Brown v. Pizza Hut of America Inc.

• Decision Date: 29 November 1993
• Citation: 113 F.3d 1245
• Parties: 133 Lab.Cas. P 33,533, 97 CJ C.A.R. 780 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1245

113 F.3d 1245

133 Lab.Cas. P 33,533, 97 CJ C.A.R. 780

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Sheri L. BROWN, Plaintiff-AppelleeCross-Appellant, v. PIZZA HUT OF AMERICA INCORPORATED, Delaware corporation Defendant-Appellant-Cross-Appellee.

Nos. 96-6260, 96-6244.

United States Court of Appeals, Tenth Circuit.

May 22, 1997.

Before BRORBY, BARRETT, and LUCERO, Circuit Judges.

ORDER AND JUDGMENT ^*

Plaintiff, a former Pizza Hut restaurant manager, prevailed at trial on her claim under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219, that she was constructively discharged by defendant Pizza Hut in retaliation for complaining about its break policy and nonpayment of overtime compensation. The jury awarded Brown $2,500.00 in unpaid overtime; $34,394.17 in back pay; and a lump sum of $15,605.83 in compensatory damages. Under the jury instruction and verdict form, the compensatory damage award may have included front pay as well as damages for other, nonpecuniary losses. See Appellant's App. at 40-41, 50. At Brown's request, the district court awarded her an additional amount as liquidated damages equal to the jury's unpaid overtime and back pay awards under 29 U.S.C. § 216(b).

On appeal, Pizza Hut contends that the district court erred in doubling the back pay award on Brown's retaliation claim. Pizza Hut argues that the liquidated damages award improperly duplicates damages provided by the jury in its compensatory damages award. Brown contends on cross-appeal that the district court was required by the statute to double the jury's compensatory damages award as well as the back pay and overtime awards. We exercise jurisdiction under 28 U.S.C. § 1291, and affirm.

The parties do not agree on the appropriate standard of review. Pizza Hut argues that we should review the district court's interpretation of the statute de novo, while Brown argues that we should review the district court's award of liquidated damages only for abuse of discretion. We see no inconsistency in these contentions. Pizza Hut's claim that the district court wrongly interpreted 29 U.S.C. § 216(b) raises a legal issue that we review de novo. See Burlington N.R.R. v. Huddleston, 94 F.3d 1413, 1416 (10th Cir.1996). To the extent a proper interpretation of the statute gives the district court discretion, however, we review its action under the statute only for abuse of discretion. See Crenshaw v. Quarles Drilling Corp., 798 F.2d 1345, 1351 (10th Cir.1986). With these standards in mind, we turn to the merits.

The liquidated damages award provided in the first sentence of § 216(b) ¹--for violations of the FLSA's minimum wage and overtime compensation provisions--is intended to compensate the plaintiff for "damages too obscure and difficult of proof for estimate other than by liquidated damages." Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 583-84 (1942). The statutory language gives us no reason to conclude that the award of liquidated damages provided in the second sentence of § 216(b)--for violations of the FLSA's retaliation provision--is intended to serve a different purpose.

Whether the provision for an award of liquidated damages in retaliation cases is discretionary or mandatory is a separate question. Although we have held that the award of liquidated damages in wage and overtime cases provided in the first sentence of § 216(b) is mandatory unless the district court finds that the employer acted reasonably and in good faith, as provided in 29 U.S.C. § 260, see, e.g. Crenshaw, 798 F.2d at 1351 (case involving overtime provision of FLSA); Doty v. Elias, 733 F.2d 720, 725-26 (10th Cir.1984) (case involving minimum wage provision of FLSA), we have not yet had occasion to consider whether the liquidated damages award provided in the second sentence of the statute--for violations of the FLSA's retaliatory conduct provision--is mandatory or discretionary. Compare Blanton v. City of Murfreesboro, 856 F.2d 731, 737 (6th Cir.1988), and York v. City of Wichita Falls, 763 F.Supp. 876, 880 (N.D.Tex.1990), and Professional Firefighters Ass'n v. City of Clayton, 759 F.Supp. 1408, 1413-14 (E.D.Mo.1991), with Avitia v. Metropolitan Club of Chicago, Inc., 49 F.3d 1219, 1226, 1232 (7th Cir.1995), and Lowe v. Southmark Corp., 998 F.2d 335, 337 (5th Cir.1993). We need not determine this issue today. Whether mandatory or discretionary, the plain language of the second sentence of § 216(b) clearly implies that only "wages lost" are subject to doubling in a retaliation case. If the award of liquidated damages on Brown's back pay award (which obviously represents lost wages) is mandated by § 216(b), then Pizza Hut cannot show that the district court erred in making the award.

Even if the...