Fagot v. Flintkote Company, Civ. A. No. 68-2268.

• Decision Date: 01 October 1969
• Docket Number: Civ. A. No. 68-2268.
• Parties: H. J. FAGOT, Plaintiff, v. The FLINTKOTE COMPANY, Defendant.
• Court: U.S. District Court — Eastern District of Louisiana

305 F. Supp. 407

H. J. FAGOT, Plaintiff, v. The FLINTKOTE COMPANY, Defendant.

Civ. A. No. 68-2268.

United States District Court E. D. Louisiana, New Orleans Division.

October 1, 1969.

COPYRIGHT MATERIAL OMITTED

R. M. Mathews, New Orleans, La., for plaintiff.

J. Thomas Lewis, New Orleans, La., for defendant.

RUBIN, District Judge.

This is a private action for damages brought against the Flintkote Company by a former employee, who charges he was fired for assisting in the prosecution of a claim against it brought under the Fair Labor Standards Act (FLSA).¹ If the charge is true, the discharge would violate section 15(a) (3) of the FLSA, 29 U.S.C.A. § 215(a) (3), which makes it "unlawful for any person * * * to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee." Flintkote contends that this section may not be enforced by the injured employee acting on his own behalf, and moves for judgment on the pleadings for failure to state a claim on which relief may be granted.

Hubbard J. Fagot, for 25 years an employee of Flintkote, was discharged from his position as Traffic Manager for the Southern Division, allegedly for giving testimony in a dispute between the Company and the drivers under his supervision. Fagot was at that time over 63 years old and within 19 months of retirement; he asserts that, as the result of this discharge, he lost his severance pay, part of his pension, and his company life and health insurance, as well as the salary he would have earned during the period. Flintkote, correctly citing a number of decisions,² takes the position that Fagot cannot sue to recover those losses, but must look to the Secretary of Labor to assert any claim.

The primary purpose of the FLSA was to insure a minimum scale of wages, together with overtime pay for weekly hours in excess of 40, among a broad class of employees.³ Congress found that competition tended to encourage substandard compensation of workers, to the detriment of interstate commerce; the Act was passed to eliminate such unacceptable conditions "without substantially curtailing employment or earning power," 29 U.S.C.A. § 202. A broad range of powers was given to the Secretary of Labor to enable him to police employers' performance under the Act,⁴ and employees cooperating with the enforcement effort were afforded special protection from employer reprisal by section 15(a) (3).⁵ Plaintiff here is within the broader class of employees working in interstate commerce for whose benefit the FLSA was enacted, as well as the more specific class for whom the guarantee in section 15(a) (3) was intended.

Conceding that section 15(a) (3) protects employees claiming their substantive rights under the FLSA, Flintkote maintains that the Act's failure expressly to set forth a private right to sue after a violation of that section leaves the authority to enforce this ancillary safeguard solely in the hands of government agencies. Section 16(a), 29 U.S.C.A. § 216(a), prescribes criminal sanctions for violation of section 15, and section 11(a), 29 U.S.C.A. § 211(a), provides that "the Secretary of Labor shall bring all actions under section 217 of this title to restrain violations of this chapter;"⁶ section 17, 29 U.S.C.A. § 217, in turn confers jurisdiction on the district courts "to restrain violations of section 215 of this title." Plaintiff does not dispute the Secretary's dominion over injunction suits or the unavailability of that form of equitable relief to employees suing individually. In this case Fagot does not seek "to restrain violation," but rather to obtain redress at law for a particular past violation. The district court's power to entertain such an action depends not on section 17 of the FLSA, but on the general "federal question" jurisdiction bestowed by 28 U.S. C.A. § 1331.⁷

Where the Congress creates a right by legislation, the federal courts have a duty to implement the statutory intent by providing the appropriate remedy.⁸ Realizing that "where federally protected rights are invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief,"⁹ numerous courts have ruled that effective implementation of a law prohibiting certain behavior includes recognition of a civil cause of action on the part of persons injured by the proscribed conduct.¹⁰ The general theoretical basis for inferring a right to sue where the statute is silent rests on the conviction that the protection given those persons for whose benefit the statute was enacted would be incomplete if it could be enforced only by criminal sanctions or by injunction obtained to protect the State's interests.¹¹

The significance of the right freely to claim the benefits of the FLSA is obvious, if the Act is to have real force in setting the limits below which competition cannot drive working conditions.¹² Although the question of private civil liability for unlawful discharge under section 15(a) (3) has been litigated several times, the Fifth Circuit has never passed on the issue, and the opinions to which Flintkote points are not persuasive.

In some of the cases the prayer for damages was secondary to and joined with a demand for reinstatement.¹³ It is apparent that, in these instances, the courts considered back pay to be part of the overall equitable relief held to be improperly sought, and rejected the whole claim as encroaching on the Secretary of Labor's exclusive authority over injunctive enforcement. Where reinstatement and restitution were both requested, the Supreme Court also viewed the suit as essentially equitable, and therefore permitted the Secretary to press for both after a wrongful discharge under section 15, Mitchell v. Robert De Mario Jewelry Inc., 1960, 361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323.

Moreover, although the cases supporting Flintkote's position do analyze the purposeful reservation of equitable remedies to the Secretary, their dismissal of the employees' potential legal cause of action is perfunctory.¹⁴ It is an axiom of statutory interpretation that the purpose of a law furnishes the best guide to its application. It is no longer meet, if ever it was, to attempt to construe a statute by the literal reading of its words, as if the statute were a tape measure to set beside a length of cloth. Statutes "should be construed, not as theorems of Euclid, but with some imagination of the purposes which lie behind them."¹⁵

Clearly section 15(a) (3) was designed to encourage employees to claim their rights under the FLSA by ensuring their job security regardless of legal action taken against their employer under the Act.¹⁶ Compensating the injured party directly conforms to the statutory policy by making whole one who, by Congressional declaration should never have been injured originally. In addition, permitting a party protected by a statute to recover damages for invasion of that protection is a well-recognized supplemental method of inducing compliance, an object wholly consonant with the policy of the FLSA.¹⁷

On its face, the FLSA does not set forth a private remedy for breach of section 15(a) (3). But mere silence is not decisive: where other statutes were similarly silent as to any private relief, courts have found a cause of action to exist—for violation, for example, of the Securities Exchange Act,¹⁸ National Banking Act,¹⁹ Federal Communications Act,²⁰ National Labor Relations Act,²¹ Federal Aviation Act,²² and the Rivers and Harbors Act.²³

While the FLSA does not expressly provide for any compensation to the individual damaged by violation of section 15, in Mitchell v. Robert De Mario Jewelry Inc., 1960, 361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323, the Supreme Court noted the gap in enforcement that would result if monetary redress were unavailable. Finding that an aggrieved employee would have "little more than a Hobson's choice" if no compensation for discriminatory discharge were available, since "restitution of partial deficiencies in wages due for past work would be perhaps obtainable only at the cost of irremediable entire loss of pay for an unpredictable period," 361 U.S. at 293, 80 S.Ct. at 336, the Court permitted lost wages to be included in the equitable relief sought by the Secretary.

This interpretation of the scope of the remedy available when the Secretary chooses to act does not eliminate the need for a private remedy, as this case in fact demonstrates, nor does it foreclose the recognition of one.²⁴ The majority in De Mario expressly refused to decide that "the Act did not contemplate the private vindication of rights it bestowed," id.; the dissent reinforced its argument that damages for back pay were beyond the reach of sections 11 and 17 by stating, "A wrongfully discharged employee may maintain in his own right an action at law, triable by a jury, under either § 16(b) or the common law * * * to recover wages lost by the employee as a result of his wrongful discharge," 361 U.S. at 303, 80 S.Ct. at 341. De Mario is significant for the instant case primarily because it reflects the view of the entire Court that an employee wrongfully discharged under the FLSA should be compensated in money for the damage he has suffered.

Although a private civil remedy would not conflict with the policy of the Act, before the sentiment of De Mario can be carried further to allow the employee to recover on his own it must be clear that permitting such suits would not interfere with the statutory scheme. The FLSA is not a regulatory law delegating broad discretionary responsibilities to a specialized administrative agency charged with governing an industry or a phase of commercial relations. Instead, it...