Martinez v. Behring's Bearings Service, Inc., No. 73-3649

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore BROWN, Chief Judge, and RIVES and DYER; RIVES; Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE; PER CURIAM; JOHN R. BROWN, Chief Judge, with who
Citation501 F.2d 104
Parties21 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.
Docket NumberNo. 73-3649
Decision Date13 September 1974

Page 104

501 F.2d 104
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.
No. 73-3649.
United States Court of Appeals, Fifth Circuit.
Sept. 13, 1974
Rehearing and Rehearing En Banc Denied Dec. 2, 1974.

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.

RIVES, 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.

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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.

The judgment is therefore

Affirmed.

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.

PER CURIAM:

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.

JOHN R. BROWN, Chief Judge, with whom AINSWORTH, Circuit Judge, joins:

For reasons set forth in my dissent to the panel's decision I dissent to the Court's refusal to grant rehearing en banc.

JOHN R. BROWN, Chief Judge (dissenting):

I respectfully dissent. 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

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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

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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

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20 practice notes
  • Boddorff v. Publicker Industries, Inc., Civ. A. No. 79-4023.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 25, 1980
    ...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, 3 L.Ed.2d 1544 (1959......
  • Bolick v. Brevard County Sheriff's Dept., No. 94-1175-Civ-Orl-22.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • August 27, 1996
    ...amendment was enacted, there was no right of action for damages of any kind for retaliation. Martinez v. Behring's Bearings Service, Inc., 501 F.2d 104 (5th Cir.1974).1 The issue then becomes whether the 1977 amendment added punitive and emotional Punitive and emotional damages are not avai......
  • Reeves v. International Tel. and Tel. Corp., No. 78-1286
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 15, 1980
    ...discharge were denied in this circuit prior to the amendment to section 216(b). See, Martinez v. Behring's Bearings Service, Inc., 501 F.2d 104 (5th Cir. 1974). In 1977, however, that section was amended to authorize private suits for unlawful discharge "by any one or more employees for and......
  • Rogers v. Frito-Lay, Inc., FRITO-LA
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 15, 1980
    ...of action under Occupational Health and Safety Act, 29 U.S.C. §§ 651-678); Martinez v. Behring's Bearings Service, Inc., 5 Cir. 1974, 501 F.2d 104 (no private right of action for wrongful death under Fair Labor Standards Act, 29 U.S.C. § 215(a)(3)); Flores v. George Braun Packing Co., 5 Cir......
  • Request a trial to view additional results
20 cases
  • Boddorff v. Publicker Industries, Inc., Civ. A. No. 79-4023.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • March 25, 1980
    ...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, 3 L.Ed.2d 1544 (1959......
  • Bolick v. Brevard County Sheriff's Dept., No. 94-1175-Civ-Orl-22.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • August 27, 1996
    ...amendment was enacted, there was no right of action for damages of any kind for retaliation. Martinez v. Behring's Bearings Service, Inc., 501 F.2d 104 (5th Cir.1974).1 The issue then becomes whether the 1977 amendment added punitive and emotional Punitive and emotional damages are not avai......
  • Reeves v. International Tel. and Tel. Corp., No. 78-1286
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 15, 1980
    ...discharge were denied in this circuit prior to the amendment to section 216(b). See, Martinez v. Behring's Bearings Service, Inc., 501 F.2d 104 (5th Cir. 1974). In 1977, however, that section was amended to authorize private suits for unlawful discharge "by any one or more employees for and......
  • Rogers v. Frito-Lay, Inc., FRITO-LA
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 15, 1980
    ...of action under Occupational Health and Safety Act, 29 U.S.C. §§ 651-678); Martinez v. Behring's Bearings Service, Inc., 5 Cir. 1974, 501 F.2d 104 (no private right of action for wrongful death under Fair Labor Standards Act, 29 U.S.C. § 215(a)(3)); Flores v. George Braun Packing Co., 5 Cir......
  • Request a trial to view additional results

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