Martinez v. Behring's Bearings Service, Inc.
| Citation | 501 F.2d 104 |
| Decision Date | 13 September 1974 |
| Docket Number | No. 73-3649,73-3649 |
| Parties | 21 Wage & Hour Cas. (BN 980, 22 Wage & Hour Cas. (BN 61, 75 Lab.Cas. P 33,136, 77 Lab.Cas. P 33,263 Ida MARTINEZ, Plaintiff-Appellant, v. BEHRING'S BEARINGS SERVICE, INC., Defendant-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
William C. Kaufman, III, Baton Rouge, La., for plaintiff-appellant.
Bailey E. Chaney, Thomas H. Watts, Baton Rouge, La., for defendant-appellee.
Before BROWN, Chief Judge, and RIVES and DYER, Circuit Judge.
The issue to be decided in this case is whether section 15(a)(3) of the Fair Labor Standards Act (29 U.S.C 215(a)(3)) should be construed to give a right of action for damages to an employee who claims that the cause of her dismissal from employment was her having twice complained about her wage scale to the Wage and Hour Division of the U.S. Department of Labor. The district court dismissed the plaintiff's complaint for lack of jurisdiction and for failure to state a claim upon which relief could be granted. 363 F.Supp. 428. We affirm.
Plaintiff alleges that she filed a complaint with the Wage and Hour Division in October, 1969, which resulted in her being paid $445.22 in back wages; and a second complaint in September, 1970, which resulted in her being paid $445.74 in back wages. On March 1, 1972, she was dismissed from her employment for the assigned cause of 'numerous consumer complaints,' but in fact, so the plaintiff alleges, because of her two complaints to the Wage and Hour Division.
The plaintiff makes no claim to a fixed or ascertainable term of employment. Under Louisiana law, in the absence of such a claim, she would have no right of action for dismissal whether with or without cause. 23 La.L.Rev. 553, 556 and cases there cited. Instead the plaintiff bases her claim upon the following provision of section 15(a)(3) of the Fair Labor Standards Act.
'(a) . . . it shall be unlawful for any person--
' . . . . '(3) 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.'
The plaintiff relies on Judge Rubin's scholarly opinion in Fagot v. Flintkote Company, E.D.La.1969, 305 F.Supp. 407. She acknowledges that the following earlier decisions have reached the opposite conclusion, namely, that there is no private right of action for damages for an employer violation of section 15(a)(3) of the Fair Labor Standards Act. Powell v. Washington Post Co., 1959, 105 U.S.App.D.C. 374, 267 F.2d 651, cert. den., 360 U.S. 930, 79 S.Ct. 1449, 3 L.Ed.2d 1544; Bonner v. Elizabeth Arden, Inc., 2 Cir. 1949, 177 F.2d 703; Britton v. Grace Line, Inc., S.D.N.Y.1962, 214 F.Supp. 295. Thus, among cases construing the Fair Labor Standards Act, the only one supporting the plaintiff's claim is Fagot, supra.
The Act provides for its enforcement by both criminal and civil proceedings. Those provisions include criminal penalties for violation of section 15, civil rights of action for unpaid overtime and for unpaid minimum wages, and injunctive relief. See 29 U.S.C. 216. It seems evident to us that Congress did not see fit to provide any right of action for damages for wrongful discharge of an employee. Powell v. Washington Post Co., supra, holding that no such right of action should be implied, was decided more than fourteen years ago, and Congress has not yet seen fit to provide such a remedy. After all, the courts' duty in the premises is simply to make effective the purpose and intent of Congress. We conclude, that under the circumstances, there is not such necessity for effectuating the congressional purpose as to place on the courts either the duty or the privilege to add a remedy to those provided by Congress. See J. I. Case Co. v. Borak, 1964,377 U.S. 426, 433, 84 S.Ct. 1556, 12 L.Ed.2d 423; Breitwieser v. KMS Industries, Inc., 5 Cir., 1972, 467 F.2d 1391, 1394; Love v. Temple University, E.D.Pa.1973, 366 F.Supp. 835, 841.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.
The Petition for Rehearing is denied and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is also denied.
For reasons set forth in my dissent to the panel's decision I dissent to the Court's refusal to grant rehearing en banc.
This case falls squarely under the reasoning first adopted and still followed by the Supreme Court in Texas & Pac. Ry. v. Rigsby, 1916, 241 U.S. 33, 39, 36 S.Ct. 482, 484, 60 L.Ed. 874, 877. There the Court implied a civil remedy from the Federal Safety Appliance Act, thus allowing the employee to recover damages: 'A disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied, . . .' Id. at 39, 36 S.Ct. at 484.
The language and its meaning are clear, precise, and eminently sensible. The Supreme Court has since followed its own dictate and applied the 'implied remedies' theory to a wide range of statutes involving such areas as voting rights, 1 property rights, 2 a rivers and harbors act, 3 securities, 4 and railway labor legislation. 5 The most recent pronouncement of the Supreme Court on implied rights continues forthrightly to hold that 'private rights of action may be implied in favor of the intended beneficiaries of an Act in order to enforce compliance with its provisions.' Bolger v. Laventhol, Krekstein, Horwath & Horwath, D.C.1974, 381 F.Supp. 260. 6
This same theory has, not suprisingly, been received and securely anchored-- though sometimes wrongfully rejected as the majority does here 7 -- in the judicial practice of this Court. Gomez v. Florida State Employment Service, 5 Cir., 1969, 417 F.2d 569. 8 Gomez reinforced this Court's acceptance of implied remedies for two reasons: (i) the intended beneficiaries of an act are the most logical guardians of their own rights, id. at 575-576, and (ii) the implied remedy insures the more complete enforcement of an act by allowing private individuals to help police its violations. Id. at 576. See Drew v. Liberty Mutual Ins. Co., 5 Cir., 1973, 480 F.2d 69. 9
The carefully plotted history of implied remedies more surely encompasses the claim at hand. Plaintiff Martinez filed complaints against her employer with the Wage and Hour Division of the U.S. Department of Labor; she was then fired and alleges that her discharge violated 15(a)(3) of the FLSA, thus making the discharge wrongful. There can be no doubt that the purpose of the FLSA was and is to protect interstate employees by denying their employers the tool of toying with workers' wages when battling in the competitive market. 10
It is in the light of that purpose-- a protection of the interstate employee-- that the entire statute should be interpreted. Ms. Martinez is clearly a beneficiary under the Act; as an interstate employee she sought relief under Act for minimum wages. Because of the exercise of this right, she alleges, she was discharged. Such a discharge is prohibited by 15(a)(3) of the FLSA and Ms. Martinez as the victim of the discharge should be implied a claim.
The Court is quick to conclude that because some remedies are laid out in the FLSA, all others are precluded. Such a conclusion can only be reached after apply the principles of the implied remedies theory as accepted by the Supreme Court, (notes 1, 2, 3, 4, 5, 6 supra), and this Court, (see Gomez, supra). 11 In sum, these principles dictate that the relief under an act is in no way limited unless: (i) the act contains an express statement that an action is to the exclusion of all others, or (ii) the intent of the Act indicates a limited type of relief.
Neither of these exceptions exist in Ms. Martinez's case. The FLSA expressly provides for the following causes of action: (i) criminal liability, 29 U.S.C.A. 216(a); 12 (ii) all injunctive relief to be sought by the Secretary, 29 U.S.C.A. 211(a), 217; 13 and (iii) an employee claim for unpaid minimum wages or overtime wages, 29 U.S.C.A. 216(b). 14 None of the actions are couched in language excluding all other remedies. The intent of the Act also fails to limit Ms. Martinez's claim. To the contrary, it implies her claim by purporting to protect interstate employees.
We recognize, as the Court points out, that this statute appears to present exclusive remedies by the precision with which it lists certain remedies. But the Court can surely not declare that Congress meant to ignore the most obvious and glaring violation of the Act-- the wrongful dismissal of an employee seeking the protection of her rights under the Act. The Court apparently wipes this most important employee right from the Act merely because the Act specifically fashioned a claim for the violation of another employee right-- the right to minimum and overtime wages, (see note 14 supra).
Ms. Martinez's claim in no way diminishes the powers of the Secretary to police violations of the Act. The Secretary, after all, sits in a position as agent for all interstate employees with the task of insuring that all employees reap the...
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...Fair Labor Standards Act have not awarded damages other than those specifically provided in this statute. Martinez v. Behring's Bearing Service, Inc., 501 F.2d 104 (5th Cir. 1974), Powell v. Washington Post Co., 105 U.S. App.D.C. 374, 267 F.2d 561, cert. denied, 360 U.S. 930, 79 S.Ct. 1449,......
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