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This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. Citation of orders and judgments is generallydisfavored; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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The Honorable Lee R. West, Senior United States District Judge for the Western Districtof Oklahoma, sitting by designation.
F I L E D
United States Court of AppealsTenth Circuit
DEC 21 1999
PATRICK FISHER 
Clerk UNITED STATES COURT OF APPEALSTENTH CIRCUIT EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff/Appellee,
JOHN OTERO,
Plaintiff/Intervenor/Appellee,
 vs.WAL-MART STORES, INC.,
Defendant/Appellant.
No. 98-2122(D.C. No. CV-95-1199-JP) (D. New Mexico) ORDER AND JUDGMENT
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Before
BRORBY
, Circuit Judge,
McWILLIAMS
, Senior Circuit Judge, and
WEST
,District Judge.
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 __________________________________ Plaintiff/appellee Equal Employment Opportunity Commission (“EEOC”) filed thisaction against defendant/appellant Wal-Mart Stores, Inc. (“WalMart”), and alleged WalMart
 
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discriminated against John Otero in violation of the Americans with Disabilities Act of 1990(“ADA”), 42 U.S.C. § 12101 et seq. Otero intervened in the lawsuit and he likewise allegedviolations of the ADA against WalMart.Otero was injured in an automobile accident in June 1988. As a result of the accident,Otero’s right arm below the elbow joint was amputated. Although Otero has been fitted witha cosmetic prosthetic device, the device has “no mechanical functions to it.” Volume I, TrialTranscript [hereinafter “TT”, preceded by volume number] at 23.In August 1992 and again, in October 1992, Otero applied for the position of nightreceiving clerk at the WalMart Store in Las Cruces, New Mexico. On October 28, 1992,Otero was interviewed by Gloria Reyes, WalMart’s personnel manager. Using a prepared“interview comment” sheet, Reyes asked Otero: “What current or past medical problems might limit your ability to do a job?”In response to the question, Otero told Reyes about his arm and, according to Reyes,asked her if she knew about the ADA. Until that time, Reyes had been unaware of his prosthesis. Reyes and her immediate supervisor, assistant manager Diane Bingham,ultimately recommended that Otero not be hired. The stated reason for non-employment wasOtero’s rudeness, which allegedly occurred after his statements about his physicalimpairment and the ADA.
 
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The EEOC and Otero both claimed that WalMart discriminated against Otero whenit asked the question and again, when it failed to hire Otero, based on information obtainedin response to the question.The EEOC moved for summary judgment on the “improper inquiry” claim, arguingthat WalMart’s interviewing practices constituted a per se violation of the ADA. WalMartlikewise moved for summary judgment on this claim. It argued that the district court lacked jurisdiction over the claim because Otero had failed to exhaust his administrative remediesin connection with such claim. The district court denied WalMart’s motion and grantedsummary judgment to the EEOC on the issue of liability.The matter then came on for trial. The district court awarded nominal damages toOtero on the “improper inquiry” claim and submitted the issue of punitive damages to the jury. The jury found WalMart acted with “reckless indifference to [Otero’s] federally protected rights” during the interview and awarded Otero punitive damages in the amountof $100,000.00. The jury likewise found in favor of the EEOC and Otero on the “failure tohire” claim and awarded Otero compensatory damages in the amount of $7500.00 and punitive damages in the amount of $50,000.00 on that claim. Judgment was enteredaccordingly.In a Memorandum Opinion and Order, the district court denied WalMart’s post- judgment motions and granted the EEOC’s request for injunctive relief. The district court permanently enjoined WalMart at its store in Las Cruces “from failing or refusing to hire a

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