U.S. EQUAL EMPL. OPPOR. COMM. v. E.I. DU PONT DE NEMOURS

SARAH VANCE, District Judge

In its proposed judgment, the EEOC asks the Court to order a training session for certain DuPont employees and to enjoin DuPont from retaliating against any participant in the litigation. For the following reasons, the Court will not impose the requested equitable relief.

I. BACKGROUND

On June 5, 2003, the EEOC sued DuPont on behalf of Laura Barrios. Barrios is a 56 year-old woman with severe scoliosis of the lumbar spine, lumbar disc disease with sciatica, lumbar spinal stenosis with compression neuropathy, neurogenic bladder, cervical spondylosis, previous cervical disc disease with surgical fusions, and reactive depression. She experiences difficulty walking. After granting partial summary judgment in favor of the EEOC, the Court held a jury trial to determine (1) whether DuPont subjected Barrios to an illegal medical examination in violation of the Americans with Disabilities Act, and (2) whether DuPont terminated Laura Barrios in violation of the Americans with Disabilities Act.

The jury found that DuPont terminated Barrios in violation of the ADA, and it awarded Barrios $91,000.00 in backpay, $200,000.00 in front pay, and $1,000,000.00 in punitive damages. The punitive damages award will be reduced to $300,000.00 under the statutory cap provided in the Civil Rights Act of 1991, 42 U.S.C. § 1981a. The jury also found that DuPont did not violate the ADA when it required Barris to undergo a medical examination.

In addition to the monetary damages, the EEOC requests two types of additional relief. First, the EEOC moves the Court to order a single, four-hour, ADA training session on all managers, supervisors, and physicians at the DuPont LaPlace facility within the next year. Second, the EEOC asks the Court to enjoin DuPont from retaliating against any person who participated in the litigation. DuPont objects to the equitable relief on several grounds. First, DuPont argues that the EEOC waived its right to relief in the form of training or an injunction against retaliation because it did not mention either in the pre-trial order. Second, DuPont contends that Great-West Life Annuity Ins. Co. v. Knudson, 534 U.S. 204, 212 (2002), precludes the imposition of injunctive relief in this case. Third, DuPont argues that the Court cannot impose injunctive relief in the form of training and prohibition on retaliation for various legal and evidentiary reasons. The Court will address each argument in turn.

II. DISCUSSION

A. Waiver

DuPont argues that the EEOC waived its right to the equitable relief requested because the EEOC failed to include it in the pretrial order. The pretrial order supercedes all pleadings and controls the scope of the trial. Elvis Presley Enter., Inc. v. Capece, 141 F.3d 188, 206 (5^th Cir. 1998). If the parties omit a claim or issue from the pre-trial order, they waive the omitted claim or issue even if it appears in the complaint. Id.

The Court finds that DuPont's argument is without merit. DuPont's own listing of contested issues of law in the pretrial order explicitly addressed equitable relief. Specifically, DuPont included "back pay, front pay, compensatory damages, punitive damages, and/or injunctive relief" among the contested issues of law. (R. Doc. 70 at 22 (emphasis added).) Furthermore, the Court notes that the parties discussed the EEOC's request for equitable relief at the pretrial conference. DuPont cannot seriously contend that it was surprised by the EEOC's request for equitable relief at the conclusion of the trial. Accordingly, the Court finds that the EEOC did not waive its right to request equitable relief.

B. The Court's Power to Impose Training

DuPont argues that the Court is powerless to impose training under Great-West Life Annuity Ins. Co. v. Knudson, 534 U.S. 204, 212 (2002). Contrary to DuPont's argument, Knudson is inapplicable to this case. In Knudson, the Supreme Court examined the section of ERISA that provides litigants the power to bring an action "to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or to obtain other appropriate equitable relief to redress violations or to enforce any provisions of this subchapter or the terms of the plan." 29 U.S.C. § 1132(a)(3). Specifically at issue was whether that section authorized a legal action for restitution. Knudson, 534 U.S. at 206. The Court held that the section permits courts to impose only "equitable" relief, which the Court defined as relief traditionally sought in courts of equity. Id. at 221. Therefore, the section did not authorize the remedy that the litigant sought because that remedy was legal, not equitable. Id.

Under the ADA, the Court may "order such affirmative relief as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without backpay . . ., or any other equitable relief as the court deems appropriate." 42 U.S.C. § 2000e-5(g)(1). Unlike the litigant in Knudson, who requested legal relief, the EEOC asks the Court to impose affirmative injunctive relief in the form of training. Training is equitable relief that the Court has power to impose. As the Supreme Court has explained, "it was clearly not beyond the power of a court of equity, which is not always limited to the restraint of a contemplated or threatened action, but [to] even require affirmative action, where the circumstances of the case demand it." Ex parte Lennon, 166 U.S. 548, 556 (1897). Therefore, Knudson does not prevent the Court from imposing affirmative injunctive relief in the form of training.

C. Propriety of Injunctive Relief

DuPont argues that the Court cannot impose equitable relief because the EEOC lacks standing to request it. The Court agrees, and for this reason, the Court declines to impose the requested equitable relief.

In Armstrong v. Turner Industries, Inc., 141 F.3d 554 (5^th Cir. 1998), the Fifth Circuit held that to obtain injunctive relief imposed under the ADA, the plaintiff must satisfy the same constitutional requirements as any claimant for equitable relief in a federal court. Id. at 562-63 (citing City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983)). Specifically, an ADA plaintiff must show that she may incur future injury to have standing to request equitable relief from the court. Id. Therefore, evidence of a single past statutory violation alone is insufficient to justify equitable relief under the ADA. Id. at 563.

The Armstrong court found that the plaintiffs were not entitled to equitable relief. This was because the plaintiffs no longer worked for the employer, they did not indicate that they intended to seek employment with the employer in the future, and they did not purport to represent a class of individuals who were in danger of discrimination from the employer. Id. Therefore, the plaintiffs failed to show that they were at risk of being subjected to a statutory violation in the future. Id. Accordingly, the court held that the plaintiffs did not have standing to seek equitable relief. Id. at 563-64. See also Shafer v. Army Air Force Exchange Svs., 376 F.3d 386, 398 (5^th Cir. 2004) (reversing the imposition of equitable relief because the plaintiff-employee had retired and she did not purport to represent a class of individuals in danger of discriminatory treatment by the employer); Gordon v. JKP Enter., Inc., 2002 WL 753496, at **7 (5^th Cir. Apr. 9, 2002) (finding that equitable relief was inappropriate because the plaintiffs no longer worked for the employer and did not indicate that they planned to seek employment with the employer again); Oyefodun v. Dillard Univ., 2003 WL 21634305, at *4 (E.D. La. June 26, 2003) (declining to impose equitable relief because the plaintiff no longer worked for the employer and did not purport to represent a class of individuals in danger of discriminatory treatment by the employer). Although the EEOC offers the Court examples of employment discrimination suits in which courts imposed equitable relief, the EEOC fails to distinguish or address the present case in light of Armstrong.

The Court finds that the EEOC is not entitled to equitable relief under Armstrong. First, the EEOC is not entitled to injunctive relief in the form of training. This is because Laura Barrios does not work for DuPont, and she did not indicate that she will seek employment with DuPont again. Moreover, she did not purport to represent a specific class of individuals who may experience discriminatory treatment by DuPont. The EEOC has not demonstrated that Barrios is in danger of discrimination from DuPont in the future. Therefore, the EEOC is not entitled to equitable relief in the form of training. Accordingly, the Court will not impose it.

Similarly, the EEOC is not entitled to an injunction prohibiting DuPont from retaliating against "any person who participated in whatever capacity in the litigation" for the same reason. No witnesses at trial indicated that they were in danger of experiencing retaliation from DuPont. No current DuPont employees testified against the company, and neither Barrios nor her husband — both witnesses for the EEOC — works for DuPont. Ultimately, the EEOC failed to demonstrate that any participant in the litigation is in danger of experiencing retaliation. Accordingly, the Court will not enjoin DuPont from retaliating against any participant in the litigation.

III. CONCLUSION

For the foregoing reasons, the Court declines to impose the requested equitable relief. The Court orders the EEOC to submit a proposed judgment consistent with this order.