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Conn v. American National Red Cross

United States District Court, District of Columbia

March 7, 2016

CATHY CONN, Plaintiff,



This case presents several issues of first impression in this Circuit: whether the American National Red Cross (“Red Cross”), due to its status as a “[f]ederally chartered instrumentality of the United States, ” 36 U.S.C. § 300101, is immune from punitive damages under the Americans with Disabilities Act (“ADA”), liquidated damages under the Age Discrimination in Employment Act (“ADEA”), and trial by jury under either statute. At stake is the claim of former Red Cross employee Cathy Conn, who was fired from her job as a director in the organization’s blood-program auditing division. The Red Cross claims she was terminated for insubordination and sub-par performance. Conn counters that she was actually fired because of her age and disability-she was 59 years old and suffered from depression, anxiety, and insomnia at the time. On February 25, 2016, the Court denied the Red Cross’s motion for summary judgment on liability, holding that Conn had produced sufficient evidence for a reasonable factfinder to conclude that her supervisor’s proffered reasons for terminating her were pretexts for age and disability discrimination. See Conn v. Am. Nat’l Red Cross, No. 13-cv-01810, 2016 WL 755606, at *1 (D.D.C. Feb. 25, 2016).

The Court is now tasked with determining who that factfinder should be: a jury or the Court itself. The Court is also called upon to determine what types of damages the factfinder may award if the Red Cross is found liable-specifically, whether Conn may seek punitive damages under the ADA and liquidated damages under the ADEA. Because the Court finds that Congress has waived the Red Cross’s sovereign immunity with respect to those damages and trial by jury under both statutes, it will deny the remainder of the Red Cross’s motion for partial summary judgment on damages and deny in full its motion for a bench trial.

I. Background

The factual background of this case and Conn’s claims is fully set out in the Court’s earlier memorandum opinion on the Red Cross’s motion for summary judgment on liability. See Conn, 2016 WL 755606, at *1-2. To explain how the Court reached today’s ruling, it is more appropriate here to begin with a discussion of the history and purpose of the Red Cross and its place in the structure of the federal government, before moving to an analysis of the scope of the Red Cross’s sovereign immunity and the extent to which Congress has waived that immunity.

As the Supreme Court explained in holding the Red Cross to be immune from state taxation,

Congress chartered the present [American National] Red Cross in 1905, subjecting it to governmental supervision and to a regular financial audit by the Defense . . . Department. Its principal officer is appointed by the President, who also appoints seven (all government officers) of the remaining 49 Governors. By statute and Executive Order there devolved upon the Red Cross the right and the obligation to meet this Nation’s commitments under various Geneva Conventions, to perform a wide variety of functions indispensable to the workings of our Armed Forces around the globe, and to assist the Federal Government in providing disaster assistance to the States in time of need. Although its operations are financed primarily from voluntary private contributions, the Red Cross does receive substantial material assistance from the Federal Government. And time and time again, both the President and the Congress have recognized and acted in reliance upon the Red Cross’ status virtually as an arm of the Government.[1]

Dep’t of Employment v. United States, 385 U.S. 355, 359-60 (1966) (citations and footnotes omitted). The Court recognized, however, a number of “respects in which the Red Cross differs from the usual government agency-e.g., in that its employees are not employees of the United States, and that government officials do not direct its everyday affairs.” Id. at 360.

In 2007, Congress passed the American Red Cross Governance Modernization Act, codifying the Red Cross’s status as “a Federally chartered instrumentality of the United States, ” 36 U.S.C. § 300101, and emphasizing that “it has the rights and obligations consistent with that status, ” Pub. L. 110-26, 121 Stat. 105 (2007). See id. (“The United States Supreme Court held [t]he American National Red Cross to be an instrumentality of the United States, and it is in the national interest that the Congressional Charter confirm that status and that any changes to the Congressional Charter do not affect the rights and obligations of The American National Red Cross to carry out its purpose.”).

One of the privileges that accompanies federal-instrumentality status is sovereign immunity. See, e.g., In re Sparkman, 703 F.2d 1097, 1101 (9th Cir. 1983) (“The sovereign, along with its agencies and instrumentalities, enjoys immunity from suit unless it waives that immunity.” (citing Fed. Hous. Admin. v. Burr, 309 U.S. 242, 244 (1940))). Nevertheless, in its original charter, Congress gave the Red Cross the power to “sue and be sued in courts of law and equity, ” Congressional Charter of the American National Red Cross § 5(a)(5), thereby “abrogat[ing] [its] immunity” in certain respects, Burr, 309 U.S. at 249. The dispute in this case Congress also required the creation of an advisory council to the Board, which is “composed of no fewer than [eight] and no more than [ten] members, each of whom [is] appointed by the President from principal officers of the executive departments and senior officers of the Armed Forces.” Id. § 300104(d)(1)-(2). centers on that sue-and-be-sued clause and the extent to which Congress abrogated the Red Cross’s sovereign immunity by including it in the charter.

II. Legal Standard

A. The Relevant Framework

Many courts in other jurisdictions have addressed, as a general matter, whether the Red Cross is amenable to jury trials and subject to punitive damages. Not only have these courts failed to find common ground on these questions, they have also struggled to agree on a common framework for answering them. The confusion in this area is understandable, for the Supreme Court has offered guidance that points in opposite directions on the relevant standard for analyzing waivers of sovereign immunity.

On the one hand, the “Court has long decided that limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied.” Lehman v. Nakshian, 453 U.S. 156, 161 (1981) (emphases added) (quoting Soriano v. United States, 352 U.S. 270, 276 (1957)) (internal quotation marks omitted). Applying this principle, the Supreme Court has held, for example, that “a plaintiff in an action against the United States has a right to trial by jury only where Congress has affirmatively and unambiguously granted that right by statute.” Id. at 168 (emphasis added). On the other hand, “Congress . . . has waived the sovereign immunity of certain federal entities . . . by including in the[ir] enabling legislation provisions that they may sue and be sued.” Loeffler v. Frank, 486 U.S. 549, 554 (1988). “[S]uch waivers by Congress of governmental immunity” are to be “liberally construed.” Id. (alteration in original) (quoting Burr, 309 U.S. at 245) (internal quotation marks omitted). “The presumption” is that a sue-and-be-sued “clause fully waives [a federal agency’s] immunity.” FDIC v. Meyer, 510 U.S. 471, 472 (1994) (emphasis added); see also Gregory C. Sisk, Litigation with the Federal Government § 3.22 (4th ed. 2006) (“With these types of agencies and entities, sovereign immunity is at its lowest ebb.”). Therefore, for purposes of assessing a federal entity’s immunity from suit and the incidents thereof, which presumption applies is critical.

Some courts have taken the view that suits against the Red Cross are, for all intents and purposes, suits against the United States and have therefore applied the Lehman presumption of narrow waiver in assessing the Red Cross’s sovereign immunity. See, e.g., Barton v. Am. Red Cross, 826 F.Supp. 412, 413 (M.D. Ala. 1993) (“[T]he court remains convinced that the Red Cross is entitled to the same immunities from litigation as those enjoyed by the federal government, including immunity from trial by jury.” (emphasis added)); Berman v. Am. Nat’l Red Cross, 834 F.Supp. 286, 292 (N.D. Ind. 1993) (“Congress did not affirmatively and unambiguously grant the right to civil jury trial by statute as is required by the Lehman holding.”). Those ...

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