E.E.O.C. v. Gilbarco, Inc. .

Decision Date09 January 1980
Docket NumberNo. 78-1661,78-1661
Parties21 Fair Empl.Prac.Cas. 1045, 21 Empl. Prac. Dec. P 30,555 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant, v. GILBARCO, INC., Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

Lois G. Williams, Washington, D. C. (Carin Ann Clauss, Sol. of Labor, Donald S. Shire, Associate Sol., Anna K. Holmberg, Gregory O'Duden, Washington, D. C., on brief), for appellant.

Daniel M. Shea, Atlanta, Ga. (David B. Adcock, Dan T. Carter, Smith, Currie & Hancock, Atlanta, Ga., Thornton H. Brooks, Brooks, Pierce, McLendon, Humphrey & Leonard, Greensboro, N. C., on brief), for appellee.

Before HALL, PHILLIPS and MURNAGHAN, Circuit Judges.

K. K. HALL, Circuit Judge:

The primary question on this appeal is whether an age discrimination suit brought by the Secretary of Labor under the authority of § 17 of the Fair Labor Standards Act is effectively commenced, for statute of limitations purposes, with the filing of a complaint which does not name the aggrieved individuals. We believe that a § 17 action is commenced for all purposes when the complaint is filed, regardless of whether the individuals are named in it. Accordingly, we vacate the order of the district court granting summary judgment for defendant on the Secretary's § 17 claim, and remand this case for further proceedings.

I.

In enacting the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634, Congress created an enforcement scheme which is "something of a hybrid", Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 869, 55 L.Ed.2d 40 (1978), combining features of several other federal statutes. 1 Judicial enforcement of the Act's provisions is generally governed by the enforcement provisions of the Fair Labor Standards Act (FLSA), with some modifications:

Sec. 7. (b) The provisions of this Act shall be enforced in accordance with the powers, remedies, and procedures provided in sections 11(b), 16 (except for subsection (a) thereof), and 17 of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. §§ 211(b), 216, 217), and subsection (c) of this section. . . . Amounts owing to a person as a result of a violation of this Act shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of sections 16 and 17 of the Fair Labor Standards Act . . . : Provided, That liquidated damages shall be payable only in cases of willful violations of this Act. In any action brought to enforce this Act the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this Act, including without limitation judgments compelling employment, reinstatement or promotion, or enforcing the liability for amounts deemed to be unpaid minimum wages or unpaid overtime compensation under this section. . . .

(c) Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this Act: Provided, That the right of any person to bring such action shall terminate upon the commencement of an action by the Secretary to enforce the right of such employee under this Act. ADEA § 7, 29 U.S.C. § 626.

Two of the incorporated Fair Labor Standards Act sections, FLSA §§ 16(c) and 17, apply to actions brought by the Secretary of Labor on behalf of aggrieved individuals. Section 17 authorizes the Secretary to seek injunctive relief to restrain violations of the Act, including:

the restraint of any withholding of payment of minimum wages or overtime compensation found by the court to be due to employees under this chapter (except sums which employees are barred from recovering, at the time of the commencement of the action to restrain the violations, by virtue of (the applicable statute of limitations)).

FLSA § 17, 29 U.S.C. § 217 (emphasis supplied). Section 16(c) also authorizes the Secretary to sue on behalf of individual employees to recover sums due them, and under this section an employee may be awarded "an additional equal amount as liquidated damages." However, an action under § 16(c) is subject to a unique definition of "commencement":

. . . In determining when an action is commenced by the Secretary of Labor under this subsection for the purposes of the statutes of limitations . . . , it shall be considered to be commenced in the case of any individual claimant on the date when the complaint is filed if he is specifically named as a party plaintiff in the complaint, or if his name did not so appear, on the subsequent date on which his name is added as a party plaintiff in such action. FLSA § 16(c), 29 U.S.C. § 216(c).

The primary question in this case is whether this special definition of commencement of an action, or some variation of it, applies in an age discrimination case seeking back pay for individuals, brought by the Secretary under § 17 alone.

II.

The complaint in this action was filed by the Secretary on February 11, 1976, and sought broad injunctive relief, including both restraint of future violations of the ADEA and the "restraint of any withholding" of sums due to individuals as a result of past violations, all as authorized under FLSA § 17. The complaint also sought liquidated damages, available only under FLSA § 16(c), for the victims of past discrimination. The alleged victims were not named in the complaint or in any amendments to it, although they were identified during the following months through the use of discovery and pre-trial stipulations. On June 30, 1976, defendant moved for dismissal or summary judgment, contending that the filing of the complaint, without naming the individuals involved, had not served to "commence" the action, and that the statute of limitations on all the individuals' claims had since run. 2

The district court granted the motion, upon the recommendation of a magistrate, and entered summary judgment for defendant on all claims, including those for prospective injunctive relief. The court reasoned that, by specifying that the ADEA shall be enforced in accordance with the provisions of "sections 11(b), 16 . . . , and 17 of the Fair Labor Standards Act" (emphasis supplied), Congress intended that the Secretary comply with the requirements of both § 16 and § 17 in any suit brought under the ADEA. Applying the special § 16(c) definition of "commencement" to the Secretary's complaint, the court concluded that the action had never been properly commenced.

We disagree. The "selectivity that Congress exhibited in incorporating provisions and in modifying certain FLSA practices strongly suggests that but for those changes Congress expressly made, it intended to incorporate fully the remedies and procedures of the FLSA." Lorillard v. Pons, supra, 98 S.Ct. at 871 (emphasis supplied). We are totally unpersuaded that, by utilizing the connective word "and" in the listing of FLSA sections which it incorporated into the ADEA, Congress "expressly" manifested an intent to meld the historically distinct FLSA remedies into one conglomerate action. Further, we are convinced that the usual definition of "commencement", that is, the filing of a complaint, see F.R.C.P. 3, applies to an action brought by the Secretary under § 17.

III.

In enacting the ADEA in 1967, Congress was well aware of the judicial interpretations which had been given to the FLSA sections it was adopting, and is presumed to have incorporated those interpretations as well. Lorillard v. Pons, supra, 98 S.Ct. at 870. The pre-1967 interpretations of §§ 16 and 17 were uniform in holding that the two sections provided distinct and alternative remedies, and that the peculiar requirements of § 16 had no application to an action brought under § 17. 3 In particular at least two courts had held prior to 1967 that a § 17 complaint did not have to name the individuals on whose behalf the Secretary was proceeding in order to effectively commence the action for statute of limitations purposes. Wirtz v. Novinger's, Inc., 261 F.Supp. 698 (M.D.Pa.1966); Wirtz v. W. G. Lockhart Construction Co., 230 F.Supp. 823 (N.D.Ohio 1964). See also Wirtz v. Harper Buffing Machine Co., 280 F.Supp. 376 (D.Conn.1968), aff'd as modified, 18 Wage & Hour Cas. 894 (2d Cir. 1968). We know of no court, before or after 1967, which has ever held to the contrary.

"Commencement of the action" is a term of art with an established common meaning, i.e., the filing of a complaint. " '(W)here words are employed in a statute which had at the time a well-known meaning at common law or in the law of this country, they are presumed to have been used in that sense unless the context compels to the contrary' ". Lorillard v. Pons, supra, 98 S.Ct. at 871 (citations omitted).

The detailed definition of "commencement" provided in FLSA § 16(c), which is limited by its own terms to an action brought "under this subsection", indicates that where Congress wished to deviate from the common meaning of the term, it did so explicitly. Section 16 is the only provision applicable to the ADEA which distinguishes between the filing of a complaint and the commencement of an action. We find nothing in the language or histories of the ADEA and FLSA to indicate that, in employing this common term in other statutory sections without amplification, Congress intended to vest it with an extraordinary meaning. Cf. Oscar Mayer & Co. v. Evans, 441 U.S. 750, 758, 99 S.Ct. 2066, 2073, 60 L.Ed.2d 609 (1979) (under ADEA § 14(b), 29 U.S.C. § 633(b), "commencement" means the filing of a complaint). We therefore hold that an age discrimination action brought by the Secretary of Labor under the authority of FLSA § 17 is effectively commenced for all purposes with the filing of the complaint, regardless of whether the complaint names the aggrieved individuals.

We recognize that, where the Secretary commences an action by filing a complaint which does not identify the individuals whose rights he seeks...

To continue reading

Request your trial
29 cases
  • Donovan v. Crisostomo
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 7 de outubro de 1982
    ...is well-established. See Donovan v. University of Texas at El Paso, 643 F.2d 1201 (5th Cir. 1981); Equal Employment Opportunity Commission v. Gilbarco, Inc., 615 F.2d 985 (4th Cir. 1980). The Secretary brought this suit under both §§ 16(c) and 17 12, and to the extent the back wage recovery......
  • EEOC v. Chrysler Corp.
    • United States
    • U.S. District Court — Western District of Michigan
    • 23 de junho de 1982
    ...gain reinstatement, back pay and prospective relief enjoining further violations, but not liquidated damages. See EEOC v. Gilbarco, Inc., 615 F.2d 985, 991 (4th Cir. 1980). Because the relief under either section alone will not both make injured individuals whole, and also prevent future vi......
  • Amos v. Maryland Dept. of Public Safety and Correctional Services
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • 22 de setembro de 1997
    ...v. United States, 328 U.S. 61, 69, 66 S.Ct. 826, 830, 90 L.Ed. 1084 (1946); see also EEOC v. Gilbarco, Inc., 615 F.2d 985, 1013-15 (4th Cir.1980) (Murnaghan, J., concurring in part and dissenting in part) (questioning soundness of proposition that congressional silence or inaction in reenac......
  • Luder v. Endicott
    • United States
    • U.S. District Court — Western District of Wisconsin
    • 14 de fevereiro de 2000
    ...F.3d 677, 678-79 (11th Cir.1998); Barrentine v. Arkansas-Best Freight Sys., Inc., 750 F.2d 47, 51 (8th Cir.1984); EEOC v. Gilbarco, Inc., 615 F.2d 985, 995 (4th Cir.1980); Morelock v. NCR Corp., 546 F.2d 682, 688 (6th Cir.1976), rev'd on other grounds, 435 U.S. 911, 98 S.Ct. 1463, 55 L.Ed.2......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT