Hannon v. Continental Nat. Bank

• Decision Date: 09 February 1977
• Docket Number: Civ. A. No. 76-F-930.
• Citation: 427 F. Supp. 215
• Parties: Paul J. HANNON, Plaintiff, v. CONTINENTAL NATIONAL BANK and Western Bancorporation, Defendants.
• Court: U.S. District Court — District of Colorado

427 F. Supp. 215

Paul J. HANNON, Plaintiff, v. CONTINENTAL NATIONAL BANK and Western Bancorporation, Defendants.

Civ. A. No. 76-F-930.

United States District Court, D. Colorado.

February 9, 1977.

David H. Drennen, Denver, Colo., for plaintiff.

E. Lee Dale, Dawson, Nagel, Sherman & Howard, Denver, Colo., for defendants.

ORDER GRANTING MOTION TO DISMISS AND MOTION TO STRIKE

SHERMAN G. FINESILVER, District Judge:

This matter arises on a Motion to Dismiss or for Summary Judgment, filed by Defendant Western Bancorporation on October 12, 1976, and on a Motion to Strike Plaintiff's claims for compensatory and punitive damages, for jury trial on all issues, and for damages resulting from alleged intentional or reckless infliction of emotional distress, filed by Defendant Continental National Bank together with its Answer on October 12. Plaintiff filed this action under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq., for reinstatement, back pay, exemplary damages, liquidated damages, attorney fees, and costs, and for compensatory damages under a state claim of intentional infliction of emotional distress. We grant both motions.

I.

Plaintiff admits that he did not name Western Bancorporation¹ until September 1, 1976 in a notice of intent to file suit. This suit was filed only twenty days later, naming Western Bancorporation as a defendant. Because of the importance of providing the Secretary of Labor with an opportunity to undertake conciliatory measures, 29 U.S.C. § 626(d) explicitly provides that "no civil action may be commenced by any individual under this section until the individual has given the Secretary not less than sixty days' notice of an intent to file such action." This requirement has been held to be a mandatory, jurisdictional prerequisite to the filing of an ADEA suit. Eklund v. Lubrizol Corp., 529 F.2d 247 (6th Cir. 1976); Edwards v. Kaiser Aluminum & Chemical Sales, Inc., 515 F.2d 1195 (5th Cir. 1975); Goger v. H. K. Porter, Inc., 492 F.2d 13 (3d Cir. 1974). Therefore, Defendant Western Bancorporation must be dismissed from this suit. We note that Plaintiff's ability to obtain relief under the ADEA from Defendant Continental National Bank, his employer, is not in any way prejudiced by this dismissal.

II.

In order to determine whether an award of compensatory or punitive damages is permissible in this case, we must examine the enforcement provisions of the ADEA, 29 U.S.C. § 626(b) and (c):

(b) The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title, and subsection (c) of this section. Any act prohibited under section 623 of this title shall be deemed to be a prohibited act under section 215 of this title. Amounts owing to a person as a result of a violation of this chapter shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of sections 216 and 217 of this title: Provided, That liquidated damages shall be payable only in cases of willful violations of this chapter. In any action brought to enforce this chapter the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter, 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. Before instituting any action under this section, the Secretary shall attempt to eliminate the discriminatory practice or practices alleged, and to effect voluntary compliance with the requirements of this chapter through informal methods of conciliation, conference, and persuasion.

(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 chapter: 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 chapter.

We believe that the purposes of the ADEA are virtually identical to those for remedying discrimination in employment under Title VII, 42 U.S.C. § 2000e, et seq. See 29 U.S.C. § 621(b). This Court has held that compensatory and punitive damages are unavailable under Title VII. Alexander v. Consolidated Freightways Co., 421 F.Supp. 450 (D.Colo., 1976); Carreathers v. Alexander, No. C-5082 (D.Colo., Dec. 11, 1974). The possibility of receiving a large monetary award for pain and suffering, or for willful conduct by an employer, would substantially impair the conciliation process. Rogers v. Exxon Research and Engineering Co., 550 F.2d 834, at 841-842 Nos. 76-1114 and 1115 (3d Cir., Jan. 20, 1977). An award of general punitive or compensatory damages will not effectuate the conciliatory purposes of the ADEA.

Unlike § 812(c) of the Civil Rights Act of 1968 (Fair Housing), 42 U.S.C. § 3612(c), which contemplates an award of punitive damages up to $1,000, § 626(b) does not mention punitive damages, nor does it refer to any section of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201, et seq., which permits a general award of punitive damages. However, § 626(b) specifically provides for discretionary payment of liquidated damages in cases of "willful violations." "If Congress had intended the allowance of punitive in addition to `liquidated damages', it would have written it into the Act, just as it did in § 812 of the Civil Rights Act of 1968, 42 U.S.C. § 3612." Platt v. Burroughs Corp., 424 F.Supp. 1329, 1336 (E.D.Pa.1976).

The provision for liquidated damages in § 626(b) refers to § 16(b) of the FLSA, which provides for a mandatory award of liquidated damages in an amount equal to the unpaid minimum wages or unpaid overtime compensation. § 626(b) makes such award applicable only in the event of a willful violation. The provision for liquidated damages operates as a penalty, and is a legislative substitute for any other type of punitive damages. No other punitive remedy is appropriate under the ADEA. We note that Congress specifically excluded the punitive relief of § 16(a) of the FLSA from the ADEA. Therefore, Plaintiff is not entitled to any form of punitive damages beyond his claim for liquidated damages.

III.

The issue of whether to accept jurisdiction of a state tort action for intentional infliction of emotional distress or loss of reputation in the community is discretionary with the court. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). We decline to accept jurisdiction of such state causes of action in this case. Our adjudication of such state claims would circumvent the scope of the remedies available under the federal cause of action, and subvert the policies of excluding damages for emotional distress under the ADEA.

IV.

Courts have divided on the issue of the availability of a jury trial under the provisions of the ADEA. Rogers, supra, Bertrand v. Orkin Exterminating Co., Inc., 419 F.Supp. 1123 (N.D.Ill.1976), Murphy v. American Motors Sales Corp., 410 F.Supp. 1403 (N.D.Ga.1976), Cleverly v. Western Electric Co., 69 F.R.D. 348 (W.D.Mo.1975), and Chilton v. National Cash Register Co., 370 F.Supp. 660 (S.D.Ohio 1974) have held that a jury trial is required for certain issues under the ADEA. Morelock v. National Cash Register Corp., 546 F.2d 682, 14 F.E.P. Cases 65 (6th Cir. 1976) and Pons v. Lorillard, 69 F.R.D. 576 (M.D.N.C.1976) have decided that a jury trial is not warranted for any issue under the ADEA. Platt v. Burroughs Corp., supra, initially determined that the Seventh Amendment did not require a jury trial for ADEA issues, but reversed itself after the Third Circuit's decision in Rogers, supra, was filed. This issue has not yet been raised in the Tenth Circuit.

Neither the terms of the ADEA nor its legislative history express or imply any Congressional intent to have ADEA actions tried by a jury. See 1967 U.S.Code: Congressional and Administrative News 2213-2227. Therefore, the issue of whether a jury is required on demand in ADEA actions must be decided by an interpretation of the Seventh Amendment of the United States Constitution, and by an examination of court procedures under related statutes.

We begin by considering the implications of Curtis v. Loether, 415 U.S. 189, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974), which held that the Seventh Amendment applies with equal strength to the enforcement of statutory and common law legal rights and remedies. Id. at 194, 94 S.Ct. 1005. Earlier, the Supreme Court had decided that the applicability of the Seventh Amendment depends upon the nature of each claim for relief:

Under those cases Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959) and Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962), where equitable and legal claims are joined in the same action, there is a right to jury trial on the legal claims which must not be infringed either by trying the legal issues as incidental to the equitable ones or by a court trial of a common issue existing between the claims. The Seventh Amendment question depends on the nature of the issue to be tried rather than the character of the overall action.

Ross v. Bernhard, 396 U.S. 531, 537, 90 S.Ct. 733, 738, 24 L.Ed.2d 729 (1970). Therefore, we must consider the application of the Seventh Amendment with respect to each claim for relief in this case.

The claims for relief that we have determined properly lie in this suit under the ADEA are those for reinstatement, back pay, and liquidated damages. A claim for reinstatement is clearly equitable, and only one court has determined that a claim for liquidated damages under the ADEA requires determination by a jury upon the demand of a party. Cleverly v....