Appeal from the United States District Court for the Western District of Washington. D.C. No. CV-92-00133-WLD. William L. Dwyer, District Judge, Presiding. Original Opinion Previously Reported at:,.
Before: Arthur L. Alarcon, Robert R. Beezer and Andrew J. Kleinfeld, Circuit Judges. Opinion by Judge Kleinfeld.
Order AND AMENDED OPINION
KLEINFELD, Circuit Judge:
This case involves two issues, the retroactive availability of punitive damages and attorneys' fees. Both are questions of Washington law, but Washington state law applies federal law.
Mr. McGinnis worked as a manager for Kentucky Fried Chicken. He developed cancer and required surgery. He returned to work shortly after his surgery, but required continuing treatment. For six weeks, he opened the restaurant each morning, drove thirty miles for his radiation treatment, then returned to the restaurant and worked until 11:00 at night. He developed depression for which he needed medication and therapy. He found himself unable to work the fifty to eighty hours per week he had put in before, because of the time he needed for treatment, the side effects of his radiation therapy, and depression. He asked his supervisors to reduce his hours, assign him to a lower volume store, and assign an assistant manager to his store. His evidence suggested that Kentucky Fried Chicken would ordinarily assign an assistant manager to a location as busy as his. The company refused to accommodate Mr. McGinnis's requests and fired him. The date of termination was July 24, 1991, which is significant for retroactivity analysis.
He sued under a Washington statute prohibiting disability discrimination, and on two common law theories, intentional and negligent infliction of emotional distress. The district court dismissed the common law theories, but Mr. McGinnis was allowed to recover for emotional distress anyway, under the actual damages provision of the disability discrimination statute. The case went to jury trial, and Mr. McGinnis won. The jury verdict established that Mr. McGinnis's handicap was a substantial factor in Kentucky Fried Chicken's decision to discharge him, and that Kentucky Fried Chicken failed to reasonably accommodate his handicap. The jury awarded McGinnis $24,000 in lost earnings, $10,000 for emotional distress and $200,000 in punitive damages. The district court awarded McGinnis $127,242 in attorney fees and $20,996.97 in costs.
Kentucky Fried Chicken appeals. It claims that punitive damages were not available, and that the attorneys' fees award was excessive. It does not challenge the liability determination or the award of compensatory damages, including emotional distress damages.
The punitive damages issue is one of state law, but the state law issue depends on federal law. The Washington statute at issue allows such remedies as are available under the federal Civil Rights Act of 1964 as amended. The relevant portion of the state law read as follows:
Any person deeming himself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, to recover actual damages sustained by him, or both, together with the costs of suit including a reasonable attorney's fees or any other remedy authorized by this chapter or the United States Civil Rights Act of 1964.*fn1
(emphasis added). Washington Rev. Code § 49.60.030(2). Washington law does not allow punitive damages unless expressly allowed by statute. Barr v. Interbay Citizens Bank of Tampa, 96 Wash. 2d 409, 635 P.2d 441, 443 (Wash. 1981). Because there is no independent Washington basis for the award of punitives, Mr. McGinnis may not recover such damages ...