

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
