
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  as        follows:            On the cover sheet, substitute "On Appeals" for "On Appeal".            On the cover sheet, substitute "for Bangor  and Aroostook Railroad        Company" for "for appellant".            On  the  cover  sheet,  substitute  "for  Donald  Hogan" for  "for        appellee".                            UNITED STATES COURT OF APPEALS                                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.                                 ____________________                   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  and Phoebe  S.            ________________             _____________________      __________        Gallagher were on brief, for appellant.         _________            William J. Kelleher for appellee.            ___________________                                 ____________________                                   August 18, 1995                                 ____________________                      LYNCH, Circuit Judge.  An employer's refusal to let                      LYNCH, Circuit Judge.                             _____________            an employee return  to work  out of a  difference of  medical            views as  to whether the employee  was fit gave rise  to this            discrimination  action  brought   under  the  Americans  with            Disabilities  Act ("ADA"), 42 U.S.C.   12101 et seq., and the                                                         __ ____            Maine  Human Rights Act ("MHRA"), Me. Rev. Stat. Ann. tit. 5,              4561  et seq. (West 1989).  A jury verdict in  favor of the                    __ ____            plaintiff Donald  Hogan of $400,000, reduced  by the district            court to $200,000, gives  rise to a case of  first impression            in this  Circuit on  the meaning of  the cap  on ADA  damages            imposed  by 42 U.S.C.   1981a(b)(3).  Because the language of            the  statute is  clear, the  reduction of  the jury  award of            damages  to $200,000  is  affirmed.   The  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  award of $70,684.29 are rejected,            as  is  Hogan's challenge  to the  denial  of his  motion for            prejudgment interest.                      Hogan, a  trackman for  BAR since 1970,  suffered a            collapsed lung while at work in February 1992.  After surgery            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.  Dr.  Sagall,            BAR's  Chief  Medical  Officer  and  a  family  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.   Dr. Sagall believed            that Hogan  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  belief for more than two and  a half            years.    Hogan's  physician,   Dr.  Cabot,  based  on  later            examination  again repeated that Hogan  was fit.  Dr. Sagall,            feeling Dr.  Cabot did  not understand how  strenuous Hogan's            job was, again  told Hogan he could not return  to work.  Dr.            Sagall,  however, failed  to  discuss Hogan  with Dr.  Cabot,            failed to ascertain if Dr. Cabot did misunderstand the nature            of  the job, and failed to  have x-rays done which would have            revealed whether  Hogan in  fact suffered from  emphysema and            bullous disease.   Indeed, Dr. Sagall did  not request x-rays            until  January  1993,  after  Hogan had  brought  suit,  when            directed  to do  so  by the  Railway  Retirement Board.    In            addition, CAT-scan  results available to Dr.  Sagall in March            1992 would  have disclosed, if  reviewed, that Hogan  did not            suffer from emphysema.                      By  January 1993 BAR had been given an opinion from            an  acknowledged pulmonary  specialist,  Dr. Oldenburg,  that            Hogan could return to work.   This opinion fared no better in            swaying BAR than did  Dr. Cabot's opinion.  Dr.  Sagall again            felt no need to contact Dr. Oldenburg and discuss Hogan.                                         -3-                                          3                      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            reinstated Hogan to his job as trackman.                      In  the period  that  Hogan was  kept  out of  work            despite  his doctors' opinions that he was fit, Hogan and his            family were forced to live on a fraction of his former income            as family  breadwinner.  Dr. Sagall's  repeated statements to            him that  he was  disabled  and the  disability was  probably            permanent exacerbated Hogan's depressed state.                      The  jury found in Hogan's favor  under the ADA and            awarded  him $200,000  each in  punitive and  in compensatory            damages.   The district  court then reduced  Hogan's award to            $200,000  ($100,000  compensatory   and  $100,000   punitive)            pursuant  to  the  statutory  cap  imposed  by  42  U.S.C.               1981a(b)(3).   In addition,  Hogan was awarded  $70,684.29 in            back pay.   As an  alternative recovery under  the MHRA,  the            district  court  awarded Hogan  the  same back  pay  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                                         -4-                                          4            U.S.C.   1981a(b)(3) imposes  a cap of $200,000 on  each type                                                                ____            of damage award, and not on the sum of the two.  The language                                            ___            of 42 U.S.C.   1981a(b)(3) provides:                      The sum  of  the  amount  of  compensatory  damages                      awarded  under this  section  for future  pecuniary                      losses,  emotional pain,  suffering, inconvenience,                      mental anguish,  loss  of enjoyment  of  life,  and                      other  nonpecuniary  losses,   and  the  amount  of                      punitive damages awarded under this  section, shall                      not exceed . . . $200,000.                      The district court correctly read  the provision as            "[t]he  sum of the  amount of compensatory damages  . . . and            the amount of punitive damages .  . . shall not exceed .  . .            $200,000."  The only other court to have considered the issue            thus far has  reached the  same conclusion.   See U.S.  Equal                                                          ___ ___________            Employment   Opportunity   Commission    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  statute is clear on  its face that  the sum of            compensatory  damages (including its  various components) and            punitive  damages shall  not exceed  $200,000.  "The  task of            statutory  interpretation  begins  with the  language  of the            statute, and statutory language must be accorded its ordinary            meaning."   Gately v.  Commonwealth of Massachusetts,  2 F.3d                        ______     _____________________________            1221, 1228 (1st  Cir. 1993),  cert. denied, 114  S. Ct.  1832                                          ____________            (1994).   "[W]hen a statute  speaks with clarity  to an issue            judicial  inquiry into the statute's meaning,  in all but the                                         -5-                                          5            most  extraordinary  circumstance, is  finished."   Estate of                                                                _________            Cowart v. Nicklos Drilling Co., 112 S. Ct. 2589, 2594 (1992).            ______    ____________________                      The reduction  of the  jury award from  $200,000 to            $100,000  on  each  type of  damage  award  was  done by  the            district court simply  to accommodate the cap.   The original            jury award  of $200,000 for compensatory  damages alone would            also  satisfy the  cap.   Exercising our  authority  under 28            U.S.C.    2106, see  United States v.  Garafano, No. 95-1127,                            ___  _____________     ________            slip op.  at  8 (1st  Cir. Aug.  7, 1995),  we reinstate  the            jury's award  of $200,000 in compensatory  damages, for which            there is  sufficient evidence as described  below, and vacate            the district  court's award of $100,000  in punitive damages,            thus  obviating the  need to reach  the question  of punitive            damages.                        BAR argues that  the jury's  award of  compensatory            damages  was excessive and should  be reduced.1   An award of            compensatory damages  is excessive  if it exceeds  a rational            appraisal of  the damages  actually incurred.    See Linn  v.                                                             ___ ____            Andover Newton Theological School,  Inc., 874 F.2d 1,  6 (1st            ________________________________________            Cir. 1989).  "Generousness  of a jury's award does  not alone            justify  an  appellate  court  in setting  it  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.                                         -6-                                          6            (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,  mental  anguish,  and loss  of            enjoyment of life.   Until his reinstatement in October 1994,            Hogan was repeatedly and  incorrectly kept from a job  he had            held for twenty-two years.  During the almost  two and a half            years he was kept out of work, Hogan, who was married and had            two  young children,  saw his  annual  income of  $28,000 and            benefits  plummet to $13,000 with no benefits.  His wife, who            had  previously cared for their  children, went to  work in a            shoe  factory  in  order  for  the  family  to  have  medical            insurance.   As  the district  court noted,  they were  in "a            difficult financial situation."   The company doctor had told            Hogan  he was "disabled" and  that it was  highly unlikely he            would ever be able  to return to  physical labor, the job  he            had  had most  of his  adult life.   Hogan,  very upset  as a            result, became  depressed, withdrawn,  and gave up  his usual            activities.  His pulmonary specialist described him as "quite            depressed."  The evidence was adequate to support the  award.            See  Bolden  v.   Southeastern  Pennsylvania   Transportation            ___  ______       ___________________________________________            Authority, 21 F.3d 29, 33 (3d Cir. 1994).            _________                                         -7-                                          7                      BAR  also argues  that  Hogan's refusal  to take  a            Functional   Capacity   Evaluation  Test   ("FCE")  specially            designed for him, in September 1993, constituted a failure to            mitigate back pay damages, and that the district court  erred            in not so ruling.   An employee's rejection of  an employer's            unconditional  job   offer  does  end  the   accrual  of  the            employer's  potential  back  pay  liability,  absent  special            circumstances.       Ford  Motor  Co.   v.  Equal  Employment                                 ________________       _________________            Opportunity Commission,  458 U.S. 219, 241  (1982); Morris v.            ______________________                              ______            American  National Can  Corporation, 952  F.2d 200,  202 (8th            ___________________________________            Cir. 1991).   If Hogan had taken and passed the FCE, he still            had to  proceed to further  tests and if he  cleared those he            was  required to obtain a  clearance from Dr.  Sagall.  BAR's            argument  fails because it was  by no means  clear that Hogan            was to  be reinstated to his job  upon completion of the FCE.            BAR  did  not  meet   its  burden  of  showing  it   made  an            unconditional job offer, much less its burden of showing that            the  district  court (which  believed  BAR's suggestion  that            Hogan undertake  the testing regime was  a litigation tactic,            and  untimely to boot)  erred.  In the  absence of a concrete            offer of reinstatement,  the period of back  pay accrual does            not end.                      Hogan finally argues that the district court abused            its discretion  in not  awarding him prejudgment  interest on            his back pay  award under federal  law.  Whether  prejudgment                                         -8-                                          8            interest  is needed to make  a plaintiff whole  is within the            discretion  of the  district court.    See Conway  v. Electro                                                   ___ ______     _______            Switch  Corp.,  825  F.2d 593,  602  (1st  Cir.  1987).   The            _____________            district court  did not abuse its discretion  in not awarding            Hogan prejudgment interest here where the award of damages is            almost three times the size of the back pay award.                      We  do  not  reach  Hogan's  claim  of  prejudgment            interest  under the MHRA  because Hogan  admits he  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)  ("A  party who  neglects to  ask  the trial  court for            relief  that  it  might  reasonably  have  thought  would  be            available is not  entitled to importune the  court of appeals            to grant that relief.").                      We vacate the district court's award of $100,000 in            punitive damages,  reinstate the jury's award  of $200,000 in            compensatory damages,  and affirm  the judgment on  all other            issues.                        No costs to either party.                                         -9-                                          9
