No pain and suffering or punitive damages for ADEA retaliation cases in Fifth Circuit

By Joy Waltemath

By Lorene D. Park, J.D.

Though the EEOC and at least one other circuit might take a different view, Fifth Circuit precedent for ADEA cases barred an employee from recovering damages for pain and suffering and from recovering punitive damages arising from her alleged retaliatory discharge. Relying on a 1977 case and finding no intervening change in law that might cause it to depart from that interpretation of available remedies, the Fifth Circuit rejected the employee’s arguments that amendments to the FLSA, the position taken by the EEOC, and the transfer of certain ADEA functions from the Secretary of Labor to the EEOC were sufficient to overturn controlling precedent (Vaughan v. Anderson Regional Medical Center, December 16, 2016, Graves, J., Jr.).

Diverging view on ADEA damages. This appeal arises from an ADEA suit by a nurse who claimed that the medical center where she worked fired her in retaliation for complaining of age discrimination. The district court dismissed her claims for damages for pain and suffering and for punitive damages, finding that such damages were barred by the 1977 Fifth Circuit ruling in Dean v. Am. Sec. Ins. Co. However, the court noted that another circuit and the EEOC have divergent views and certified its decision for interlocutory appeal, finding the damages issue was “a controlling question of law as to which there is substantial ground for difference of opinion.”

Rule of orderliness. Affirming, the appeals court explained that, under the rule of orderliness, a Fifth Circuit panel will not overturn precedent (including a prior panel’s interpretation of law that appears flawed) unless there has been “an intervening change in law, such as by a statutory amendment, or the Supreme Court, or our en banc court.” To decide if the rule applied, the court had to analyze whether Dean was distinguishable and whether an intervening change in law justified setting it aside. Here, the answer to both questions was “no.”

Retaliation claim did not make Dean distinguishable. While the employee conceded that Dean foreclosed pain and suffering damages as well as punitive damages for ADEA age discrimination claims, she asserted that Dean did not control ADEA retaliation claims. Disagreeing, the Fifth Circuit explained that the Dean decision held “in unqualified terms” that neither remedy was recoverable “in private actions posited upon the ADEA,” which would include both discrimination and retaliation claims. The court noted that the ADEA has prohibited retaliation since its inception and there was no indication in Dean that retaliation claims were to be excluded from the ruling. Dean was therefore controlling absent an intervening change in law.

No intervening changes in law. To undermine Dean, the employee relied heavily on 1997 amendments to the remedies provided for retaliatory discharges under the FLSA, a statute that the Fifth Circuit has interpreted to provide remedies “consistent” with the ADEA. She argued that the 1977 FLSA amendments enlarged the remedies available for ADEA retaliation claims.

There was some support for the employee’s position in the decisions of the Seventh Circuit and the EEOC has endorsed that interpretation as well. That said, the Fifth Circuit concluded that her argument fell short because it did not recognize that the 1977 FLSA amendments incorporated language that was substantively identical to language already provided in the ADEA. Basically, the FLSA amendments did not disturb the ruling in Dean because the added FLSA language had already been construed by the appeals court in the context of the ADEA.

The text at issue stated that an employer who violated the relevant provisions could be liable for “legal or equitable relief as may be appropriate to effectuate the purposes” of the law, including employment, reinstatement, promotion, and lost wages. In the Fifth Circuit’s view, the 1977 amendments simply brought FLSA remedies for retaliation in line with the ADEA’s remedies for similar conduct, and did not constitute an intervening legal change sufficient to displace Dean. It noted that the Eleventh Circuit has also continued to cite Dean, as have district courts within the Fifth Circuit.

EEOC’s position was not a legal change. The appeals court also rejected the employee’s argument that the EEOC’s position that the ADEA permits pain and suffering damages or punitive damages constitutes an intervening legal change. While mindful that the agency’s interpretations reflect “a body of experience and informed judgment to which courts” look for guidance, the EEOC’s interpretation of the remedial provision at issue appeared to depend entirely on a Seventh Circuit decision that the Fifth Circuit found unpersuasive. Even if it found the agency’s interpretation persuasive, the appeals court found that it would still not be enough to depart from established precedent.

The Fifth Circuit further concluded that the transfer of ADEA functions from the Secretary of Labor to the EEOC was not an intervening change in law sufficient to displace Dean. Such a straightforward substitution did not create any significant differences for ADEA plaintiffs, noted the court.

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