...................................................... 26

 

Rutherford v. Harris Cty.,

.. 197 F.3d 173 (5th Cir. 1999)....................................................................... 18

 

Salitros v. Chrysler Corp.,

.. 306 F.3d 562 (8th Cir. 2002)....................................................................... 26

 

Schweitzer v. Advanced Telemarketing Corp.,

.. 104 F.3d 761 (5th Cir. 1997)................................................................. 29, 30

 

Selenke v. Med. Imaging of Colo.,

.. 248 F.3d 1249 (10th Cir. 2001)............................................................. 17, 18

 

Smith v. Cotton’s Fleet Serv., Inc.,

.. 500 So. 2d 759 (La. 1987)...................................................................... 30-31

 

Tipton v. Northrup Grumman Corp.,

.. 242 F. App’x 187 (5th Cir. 2007)............................................................... 29

 

Trevino v. Celanese Corp.,

.. 701 F.2d 397 (5th Cir. 1983)....................................................................... 29

 

US Airways, Inc. v. Barnett,

.. 535 U.S. 391 (2002).............................................................................. 14, 16

 

W. Oil & Gas JV, Inc. v. Griffiths,

.. 91 F. App’x 901 (5th Cir. 2003)................................................................. 30

 

West v. Nabors Drilling USA, Inc.,

.. 330 F.3d 379 (5th Cir. 2003)....................................................................... 20

 

Zamora v. City of Houston,

.. 798 F.3d 326 (5th Cir. 2015)....................................................................... 19

 

Statutes

 

Americans with Disabilities Act

 

42 U.S.C. §§ 12101 et seq................................................................................ 1

 

42 U.S.C. § 12111.......................................................................................... 29

 

42 U.S.C. § 12112 (Section 102).................................................................... 24

 

42 U.S.C. § 12112(b)(5)(A)...................................................................... 11, 13

 

42 U.S.C. § 12117 (Section 107).............................................................. 25, 26

 

42 U.S.C. § 12117(a)...................................................................................... 25

 

42 U.S.C. § 12132.......................................................................................... 13

 

42 U.S.C. § 12182.......................................................................................... 13

 

42 U.S.C. § 12203 (Section 503)........................................................ 26, 27, 28

 

42 U.S.C. § 12203(a) (Section 503(a)).......................................... 23, 24, 25, 26

 

42 U.S.C. § 12203(c)...................................................................................... 25

 

Civil Rights Act of 1991

 

42 U.S.C. § 1981 note.................................................................................... 27

 

42 U.S.C. § 1981a..................................................................... 9, 24, 25-26, 27

 

42 U.S.C. § 1981a(a)(1).................................................................................. 26

 

42 U.S.C. § 1981a(a)(2)............................................................................ 24, 26

 

42 U.S.C. § 1981a(a)(3).................................................................................. 22

 

Civil Rights Act of 1991, Pub. L. 102-166, § 3, 105 Stat 107........................ 27

 

Civil Rights Act of 1991, Pub. L. 102-166, § 102, 105 Stat 107.................... 27

 

Title VII of the Civil Rights Act of 1964

 

42 U.S.C. § 2000e.......................................................................................... 29

 

42 U.S.C. § 2000e-5 (Section 706)........................................................... 25, 26

 

Regulations

 

29 C.F.R. § 1630.2(o)(3).................................................................... 13, 15, 17

 

29 C.F.R. § 1630.9(d)..................................................................................... 11

 

36 C.F.R. § 1191.1(a)..................................................................................... 13

 

36 C.F.R. pt. 1191, App. B............................................................................ 12

 

36 C.F.R. pt. 1191, App. D............................................................................ 12

 

Rules

 

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

 

Fed. R. Civ. P. 50............................................................................................. 9

 

Other Authorities

 

Department of Justice, 2010 ADA Standards for Accessible Design

.. (Sept. 15, 2010) (“DOJ ADA Standards”), http://www.ada.gov/regs2010/2010ADAStandards/2010ADAStandards.pdf 13

 

EEOC Compliance Manual: Threshold Issues § 2-III(B)(1)(a)(iii)(a) (2009),

.. 2009 WL 2966755................................................................................. 29, 30

 

Equal Employment Opportunity Commission, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct 17, 2002), 2002 WL 31994335............................................................ 18

 

 

STATEMENT OF INTEREST

 

          The U.S. Equal Employment Opportunity Commission (“EEOC” or “Commission”) is charged by Congress with administering, interpreting, and enforcing Title I of the Americans with Disabilities Act (“ADA”), as amended, 42 U.S.C. §§ 12101 et seq. This appeal raises several issues under the ADA, including legal principles governing failure-to-accommodate and retaliation claims under the ADA, the availability of compensatory and punitive damages for ADA retaliation claims, and the correct test for determining whether employers operate as an integrated enterprise in an ADA suit. Because these issues are important to the effective enforcement of the ADA, the Commission respectfully offers its views to the Court. See Fed. R. App. P. 29(a).

STATEMENT OF THE ISSUES[1]

 

1.       Whether the court of appeals should affirm the jury’s verdict on Mascarella’s failure-to-accommodate and retaliation claims under the ADA.

2.       Whether the court of appeals should affirm the jury’s punitive damages award.

3.       Whether compensatory and punitive damages are available for retaliation claims under Section 503(a) of the ADA.

4.       Whether the district court applied the correct test for integrated enterprise.

STATEMENT OF THE CASE

I.       Factual Background

Plaintiff-Appellee Cross-Appellant Kristy Mascarella was born with spina bifida. ROA.1291. She uses a wheelchair and she cannot put any weight on her legs. ROA.1291-92. Defendant-Appellant Cross-Appellee CPlace University SNF (“Affinity”) is a nursing home in Baton Rouge, Louisiana. ROA.1246, ROA.1270, ROA.1324.  Defendant-Appellant Cross-Appellee Traditions Senior Management, Inc. (“Traditions”) manages long-term care facilities, including Affinity and other facilities in Louisiana and nationwide. ROA.1180, ROA.1259.[2]

Mascarella was Admissions Coordinator at Affinity from March 26, 2012, until her termination on August 8, 2012. ROA.1271, ROA.1328-29. In late March 2012, Traditions decided to transfer Mascarella to Affinity from another nursing home. ROA.1304-5. In mid-May 2012, Traditions temporarily placed Mascarella at CityScape, another facility that Traditions operated, for unrelated reasons.  ROA.1329-32. Mascarella returned to Affinity in early June 2012. ROA.1332.  

Mascarella’s supervisor at Affinity was Sheryl Albin, Regional Director of Marketing at Traditions. ROA.1178, ROA.1181. Wade Canty was the Administrator at Affinity. ROA.1205-06. Both Canty and Albin reported to R. B. Bridges, Traditions’s Chief Operating Officer. ROA.1178, ROA.1205-06, ROA.1261-62. Vermonica Haynes was Director of Nursing at Affinity and Dallas Blackman was Maintenance Supervisor and Chief Engineer at Affinity. ROA.1438, ROA.1455. Donna Duplantis was a Human Resources Manager at Traditions. ROA.1233.

At Affinity, Mascarella’s duties included processing referrals to the nursing home and obtaining documents and information necessary to admit new patients. ROA.1328. Mascarella also compiled a daily census of patients that she sent to Bridges, Albin, and Canty. ROA.1328. Mascarella was not responsible for marketing or attracting patients to the facility, and was not required to ensure that a certain number of patients were admitted. ROA.1328-29.  

          Mascarella first requested reasonable accommodations for her disability—a restroom and a parking space that would accommodate her use of a wheelchair—around the time she started at Affinity. ROA.1336, ROA.1343. Bridges, Canty, Albin, and Duplantis all knew of Mascarella’s requests for accommodations. ROA.1186-91, ROA.1225-26, ROA.1239-40, ROA.1256, ROA.1475, ROA.1630-33. She continued to request accommodations through at least June 1. ROA.1239-40, ROA.1630-33.

Mascarella requested that Traditions and Affinity accommodate her by installing an elevated toilet, about the same height as her wheelchair, in the restroom located in her office. ROA.1296, ROA.1342-43. Traditions and Affinity acknowledged that Mascarella’s office restroom was not accessible. ROA.1169. In general, to use the restroom, Mascarella must shift from her wheelchair on to the toilet. ROA.1296-97. For Mascarella, it is much easier to shift between her wheelchair and the toilet if the toilet is close in height to her wheelchair. ROA.1296-97. Mascarella described the toilet in her office restroom as “very much lower than my [wheel]chair.” ROA.1391. Also, Mascarella’s wheelchair did not fit through the office restroom door and the restroom did not feature grab bars. ROA.1342.

Mascarella estimated (and Traditions and Affinity did not contest) that an elevated toilet would cost about 100 dollars. ROA.1352. Blackman testified that he often installed toilets at Affinity, and that he could have easily ordered a toilet for delivery within three to four days. ROA.1456. Mascarella acknowledged that installing an elevated toilet would not have made her office restroom fully accessible, but she explained that it would have been easier to use. ROA.1343-44.

Around the time Mascarella returned to Affinity from CityScape, Canty told her that he had ordered an elevated toilet for her office restroom. ROA.1356. According to Mascarella, Canty said, “it wasn’t a problem, that they could put a higher toilet in there for me.” ROA.1356. But although Mascarella worked at Affinity about another two months, Traditions and Affinity never installed an elevated toilet in Mascarella’s office restroom. ROA.1356-58. Mascarella thought Canty had lied about ordering the elevated toilet, because supply orders normally arrived within a couple days—even orders for large items like wheelchairs and beds. ROA.1358. At trial, Canty acknowledged that he did not go through the interactive process with Mascarella when she requested an elevated toilet; instead, he relayed her request to Bridges and did not follow up. ROA.1217.   

          Bridges asserted at trial that Mascarella had an alternative to her office restroom: a common restroom located in a public area of the nursing home. ROA. 1251, ROA.1256. At trial, Blackman offered several estimates of the height (in inches) of the toilet in the common restroom, but his testimony was inconsistent and he could not identify its precise height. ROA.1460-63. However, Blackman also testified that all of the toilets at Affinity, including the common restroom toilet, were the same height as the toilet in Mascarella’s office restroom; that is, “very much lower than [Mascarella’s] [wheel]chair.” ROA.1391; ROA.1462-63. Also, there were no grab bars near the toilet in the common restroom. ROA.1404-05. Thus, to transfer from her wheelchair to the toilet in the common restroom, Mascarella would have had to grab the toilet seat for leverage. ROA.1404-05. Also, Mascarella testified that, when she first toured Affinity on March 23, Haynes, the director of nursing, discouraged Mascarella from using the common restroom because nursing home residents also used it. ROA.1327, ROA.1344-49. [3]    

In addition to an elevated toilet, Mascarella also requested a parking space that would accommodate her wheelchair. ROA.1336. Mascarella stores her wheelchair behind the driver’s seat and exits her car on the driver’s side. ROA.1294. To remove her wheelchair from her car, she moves the driver’s seat up, shifts her legs to the side, and reaches back and grabs the chair. ROA.1294-95. To exit the car, she moves her legs back into the car, pushes the driver’s seat back, pulls the wheelchair as close to the car as possible, and slides onto the wheelchair using the driver’s seat and driver’s side door as leverage. ROA.1294-95. Mascarella must fully extend her driver’s side door to remove the wheelchair. ROA.1295.

Mascarella testified that, when she started at Affinity, there was one disabled parking space at the facility, located in the back of the building. ROA.1334-36, ROA.1338-40. This space featured “cross lines” (i.e., a wheelchair lane), but the wheelchair lane was on the passenger side of the vehicle when Mascarella pulled into the space, while Mascarella could only exit her car on the driver’s side. ROA.1294-95, ROA.1334, ROA.1338-40. Mascarella could not back into the space because there was a pole behind the space. ROA.1338-40. Also, the disabled space in the back of the building was typically occupied by another employee when Mascarella arrived at work. ROA.1336-37.

Mascarella told Canty that she could not use the disabled parking space in the back of the building (partly because it was typically occupied). ROA.1336-37. One or two weeks after Mascarella started at Affinity, Canty directed Blackman to convert an existing parking space in the front of the building to a disabled parking space. ROA.1337-38, ROA.1465. But the new disabled parking space in the front did not feature a wheelchair lane, and it still presented difficulties for Mascarella. ROA.1337-38. Canty did not consult with Mascarella before he directed Blackman to create the new disabled parking space. ROA.1338. Similarly, when Albin was asked whether she went through the interactive process with Mascarella regarding her request for an accessible parking space, Albin responded that the only thing she did was speak to Canty. ROA.1190. 

          Before Mascarella returned to Affinity from CityScape in early June, Canty had Blackman add a wheelchair lane to the disabled space in the front of the building, making it accessible for Mascarella. ROA.1235, ROA.1340-41. Blackman recounted that Bridges expressed annoyance at Mascarella’s request for an accessible parking space: “Mr. Bridges told me yeah, we need to get it done so we can shut her up.” ROA.1459.  

On August 8, 2012, Mascarella was terminated at a meeting with Albin and Duplantis. ROA.1362, ROA.1368-69. According to Mascarella, Duplantis “told me that I was not getting enough admits, so they had to let me go.” ROA.1369-70. Bridges testified at trial that he eliminated Mascarella’s position based on Affinity’s low rate of patient admissions, but Bridges acknowledged (and Albin verified) that recruiting admits was not part of Mascarella’s job. ROA.1184-85, ROA.1195-96, ROA.1263-65. Mascarella described her admissions work at Affinity as steady. ROA.1329. After Mascarella’s termination, three employees at Affinity took over her duties. ROA.1223.

II.      District Court Decisions and Jury Verdict

At the close of the evidence, the district court granted Mascarella’s Fed. R. Civ. P. 50 motion for judgment as a matter of law on the issue of whether Traditions and Affinity operated as an integrated enterprise. ROA.1491. The district court applied the four-factor test for integrated enterprise in civil rights suits. ROA.1486.

          After deliberations, the jury found that Traditions and Affinity failed to accommodate Mascarella’s disability, and that the companies terminated Mascarella in retaliation for her accommodation requests. ROA.682-83. The jury did not specify which reasonable accommodation or accommodations Traditions and Affinity failed to provide. ROA.682. The jury also found that Affinity and Traditions did not terminate Mascarella because of her disability. ROA.682. The jury awarded Mascarella compensatory and punitive damages and backpay. ROA.683-84.

After the verdict, on September 8, 2015, the district court denied Traditions and Affinity’s motion to reduce the jury’s award of compensatory and punitive damages based on 42 U.S.C. § 1981a’s statutory caps. ROA.813, ROA.816. The district court reiterated its prior ruling that Traditions and Affinity operated as an integrated enterprise. ROA.812.

          Finally, on November 23, 2015, the district court entered an order denying Traditions and Affinity’s motion for judgment as a matter of law or new trial. ROA.1010. Traditions and Affinity’s motion raised several issues, including the jury’s verdicts on Mascarella’s failure-to-accommodate and retaliation claims, the jury’s punitive damages award, and the district court’s ruling that Traditions and Affinity operated as an integrated enterprise. ROA.1012-13.

SUMMARY OF THE ARGUMENT

This court should affirm the jury’s verdict as to the merits of Mascarella’s ADA claims and the jury’s award of punitive damages. No legal error warrants reversal of the jury’s verdict that Traditions and Affinity failed to accommodate Mascarella and retaliated against her in violation of the ADA, and the evidence supports that verdict. The same is true for the jury’s award of punitive damages. This court need not reach whether compensatory and punitive damages are available for ADA retaliation claims if it affirms the jury’s verdict on Mascarella’s retaliation claim. If this court addresses that issue, it should conclude that such damages are available based on the ADA’s statutory scheme as a whole. Finally, the district court correctly employed the integrated enterprise test that applies in civil rights actions.

ARGUMENT

I.       This court should affirm the jury’s verdict on Mascarella’s failure-to-accommodate and retaliation claims.

 

A.      Traditions and Affinity misunderstand applicable law in attempting to undermine the jury’s verdict on Mascarella’s failure-to-accommodate claim, and the record supports the jury’s verdict.

 

Failure to reasonably accommodate an employee’s disability constitutes unlawful discrimination under the ADA. 42 U.S.C. § 12112(b)(5)(A).  Mascarella requested two accommodations: an elevated toilet and an accessible parking space. On this record, the jury could have determined that Traditions and Affinity failed to provide either of those accommodations.[4] See EEOC v. Serv. Temps Inc., 679 F.3d 323, 336 (5th Cir. 2012) (explaining that (1) where a party failed to seek judgment as a matter of law before the verdict, this court applies plain error review and assesses whether “any evidence exists that supports the verdict” and (2) where the district court denied judgment as a matter of law, reversal “is warranted only if no reasonable jury could have arrived at the verdict”).

1.                 Failure to provide appropriate restroom

 

Traditions and Affinity misunderstand the applicable law in arguing that a jury could not have determined that they failed to accommodate Mascarella with an appropriate restroom. First, Traditions and Affinity erroneously assert that employers automatically satisfy their ADA obligations towards employees by meeting general accessibility standards. Traditions & Affinity Br. 21. Second, they ignore the principle that an ineffective accommodation does not satisfy the ADA. Traditions & Affinity Br. 18-23.  And finally, they disregard the importance of the interactive process in ensuring effective accommodations. Id.

First, Traditions and Affinity assert that the toilet in Mascarella’s office restroom complied with the ADA because it satisfied ADA regulations providing accessibility guidelines, specifically guidelines setting the height requirements for accessible toilets. Traditions & Affinity Br. 21 (citing 36 C.F.R. pt. 1191, App. B & D). As Mascarella points out, Traditions and Affinity rely solely on Blackman’s estimate of the toilet’s height in inches, although his testimony was inconsistent. Mascarella Br. 27-28 (citing ROA.1460); see also ROA.1461-63. Moreover, even if the toilet in Mascarella’s restroom met general standards for accessible design, that does not establish that the toilet was accessible to Mascarella. The regulations on which Traditions and Affinity rely provide “accessibility guidelines for buildings and facilities covered by the [ADA.]” 36 C.F.R. § 1191.1(a). That is, they carry out the provisions of Titles II and III of the ADA, which prohibit disability discrimination in public services and public accommodations, 42 U.S.C. §§ 12132 & 12182, not Title I, which prohibits disability discrimination in employment.[5] Under Title I, “discriminat[ion]” includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee.” 42 U.S.C. § 12112(b)(5)(A). Therefore, Traditions and Affinity had a responsibility to accommodate Mascarella’s “known physical … limitations,” id., and to engage in an interactive process to identify “the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. § 1630.2(o)(3). Because Mascarella’s “precise limitations” included difficulties shifting from her wheelchair to a lower toilet, ROA.1296-97, the jury could have determined that the toilets in Mascarella’s office restroom and the common restroom did not adequately accommodate her needs.

Second, Traditions and Affinity disregard the principle that an ineffective accommodation does not satisfy the ADA, insisting that they accommodated Mascarella because she could use the common restroom rather than her office restroom. Traditions & Affinity Br. 18. But, on this record, the jury could have concluded that the common restroom was not an effective accommodation, which means it was no accommodation at all. See US Airways, Inc. v. Barnett, 535 U.S. 391, 400 (2002) (“[T]he word ‘accommodation[]’ … conveys the need for effectiveness. An ineffective ‘modification’ or ‘adjustment’ will not accommodate a disabled individual’s limitations.”). For example, the jury could have accepted Blackman’s testimony that the common restroom toilet was the same height as the toilet in Mascarella’s office restroom; that is, “very much lower” than Mascarella’s wheelchair. ROA.1391, ROA.1462-63.[6] And the jury could have believed Mascarella’s assessment that the common restroom did not feature grab bars that could have assisted her in sliding from her wheelchair to the toilet. ROA.1404-05. Accordingly, the jury could have determined that the common restroom did not effectively accommodate Mascarella because the toilet was too low—the same height as the toilet in Mascarella’s office restroom—and because the restroom did not feature bars that could have assisted Mascarella in sliding from her wheelchair to the toilet. ROA.1391, ROA.1404-05, ROA.1462-63.

Finally, Traditions and Affinity discounted the interactive process required under the ADA. Traditions and Affinity had a “duty to work with [Mascarella] toward a reasonable accommodation” and “to engage in [an] interactive process so that together they [could] determine what reasonable accommodations might be available.” EEOC v. LHC Grp., Inc., 773 F.3d 688, 700 (5th Cir. 2014) (quoting EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 622 (5th Cir. 2009)); see also 29 C.F.R. § 1630.2(o)(3) (interactive process may be necessary “[t]o determine the appropriate reasonable accommodation”); Chevron Phillips, 570 F.3d at 621 (“When an employer does not engage in a good faith interactive process, [a resultant failure to accommodate] violates the ADA—including when the employer discharges the employee instead of considering the requested accommodations.”). Here, the jury could have found it significant that Canty acknowledged that he did not undergo an interactive process with Mascarella regarding her request for an elevated toilet. ROA.1217.

2.       Failure to provide accessible parking space

 

Again, Traditions and Affinity ignored that ineffective accommodations are insufficient and disregarded the interactive process in arguing that the jury could not have concluded that the companies failed to provide an accessible parking space for Mascarella. See Traditions & Affinity Br. 15-18. Moreover, Traditions and Affinity erroneously suggested a categorical rule that delays of less than a few months in providing accommodations can never violate the ADA. Traditions & Affinity Br. 17.

As previously explained, an ineffective accommodation does not satisfy the ADA. US Airways, 535 U.S. at 400. Moreover, “the duty to accommodate is a continuing duty that is not exhausted by one effort.” Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1138 (9th Cir. 2001). On this record, the jury could have found that Traditions and Affinity furnished an ineffective accommodation because the companies did not provide an accessible parking space for over a month and a half, between Mascarella’s March 26 start date at Affinity and her move to CityScape in mid-May. ROA.1328-32. The jury could have credited Mascarella’s testimony that the other disabled parking spaces were not accessible to her, including the space Blackman initially created in the front of the building. ROA.1336-40. Also with respect to Mascarella’s request for an accessible parking space, the jury could have concluded that Traditions and Affinity did not offer a reasonable accommodation after having failed to engage in an interactive process. ROA.1190, ROA.1338. 29 C.F.R. § 1630.2(o)(3); LHC Grp., 773 F.3d at 700; Chevron Phillips, 570 F.3d at 622.

Traditions and Affinity assert that the delay in providing an accessible parking space was “not unreasonable, as a matter of law” because the delay (in their view) was relatively short. Traditions & Affinity Br. 17. Traditions and Affinity imply a categorical rule that short delays of less than a few months never amount to a violation of the ADA. See id. (citing cases). But courts have acknowledged that “an employer’s delay in providing reasonable accommodation may violate the ADA” without imposing a categorical rule on duration. Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1262 (10th Cir. 2001); see also Mogenhan v. Napolitano, 613 F.3d 1162, 1168 (D.C. Cir. 2010) (“[T]here are certainly circumstances in which a long-delayed accommodation could be considered unreasonable and hence actionable under the ADA.”); Jay v. Intermet Wagner Inc., 233 F.3d 1014, 1017 (7th Cir. 2000) (“[U]nreasonable delay in providing an accommodation can provide evidence of discrimination[.]”).

Instead, rather than applying a categorical rule that short delays can never amount to ADA violations, courts have applied multiple factors in assessing claims based on a delay in providing an accommodation. Selenke, 248 F.3d at 1262-63 (summarizing decisions). Relevant factors include “(1) the reason(s) for the delay, (2) the length of the delay, (3) how much the individual with a disability and the employer each contributed to the delay, (4) what the employer was doing during the delay, and (5) whether the required accommodation was simple or complex to provide.” Equal Employment Opportunity Commission, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct 17, 2002), 2002 WL 31994335, at *10 n.38; see also Selenke, 248 F.3d at 1262-63 (courts have considered factors including “the length of the delay, the reasons for the delay, whether the employer has offered any alternative accommodations while evaluating a particular request, and whether the employer has acted in good faith”).[7]

B.      The record supports the jury’s determination that Traditions and Affinity retaliated against Mascarella because of her requests for accommodations.

 

The ADA prohibits retaliation “against any individual because such individual has opposed any act or practice made unlawful by this chapter.” 42 U.S.C. § 12203(a). Protected activity under the ADA’s anti-retaliation provision includes requesting accommodations. Chevron Phillips, 570 F.3d at 613, 620 n.9. Here, the jury could have reasonably determined that Mascarella’s requests for reasonable accommodations were a “but-for cause” of her termination. Zamora v. City of Houston, 798 F.3d 326, 333 (5th Cir. 2015). There is no dispute that Bridges, who made the termination decision, knew of Mascarella’s requests for accommodation. ROA.1256, ROA.1263, ROA.1475. That fact is evidence of a causal link between Mascarella’s protected activity and her termination. See Klebe v. Univ. of Tex. Health Sci. Ctr. at San Antonio, 450 F. App’x 394, 396 (5th Cir. 2011) (citing fact that decisionmakers “knew or should have known” about employee’s protected activity as part of the “adequate evidence for a reasonable jury to conclude that [protected activity] had a causal connection with the [adverse action]”). Evidence of Bridges’ retaliatory animus towards Mascarella’s requests for accommodation provides further evidence for a causal link: he told Blackman that he wanted to finalize the parking space accommodation to “shut [Mascarella] up.” ROA.1459. The jury could have determined that Bridge’s remark demonstrated “discriminatory animus [] on the part of [the] person that [was] [] primarily responsible for the challenged employment action.” Reed v. NeoPost USA, Inc., 701 F.3d 434, 441 (5th Cir. 2012).

Moreover, on this record, the jury could have disbelieved Traditions and Affinity’s claim that they eliminated Mascarella’s position due to a decreased admissions rate. See West v. Nabors Drilling USA, Inc., 330 F.3d 379, 385 (5th Cir. 2003) (fact-finder may infer discrimination from false explanation for termination). The jury could have found it significant that Mascarella’s termination closely followed her requests for accommodations, which Mascarella made as late as June 1. ROA.1362, ROA.1630-33. Also, the jury could have questioned why Traditions assigned Mascarella to the Affinity Admissions Coordinator position in March, but then decided less than five months later that there was not enough work to justify the position. ROA.1263-65, ROA.1304-5. And the jury could have inferred that substantial admissions work remained after Mascarella’s termination—contrary to Traditions and Affinity’s assertion otherwise—because the companies spread Mascarella’s duties across three employees. ROA.1223.

II.      This court should affirm the jury’s damages award.

 

A.      This court should affirm the jury’s award of punitive damages to Mascarella based on evidence of disability-based animus and misrepresentations.

 

Punitive damages are warranted where an employer was motivated by malice or reckless indifference to the employee’s rights under federal statute. Rubinstein v. Adm’rs of the Tulane Educ. Fund, 218 F.3d 392, 406 (5th Cir. 2000). “[P]laintiffs are not required to make an additional showing of egregiousness.” Id. (citing Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 546 (1999)). Although Traditions and Affinity argue that the district court should not have submitted the question of punitive damages to the jury, the record supports the jury’s punitive damages award. See Traditions & Affinity Br. 27-29. For example, the jury could have concluded that Bridges harbored animus towards Mascarella’s ADA rights, based on his comment that “We need to get [the accessible parking space] done so we can shut [Mascarella] up.” ROA.1459. See EEOC v. E.I. Du Point de Nemours & Co., 480 F.3d 724, 733 (5th Cir. 2007) (supervisor’s derogatory comment about employee’s disability was “crowning evidentiary blow” supporting jury finding of malice or reckless indifference); Hardin v. Caterpillar, Inc., 227 F.3d 268, 270-71 (5th Cir. 2000) (comments disparaging doctors’ notes could signal “management that was unreceptive to pregnancy and illness claims” and supported submitting punitive damages question to jury); Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 188 F.3d 278, 280, 286 (5th Cir. 1999) (judgment as a matter of law for employer on punitive damages was inappropriate, in part due to manager’s comment suggesting that employee would not advance at the company due to her interracial relationship). And the jury could have determined that Canty made misrepresentations to Mascarella about the installation of an elevated toilet, and could have concluded that his misrepresentations supported punitive damages. See Hardin, 227 F.3d at 270-72 (evidence of “lying and deceit” by management supported submitting punitive damages question to the jury).

Traditions and Affinity appear to suggest that they should be excused from punitive damages because they allegedly engaged in good-faith efforts to comply with the ADA. Traditions & Affinity Br. 28; see 42 U.S.C. § 1981a(a)(3); Rubinstein, 218 F.3d at 405 (recognizing “good-faith exception”). For example, Traditions and Affinity cite “policies regarding ADA accommodations that were published to employees” as a reason to find that the companies engaged in good-faith efforts. Traditions & Affinity Br. 28. Mascarella questions whether such policies existed. Mascarella Br. 16-17, 35-36. But even if Traditions and Affinity had ADA policies in place, the mere fact that an employer has adopted an ADA policy is insufficient to establish good-faith efforts to comply. See Green v. Adm’rs of the Tulane Educ. Fund, 284 F.3d 642, 654 (5th Cir. 2002) (although employer had “written policy prohibiting sexual harassment[,] [t]his alone, nevertheless, would not be enough if [the employer] failed to enforce its policy[]”); Deffenbaugh-Williams, 188 F.3d at 286 (employer’s policy of encouraging employees to contact management with complaints “[did] not suffice to establish, as a matter of law, [the employer’s] good faith”).[8]

If that were the law, most employers would be excused from punitive damages. Moreover, if an anti-discrimination policy were “sufficient in and of itself to insulate an employer from a punitive damages award,” then “employers would have an incentive to adopt formal policies in order to escape liability for punitive damages, but they would have no incentive to enforce those policies.” Bruso v. United Airlines, Inc., 239 F.3d 848, 858-59 (7th Cir. 2001); see also Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 517 (9th Cir. 2000) (explaining that “the purpose of Title VII” “would be undermined” if employers’ anti-discrimination policies “were not implemented, and were allowed instead to serve as a device to allow employers to escape punitive damages”).

B.      Compensatory and punitive damages are available for retaliation claims under Section 503(a) of the ADA.

 

Traditions and Affinity assert that compensatory and punitive damages are not available for retaliation claims under Section 503(a) of the ADA, 42 U.S.C. § 12203(a). Traditions & Affinity Br. 29. On the contrary, the language, structure, and legislative history of the ADA, Title VII, and the Civil Rights Act of 1991 compel the conclusion that damages are available in retaliation actions under Section 503(a) of the ADA. Of course, this court need not consider this issue unless it reverses the jury verdict on Mascarella’s failure-to-accommodate claim.

Traditions and Affinity cite Miles-Hickman v. David Powers Homes, Inc., 613 F. Supp. 2d 872 (S.D. Tex. 2009), which relied on Kramer v. Banc of America Securities, LLC, 355 F.3d 961 (7th Cir. 2004). Kramer and a Ninth Circuit decision, Alvarado v. Cajun Operating Co., 588 F.3d 1261 (9th Cir. 2009), concluded that compensatory and punitive damages are not available for ADA retaliation claims. Those cases focused on the fact that the Civil Rights Act of 1991, 42 U.S.C. § 1981a, which authorizes compensatory and punitive damages in ADA employment suits, mentions the ADA’s anti-discrimination provision, Section 102, 42 U.S.C. § 12112, but does not explicitly mention the ADA’s anti-retaliation provision, Section 503(a), 42 U.S.C. § 12203(a). See 42 U.S.C. § 1981a(a)(2); Kramer, 355 F.3d at 965; Alvarado, 588 F.3d at 1268. 

However, the Fifth Circuit has not yet addressed this question. If this court reaches the issue, instead of adopting the reasoning of Kramer and Alvarado, this court should consider the statutory scheme as a whole and hold that the remedies available under Section 503(a) of the ADA are coextensive with the remedies authorized under Section 107 of the ADA, 42 U.S.C. § 12117, and Title VII of the Civil Rights Act of 1964 (“Title VII”). See Crandon v. United States, 494 U.S. 152, 158 (1990) (“In determining the meaning of the statute, we look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy.”).

Section 503(c) of the ADA states that the remedies for a violation of Section 503(a) are the same remedies authorized under Section 107 of the ADA. See 42 U.S.C. § 12203(c) (the “remedies and procedures available under [42 U.S.C. §] 12117 [Section 107] … shall be available to aggrieved persons for violations of subsections (a) and (b) of this section”). In turn, Section 107 provides that the remedies available under the ADA are coextensive with the remedies available under Title VII, including Section 706 of Title VII, 42 U.S.C. § 2000e-5. See 42 U.S.C. § 12117(a) (the “remedies[] and procedures set forth in [42 U.S.C. §§] 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9” apply “to any person alleging discrimination on the basis of disability in violation of any provision of this chapter”). When Congress enacted the Civil Rights Act of 1991, it authorized compensatory and punitive damages under Section 706. See 42 U.S.C. § 1981a(a)(1); see also 42 U.S.C. § 1981a(a)(2) (authorizing compensatory and punitive damages under Section 107 of the ADA).

Therefore, compensatory and punitive damages are available under Section 503(a) of the ADA by a direct, albeit extended, pathway. That is, because compensatory and punitive damages are available under Section 706 of Title VII, and under Section 107 of the ADA, they are available, by extension, under Section 503(a) of the ADA. Because compensatory and punitive damages are available under this incorporation pathway, there was no need for Congress to list Section 503 in 42 U.S.C. § 1981a. Several courts have adopted this interpretation. Baker v. Windsor Republic Doors, 635 F. Supp. 2d 765, 771 (W.D. Tenn. 2009); Rumler v. Dep’t of Corr., 546 F. Supp. 2d 1334, 1341-43 (M.D. Fla. 2008); Edwards v. Brookhaven Sci. Assocs., LLC, 390 F. Supp. 2d 225, 235-36 (E.D.N.Y. 2005). Also, a few courts of appeals have affirmed compensatory and punitive damages awards for ADA retaliation claims without discussing the availability of those damages under Section 503. EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1244, 1246, 1249 (10th Cir. 2009); Salitros v. Chrysler Corp., 306 F.3d 562, 566 (8th Cir. 2002); Foster v. Time Warner Entm’t Co., 250 F.3d 1189, 1196-98 (8th Cir. 2001); Muller v. Costello, 187 F.3d 298, 306, 314-15 (2d Cir. 1999).

          Moreover, Congress’s decision not to enumerate Section 503 claims in 42 U.S.C. § 1981a is understandable given the scope of Section 503, which applies not only to Title I of the ADA (employment discrimination), but also to Titles II and III (discrimination in public accommodations and public services). 42 U.S.C. § 12203. Had Congress included an explicit reference to Section 503 in 42 U.S.C. § 1981a, it would have also expanded the remedies available for public accommodations and public services retaliation claims, while Congress’s intent was only to provide additional remedies for employment claims. See Civil Rights Act of 1991, Pub. L. 102-166, §§ 3 & 102, 105 Stat 107 (codified as 42 U.S.C. §§ 1981 note & 1981a).

It does not make sense that Congress would have adopted a statutory scheme that protects employees from both disability-based discrimination and retaliation, but provides effective remedies for only the underlying discrimination claims. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 66 (2006) (emphasizing that the anti-retaliation provisions of federal anti-discrimination laws must be read broadly to effectuate the underlying enforcement scheme). The Supreme Court has repeatedly recognized that discrimination and retaliation in employment are closely linked. See Gomez-Perez v. Potter, 553 U.S. 474, 481 (2008) (holding that “the ADEA federal-sector provision’s prohibition of ‘discrimination based on age’” also “proscrib[es] retaliation,” although the provision did not explicitly prohibit retaliation); CBOCS W., Inc. v. Humphries, 553 U.S. 442, 454-56 (2008) (holding that 42 U.S.C. § 1981, which ensures the right to “make and enforce contracts” regardless of race, includes a private right of action for retaliation); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173-74 (2005) (holding that Title IX’s prohibition against intentional sex discrimination also prohibits retaliation). Moreover, retaliation is exactly the type of conduct that warrants compensatory and punitive damages. It involves the employer’s active effort to discourage individuals from exercising their statutory rights. See 42 U.S.C.  §12203 (prohibiting retaliation where an “individual has opposed any act or practice made unlawful by [the ADA]”); Burlington N., 548 U.S. at 63 (explaining that Title VII’s anti-retaliation provision facilitates its anti-discrimination objective “by preventing an employer from interfering (through retaliation) with an employee’s efforts to secure or advance enforcement of the [statute’s] basic guarantees”). Therefore, “broad protection from retaliation helps ensure the cooperation upon which accomplishment of the [ADA’s] primary objective depends.” Id. at 67 (Title VII). 

 

 

III.    The district court correctly employed the test for integrated enterprise that applies in civil rights suits.

 

Traditions and Affinity assert that the district court should have applied an eight-factor “single business enterprise” test under Louisiana state law. Traditions & Affinity Br. 33-34. But the district court correctly applied the four-factor integrated enterprise test articulated in Trevino v. Celanese Corp., 701 F.2d 397 (5th Cir. 1983); see also ROA.1485-91. This four-factor test is appropriate in civil rights suits because the term “employer” in the civil rights statutes is “meant to be liberally construed.” Trevino, 701 F.2d at 404; see 42 U.S.C. § 2000e (defining “employer” and related terms under Title VII); id. § 12111 (defining “covered entity” and “employer” under ADA); see also Schweitzer v. Advanced Telemarketing Corp., 104 F.3d 761, 763 (5th Cir. 1997) (Trevino applies in civil rights suits); Tipton v. Northrup Grumman Corp., 242 F. App’x 187, 188, 190 (5th Cir. 2007) (applying Trevino in ADA suit).

Trevino identifies four “[f]actors considered in determining whether distinct entities constitute an integrated enterprise”: “(1) interrelation of operations, (2) centralized control of labor relations, (3) common management, and (4) common ownership or financial control.” Trevino, 701 F.2d at 404; see EEOC Compliance Manual: Threshold Issues § 2-III(B)(1)(a)(iii)(a) (2009), 2009 WL 2966755 (articulating the same four-factor test for integrated enterprise); see also Trial Tr. Day 2 166-72 (applying Trevino factors). “All of the factors should be considered in assessing whether separate entities constitute an integrated enterprise, but it is not necessary that all factors be present, nor is the presence of any single factor dispositive.” EEOC Compliance Manual § 2-III(B)(1)(a)(iii)(a). The second factor, “centralized control of labor relations,” is the “most important” of the four factors. Schweitzer, 104 F.3d at 764. The key inquiry in assessing “centralized control of labor relations” is determining “which entity made the final decisions regarding the employment matters relating to the person that’s making the claim of discrimination.” Trial Tr. Day 2 168; see also Schweitzer, 104 F.3d at 764 (same). 

Traditions and Affinity cite a litany of decisions to support their claim that a different test applies. Traditions & Affinity Br. 33-34. But none of the decisions on which Traditions and Affinity rely are civil rights actions. See Jackson v. Tanfoglio Giuseppe, S.R.L., 615 F.3d 579, 582 (5th Cir. 2010) (personal injury suit); Freudensprung v. Offshore Tech. Servs., Inc., 379 F.3d 327, 332 (5th Cir. 2004) (maritime personal injury suit); W. Oil & Gas JV, Inc. v. Griffiths, 91 F. App’x 901, 902-03 (5th Cir. 2003) (fraudulent conveyance action); Hollowell v. Orleans Reg’l Hosp. LLC, 217 F.3d 379, 381 (5th Cir. 2000) (Worker Adjustment and Retraining Notification Act suit); Dalton v. R & W Marine, Inc., 897 F.2d 1359, 1360 (5th Cir. 1990) (maritime personal injury suit); Smith v. Cotton’s Fleet Serv., Inc., 500 So. 2d 759, 760 (La. 1987) (personal injury suit); Lee v. Clinical Research Ctr. of Fla., L.C., 2004-CA-0428 (La. App. 4 Cir. 11/17/04); 889 So. 2d 317, 320 (breach of employment contract suit).

CONCLUSION

 

          In conclusion, we urge this court to affirm the jury’s verdict concluding that Traditions and Affinity violated the ADA and the jury’s award of damages to Mascarella.

                                                Respectfully submitted,

 

P. DAVID LOPEZ                                               s/ Anne W. King_____

General Counsel                                         ANNE W. KING

                                                                   Attorney

JENNIFER S. GOLDSTEIN                      U.S. EQUAL EMPLOYMENT

Associate General Counsel                         OPPORTUNITY COMMISSION

                                                                   Office of General Counsel

LORRAINE C. DAVIS                              131 M St. NE, Fifth Floor

Assistant General Counsel                         Washington, DC 20507

                                                                   (202) 663-4699

                                                                   anne.king@eeoc.gov

CERTIFICATE OF SERVICE

I hereby certify that on June 10, 2016, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Fifth Circuit by using the CM/ECF system, which will transmit a Notice of Electronic Filing to all participants in this case, who are all registered CM/ECF users.

                                                                   s/ Anne W. King_____

                                                                   ANNE W. KING

                                                          Attorney for the Equal Employment

                                                          Opportunity Commission

 

                                                         

U.S. EQUAL EMPLOYMENT

                                                                     OPPORTUNITY COMMISSION

                                                                   Office of General Counsel

                                                                   131 M St. NE, Fifth Floor

                                                                   Washington, DC 20507

                                                                   (202) 663-4699

                                                                   anne.king@eeoc.gov     

 

 

 

 

 

 

 

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitations of Fed. R. App. P. 28.1(e), Fed. R. App. P. 29(d), and Fed. R. App. P. 32(a)(7)(B) because this brief contains 6,816 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and Fifth Cir. R. 32.1 and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2010 in 14-point Times New Roman font in the body and 12-point Times New Roman font in the footnotes.

                                                          s/ Anne W. King___________

                                                          Attorney for the Equal Employment

                                                          Opportunity Commission

 

Dated: June 10, 2016