United States Court of Appeals

Fifth Circuit

FILED

March 1, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-30712

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff - Appellee,

versus

E.I. DU PONT DE NEMOURS & CO, doing business as

DuPont Specialty Chemicals,

Defendant - Appellant.

Appeal from the United States District Court

for the Eastern District of Louisiana

No. 2:03-CV-1605

Before JONES, Chief Judge, and REAVLEY and PRADO, Circuit Judges.

EDITH H. JONES, Chief Judge:

E.I. DuPont de Nemours and Company (“DuPont”) appeals the

partial grant of summary judgment to the EEOC and its refusal to

alter the judgment following a jury verdict awarding Laura Barrios

backpay, frontpay, and punitive damages for violations of the

Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101

et seq. DuPont argues that Barrios was not disabled under the ADA,

that it did not “regard her” as disabled, that she could not

perform an essential function of her job, and that the awards of

punitive damages and front- and backpay were inappropriate.

Finding only the frontpay award to be infirm, we AFFIRM in part and

REVERSE in part.
2

I. BACKGROUND

Laura Barrios began working in 1981 as a lab operator in

DuPont’s LaPlace, Louisiana, chemical plant. In 1986, she was

diagnosed with a number of medical conditions that made it

increasingly difficult for her to walk and for which she received

continuing medical treatment.

Barrios’s position required her to obtain annual physical

examinations by DuPont plant physicians. In 1996, the company

physicians restricted Barrios from, inter alia, standing for more

than ten minutes, walking more than one hundred feet without

resting, working in a stooped position, or working more than eight

hours. A year later, DuPont transferred her to the position of lab

clerk, a sedentary job that involved copying and filing.

DuPont’s examinations culminated in a 1999 functional

capacity evaluation (“FCE”) because of concerns about Barrios’s

ability to safely walk at the plant. The FCE was intended to

evaluate Barrios’s ability to perform the basic functions of her

job and to meet certain qualification standards, including the

ability to evacuate in the event of an emergency. Because of the

hazardous nature of the chemical manufacturing process at the

plant, DuPont was concerned about Barrios’s ability to evacuate

safely. DuPont contends that the ability to evacuate during an

emergency is required of all employees, and DuPont routinely

conducts emergency response drills.
1 See 42 U.S.C. § 1981a(b)(3)(D).

3

After the FCE confirmed Barrios’s walking impairment,

DuPont physicians concluded that she should be medically restricted

from walking anywhere at the plant. DuPont believed this

restriction left her unable to evacuate in event of an emergency.

The company placed Barrios on temporary disability for six months

and total and permanent disability thereafter. Barrios’s attempt

to get her job back was rebuffed by Dupont, even though she

demonstrated in 2003 that she could walk an evacuation route

without assistance.

The EEOC filed suit against DuPont in June 2003, alleging

that DuPont violated the ADA by forcing Barrios to undergo the FCE

and by discharging her. DuPont responded that Barrios was

terminated because the FCE showed she could not safely evacuate the

plant on her own during an emergency. After both parties filed

cross-motions for summary judgment, the district court granted the

EEOC’s motion in part and denied DuPont’s motion. The court found

that DuPont regarded Barrios as disabled under the ADA, but it

found other material issues of fact.

The parties proceeded to trial, and a jury found that

Barrios was discharged in violation of the ADA and awarded her

$91,000 in backpay, $200,000 in frontpay, and $1,000,000 in

punitive damages, which the district court reduced to $300,000.1
4

The court denied DuPont’s post-judgment motions. DuPont now

appeals.

II. DISCUSSION

DuPont argues that the district court erred in granting

partial summary judgment to the EEOC and in denying its motions for

judgment as a matter of law, new trial, and to amend or alter the

judgment because Barrios was not disabled or “regarded as” disabled

under the ADA; the awards of back- and frontpay are improper; and

the punitive damages award was unsupported. We address each issue

in turn.

A. Disability

DuPont appeals both the district court’s grant of partial

summary judgment to the EEOC on the issue whether DuPont regarded

Barrios as substantially limited in the major life activity of

walking and the court’s failure to determine as a matter of law

that Barrios was not disabled. Because the EEOC does not defend

the jury’s finding that Barrios was actually disabled for ADA

purposes, this appellate review must consider whether to sustain

the judgment solely on the basis that DuPont regarded Barrios as

disabled.

This court reviews de novo the district court’s grant of

summary judgment, utilizing the same criteria as the district

court. Cutrera v. Bd. of Supervisors of La. State Univ., 429 F.3d
5

108, 110 (5th Cir. 2005). DuPont will prevail if the evidence

demonstrated a genuine issue of material fact.

The ADA’s definition of “disability” includes individuals

who are “regarded as having such an impairment [that substantially

limits one or more of the major life activities].” 42 U.S.C.

§ 12102(2)(C); see also Rodriguez v. ConAgra Grocery Prods. Co.,

436 F.3d 468, 475 (5th Cir. 2006). A plaintiff is “regarded as”

being disabled if he “(1) has an impairment that is not

substantially limiting but which the employer perceives as

substantially limiting, (2) has an impairment that is substantially

limiting only because of the attitudes of others, or (3) has no

impairment but is perceived by the employer as having a

substantially limiting impairment.” Waldrip v. Gen. Elec. Co.,

325 F.3d 652, 657 (5th Cir. 2003) (citing Gowesky v. Singing River

Hosp. Sys., 321 F.3d 503, 508 (5th Cir. 2003)); see also Sutton v.

United Air Lines, Inc., 527 U.S. 471, 489, 119 S. Ct. 2139, 2149-50

(1999).

In holding that DuPont regarded Barrios as disabled, the

district court relied upon the broad restrictions placed on her by

DuPont physicians, the total and permanent disability benefits

provided to her with DuPont’s assistance, and DuPont’s pleadings

and discovery responses. DuPont admitted in its discovery

responses that Barrios was “incapable of walking” and “permanently

disabled from walking.” DuPont plant physicians placed

restrictions on her walking anywhere at the plant site, including
2 See, e.g., Blanks v. Sw. Bell Commc’ns, Inc., 310 F.3d 398, 402 (5th

Cir. 2002); Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1025 (5th Cir. 1999)

(per curiam); Deas v. River West, L.P., 152 F.3d 471, 480-81 (5th Cir. 1998);

Bridges v. City of Bossier, 92 F.3d 329, 334-36 (5th Cir. 1996).

6

on level and paved surfaces, because they considered her

“substantially impaired in walking” and because she “could not

dependably be counted on to walk safely.” The district court cited

a large quantity of evidence consistent with its conclusion.

In response, DuPont argues that, rather than having

regarded Barrios as entirely disabled from the major life activity

of walking, it regarded her as having a medical restriction that

prevented her from walking at the plant. Two of this court’s

decisions, Ray v. Glidden Co., 85 F.3d 227 (5th Cir. 1996), and

Pryor v. Trane Co., 138 F.3d 1024 (5th Cir. 1998), are

representative of a long line of cases holding that an employer may

regard an employee as impaired or restricted from one position or

a narrow range of jobs without regarding him as “disabled.”2 Ray

held that restrictions on heavy lifting did not establish a record

of disability or a “regarded as” disability because the inability

to perform heavy lifting did not render the employee “substantially

limited in the major activities of lifting or working.” 85 F.3d at

229. Similarly, in Pryor, the employee could not be regarded as

disabled because her work restrictions were limited only to a

particular job and not an entire class of jobs. 138 F.3d at 1028.

DuPont’s reliance upon Ray and Pryor is misplaced. The

evidence demonstrates that DuPont did not regard Barrios as
7

restricted from a narrow range of jobs; rather, DuPont regarded

Barrios as restricted from all jobs at the plant, because every

employment position requires walking on the plant site. Moreover,

DuPont’s perception of Barrios’s walking impairment was not limited

to the plant — Dupont physicians believed her impairment extended

to “home, at work, wherever.” If company experts believed Barrios

could not walk safely even in her own work area, which consisted of

level, flat surfaces, then DuPont must also have believed she could

not safely walk anywhere. See Rodriguez, 436 F.3d at 477. DuPont

was unable to offer evidence that created a genuine issue of

material fact that its experts’ perceptions of the work

restrictions might have been limited to Barrios’s ability to walk

in her particular position as a lab clerk or only at the DuPont

plant.

Therefore, for ADA purposes, DuPont regarded Barrios as

substantially limited in the major life activity of walking. See

29 C.F.R § 1630.2(j)(1)(i) (stating that “substantially limits”

means “[u]nable to perform a major life activity that the average

person in the general population can perform”); Talk v. Delta

Airlines, Inc., 165 F.3d 1021, 1024-25 (5th Cir. 1999) (per curiam)

(noting that walking is a major life activity); see also EEOC v.

Sears, Roebuck & Co., 417 F.3d 789, 802 (7th Cir. 2005) (holding

that a “severe difficulty in walking the equivalent of one city

block was a substantial limitation compared to the walking most
3 Because DuPont’s briefs argue only for reversal of the judgment, the

company has failed sufficiently to brief and thus waived any claim to a new

trial. Another point of confusion is that DuPont argues that the jury was

“clearly wrong” in its verdict. Clear error is not the standard for judgment as

a matter of law, but we assume that DuPont’s argument is meant to be internally

consistent.

8

people do daily”). The district court properly granted summary

judgment that Barrios was “regarded as” disabled.

B. Sufficiency of Evidence

DuPont next contends that ADA liability cannot attach as

a matter of law because Barrios was not qualified for the position

of lab clerk, she could not perform the essential function of

evacuation, and she constituted a direct safety threat to herself

and others. The jury implicitly found otherwise.

DuPont cannot prevail in seeking judgment as a matter of

law “unless there is no legally sufficient evidentiary basis for a

reasonable jury[’s] verdict.” Arsement v. Spinnaker Exploration

Co., 400 F.3d 238, 248-49 (5th Cir. 2005) (quoting FED. R. CIV. P.

50(a)(1)).3

The ADA states that a qualified individual with a

disability is one who “with or without reasonable accommodation,

can perform the essential functions of the employment position that

such individual holds or desires.” Rodriguez, 436 F.3d at 474

(emphasis added) (quoting 42 U.S.C. § 12111(8)). Essential

functions are the fundamental duties of the job at issue and do not

include the job’s “marginal functions.” Kapche v. City of San

Antonio, 176 F.3d 840, 843 (5th Cir. 1999) (citing 29 C.F.R.
9

§ 1630.2(n)(1)). When considering whether a function is essential,

a court may hear a variety of evidence, including “(1) the

employer’s judgment as to which functions are essential,

(2) written job descriptions prepared before advertising or

interviewing applicants for the job, (3) the amount of time spent

on the job performing the function, and (4) the work experience of

both past and current employees in the job.” Id. (citing 29 C.F.R.

§ 1630.2(n)(3)(i)-(vii)). Appellate review of the jury’s determination of the essential functions of Barrios’s job is highly

deferential. See Barber v. Nabors Drilling U.S.A., Inc., 130 F.3d

702, 707 (5th Cir. 1997).

DuPont asserted that Barrios was incapable of evacuating

from the plant in an emergency and that evacuation is an essential

function of all workers at a chemical refinery. We do not doubt

that safety measures are extremely important in such workplaces.

Nevertheless, Barrios and the EEOC offered contradictory evidence

on DuPont’s precise points, and the jury was entitled to decide

whether to credit Barrios or DuPont. We will not disturb its

choice.

DuPont also asserts as an affirmative defense that

Barrios posed a direct threat to herself and other employees

because she could not safely evacuate. See 42 U.S.C. § 12113(a)-

(b). The ADA does not protect an employee who poses a direct

threat to the health and safety of herself or others in the

workplace. Robertson v. Neuromedical Ctr., 161 F.3d 292, 296 (5th
10

Cir. 1998) (per curiam). A direct threat is a “significant risk to

the health or safety of others that cannot be eliminated by

reasonable accommodation.” 42 U.S.C. § 12111(3). The employer

must make an “individualized assessment of the individual’s present

ability to safely perform the essential function of the job.”

Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 86, 122 S. Ct. 2045,

2053 (2002) (quoting 29 C.F.R. § 1630.2(r)); see also Rodriguez,

436 F.3d at 484; Kapche, 304 F.3d at 498.

Here, too, there was sufficient evidence for a reasonable

jury to conclude that Barrios was not a direct threat to herself or

her co-workers. Despite her medical restriction from walking,

Barrios safely ambulated the evacuation route without assistance in

2003, and testimony at trial supported that she could safely

evacuate without threatening the safety of others. See Rizzo v.

Children’s World Learning Ctrs., Inc., 213 F.3d 209, 213 (5th Cir.

2000) (en banc) (driver of child care van with hearing impairment

not a direct threat); cf. Gonzales v. City of New Braunfels,

176 F.3d 834, 838 (5th Cir. 1999) (police officer driving a cruiser

“with insulin-dependent diabetes poses a direct threat to the

health and safety of others as a matter of law”). The district

court did not err in denying DuPont’s motion for judgment as a

matter of law.

C. Back- and Frontpay Damages 
4 The backpay award was adjusted for the amount of disability

compensation Barrios received from DuPont during this period.

11

The jury awarded $91,000 backpay from the date of

Barrios’s separation, July 1999, to the date of judgment in January

2005, and the court awarded frontpay of $200,000, premised on

Barrios’s ability to work until she became sixty-five and on the

infeasibility of reinstatement at DuPont. DuPont challenges both

awards.

The jury’s determination of the backpay period in this

case was not insupportable. See Brunnemann v. Terra Int’l, Inc.,

975 F.2d 175, 178 n.5 (5th Cir. 1992) (“the determination of back

pay period is a factual matter to be set aside only when clearly

erroneous” (citing Matthews v. A-1, Inc., 748 F.2d 975, 978 (5th

Cir. 1984))). Although Dr. Montegut, Barrios’s physician,

testified that Barrios was medically unable to work after June

2001, the jury could have relied upon testimony that Barrios had a

high pain threshold and could have worked after that date. The

jury was in a better position than this court to weigh the evidence

concerning the proper date to cut off backpay. See id. Further,

assessing the backpay at the modest amount of approximately $20,000

per year over a five-year period was not improper.4

The same cannot be said of the district court’s award of

frontpay, which was based on an advisory jury verdict. See Julian

v. City of Houston, 314 F.3d 721, 728 n.25 (5th Cir. 2002)

(district court may determine frontpay with the assistance of an
5 DuPont also challenges the district court’s finding that

reinstatement was infeasible; however, because the district court’s award of

frontpay was an abuse of discretion, we do not address this argument.

12

advisory jury). We review the district court’s award of frontpay

for abuse of discretion. Id. at 728; see also Giles v. Gen. Elec.

Co., 245 F.3d 474, 489 (5th Cir. 2001).

“Front pay is awarded to compensate the plaintiff for

lost future wages and benefits.” Rutherford v. Harris County, 197

F.3d 173, 188 (5th Cir. 1999) (quoting Shirley v. Chrysler First,

Inc., 970 F.2d 39, 44 (5th Cir. 1992)). Although reinstatement is

preferred, frontpay may be awarded if reinstatement is not

feasible. Id.5 The key issue before this court is “whether the

district court adequately explained why it awarded front pay.” Id.

The district court concluded that Barrios was likely to

have continued working for DuPont despite her walking impairment.

This conclusion was based on testimony that Barrios was hardworking, committed, and had a “high tolerance for pain.” Given

Barrios’s steadily deteriorating medical condition, however, her

doctor’s repeated statements as time went on that she remained

unable to work, and the fact that the trial occurred more than

three years after her doctor’s first disability determination and

five years after the adverse FCE, the court’s finding that Barrios

could work for nearly ten more years post-judgment defies reality

and the record. As she was unable to work in the future, Barrios

was not eligible to receive “future wages and benefits.” See,
13

e.g., McInnis v. Fairfield Cmtys., Inc., 458 F.3d 1129, 1146 (10th

Cir. 2006) (frontpay award must not grant plaintiff a windfall).

Although the jury’s determination of the backpay period was not

clearly erroneous, the district court’s award of frontpay was an

abuse of discretion. Only the backpay award can stand.

D. Punitive Damages

Finally, DuPont challenges the award of punitive damages.

It argues that there was no evidence of malice or reckless

indifference and that punitive damages are unavailable as a matter

of law absent a finding of compensatory damages.

A plaintiff may recover punitive damages if the defendant

acted “with malice or with reckless indifference to the federally

protected rights of an aggrieved individual.” 42 U.S.C.

§ 1981a(b)(1). The availability of punitive damages turns on the

defendant’s state of mind, not the nature of the defendant’s

egregious conduct. Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535,

119 S. Ct. 2118, 2124 (1999). The employer “must at least discriminate in the face of a perceived risk that its actions will

violate” the ADA. Id. at 536, 119 S. Ct. at 2125. Moreover, the

plaintiff must show that the “malfeasing agent served in a

‘managerial capacity’ and committed the wrong while ‘acting in the

scope of employment.’” Rubinstein v. Adm’rs of the Tulane Educ.

Fund, 218 F.3d 392, 405 (5th Cir. 2000) (citing Kolstad, 527 U.S.

at 541, 119 S. Ct. at 2127). However, under the good-faith excep-
14

tion, “an employer may not be vicariously liable for the

discriminatory employment decision of managerial agents where these

decisions are contrary to the employer’s good-faith efforts to

comply with Title VII.” Id. (citing Kolstad, 527 U.S. at 545,

119 S. Ct. at 2129) (internal quotation marks omitted).

There was sufficient, albeit disputed, evidence to

support the jury finding that DuPont intentionally discriminated

against Barrios with malice or with reckless disregard for her

rights. DuPont was aware of its responsibilities under the ADA.

Yet, viewed in the light most favorable to the verdict, DuPont made

Barrios’s job more difficult. The company placed Barrios’s printer

over one hundred feet from her desk in spite of her walking

difficulties, whereas other lab clerks’ printers were adjacent to

their desks. DuPont refused to allow Barrios to demonstrate her

ability to evacuate before she was terminated — for inability to

evacuate. The company spent years trying to convince Barrios to

retire on disability. But the crowning evidentiary blow against

DuPont is that after Barrios attempted to get her job back, a

DuPont supervisor stated that he no longer wanted to see her

“crippled crooked self, going down the hall hugging the walls.”

The supervisor’s denial of this remark under oath, like DuPont’s

rejoinder to other negative evidence, was subject to the jury’s

credibility assessment. The jury likewise could have rejected

DuPont’s good-faith defense based on the conclusory assertions by

two DuPont employees that they comply with the law. Cf. Hatley v.
15

Hilton Hotels Corp., 308 F.3d 473, 477 (5th Cir. 2002) (employer’s

well-publicized policies, training, grievance procedure, and

investigation of plaintiff’s complaint were sufficient to sustain

good-faith defense).

DuPont alternatively contends that the punitive damages

award was impermissible in the absence of compensatory damages;

front- and backpay awards are “equitable” remedies, rather than

compensatory. Whether this is a correct interpretation of 42

U.S.C. § 1981a is an issue of first impression in our court. We

review this legal question de novo. La. ACORN Fair Housing v.

LeBlanc, 211 F.3d 298, 301 (5th Cir. 2000), cert. denied, 532 U.S.

904, 121 S. Ct. 1225 (2001).

The analysis begins with the text of the statute. Doe v.

KPMG, LLP, 398 F.3d 686, 688 (5th Cir. 2005). Section 1981a(b)(1)

authorizes punitive damages if the defendant acts “with malice or

with reckless indifference to the federally protected rights of an

aggrieved individual.” Because subsection (b)(2) states that

“[c]ompensatory damages awarded under this section shall not

include backpay,” DuPont contends that backpay is excluded from

compensatory damages. As the district court correctly noted,

however, nothing in the text of the statute limits an award of

punitive damages to cases in which the plaintiff also receives

compensatory damages. See Hennessy v. Penril Datacomm Networks,

Inc., 69 F.3d 1344, 1352 (7th Cir. 1995); see also Corti v. Storage

Tech. Corp., 304 F.3d 336, 342 (4th Cir. 2002). Other courts of
6 See Tisdale v. Fed. Express Corp., 415 F.3d 516, 534 (6th Cir. 2005)

(“Because backpay awards under Title VII serve a similar purpose as compensatory

damages awards under the common law, courts have held they may be considered in

determining the appropriate size of a punitive damages award.”); Salitros v.

Chrysler Corp., 306 F.3d 562, 575 (8th Cir. 2002) (award of frontpay is

sufficient to sustain the punitive damage award because “the common law policy

prohibiting punitive damages where the plaintiff has not shown any harm is not

implicated where the plaintiff has shown wage loss”); EEOC v. W&O, Inc., 213 F.3d

600, 615 (11th Cir. 2000) (“punitive damages may be appropriate where a plaintiff

has received back pay but no compensatory damages”). Although we need not and

do not decide or endorse their position, two courts of appeals have even upheld

punitive damage awards in the absence of either compensatory damages or backpay.

Cush-Crawford v. Adchem Corp., 271 F.3d 352, 359 (2d Cir. 2001); Timm v.

Progressive Steel Treating, Inc., 137 F.3d 1008, 1010 (7th Cir. 1998).

16

appeals have uniformly rejected DuPont’s assertion and have held

that an award of wage loss alone can sustain a statutory award of

punitive damages.6

DuPont relies upon LeBlanc to support its argument that

the “equitable” awards of front- and backpay are insufficient to

sustain an award of punitive damages. See 211 F.3d 298, 301 (5th

Cir. 2000). In a Fair Housing Act case in which no compensatory

damages were awarded for a statutory violation, this court

disallowed a punitive damages award absent an award of actual

damages or a constitutional violation. Id. at 303 & n.3. DuPont

asserted at oral argument that LeBlanc covered all civil rights

cases in this circuit.

Although LeBlanc surveyed the landscape concerning

punitive damages under various statutes and around the circuits,

the case ultimately ruled on their availability (a) under the Fair

Housing Act and (b) in a case where no compensatory damages of any

sort were awarded. Under Section 1981a, back- and frontpay awards

serve a compensatory function, leading courts to conclude that a
17

Fair Housing Act case is not analogous. See Corti, 304 F.3d at

343. Moreover, Barrios’s backpay award was issued precisely to

remedy her wage loss following illegal termination by DuPont.

LeBlanc is thus distinguishable on both the law and the facts.

DuPont also overlooks that in Rubinstein v. Administrators of the

Tulane Educational Fund, 218 F.3d 392, 407 (5th Cir. 2000), this

court sustained a punitive damages award where the plaintiff

received only compensation damages for lost wages. Consequently,

we do not find persuasive DuPont’s attempt to characterize wage

loss as an exclusively equitable remedy that is insufficient to

support an award of punitive damages. See Great-West Life &

Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210, 218 n.4, 122 S. Ct.

708, 712, 717 n.4 (2002).

III. CONCLUSION

For the reasons discussed above, we AFFIRM liability and

the awards of backpay and punitive damages but REVERSE the award of

frontpay.

AFFIRMED IN PART, REVERSED IN PART.