In the

United States Court of Appeals

For the Seventh Circuit

No. 99-3551

David Pals,

Plaintiff-Appellee,

v.

Schepel Buick & GMC Truck, Inc.,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division.

No. 2:97-CV-246-AR--Andrew P. Rodovich, Magistrate Judge.

Argued May 16, 2000--Decided July 14, 2000

 Before Easterbrook, Ripple, and Rovner, Circuit

Judges.

 Easterbrook, Circuit Judge. Afflicted with

muscular dystrophy, David Pals worked for 26

years as the used car manager of Schepel Buick.

Pals appraised cars offered for trade-in, decided

whether to resell used cars to other dealers or

at retail, arranged for the cars to be cleaned up

and repaired, managed inventory and personnel,

and handled related matters. All of these he was

able to do despite decreasing mobility as the

years passed. During the early 1990s Pals began

to delegate some inspection functions to

Schepel’s cleanup and repair personnel. Instead

of test-driving cars and sometimes crawling under

(or over) them to assess their condition, Pals

had other employees perform these tasks, making

appraisals on the basis of their reports. In July

1996 Pals had an accident at home that curtailed

circulation to his left leg for several hours and

left him unable to walk. When Pals sought to

return to work in February 1997, Schepel

declined, telling him that his limitations

precluded doing the used car manager’s job. In

this suit under Title I of the Americans with

Disabilities Act, 42 U.S.C. sec.sec. 12111-17, a

jury disagreed with Schepel’s assessment and

awarded Pals $1,050,000 in damages.

 Schepel contends that the evidence did not

permit a rational jury to find for Pals, but
because we must view all inferences in the light

most favorable to the verdict this position is

untenable. For example, Schepel contends that

Pals cannot perform all essential functions of

the job and therefore is not a "qualified

individual with a disability" under the ADA. 42

U.S.C. sec.sec. 12111(8), 12112(a). The only

function he can’t handle, however, is inspecting

cars personally. A rational jury could conclude

that this is not an essential, or even an

important, aspect of the used car manager’s

position, given that Pals had delegated this task

for years before the accident. Schepel has not

suggested that appraisals were less accurate as

a result or that it cost the firm even a penny

extra for other employees to devote some of their

time to this endeavor. Perhaps relieving Pals of

the inspection duty counts as an accommodation

under the ADA, but if so it was no less available

as an accommodation after Pals became wheelchairbound than before his accident.

 Appealing to the principle that the ADA does not

require an employer to displace another person

already in a position, see Gile v. United

Airlines, Inc., 95 F.3d 492, 499 (7th Cir. 1996),

Schepel contends that it had no vacancy for Pals

to fill early in 1997. But the jury could have

determined that Wayne Wiarda, who performed

Pals’s functions during his absence, had not

taken over the job but was instead filling in

just as he had done for years during Pals’s

vacations and illnesses. Nor does Pals’s request

to return initially on a part-time basis

disqualify him under the ADA. Employees who have

experienced serious medical problems often return

to work part-time and increase their hours until

they are working full time. This is what Pals

proposed to do. If (as the jury could have found)

Wiarda was available to fill in for whatever

hours Pals did not cover at the outset, gradual

return to full-time work would have been a

reasonable accommodation that the ADA required

Schepel to provide. 42 U.S.C. sec.sec.

12111(9)(B), 12112(b)(5).

 That Pals filed applications for benefits under

Schepel’s disability plan likewise does not

foreclose recovery. See Cleveland v. Policy

Management Systems Corp., 526 U.S. 795 (1999).

Pals was indeed disabled for the second half of

1996 and early in 1997, but during these months

he underwent physical therapy to regain mobility.

By February 1997 he could get out of his

wheelchair (though with difficulty) and drive his

car to the dealership. His physical therapist

testified that Pals could perform the required

tasks. Schepel responds that even as late as

February, however, when filling out an

application for long-term disability benefits,
Pals answered "all of them" to the question what

tasks he was unable to perform. Cleveland holds

that an employee making claims under the ADA must

give a satisfactory explanation for such

inconsistency. One possible explanation might

have been that Pals completed this form two days

after meeting with Schepel’s managers and

learning that he would not be welcomed back. If

his employer treated him as permanently disabled,

then he was entitled to collect on his employer’s

disability-benefits program. But this is not the

explanation Pals gave at trial, where he

testified that he had misread the form and

thought that he was being asked what tasks he was

able to perform. That strikes us as weak--

insurance law holds applicants to their answers

and does not permit lame excuses for falsehoods,

and if Pals thought he was able to perform all

tasks why was he applying for benefits?--but not

so weak that a jury was obliged to disbelieve it

for purposes of a claim under the ADA, which

(Cleveland holds) does not treat general

assertions of disability as conclusive against

applicants. None of Schepel’s claims of trial

error is persuasive, so the jury’s verdict on

liability stands.

 Damages are another matter, considerably more

difficult. Pals contended that he suffered three

kinds of harm: lost back wages, lost future

income, and mental distress. Pals himself

supplied most information and computations;

Schepel neither cross-examined him on these

subjects nor presented evidence (or calculations)

of its own. Pals sought approximately $350,000

for past financial loss, $1,700,000 for future

financial loss, and an unspecified amount for

noneconomic loss. A magistrate judge, presiding

by consent under 28 U.S.C. sec.636(c), gave the

jury a general-verdict form telling it to

determine the amount of "compensatory damages" to

which Pals was entitled. After the verdict fixed

these at $1,050,000, Schepel asked the court to

reduce the award to $100,000 under 42 U.S.C.

sec.1981a(b)(3)(B). This statute, part of the

Civil Rights Act of 1991, applies to ADA cases,

see sec.1981a(a)(2). Section 1981a(b)(3) reads:

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, for each complaining party . .

. (B) in the case of a respondent who has more

than 100 and fewer than 201 employees in each of

20 or more calendar weeks in the current or

preceding calendar year, $100,000[.]
Schepel, which has more than 100 and fewer than

201 employees, believes that its exposure cannot

exceed $100,000. After all, the verdict form and

the instructions called the award "compensatory

damages."

 Yet sec.1981a(b)(3) does not set a limit on

"compensatory damages" as that term may be used

colloquially, or even "compensatory damages" as

lawyers normally employ that term. The cap limits

"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" (emphasis added). Are back

and front pay in an ADA action awarded under

sec.1981a? Section 1981a(b)(2) tells us that

"Compensatory damages awarded under this section

shall not include backpay, interest on backpay,

or any other type of relief authorized under

section 706(g) of the Civil Rights Act of 1964",

42 U.S.C. 2000e-5(g). So back pay falls outside

the cap. Section 706(g)(1) does not mention front

pay, but it does permit a court to order

"reinstatement or hiring of employees, with or

without back pay . . ., or any other equitable

relief as the court deems appropriate." Front pay

is in lieu of reinstatement, and as a substitute

for a remedy under sec.706(g)(1) "front pay falls

squarely within the statutory language

authorizing ’any other equitable relief [as the

court deems appropriate].’" Williams v.

Pharmacia, Inc., 137 F.3d 944, 952 (7th Cir.

1998). We did not consider in Williams the effect

of this conclusion on sec.1981a; all Williams

holds is that sec.706(g)(1) authorizes front pay

as an equitable remedy. Section 1981a(b)(2) gives

this another effect, however, and we now put two

and two together. Neither back nor front pay

counts against a maximum award of compensatory

damages under sec.1981a(b)(3). Accord, EEOC v.

W&O, Inc., 2000 U.S. App. Lexis 11935 at *40-43 &

n.10 (11th Cir. May 30, 2000); Gotthardt v.

National R.R. Passenger Corp., 191 F.3d 1148,

1153-54 (9th Cir. 1999); Martini v. Federal

National Mortgage Ass’n, 178 F.3d 1336, 1348-49

(D.C. Cir. 1999); Medlock v. Ortho Biotech, Inc.,

164 F.3d 545, 556 (10th Cir. 1999); Kramer v.

Logan County School District, 157 F.3d 620, 626

(8th Cir. 1998).

 One court has gone the other way. Hudson v.

Reno, 130 F.3d 1193, 1202-03 (6th Cir. 1997),

criticized but followed by Pollard v. E.I. DuPont

de Nemours Co., 2000 U.S. App. Lexis 11750 at *29-

31 (6th Cir. May 26, 2000). Hudson reasoned that

unless front pay were charged against the cap,

the words "future pecuniary losses" would be

empty. What kind of "future pecuniary losses"

other than front pay might be covered by
sec.1981a(b)(3)?, the court wondered. One answer

is future medical expenses (often for mentalhealth matters), a kind of financial loss that

comes up now and again in civil rights actions.

See, e.g., Williamson v. Handy Button Machine

Co., 817 F.2d 1290, 1293 (7th Cir. 1987). The

maxim that statutes should be read to give

meaning to every phrase does not mean that they

should be read to make every phrase important;

many a provision covers unusual circumstances.

Section 1981a(b), read in conjunction with

sec.706(g)(1) to exclude front pay from the cap,

has plenty of work still to do, and every word

can be given some effect.

 Because the jury did not separate compensatory

damages under sec.1981a from other monetary

relief, it is impossible to know whether the

verdict includes more than $100,000 in

"compensatory damages awarded under this

section". Like the magistrate judge, we think

that Schepel has only itself to blame. Pals’s

lawyer and the magistrate judge obviously had not

focused on sec.1981a(b)(3). Schepel’s lawyer sat

quietly as the jury instructions and verdict

forms were approved and did nothing to avert the

problem. (Schepel does not contend on appeal that

its trial lawyer was clueless about sec.1981a

until after the verdict.) When lawyers fail to

draw the court’s attention to a preventable

problem, they must bear the consequences of

forfeiture. At oral argument Schepel’s lawyer

protested that there was no problem to prevent,

no error requiring objection. All this shows,

however, is that Schepel’s lawyer does not

understand the nature of the difficulty: the

difference between a generic reference to

"compensatory damages" and the more limited scope

of sec.1981a(b)(3), which affects only

"compensatory damages awarded under this

section". Having stood silent when it was

possible to frame questions so that the jury

could reveal which of the damages had been

awarded under sec.1981a, Schepel has forfeited

any benefit of sec.1981a(b)(3)(B).

 Before affirming on the basis of this

forfeiture, however, we must consider the

possibility that even with the parties’

acquiescence a jury may not determine the amounts

of back and front pay. Section 1981a(c) provides:

"If a complaining party seeks compensatory or

punitive damages under this section--(1) any

party may demand a trial by jury; and (2) the

court shall not inform the jury of the

limitations described in subsection (b)(3) of

this section." Pals demanded and was entitled to

a jury trial--but on what issues? The parties and

the magistrate judge assumed (without giving the

matter detailed attention) that the answer is
"every issue," but that can’t be right. "The

issue, not the action, is the basic unit for

determining jury-triability . . . and the rules

contemplate that in the one action some issues

will be tried to the court and others will be

tried to the jury." Charles Alan Wright & Arthur

R. Miller, 9 Federal Practice and Procedure

sec.2331 (2d ed. 1994). Suppose Pals and Schepel

disagreed about whether reinstatement was

superior to front pay. Choosing between

reinstatement and front pay and, if the latter,

the amount of front pay, would have been subjects

for the judge under sec.706(g)(1). Likewise, one

supposes, with other equitable remedies: juries

don’t draft injunctions. Back pay and front pay

are equitable remedies under sec.706(g)(1) and

therefore matters for the judge even after

sec.1981a(c), as the only published appellate

decisions on point conclude. EEOC v. W&O, supra

at *43; Allison v. Citgo Petroleum Corp., 151

F.3d 402, 423 n.19 (5th Cir. 1998). When

assessing back pay, or awarding front pay in lieu

of reinstatement, the judge must respect the

findings implied by the jury’s verdict. See Dairy

Queen, Inc. v. Wood, 369 U.S. 469 (1962); Beacon

Theatres, Inc. v. Westover, 359 U.S. 500 (1959);

Dranchak v. Akzo Nobel Inc., 88 F.3d 457, 458-59

(7th Cir. 1996); McKnight v. General Motors

Corp., 908 F.2d 104, 113 (7th Cir. 1990). But

whatever discretion the facts allow with respect

to back pay and front pay belongs to the judge

rather than the jury.

 To say that sec.1981a(c) does not entitle

either side to a jury trial on back or front pay

does not mean, however, that a jury trial is

forbidden even if the parties are content.

In all actions not triable of right by a jury the

court upon motion or of its own initiative may

try any issue with an advisory jury or, except in

actions against the United States when a statute

of the United States provides for trial without

a jury, the court, with the consent of both

parties, may order a trial with a jury whose

verdict has the same effect as if trial by jury

had been a matter of right.

Fed. R. Civ. P. 39(c). Thus an issue may be tried

to the jury "with the consent of both parties"

even if the issue is "not triable of right by a

jury". Front pay and back pay under Title VII and

the ADA are "equitable" matters, but they still

are dollar values; allowing a jury to liquidate

these sums is a far cry from allowing a jury to

draft an injunction. After all, "back pay" under

the ADA is very similar to "lost wages" in a tort

or contract suit under state law, and "front pay"

is like lost future income. Juries routinely

determine lost wages and discount future income
loss to present value. If hundreds of juries

render verdicts on these subjects every day

across the country, they can’t be beyond the

scope of consent under Rule 39(c). E.g., Place v.

Abbott Laboratories, No. 99-2418 (7th Cir. June

1, 2000), slip op. 5 (recounting that in a case

under sec.1981a the jury had awarded back pay

while the judge denied front pay).

 Well, then, did these parties consent to have

the jury decide both back pay and front pay? Not

in so many terms, but neither did either party

object--and Schepel’s answer to Pals’s complaint

does "demand trial by jury as to all issues

herein" (emphasis added). "If one party demands

a jury, the other parties do not object, and the

court orders trial to a jury, this will be

regarded as jury trial by consent" under Rule

39(c). Wright & Miller at sec.2333. See Alcatel

USA, Inc. v. DGI Technologies, Inc., 166 F.3d

772, 795 n.101 (5th Cir. 1999). For purposes such

as this, implied consent is as good as express

consent--for pleadings may be amended by implied

consent, see Fed. R. Civ. P. 15(b), which means

that when both sides are content to have an issue

decided by the jury, the pleadings are deemed

amended to give permission.

 Schepel did not introduce any evidence to

undercut Pals’s estimates of his financial loss

and therefore is in no position to contest the

million-dollar award, apart from its reliance on

sec.1981a(b)(3). Because that contention has been

forfeited, and because mutual implied consent

supports the jury’s authority to resolve issues

that normally would be decided by the court, the

judgment is

affirmed.