Here is something...

-----Original Message-----
From: [log in to unmask] [mailto:[log in to unmask]] On Behalf
Of Justice For All Moderator
Sent: Monday, June 27, 2005 7:34 PM
To: [log in to unmask]
Subject: Court Reluctantly Trims Wal-Mart Penalty

Court Reluctantly Trims Wal-Mart Penalty
Michael Bobelian
New York Law Journal
06-23-2005

A federal magistrate judge Wednesday reduced a jury verdict by $4.7
million in a disabilities discrimination case against Wal-Mart.

In doing so, Eastern District of New York Magistrate Judge James
Orenstein said that the $300,000 federal cap on punitive damages in the
Americans with Disabilities Act would have little impact on changing the
behavior of a "commercial titan" like Wal-Mart.

In Patrick S. Brady v. Wal-Mart Stores, CV 03-3843, plaintiff Patrick
Brady, who suffers from cerebral palsy, sued Wal-Mart under the federal
Americans with Disabilities Act and state law. In February, a Central
Islip, N.Y., jury found that personnel at the store in Centereach, N.Y.,
violated federal and state laws by making a prohibited inquiry before
giving Brady an employment offer.

The company also subjected Brady to adverse employment conditions by
transferring him from the pharmacy to a more physically taxing position
pushing carts in the parking lot, according to the verdict.

The jury awarded Brady $7.5 million in damages, including $5 million in
punitive damages.

Orenstein modified the verdict, reducing it to $2.8 million. Most of the
reduction came in dropping the punitive damage award to $300,000. The
reduction did not take much deliberation from the judge as it was within
the "plain meaning" of applicable federal statutes.

"The preceding ruling respects the law," Orenstein wrote, "but it does
not achieve a just result."

Under federal anti-discrimination law, punitive damages are calculated
according to the size of the employer.

"The statute calibrates its caps on punitive damages to reflect the size
of the employer whose misconduct is to be punished -- a scheme that
would appear designed to assure that the civil punishment imposed on a
corporate offender is meaningful but not fatal," the magistrate judge
held.

Violators with 15 to 100 employees would pay no more than $50,000, for
instance. Those with 500 or more employees, like Wal-Mart, the world's
largest retailer, would pay up to $300,000.

"There is no meaningful sense in which such an award can be considered
punishment," Orenstein wrote, pointing out that Wal-Mart had $300,000 in
sales every 37 seconds last year.

"In essence then," he continued, "most companies can be punished if they
intentionally discriminate on the basis of disability ... but the
biggest companies that do so are effectively beyond the law's reach."

Orenstein said that Wal-Mart would not be deterred by the amount of
punitive damages. He found that in dealing with Brady, the company had
not adhered to a consent decree it entered into with the Equal
Employment Opportunity Commission in 2001 requiring it to train managers
and change hiring practices.

"The most generous conclusion I could draw ... was that the Wal-Mart
employees who testified are well-intentioned people whom the company
willfully failed to provide with sufficient training to abide by the
anti-discrimination law," Orenstein wrote.

"The result," he concluded, "was that Brady was subjected to the kind of
discrimination against the disabled that both the law and the prior
consent decree was designed to prevent."

The $300,000 punitive cap, he held, "appears unlikely ... to restrain
Wal-Mart from inflicting similar abuses on those who may be doomed to
follow in Brady's footsteps."

Douglas Wigdor of Thompson Wigdor & Gilly represented Brady. Joel Finger
of Brown Raysman Millstein Felder & Steiner represented Wal-Mart.


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