Lawrence Pedigo worked for P.A.M. Transport, Inc., as a truck driver from 1981 through mid-1991, as a driver liaison in the company office for six months, and then as a truck driver again until shortly before mid-1992, when he had a heart attack and could no longer meet the physical requirements mandated by federal regulations for truck drivers. The company did not find a position for Mr. Pedigo that did not require driving a truck and fired him about five months after his heart attack.
A year later, Mr. Pedigo sued the company in federal district court, alleging that the company’s failure to find a non-driving position for him and then firing him was discrimination on the basis of disability and therefore violated the Americans with Disabilities Act. See 42 U.S.C. §§ 12101-12213. After a three-day trial, a jury found that the company had intentionally discriminated against Mr. Pedigo on thе basis of disability but that the company would have made the same decision to fire him for legitimate, nondiscriminatory reasons. The jury then awarded approximately $62,500 in compensatory damages to Mr. Pedigo.
The company appeals, arguing that because the jury found that the company would have made the same decision for legitimate, nondiseriminatory reasons, Mr. Pedigo was not entitled to compensatory damages. The company also argues that the evidence was insufficient in several respects and that the jury instructions were flawed. We vacate the district court judgment and remand the case for further proceedings. Because our decision is based on the company’s argument with regard to the award оf compensatory damages, we need not address the other questions raised.
I.
The Americans with Disabilities Act forbids employers to discriminate against individuals with a disability “because of the disability of such individuals].” See 42 U.S.C. § 12112(a). An employee’s remedies for such discrimination are defined by Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 12117(a).
An employee is entitled to some relief if he or she proves that his or her disability was a “motivating factor” in the decision made, “even though other factors also motivated” the employer’s decision. See 42 U.S.C. § 2000e-2(m). If the employer proves, however, that it would have made the same decision “in the absence of the impermissible motivating factor,” see 42 U.S.C. § 2000e-5(g)(2)(B), the court may grant declaratory and injunctive relief and some attorney’s fees and costs, see 42 U.S.C. § 2000e — 5(g)(2)(B)(i), but not rеinstatement, back pay, or damages, see 42 U.S.C. § 2000e-5(g)(2)(B)(ii). In other words, in a ease where the employee’s disability was a motivating factor in the employer’s decision but the employer proves that it would have made the same decision absent consideration of the employee’s disability, the remedies available are limited to a declaratory judgment, an injunction that does not include an order for reinstatement or for back pay, and some attorney’s fees and costs.
Other cоurts have reached the same conclusion, construing parallel language in Title VII with respect to race, sex, and age discrimination.
See, e.g., Mardell v. Harleysville Life Insurance Co.,
We find the meaning of the relevant provisions of Title VII to be clear and unambiguous. Under these circumstances, we need not consider the legislative history of those provisions.
See, e.g., Tillwick v. Sears, Roebuck, and Co.,
Mr. Pedigo argues, however, that compensatory damages are authorized by the language of 42 U.S.C. § 1981a(a)(2), which states that, in an action under the Ameriсans with Disabilities Act, an employee “may recover compensatory and punitive damages ... in addition to any relief authorized by [Title VII]” (emphasis supplied by Mr. Pedi-go). The inclusion of the phrase beginning “in addition to,” without any restriction, shows, according to Mr. Pedigо, that an employee is entitled to compensatory damages as long as he or she proves that the disability was a motivating factor in the employer’s decision, i.e., irrespective of the employer’s proof on whether it would have tаken the same action without considering the employee’s disability. That conclusion, Mr. Pedigo asserts, is supported by three other statutory provisions — 42 U.S.C. § 1981a(b)(2) and the combination of 42 U.S.C. § 2000e-5(g)(2)(A) and 42 U.S.C. § 2000e-5(g)(2)(B)(ii).
The first of those provisions states that compensatory damages awarded “shall not include backpay, interest on backpay, or any other type of relief authorized under [Title VII].” See 42 U.S.C. § 1981a(b)(2). Mr. Pedigo contends that that provision is a restatement of the statute’s earlier authorization of compensatory damages “in addition to” the relief authorized by Title VII. See 42 U.S.C. § 1981a(a)(2).
The other two of those provisions appear in the remedies portion of Title VII. The statute first provides that no order of the court “shall require the ... reinstatement ... of an individual as an еmployee, or the payment to him of any back pay, if such individual was ... discharged for any reason other than discrimination.” See 42 U.S.C. § 2000e-5(g)(2)(A). The very next section directs that in a case where an individual proves that his or her disability was a motivating factor in the employer’s action, see 42 U.S.C. § 2000e-5(g)(2)(B), § 2000e-2(m), and an employer proves that it would have taken the same action absent consideration of the employee’s disability, see 42 U.S.C. § 2000e-5(g)(2)(B), the court “shall not award damages or issue an order requiring any ... reinstatement ... or payment, described in subparagraph (A)” (emphasis supplied by Mr. Pedigo), i.e., 42 U.S.C. § 2000e-5(g)(2)(A). See 42 U.S.C. § 2000e-5(g)(2)(B)(ii). The phrase “described in sub-paragraph (A),” according to Mr. Pedigo, modifies not just the prohibition against “issufing] an order requiring any ... reinstatement ... or payment,” but also the prohibition against “award[ing] damages.” In other words, Mr. Pedigo contends thаt the “damages” forbidden by 42 U.S.C. § 2000e-5(g)(2)(B)(ii) are not the compensatory damages authorized by 42 U.S.C. § 1981a(a)(2) but are, instead, the “back pay” referred to in 42 U.S.C. § 2000e-5(g)(2)(A).
We admire the tenacity and ingenuity of Mr. Pedigo’s lawyer in making those arguments. We do not, however, find them to be persuasive.
In the first place, the “relief authorized by [Title VII],” see 42 U.S.C. § 1981a(a)(2), in the particular circumstances of a case where the employer proves that it would have taken the same action absent consideration of the employee’s disability, see 42 U.S.C. § 2000e- *1303 5(g)(2)(B), is specifically described аs, first, “declaratory ... [and] injunctive relief ... and [some] attorney’s fees and costs,” see 42 U.S.C. § 2000e-5(g)(2)(B)(i), and, second, “not ... damages ... or an order requiring ... reinstatement ... or payment” (emphasis supplied), see 42 U.S.C. § 2000e-5(g)(2)(B)(ii). The circumstances prompting the application of 42 U.S.C. § 2000e-5(g)(2)(B) are very spеcifically delineated, as are the elements not only of the relief permitted but also of the relief prohibited. Construing 42 U.S.C. § 1981a(a)(2) as allowing compensatory damages in a case where the employer proves that it would have takеn the same action absent consideration of the employee’s disability would, it seems to us, completely destroy the point of having a specific section — ie., 42 U.S.C. § 2000e-5(g)(2)(B)— for such cases.
It is far more likely, in our view, that the language authorizing compensatory damages “in addition to any relief authorized by [Title VII],” see 42 U.S.C. § 1981a(a)(2), is intended to apply to the more general class of cases where the employee proves that discrimination on account of his or her disability was a motivating factor in the employer’s action, see 42 U.S.C. § 2000e-2(m), but the employer has either no proof or insufficient proof on whether it would have taken the same action absent consideration of the employee’s disability. That conclusion is further validatеd by the fact that, otherwise, the statement of what compensatory damages do not consist of, see 42 U.S.C. § 1981a(b)(2), would be redundant and therefore superfluous.
As the Supreme Court has noted, furthermore, back pay was available under the equitable relief authorized for eases under Title VII before 42 U.S.C. § 1981a(a) was ever enacted.
See Landgraf v. USI Film Products,
— U.S. -, -,
Nor do we accept Mr. Pedigo’s argument that the “damages” prohibited by 42 U.S.C. § 2000e-5(g)(2)(B)(ii) are not compensatory damages but, instead, the back pay referred to in 42 U.S.C. § 2000e-5(g)(2)(A). The awarding of back pay under cases governed by Title VII, as the Supreme Court has noted, has traditionally been considered an equitable
remedy
— ie., not damages — even though it is monetary in nature.
See Landgraf,
— U.S. at -,
II.
The jury awarded compensatory damages rather than any of the relief authorized, and so the company argues that the judgment must be vacated. Mr. Pedigo responds, however, that the company failed to preserve this issue for appellate review. We need not untangle the question of whether the company properly preserved this issue, fortunately, for we believe that the trial court’s judgment is properly reviewable in this case even if the issue was not technically preserved. That is because the trial court committed plain error,
see, e.g., United States v. Atkinson,
It is truе that the statutes relevant to this ease are somewhat complex, and parsing them is more than a little tedious. But we think that, once the effort is made, they can bear only one reasonable meaning. We also note that one of the usuаl reasons for declining to consider issues on appeal that were not preserved is not present in this case— i.e., the fact that the trial court should have an opportunity to consider those issues first. The trial court did consider the question of the propriety of compensatory damages, both in discussion on one of the company’s summary judgment motions and with respect to two post-trial motions on which the trial court ruled.
III.
It is not clear whether the trial court would have granted declаratory and/or in-junctive relief (or even if Mr. Pedigo would have requested it) if the parties and the court had been properly interpreting the statutes. (The record shows that the trial court did award some attorneys’ fees and costs to Mr. Pedigo.) We thеrefore vacate the judgment and remand the case to the trial court for further proceedings, leaving the question of declaratory and/or injunctive relief to the parties and the trial court.
IV.
For the reasons stated, we vacate the judgment and remand the case to the trial court.