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GEUSS v. PFIZER

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


December 16, 1996

JAMES D. GEUSS
v.
PFIZER, INC., et al.

The opinion of the court was delivered by: CAHN

OPINION

 Cahn, C.J.

 December 16, 1996

 I. INTRODUCTION

 Following a five day trial, a jury found that Defendants Pfizer, Inc., Quigley Co., and Minteq International, Inc. (collectively, "Pfizer") intentionally discriminated against Plaintiff James Geuss in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. *fn1" The jury awarded Geuss $ 65,000 in back pay, $ 89,000 in front pay, $ 11,250 in compensatory damages, and $ 150,000 in punitive damages. *fn2" Pfizer now seeks judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50, or, in the alternative, a new trial pursuant to Federal Rule of Civil Procedure 59.

 II. FACTS *fn3"

 Plaintiff James Geuss was a laboratory technician who worked for Pfizer from June 1989 to October 1992. As a laboratory technician, he was involved with batching, blending, mixing, casting, cutting, drying, and testing substances that were used in the manufacture of refractory materials. His job also consisted of administrative tasks such as completing paperwork and entering data into a computer. Employees of Pfizer knew Geuss had asthma, but he was able to perform his job without incident until the fall of 1991.

 During the fall of 1991, Geuss' supervisor changed from Richard Griffin to Amy Hale. Hale assigned Geuss more laboratory duties and less administrative work. Geuss' asthma attacks increased once he began working for Hale. Geuss and employees of Pfizer had several discussions beginning in early 1992 concerning the extent of Geuss' asthma and whether any accommodations could be made. The parties did not agree on a solution to Geuss' problem. On or around October 5, 1992, Geuss began staying home from work because his doctor, Dr. Eric Schenkel, recommended that he stay at home until he felt better. Pfizer concluded there was nothing more it could do for Geuss and told him to report to work on October 26, 1992, or be suspended without pay. On October 26, Geuss reported to work with a note from Dr. Schenkel that stated Geuss could not work because the work environment exacerbated his asthma. Pfizer suspended Geuss without pay beginning on October 26, 1992, but he continued to receive medical benefits until April 1993. Geuss filed his disability discrimination claim with the Equal Employment Opportunity Commission ("EEOC") on October 29, 1992, and this case was tried in May 1996. *fn4"

 III. LEGAL STANDARD

 A motion for judgment as a matter of law "should be granted only if, viewing the evidence in the light most favorable to the nonmovant and giving it the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury reasonably could find liability." Lightning Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993) (citation omitted).

 In cases where a party is requesting a new trial based upon the weight of the evidence, a district court should grant a new trial only if "a miscarriage of justice would result if the verdict were to stand." Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1352 (3d Cir. 1991). "This stringent standard is necessary to ensure that a district court does not substitute its judgment of the facts and the credibility of the witnesses for that of the jury. Such an action effects a denigration of the jury system and to the extent that new trials are granted the judge takes over, if he does not usurp, the prime function of the jury as the trier of facts." Sheridan v. E.I. DuPont De Nemours & Co., 100 F.3d 1061, 1996 WL 659353, at *16 (3d Cir. 1996) (en banc) (internal quotation marks omitted). "A court may also grant a new trial if the verdict was the result of erroneous jury instructions, was excessive or clearly unsupported by the evidence, or was influenced by extraneous matters such as passion, prejudice, sympathy or speculation." Rush v. Scott Specialty Gases, Inc., 930 F. Supp. 194, 197 (E.D. Pa. 1996) (citations omitted).

 Defendants make a myriad of arguments in support of its motions. Essentially Defendants argue:

 

(1) Geuss is not disabled;

 

(2) Even if he is disabled, he is not a qualified individual with a disability under the ADA;

 

(3) Geuss never requested a specific, reasonable accommodation;

 

(4) Even if discrimination occurred, the damages the jury awarded were excessive; and,

 

(5)The court made errors in the admission of evidence and in the jury instructions.

 The court will address each of these arguments in turn.

 IV. DISCUSSION

 A. GEUSS' DISABILITY

 The jury specifically found that Geuss' asthmatic condition substantially limited his ability to breathe. (Jury Interrog. No. 1). Pfizer takes issue with this finding, arguing that Geuss failed to prove he is disabled. In support of its position, Pfizer submits that Geuss provided insufficient evidence that his impairment substantially limited his ability to work or breathe, and that Geuss cannot be found disabled because he only provided subjective evidence of his disability. The court rejects Defendants' arguments.

 For the purposes of the ADA, "disability" means:

 

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;

 

(B) a record of such an impairment; or,

 

(C) being regarded as having such an impairment.

 42 U.S.C. § 12102(2). Only the first prong of the definition is at issue in this case. "An individual is substantially limited in a major life activity if he is 'unable to perform a major life activity that the average person in the general population can perform' or is 'significantly restricted as to the condition, manner or duration under which [he] can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.'" Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996), quoting 29 C.F.R. § 1630.2(j). Major life activities include breathing and working. 29 C.F.R. § 1630(i).

 "The existence of an impairment is to be determined without regard to mitigating measures such as medicines, or assistive or prosthetic devices." 29 C.F.R. Pt. 1630, App. § 1630.2(h). In this case, Dr. Schenkel testified that Geuss had moderately severe asthma. It is difficult to determine the full extent of Geuss' impairment without medication because he has taken medication for his asthma on a daily basis for as long as he can remember. There is also no suggestion in the record that there ever will be a time when Geuss will be able to live without asthma medication. Geuss testified what happened when his medication was unavailable:

 

And, I ended up getting an asthma attack and we had to drive a great distance. By the end of the drive home, I was wheezing so badly that I was on the verge of passing out. Suzanne -- I didn't even get out of the car. Suzanne ran into the house, grabbed the asthma medicine and I had an oxygen tank at that time and she gave me my medicine and I took my oxygen and I finally came around.

 (Trial Tr. 5/7, 65-66). Geuss testified that he had 1-2 asthma attacks a day in the week before the trial and this frequency of attacks was fairly typical. *fn5" (Trial Tr. 5/7, 60-61). Even minor instances of physical exertion, such as running approximately 100 feet to his young son who had skinned his knee, have triggered asthma attacks. (Trial Tr. 5/7, 56-57). His difficulty in breathing forces him to avoid certain pets, cigarette smoke, perfume, and fresh paint, and his house is cleaned about three times a week so dust does not accumulate. (Trial Tr. 5/8, 27-32). All of these limitations have been present throughout Geuss' life even though he takes medication daily.

 Pfizer relies primarily on two cases, Kelly v. Drexel Univ., 94 F.3d 102 (3d Cir. 1996), and Heilweil v. Mount Sinai Hospital, 32 F.3d 718 (2d Cir. 1994), cert. denied, 513 U.S. 1147, 130 L. Ed. 2d 1063, 115 S. Ct. 1095 (1995), to support its claim that Geuss is not disabled.

 In Kelly, the Court of Appeals for the Third Circuit affirmed the grant of summary judgment against the plaintiff on the ground that he was not disabled under the ADA. While Kelly discussed the issue of whether the plaintiff was substantially limited in the life activity of walking, the case at bar involves whether Geuss is substantially limited in the life activity of breathing. Thus, while the fact that Geuss generally walked (an unspecified distance) to and from work for a period of two years might be strong evidence that Geuss is not substantially limited in the life activity of walking (as it was in Kelly), it is not nearly as persuasive in determining whether Geuss is substantially limited in the life activity of breathing. Furthermore, unlike Geuss, who requires daily asthma medication, the plaintiff in Kelly did not require any special devices like a cane or crutches. Kelly, 94 F.3d at 106. Finally, for ADA purposes, Geuss' disability is evaluated without regard to mitigating measures such as his medication. 29 C.F.R. Pt. 1630, App. § 1630.2(h).

 Heilweil was a Rehabilitation Act case *fn6" in which the Second Circuit Court of Appeals affirmed summary judgment against an asthmatic hospital laboratory worker. The court found that Heilweil was not substantially limited in the life activity of breathing because she felt "fine" after not being at her job for several months, and because her respiratory condition did not limit her ability to exercise. Heilweil, 32 F.3d at 723. However, whether or not an employee felt "fine" months after working at a particular job is not dispositive in determining whether a person was substantially limited in the major life activity of breathing at the time of the adverse employment decision. In addition, in contrast to Heilweil, who was not limited in her ability to exercise, Geuss testified that while he could hit a volleyball over a net or throw a football, he has never played a full game. (Trial Tr. 5/8, 66-67). Even running down a short driveway to pick up his son was enough to trigger an asthma attack. (Trial Tr. 5/8, 66).

 The issue of whether Geuss is substantially limited in the major life activity of breathing is admittedly a close one. However, the evidence in the record is sufficient to show that Geuss' ability to breathe is significantly restricted in condition, manner, and duration in comparison to the average person in the population. Thus, this court will not reject the jury's specific finding that Geuss' asthmatic condition substantially limits his ability to breathe.

 Pfizer also argues that Geuss is not disabled because he has not shown how his asthma impairs his ability to work. Defendants' argument is without merit. The EEOC Compliance Manual clearly states that if a person is substantially limited in a major life activity other than working, then no analysis of the impairment's impact on the person's work is needed. *fn7" Other courts that have faced this issue have not required a plaintiff to show an adverse impact on his work in order to be considered disabled under the ADA. See, e.g., Doe v. Kohn Nast & Graf P.C., 862 F. Supp. 1310, 1320 (E.D. Pa. 1994); Bell v. Elmhurst Chicago Stone Co., 919 F. Supp. 308, 309 (N.D. Ill. 1996). Since I have found that the evidence supports the jury's verdict that Geuss is substantially limited in the life activity of breathing, there is no need to analyze the impact Geuss' asthma had on his work.

 Pfizer next argues that subjective evidence alone cannot support a finding of disability. Defendants compare this case to that of Mobley v. Board of Regents of the Univ. System of Georgia, 924 F. Supp. 1179 (S.D. Ga. 1996), in which summary judgment was granted against the plaintiff in an ADA case. According to Pfizer, both Mobley and the instant action involve situations where doctors' notes and the plaintiff's subjective testimony were the sole basis of the plaintiff's disability claims. Defendants' reliance on Mobley is misplaced. Mobley's discussion of the inadequacy of the doctor's notes was made in regard to the second prong of the disability definition -establishing a record of impairment. *fn8" Id. at 1187-88. As discussed earlier, the "record of impairment" prong of the ADA definition of disability is not at issue in the case at bar.

 The other two cases relied on by Pfizer, Maulding v. Sullivan, 961 F.2d 694 (8th Cir. 1992), cert. denied sub. nom, Maulding v. Shalala, 507 U.S. 910, 122 L. Ed. 2d 653, 113 S. Ct. 1255 (1993), and Harmer v. Virginia Electric & Power Co., 831 F. Supp. 1300 (E.D. Va. 1993), also cannot be read to support Defendants' sweeping assertion that as a matter of law, subjective evidence, by itself, cannot support a finding of disability. *fn9"

 Moreover, as Dr. Schenkel testified, "Asthma is many times a clinical diagnosis, meaning it's after you talk to a patient. Many tests can be completely normal." (Trial Tr. 5/9, 46). Dr. Schenkel did not conduct a test that could have shown the effect the chemicals had on Geuss' asthma because Dr. Schenkel felt the test was potentially dangerous. (Trial Tr. 5/9, 42). Geuss' peak flow test results showed that there was a dramatic decrease in Geuss' lung capacity while he was at work, (Trial Tr. 5/9, 10) and even Pfizer's medical expert had no reason to think Geuss was misrepresenting the extent of his asthma. (Trial Tr. 5/15, 77). Geuss' credibility was for the jury to assess. Thus, as was discussed earlier, the court finds there was sufficient evidence to support the jury's conclusion that Geuss was disabled.

 B. QUALIFIED INDIVIDUAL WITH A DISABILITY

 Pfizer argues that Geuss is not a qualified individual with a disability. A qualified individual with a disability is an individual who, "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." *fn10" 42 U.S.C. § 12111(8). In this case, it is uncontested that performing laboratory work was an essential function of Geuss' position. The dispute between the parties involves the percentage of time that Geuss was expected to do lab work.

 Pfizer claims that Amy Hale, who became Geuss' supervisor in the fall of 1991, met with him in January 1992 to tell him that she expected him to do approximately 85% lab work and 15% administrative work. (Trial Tr. 5/14, 222-24). While working under his prior supervisor, Peter Griffin, Geuss spent only 30%-50% of his time on lab work. (Trial Tr. 5/7, 113).

 Geuss contends that Pfizer did not inform him of the 85% lab work requirement until an October 15, 1992 meeting between the parties. (Trial Tr. 5/8, 58-59). At this meeting, Geuss was shown a written job description with the 85% lab work requirement. (Id.). Geuss claims Pfizer made up the job description requiring 85% lab work as a way to disqualify him, while the real job description for Geuss' position, which Geuss introduced at trial, contained no such requirement. *fn11" The evidence is uncontradicted that Geuss performed in a satisfactory manner during the period in which he spent 30%-50% of his time doing laboratory work for Richard Griffin. Given the conflicting evidence regarding the percentage of lab work Geuss was expected to perform, and given the fact that the jury specifically found that Pfizer intentionally discriminated against Geuss because of his asthmatic condition, (Jury Interrog. No. 2), the court cannot conclude that the jury erred in rejecting Pfizer's claim that 85% laboratory work was essential to Geuss' position. The court finds that based on Geuss' satisfactory performance while working under Griffin, it was for the jury to decide if Geuss was qualified to fulfill the essential functions of being a lab technician at Pfizer. *fn12"

 C. REASONABLE ACCOMMODATION

 Geuss was required to request a reasonable accommodation that would enable him to perform the essential functions of his job. The court's written instructions to the jury stated:

 

It is Mr. Geuss's burden to prove that the accommodation he suggests would be effective (that is, that the accommodation would enable him to do his job or that another job with the defendant for which plaintiff is qualified, with or without accommodation, is available). . . . If you find that Mr. Geuss has met this part of his burden, then the Pfizer defendants may still prevail if they prove by a preponderance of the evidence that the accommodation or accommodations which Mr. Geuss proposes would be an undue hardship or unreasonable.

 Defendants object to the instruction, saying Plaintiff has the burden of proof on all issues, including whether the accommodations suggested by Geuss would cause undue hardship or be unreasonable.

 The court's jury instruction followed the holding in Borkowski v. Valley Central School Dist., 63 F.3d 131, 138 (2d Cir. 1995), which held that after the plaintiff has made a prima facie showing that a reasonable accommodation is available, the employer has the burden to prove that the suggested accommodation would cause undue hardship or be unreasonable. See id. ("At this point the defendant's burden of persuading the factfinder that the plaintiff's proposed accommodation is unreasonable merges, in effect, with its burden of showing, as an affirmative defense, that the proposed accommodation would cause it to suffer an undue hardship."). Since the trial of the present action, the Court of Appeals for the Third Circuit has followed Borkowski's holding in the context of the Rehabilitation Act. See Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996) ("The plaintiff must make a prima facie showing that reasonable accommodation is possible. If the plaintiff is able to meet these burdens, the defendant then bears the burden of proving, as an affirmative defense, that the accommodations requested by the plaintiff are unreasonable, or would cause an undue hardship on the employer."). This court concludes that its jury instruction on reasonable accommodation was not in error. *fn13"

 Geuss asserts that his request for a transfer back to his prior supervisor, Richard Griffin, was an effective, reasonable accommodation. Defendants make three arguments in regard to transfer:

 

(1) The court erred in not including Defendants' requested jury instruction;

 

(2) Geuss failed to demonstrate that there was no accommodation available that would allow him to perform adequately in his current position so there was no duty to consider transfer as a reasonable accommodation; and,

 

(3) There were no open positions for which Geuss was qualified.

 Defendants contend that the court should have instructed the jury that an employer has no duty under the ADA to consider transfer to a different company as a possible means of reasonable accommodation. Given the extremely close relationship between the Defendants, the court finds that its instruction was not in error. *fn14" The cases cited by Defendants support the proposition that an employer is required to offer transfer to another facility when there is a practice of the employer doing so. Riley v. Weyerhaeuser, 898 F. Supp. 324, 329 (W.D.N.C. 1995); Emrick v. Libbey-Owens-Ford Co., 875 F. Supp. 393, 398 (E.D. Tex. 1995); see also Gile v. United Airlines, Inc., 95 F.3d 492, 498 (7th Cir. 1996) ("By discussing reassignment to different offices and facilities, the EEOC's guidance implies that reasonable accommodation may also include reassignment outside of the particular department, office, or facility in which the employee previously worked."). In the instant action, there was sufficient evidence of employees transferring between subsidiary companies. Moreover, according to Pfizer's personnel manager Jeanette Brizel, employees who applied for a job opening in another subsidiary were considered internal rather than external candidates. (Trial Tr. 5/14, 150). As a result, there was no error in the court's jury instruction.

 Defendants then claim that even before the issue of transfer can arise, the employee must first demonstrate that no reasonable accommodation exists that would allow the employee to perform his current position. However, neither the statute nor the case law clearly delineates which party has the burden of demonstrating that no other alternative exists except for transfer. See 42 U.S.C. § 12111(9); Gile, 95 F.3d at 498 ("An employer may be obligated to reassign a disabled employee only when, even with reasonable accommodation, the employee can no longer perform the essential functions of his present job."); see also 29 C.F.R. Pt. 1630, App. § 1630.2(o) ("In general, reassignment should be considered only when accommodation within the individual's current position would pose an undue hardship.").

 Geuss contends he requested a number of specific, reasonable accommodations, including transferring to a different position, retraining, changing job duties, improving the ventilation in the laboratory, and using a self-contained breathing apparatus. *fn15" (Trial Tr. 5/8, 137-140). Pfizer claims that Geuss never specifically requested any accommodations and even if he did, none of these accommodations was reasonable. Both parties presented conflicting evidence concerning the feasibility of Geuss' requests. It was for the jury to decide if Geuss requested a specific, reasonable accommodation that would have enabled him to carry out the essential functions of his position. However, no such accommodation was made, and Dr. Schenkel provided the jury with sufficient evidence of Geuss' inability to continue working as Amy Hale's lab assistant. *fn16" As a result, the court must determine if there was sufficient evidence for the jury to conclude that Geuss' request to be transferred back to Richard Griffin was an effective, reasonable accommodation.

 The court instructed the jury that in order for a transfer to be a reasonable accommodation, "Mr. Geuss must prove that that position was open, available, and that he was qualified to do it." (Trial Tr. 5/15, 198). During the trial, Geuss testified that Richard Griffin needed a lab technician. (Trial Tr. 5/7, 220). Geuss asked if he could go back and work for Griffin, but the transfer never occurred. (Id.). Although Geuss could not remember the exact date of his conversation with Griffin, the testimony does establish that Geuss had this conversation during the time he worked for Hale. According to Geuss, an outside agency hired a temporary worker to fill the position. (Trial Tr. 5/7, 221). Defendants did not effectively refute this testimony. The evidence also showed that Geuss performed competently while he worked for Griffin, who required Geuss to perform laboratory work 30-50% of the time. *fn17" Consequently, Plaintiff has met his evidentiary burden to show that a transfer back to Griffin could have been an effective, reasonable accommodation. *fn18"

 An employer is not required to provide an accommodation that would impose an undue hardship on the operation of the employer's business. 29 C.F.R. Pt. 1630, App. § 1630.2(p). "The term 'undue hardship' means significant difficulty or expense in, or resulting from, the provision of the accommodation." Id. In this case, while Pfizer did present evidence that it would not be feasible to reduce Geuss' laboratory duties while remaining as Hale's lab assistant, it did not present any evidence that transferring Geuss back to Griffin would be an undue hardship on Pfizer.

 Pfizer also contends that Geuss was responsible for the breakdown in the interactive process so it should not be held liable for failure to provide reasonable accommodation. Pfizer's primary claim in support of its argument is that as of November 2, 1992, Geuss had a written offer to be put on paid leave if he would authorize his doctor to speak with Pfizer's doctor. Geuss responds that Pfizer never engaged in any process that could be termed "interactive" as contemplated by the ADA.

 

Courts should look for signs of failure to participate in good faith or failure by one of the parties to make reasonable efforts to help the other party determine what specific accommodations are necessary. A party that obstructs or delays the interactive process is not acting in good faith. . . . In essence, courts should attempt to isolate the cause of the breakdown and then assign responsibility.

 Beck, 75 F.3d at 1135. Bad faith in the interactive process suggests discriminatory animus. Valentine v. American Home Shield Corp., 939 F. Supp. 1376, 1401-02 (N.D. Iowa 1996).

 In the instant action, Geuss introduced sufficient evidence that Pfizer did not put forth a good faith effort to engage in the interactive process. Geuss testified that employees of Pfizer repeatedly told him there was nothing they could do to help him. See, e.g., Trial Tr. 5/8, 49 ("I remember that I was told by Jeanette [Brizel] in February [1992] that -- January, February, something like that, that there was nothing that the company could do for me. And I was told by Amy [Hale] in April [1992] that there was nothing the company could do for me. . . ."). In addition, Al Valenia, a vocational rehabilitation counselor who worked for the Office of Vocational Rehabilitation, (an agency of the Commonwealth of Pennsylvania), testified that he asked Gregory Daum, then Pfizer's director of environmental health and safety, if he (Valenia) could observe where Geuss worked so he could "get a better handle on what's going on." (Trial Tr. 5/8, 173-74). According to Valenia, Daum flatly refused his request, saying there was no problem. (Trial Tr. 5/8, 174).

 Thus, there was sufficient evidence for a jury to conclude that long before the November 2, 1992 letter to Geuss, Pfizer had repeatedly stymied Geuss in his attempt to get Pfizer to provide reasonable accommodation. *fn19" Hence, Pfizer cannot escape liability by claiming Geuss was responsible for the breakdown in the interactive process.

 D. EXCESSIVE DAMAGES

 Pfizer does not appeal the amount of damages the jury awarded with respect to compensatory damages and back pay. However, it argues that no front pay should have been awarded because Geuss refused an offer of reinstatement. Pfizer also vigorously contends that punitive damages are unwarranted.

 1. FRONT PAY

 Pfizer's reinstatement argument fails because the alleged offer of reinstatement occurred during a pre-trial mediation conference. Local Rule 53.2.1.5(e) of the Eastern District of Pennsylvania explicitly states:

 

Nothing communicated during the mediation process (including any oral or written statement made by a party, attorney or other participant ...) shall be placed in evidence, made known to the trial court or jury, or construed for any purpose as an admission. No party shall be bound by anything done or said during the mediation process. . . .

 Defendants' attempt to use the mediation proceedings as a way to avoid liability for front pay is completely without merit. In addition, Geuss testified that Pfizer never made him an unconditional offer of reinstatement. (Trial Tr. 5/8, 24-25).

 2. PUNITIVE DAMAGES

 Punitive damages are awarded to punish the defendant for outrageous conduct and deter it and others like it from similar conduct in the future. Smith v. Wade, 461 U.S. 30, 54, 75 L. Ed. 2d 632, 103 S. Ct. 1625 (1983). Punitive damages may be awarded if Pfizer acted with malice or reckless indifference to Geuss' federally protected rights. 42 U.S.C. § 1981a(b)(1). Pfizer argues that the evidence was insufficient to support a finding of punitive damages. In the alternative, Pfizer requests a remittitur of the jury's $ 150,000 punitive damages award.

 This court finds that there is sufficient evidence to support the jury's conclusion that punitive damages are warranted. The two primary pieces of evidence supporting the jury's finding are the air quality test that Pfizer contracted to have done in its lab and Dr. Richard Schusterman's report of his examination of Geuss.

 Pfizer hired Clayton Environmental Consultants to conduct a dust study in Pfizer's lab purportedly to see if there was any link between Geuss' health problems and the air quality in the lab. Geuss testified that the lab floor was professionally cleaned the night before the air quality study. A fire door and windows, which were normally kept shut, were open while the tests were conducted. In addition, Geuss testified that even before Clayton had conducted the air quality test, Gregory Daum told Geuss that the test results would show that the lab was not the cause of any problems with Geuss' asthma. The totality of this testimony could lead a reasonable jury to conclude that Pfizer staged the air quality test to reach a predetermined result.

 In response to Geuss' complaints about his asthma, Pfizer sent Geuss to Dr. Shusterman to be examined. Dr. Shusterman concluded that Geuss did not have occupationally induced asthma. (Trial Tr. 5/15, 37). On cross-examination, however, it was revealed that several changes were made from Dr. Shusterman's draft report to his final report. Statements in the draft report such as, "It remains unclear as to the etiology of his complaint of increased asthma exacerbations over the last three years," (Trial Tr. 5/15, 53) and "There remains a question as to whether the work environment is serving as a symptom-exacerbating factor for a preexisting condition," (Trial Tr. 5/15, 59) were not included in the final report. Given these changes between the draft and final report, a jury could reasonably conclude that Dr. Shusterman's report was changed so that the workplace would not be seen as exacerbating Geuss' asthma. Consequently, there is sufficient evidence to support the jury's findings that punitive damages are warranted.

 The court must also decide whether to grant a remittitur.

 

Where the verdict is so large as to shock the conscience of the court, the appropriate action for the court is to order plaintiff to remit the portion of the verdict in excess of the maximum amount supportable by the evidence or, if the remittitur [is] refused, to submit to a new trial. *fn20"

 Dunn v. Hovic, 28 V.I. 467, 1 F.3d 1371, 1383 (3d Cir.) (en banc) (internal quotation marks omitted), cert. denied, 510 U.S. 1031, 126 L. Ed. 2d 608, 114 S. Ct. 650 (1993). The Supreme Court has recently articulated three guideposts to aid a court in determining whether a particular punitive damage award is excessive. *fn21" BMW of North America, Inc. v. Gore, 517 U.S. 559, 134 L. Ed. 2d 809, 116 S. Ct. 1589, 1598-99 (1996). These guideposts are: the degree of reprehensibility of defendant's conduct, the disparity between the actual or potential harm suffered and the punitive damage award, and the difference between the award and the civil or criminal penalties that could be imposed in comparable cases. Id.

 a. DEGREE OF REPREHENSIBILITY

 "Perhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant's conduct." BMW, 116 S. Ct. at 1599. In the case at bar, Pfizer did take a number of actions which appear to be inconsistent with a company acting with malice or reckless indifference to Geuss' rights. For instance, it is undisputed that employees of Pfizer knew Geuss had asthma when he was hired in 1989; he was allowed to lie down when he was having breathing difficulties; Pfizer offered to place Geuss on leave with pay if he would authorize a dialogue between the doctors; and, even though he was suspended without pay on October 26, 1992, Geuss continued to receive medical and dental benefits until April 1993.

 A comparison with other employment discrimination cases in which $ 150,000 or more in punitive damages was awarded reveals that the defendants' conduct in those instances was far more reprehensible than was the situation here. In these other cases, courts found that supervisory personnel turned a blind eye to the misconduct of subordinates, actively participated in the discriminatory conduct, or the defendant exhibited a propensity to engage in future violations. For instance, in EEOC v. AIC Security Investigations, Ltd., 55 F.3d 1276 (7th Cir. 1995), the court held that $ 150,000 in punitive damages was not excessive in a situation where the defendant discharged an employee who had terminal brain cancer but was working full-time. The district court in AIC Security also noted that the defendant's testimony could reasonably have led the jury to "infer a lack of remorse and a likelihood of future violations." EEOC v. AIC Security Investigations, Ltd, 823 F. Supp. 571, 578 (N.D. Ill. 1993), aff'd in relevant part, rev'd in part, 55 F.3d 1276 (7th Cir. 1995); see also, Rush v. Scott Specialty Gases, Inc., 930 F. Supp. 194, 202 (E.D. Pa. 1996) (court remits punitive damage award in Title VII case from $ 3,000,000 to $ 300,000, but also notes that defendant's attitude at trial indicated the defendant did not accept that the treatment plaintiff suffered was wrong in any way); Hurley v. Atlantic City Police Dept., 933 F. Supp. 396, 426 (D. N.J. 1996) (court upholds $ 700,000 punitive damage award in sex discrimination case where there was substantial evidence of sexual harassment by upper management and the court stated, "An unprofessional atmosphere of intolerance and misogyny suffused the ACPD."). *fn22"

 In the instant action, there was no evidence that Pfizer has a propensity to engage in future discriminatory conduct and there were no allegations that Pfizer had a pattern of discriminating against employees with disabilities. "In the absence of a history of noncompliance with known statutory requirements, there is no basis for assuming that a more modest sanction would not have been sufficient to motivate full compliance. . . ." BMW, 116 S. Ct. at 1603. This court finds Pfizer's conduct to be far less reprehensible than other cases in which large punitive damage awards were made. This factor, therefore, weighs heavily in favor of finding the punitive damage award to be excessive.

 b. DISPARITY BETWEEN INJURY AND AWARD

 "In considering the ratio between a punitive damage award and the actual harm inflicted, the second [BMW] factor, 'the proper inquiry is whether there is a reasonable relationship between the punitive damages award and the harm likely to result from the defendant's conduct as well as the harm that actually occurred.'" Lee v. Edwards, 101 F.3d 805, 1996 U.S. App. LEXIS 29378, 1996 WL 692403, at *5 (2d Cir. 1996), quoting BMW, 116 S. Ct. at 1602. In the case at bar, the jury found that Geuss suffered $ 165,250 worth of losses ($ 65,000 in back pay, $ 89,000 in front pay, and $ 11,250 in compensatory damages), and also awarded him $ 150,000 in punitive damages. In addition, the ADA permits a prevailing party to recover reasonable attorney's fees. 42 U.S.C. § 12205. Since the punitive damage award is roughly equal to the jury's findings of Geuss' actual losses, the concern raised in BMW about the disparity between the punitive damage award and actual damages is not present here. See BMW, 116 S. Ct. at 1603, quoting TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 482, 125 L. Ed. 2d 366, 113 S. Ct. 2711 (1993) (O'Connor, J., dissenting) (500 to 1 ratio between punitive damage award and harm to plaintiff "must surely 'raise a suspicious judicial eyebrow.'"). This factor, therefore, weighs in favor of the reasonableness of the award.

 c. SANCTIONS FOR COMPARABLE MISCONDUCT

 "The third 'indicium of excessiveness' is provided by 'comparing the punitive damages award and the civil or criminal penalties' for comparable misconduct." Continental Trend Resources, Inc. v. Oxy USA Inc., 101 F.3d 634, 1996 WL 680337, at *7 (10th Cir. 1996), quoting BMW, 116 S. Ct. at 1603. Under the ADA, damages for compensatory and punitive damages are capped at different amounts depending on the size of the employer. 42 U.S.C. § 1981a(b)(3). The backpay award is not included in the limitation on damages. 42 U.S.C. § 1981a(b)(2). Neither side has presented any argument concerning the potential applicability of the damage caps. For the purposes of 42 U.S.C. § 1981a(b)(3), the award in this case totalled $ 250,250, which is within the limit for companies that have more than 500 employees. 42 U.S.C. § 1981a(b)(3)(D). Without any further information about the size of Pfizer, the court cannot conclusively determine whether the jury's award is excessive in relation to the damage cap.

 d. REMITTITUR OF PUNITIVE DAMAGES

 After considering all of the factors discussed above, this court finds that the jury's award of $ 150,000 shocks the court's conscience, and therefore orders a remittitur of $ 132,500. In reaching this conclusion, the court relies heavily on the fact that Pfizer's conduct is far less blameworthy than the conduct exhibited in other cases where large punitive damage verdicts were awarded. The court also is of the opinion that the liability issue was close. The court finds that a $ 17,500 punitive damage award is the maximum amount supported by the evidence. See Dunn, 1 F.3d at 1383 (court should order plaintiff to remit the portion of the verdict in excess of the maximum amount supportable by the evidence). *fn23" This amount should also suffice to punish Pfizer and deter it from engaging in discriminatory conduct in the future.

 In the instant action, the issues of liability and damages are too interwoven to allow a fair determination of damages apart from liability. Hurley, 933 F. Supp. at 426. Consequently, a new trial on all issues will be ordered if Geuss does not accept the remittitur. Id.

 E. OTHER ARGUMENTS MADE BY DEFENDANTS

 Defendants make two additional arguments, neither of which merits extensive discussion.

 1. ADMISSION OF LAB COAT

 Defendants argue that admission of Geuss' lab coat was erroneous because there was no evidence that the lab coat was in the same condition at trial as it was when Geuss wore it while working for the Defendants. Weaknesses in the chain of custody, however, go to the weight to be given to the item rather than its admissibility. *fn24" Here, Geuss testified that the item in question was the lab coat he wore while working for Pfizer. He had a practice of placing the lab coat in a plastic bag every day after work and taking it home to be washed. (Trial Tr. 5/7, 126). The last time Geuss placed the coat in a plastic bag was in September or October of 1992, and to his knowledge, the bag had not been opened until the coat was displayed in court. Id. The court finds that Geuss' testimony provided sufficient evidence upon which to admit the lab coat.

 2. SHIFTING BURDEN OF PROOF

 Defendants claim the court did not properly instruct the jury on the shifting burden of proof enunciated in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993). Defendants assert that the court should have told the jury that if Defendants presented a legitimate, non-discriminatory reason for Geuss' termination, then it was Plaintiff's burden to show not only that Defendants' reasons were false but also that unlawful and intentional discrimination was the true reason for Defendants' decision to terminate him. The court's jury charge properly instructed the jury about the elements Geuss had to prove to make out a prima facie case and explained how Pfizer could prevail by demonstrating undue hardship. The court also told the jury that Geuss had the ultimate burden of proving Pfizer discriminated against him. The Third Circuit Court of Appeals has recently made it clear that no additional evidence is needed for a jury to make a finding of intentional discrimination once the plaintiff establishes a prima facie case and the jury rejects the defendant's proffered reason for the employment decision. Olson v. General Electric Astrospace, 101 F.3d 947, 1996 WL 694465, at *4 (3d Cir. 1996), citing Sheridan v. E.I. DuPont De Nemours & Co., 100 F.3d 1061, 1996 U.S. App. LEXIS 29565, 1996 WL 659353 (3d Cir. 1996) (en banc). This court did not err in its instruction. *fn25"

   V. CONCLUSION

  To summarize, Pfizer's motion for judgment as a matter of law is denied. Pfizer's motion for a new trial is denied. This denial, however, is conditioned upon Geuss' acceptance of a remittitur of his punitive damages award from $ 150,000 to $ 17,500. An appropriate order follows.

  BY THE COURT:

  EDWARD N. CAHN, Chief Judge

  ORDER

  AND NOW, this 16th day of December, 1996, upon consideration of Defendants' Motion for Judgment as a Matter of Law or, in the Alternative, for a New Trial, Plaintiff's Opposition thereto, and Defendants' Reply, it is hereby ORDERED:

  

1. That Defendants' Motion for Judgment as a Matter of Law is DENIED.

  

2. That Defendants' Motion for a New Trial is DENIED. However, denial of Defendants' Motion for a New Trial is conditioned upon Plaintiff filing an acceptance of a remittitur of the punitive damages award from $ 150,000 to $ 17,500 within twenty (20) days from the date of this Order. If Plaintiff does not accept the remittitur, then Defendants' Motion for a New Trial is GRANTED.

  BY THE COURT:

  EDWARD N. CAHN, Chief Judge


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