Age Bias Act Doesn’t Permit Compensatory, Punitive Awards

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By Kevin McGowan

No compensatory damages for pain and suffering or punitive damages are available to employees who allege discharge in retaliation for age bias complaints, a federal appeals court in New Orleans ruled ( Vaughan v. Anderson Reg’l Med. Ctr. , 2016 BL 419433, 5th Cir., No. 16-60104, 12/16/16 ).

The U.S. Court of Appeals for the Fifth Circuit Dec. 16 reaffirmed circuit precedent that the Age Discrimination in Employment Act doesn’t afford compensatory or punitive damages to workers who prevail on age bias or ADEA retaliation claims.

Supreme Court Review Possible

Attorneys for Susan Vaughan, the fired employee, will seek U.S. Supreme Court review because there’s a “clear split” among federal appeals courts on whether the ADEA allows such damages, said Robert Norris, a Jackson, Miss., lawyer who represented Vaughan.

The Fifth Circuit alone holds that neither compensatory nor punitive damages are available, Norris told Bloomberg BNA Dec. 19.

At least one federal appeals court has directly said successful age discrimination plaintiffs can recover compensatory and punitive damages.

Other federal circuits have ruled the Fair Labor Standards Act allows compensatory and punitive damages, Norris said. That’s significant because the ADEA, enacted in 1967, is patterned on the FLSA and the two laws have many enforcement provisions in common.

The Equal Employment Opportunity Commission also takes the view that such damages are available.

The Fifth Circuit, however, said no intervening legal changes require it to abandon its nearly 40-year-old precedent that said successful ADEA plaintiffs can recover back pay and liquidated damages, but not compensatory or punitive damages. The EEOC’s view to the contrary isn’t persuasive, the court said Dec. 16.

Precedent Applies to Retaliation

Vaughan, a nurse supervisor, alleged she was fired by Anderson Regional Medical Center in retaliation for raising age discrimination complaints.

The U.S. District Court for the Southern District of Mississippi dismissed Vaughan’s claims for compensatory and punitive damages. But it gave Vaughan permission to appeal while her age bias claim is pending.

Vaughan argued that Fifth Circuit precedent precludes compensatory and punitive damages in age discrimination cases, but not in cases alleging retaliation for bias complaints.

But the appeals court precedent doesn’t distinguish between age discrimination and ADEA retaliation claims, Judge James E. Graves Jr. said in an opinion joined by Judges Catharina Haynes and Fortunato P. Benavides.

FLSA Analogy Rejected

Vaughan said a 1977 amendment to the FLSA, enacted about a month after the Fifth Circuit’s ADEA damages decision, has been interpreted to allow compensatory and punitive damages under the federal wage and hour law.

The same result should apply under the ADEA, given its close links to the FLSA, she said.

But Vaughan’s argument “fails to recognize” the 1977 FLSA amendment merely inserted into that statute language that previously existed in the ADEA, the court said.

The Fifth Circuit’s 1977 decision already had interpreted that language in the ADEA not to require compensatory or punitive damages, the court said.

EEOC’s View Not Persuasive

The EEOC’s view that the ADEA permits compensatory and punitive damages also isn’t an “intervening legal change” sufficient to overcome the Fifth Circuit precedent, the court said.

The EEOC reiterated its views on ADEA damages most recently in its enforcement guidance on retaliation, issued Aug. 25.

The EEOC’s interpretation is entitled to judicial deference if it has “the power to persuade,” the court said.

But the EEOC’s interpretation of the ADEA’s remedial provision depends “almost entirely” on a Seventh Circuit decision the Fifth Circuit finds “unpersuasive,” the court said.

A 1978 transfer of ADEA enforcement functions from the Labor Department to the EEOC also isn’t an “intervening change” sufficient to override the Fifth Circuit precedent, the court said.

Attorneys for the medical center weren’t immediately available for comment Dec. 19.

Norris & Watson PLLC represented Vaughan. Burson Entrekin Orr Mitchell & Lacey PA represented the medical center.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

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