## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 22 2001 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RANDY D. GRIFFIN,

Plaintiff-Appellant,

v. STEELTEK, INC., an Oklahoma corporation, Defendant-Appellee. No. 00-5174

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D.C. No. 97-CV-136-K)

Submitted on the briefs: Steven R. Hickman, OBA, Tulsa, Oklahoma, for Plaint iff-Appellant. William S. Leach and Michael F. Smith, Rhodes, Hier onymus, Jones, Tucker & Gable, P.L.L.C., Tulsa, Oklahoma, for Defendant-App ellee.

Before SEYMOUR and McKAY , Circuit Judges, and BRORBY , Senior Circuit Judge.

SEYMOUR , Circuit Judge.1 After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. -2- In this case a jury returned a verdict in favor of defendant-appellee Steeltek, Inc., on plaintiff-appellant Randy D. Gri ffin’s suit for damages alleging violation of § 12112(d)(2)(A) of the Americans WithDisabilities Act of 1991 (“ADA”), 42 U.S.C. §§ 12101-12213. Mr. Griffin app eals from the district court’s order denying his post-trial motion for jud gment as a matter of law on the issue of nominal damages, denying his motion for ne w trial on the issue of punitive damages, and denying his motion for attorn ey’s fees brought pursuant to 42 U.S.C. § 12205. Our jurisdiction arises under 2 8 U.S.C. § 1291, and we affirm. 1
I. The relevant facts and proceedings are fully set out in the district court’s order of August 17, 2000, and in our previous opinion of Griffin v. Steeltek, Inc. , 160 F.3d 591 (10th Cir. 1998), and we need not repe at them here except when necessary to discuss the issues. Mr. Griffin raise s three issues on appeal: (1) whether violation of § 12112(d)(2)(A)’s prohibi tion against asking pre-employment questions regarding medical history or condition necessarily constitutes a compensable injury that must, at a mi nimum, result in an award of-3-

nominal damages; (2) whether punitive damages may b e awarded independently of an award of actual or nominal damages for this t echnical violation and should have been submitted for the jury’s consideration; and (3) whether a nonprevailing plaintiff who has proved that an employer technical ly violated § 12112(d)(2)(A) but then discontinued the prohibited practice aftersuit was filed is entitled to attorney’s fees and costs solely by virtue of that proof under a “catalyst for change” theory. We review the district court’s leg al conclusions on the first two issues de novo. See Tyler v. RE/MAX Mountain States, Inc. , 232 F.3d 808, 812 (10th Cir. 2000) (Rule 50(b) denial); EEOC v. Wal-Mart Stores, Inc. , 187 F.3d 1241, 1244 (10th Cir. 1999) (reviewing whether evid ence in ADA case is sufficient to support punitive damages award de nov o). We review the denial of attorney’s fees for abuse of discretion. See Urban ex rel. Urban v. Jefferson County Sch. Dist. R-1 , 89 F.3d 720, 728 (10th Cir. 1996). We answer all three questions in the negative.
II. We address Mr. Griffin’s first two claims of errortogether, as they statutorily both hinge on a predicate requirement o f injury through intentional discrimination. Steeltek asked two questions on it s employment application: “Have you received Worker’s Compensation or Disabil ity Income payments? If yes, describe.”and “Have you physical defects whichpreclude you from-4-

performing certain jobs? If yes, describe.” Griffin , 160 F.3d at 592; App. at 97. Mr. Griffin answered the first question, but not th e second. App. at 97. Mr. Griffin alleges that he was entitled to an award of nominal damages as a matter of law and to a jury determination on the issue of pun itive damages because the two prohibited questions undisputedly violate § 12112(d )(2)(A). The district court found that “merely being ask[ed] the impermissible question is not sufficient, by itself, to inflict acognizable injury.” App. at 80. It then noted that the jury had concluded in a special interrogatory, on sufficient evidence, that Mr. Griffin had not suffered an inju ry as a result of being asked the questions. Id. The court held that, absent an injury, Mr. Griffi n was not entitled to either nominal or punitive damages. Id. We agree. Mr. Griffin’s theory of the case, as presented to the jury, was twofold. First, he claimed that having to answer the prohibi ted questions caused him emotional and mental distress because he had filed worker’s compensation claims that he would either have to reveal, perhaps to his detriment, or lie about. Second, he claimed that Steeltek actually discrimin ated against him by refusing to hire him because of his answer to (and/or failure t o answer) the prohibited questions. Steeltek, however, presented testimony that the questions played no part in its hiring decision and that its hiring man ager did not interview Mr. Griffin because the face of his application did not indicat e that he had the requisite-5-

experience to do the job. The manager also testifi ed that he instead rehired an experienced individual who had been recently laid o ff after working for the company for two years and whom he had attempted to locate before running the ad to which Mr. Griffin had responded. On this evi dence, the jury concluded that Mr. Griffin suffered no injury from being asked the prohibited questions. The jury thus rejected Mr. Griffin’s claim of intention al discrimination. Nominal damages are a token award, compensatory in nature. Griffith v. Colorado , 17 F.3d 1323,1327 (10th Cir. 1994). Compensatorydamages are available under the ADA, however, only if the plaintiff establishes that the employer not only technically violated § 12112(d)(2 )(A) by asking a prohibited question, but also that by doing so it actually “en gaged in unlawful intentional discrimination.” 42 U.S.C. § 1981a(a)(2); § 12117(a) (adopting the remedies available for violations of Title VII set out at 42 U.S.C. § 2000e-5) ; see also Tice v. Ctr. Area Transp. Auth. , 247 F.3d 506, 520 (3rd Cir. 2001) (holding that A DA claimant must present evidence of actual harm arisi ng from technical violation of § 12112(d)); Cossette v. Minn. Power & Light , 188 F.3d 964, 971 (8th Cir. 1999) (holding that ADA claimant must establish a “tangib le injury” caused by technical violation of § 12112(d) in order to recov er compensatory damages); Armstrong v. Turner Indus., Inc. , 141 F.3d 554, 562 (5th Cir. 1998) (holding that “damages liability under § 12112(d)(2)(A) must be b ased on something more than-6-

a mere violation of that provision”). For this reason, Gudenkauf v. Stauffer Communications, Inc. , 158 F.3d 1074 (10th Cir. 1998), and Timm v. Progressive Steel Treating, Inc. , 137 F.3d 1008 (7th Cir. 1998), on which Mr. Griff in relies, are distinguishable. In both cases, the plaintiffs proved impermissible discrimination and injury. See Gudenkauf , 158 F.3d at 1080; Timm , 137 F.3d at
1010. Punitive damages require proof that the defendant e ngaged in “a discriminatory practice . . . with malice or with r eckless indifference to the federally protected rights of an aggrieved individu al,” 42 U.S.C. § 1981a(b)(1), which the Supreme Court has interpreted as knowingl y discriminating “‘in the face of a perceived risk that its action will violate federal law.’” Wal-Mart
Stores , 187 F.3d at 1245 (quoting Kolstad v. Am. Dental Ass’n , 527 U.S. 526, 536 (1999)). Because Mr. Griffin failed to establish i njury by intentional discrimination, he was not entitled to an award of either nominal or punitive damages.
III. Mr. Griffin was entitled to attorney’s fees and cos ts only if he was the prevailing party in his lawsuit. 42 U.S.C. § 12205 . Clearly, he was not. The Supreme Court has recently held that a plaintiff wh o has failed to secure a judgment on the merits or by court-ordered consent decree in an ADA suit is not2 Mr. Griffin cites Parham v. Southwestern Bell Telephone Co. , 433 F.2d 421

(8th Cir. 1970), as authority for awarding attorney ’s fees under a “catalyst” theory. However, as the Supreme Court has pointed out, “ Parham stands for the proposition that an enforceable judgment permits anaward of attorney’s fees.” Buckhannon Bd. & Care Home , 121 S. Ct. at 1842 n.9. Mr. Griffin has no enforceable judgment on which to base attorney’s fees, thus Parham affords him no aid. -7- entitled to attorney’s fees even if the pursuit of litigation has caused a desired and voluntary change in the defendant’s conduct. Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Resources , 121 S. Ct. 1835, 1838 & 1843 (2001). The district court therefore did not abuse its discretion in refusing to grant attorney’s fees and costs to Mr. Griffin or i n granting costs to Steeltek as the prevailing party. 2 We AFFIRM the judgment of the United States Distric t Court for the Northern District of Oklahoma.