Red Cross not Immune|to Punitive Damages


     WASHINGTON (CN) – The American Red Cross is not immune from punitive damages in an age-discrimination case, despite its status as an “instrumentality of the United States,” a federal judge ruled, resolving an issue of first impression in Washington, D.C.
     Cathy Conn was director of the Red Cross’s blood program auditing division when she was fired. Though the Red Cross attributed Conn’s termination to insubordination and subpar performance, Conn said her employer had it out for her because she was 59 years old, battling depression, anxiety and insomnia.
     The Red Cross sought summary judgment on Conn’s Americans with Disabilities Act and the Age Discrimination in Employment Act claims, but U.S. District Judge Christopher Cooper denied the requests Monday, as well its motion for a bench trial.
     In her November 2013 lawsuit, Conn she was replaced with a younger, less-experienced woman, who had worked under her supervisor in his previous position with the Red Cross.
     Cooper’s 14-page ruling cites U.S. Supreme Court precedent finding the Red Cross “to be an instrumentality of the United States.” Meanwhile the Ninth Circuit has ruled that “one of the privileges that accompanies federal-instrumentality status is sovereign immunity,” Conn said.
     Nonetheless, Cooper wrote, he “is doubtful that the Red Cross could make the required clear showing of Congress’s intent to limit its waiver of immunity because, as discussed below, Congress appears to have indicated the exact opposite – at least in the context of the ADA and ADEA.”
     Cooper added: “Congress’s intent is clear: The Red Cross, when sued pursuant to the relevant provisions of the ADEA and the ADA, is not immune from jury trials. Rather, it is as ‘amenable to judicial process [as] a private enterprise under like circumstances would be.'”
     And though the Red Cross claims it should not be liable for punitive damages, Cooper disagreed: “Congress’s intent with respect to damages is similarly clear: The Red Cross, when sued under the relevant provisions of the ADEA and the ADA, is not immune from liquidated or punitive damages. Even though punitive damages may constitute ‘an extraordinary remedy,’ the Red Cross’s ‘liability is the same as that of any other business’ in the absence of a showing sufficient to overcome that presumption.”
     In short, Cooper concluded: “Congress has expressed its intent that the Red Cross be subject to the same liability as any private employer when a plaintiff sues alleging age discrimination.”
     The American Red Cross did not immediately respond to a request for comment.
     Nor did Conn’s attorney, Ross A. Nabatoff.

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