Vaughan v. Anderson Reg'l Med. Ctr.

• Decision Date: 15 February 2017
• Docket Number: No. 16-60104,16-60104
• Parties: Susan L. VAUGHAN, Plaintiff-Appellant v. ANDERSON REGIONAL MEDICAL CENTER, Defendant-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

849 F.3d 588

Susan L. VAUGHAN, Plaintiff-Appellant

v.ANDERSON REGIONAL MEDICAL CENTER, Defendant-Appellee

No. 16-60104

United States Court of Appeals, Fifth Circuit.

February 15, 2017

Robert Nicholas Norris, Louis Hanner Watson, Jr., Esq., Watson & Norris, P.L.L.C., Jackson, MS, for Plaintiff-Appellant.

Romney Hastings Entrekin, Esq., Peeler Grayson Lacey, Jr., Esq., Benjamin Blue Morgan, Esq., Attorney, Burson Entrekin Orr Mitchell & Lacey, P.A., Laurel, MS, for Defendant-Appellee.

Dara S. Smith, Esq., AARP Foundation Litigation, Washington, DC, Amicus Curiae for AMERICAN ASSOCIATION OF RETIRED PERSONS, AMERICAN ASSOCIATION OF RETIRED PERSONS FOUNDATION.

Before BENAVIDES, HAYNES, and GRAVES, Circuit Judges.

JAMES E. GRAVES, JR., Circuit Judge:

Treating Appellant's Petition for Rehearing En Banc as a Petition for Panel Rehearing, the Petition is DENIED. We withdraw the prior opinion and substitute the following.

This single-issue interlocutory appeal arises out of a wrongful termination lawsuit filed by Susan Vaughan, a nurse supervisor, against Anderson Regional Medical Center. Vaughan alleges the Medical Center discharged her in retaliation for raising age-discrimination complaints. Vaughan's claims invoke the Age Discrimination in Employment Act (ADEA), and she seeks, among other things, damages for pain and suffering and punitive damages.

The district court dismissed Vaughan's claims for pain and suffering damages and punitive damages because Fifth Circuit precedent bars such recoveries under the ADEA. The district court's dismissal order did, however, note divergent views held by other circuits and the Equal Employment Opportunity Commission. Finding the damages issue "a controlling question of law as to which there is substantial ground for difference of opinion," the district court certified an appeal to this Court under 28 U.S.C. § 1292(b). We granted leave to file an interlocutory appeal.

The district court correctly concluded that Dean v. Am. Sec. Ins. Co. , 559 F.2d 1036 (5th Cir. 1977) requires dismissal of Vaughan's pain and suffering and punitive damages claims.¹ Accordingly, we AFFIRM.

JURISDICTION

We have jurisdiction over Vaughan's interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The district court properly exercised its jurisdiction over the federal statutory claim under 28 U.S.C. § 1331.

STANDARD OF REVIEW

The district court dismissed Vaughan's damages claims pursuant to Fed. R. Civ. P. 12(b)(6). Accordingly, this Court reviews the decision below de novo , "accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiff." True v. Robles , 571 F.3d 412, 417 (5th Cir. 2009). "Dismissal is appropriate when the plaintiff has not alleged ‘enough facts to state a claim to relief that is plausible on its face’ and has failed to ‘raise a right to relief above the speculative level.’ " Id. (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

ANALYSIS

The parties dispute Dean 's applicability. The district court relied upon Dean below, but certified its ruling for interlocutory review after recognizing a circuit split regarding the availability of pain and suffering and punitive damages in ADEA retaliation cases.

This Court adheres to a "rule of orderliness," under which a panel may not overturn a controlling precedent "absent an intervening change in law, such as by a statutory amendment, or the Supreme Court, or our en banc court. Indeed, even if a panel's interpretation of the law appears flawed, the rule of orderliness prevents a subsequent panel from declaring it void." Sprong v. Fidelity Nat'l Property & Cas. Ins. Co. , 787 F.3d 296, 305 (5th Cir. 2015) (block quotation and citation omitted). To decide whether the rule of orderliness applies, we must therefore analyze whether: (1) Dean is distinguishable from this case; or (2) an intervening change in law justifies setting Dean aside.

We conclude that the answer to both questions is "no."

I. Dean is not distinguishable

We perceive no basis upon which to distinguish Dean . Vaughan concedes that Dean forecloses pain and suffering and punitive recoveries for ADEA age discrimination claims, see Appellant's Br. at 2, but suggests that Dean does not control ADEA retaliation claims. We disagree.

Dean held in unqualified terms that "neither general damages [i.e., compensatory damages for pain and suffering] nor punitive damages are recoverable in private actions posited upon the ADEA." Dean , 559 F.2d at 1040. ADEA age discrimination and retaliation claims are equally "private actions posited upon the ADEA," and the ADEA has contained a prohibition on employer retaliation since its inception. See Age Discrimination in Employment Act of 1967, Pub. L. 90–202 at § 4(d), 81 Stat. at 603 (1967) ("It shall be unlawful for an employer to discriminate against any of his employees or applicants for employment, for an employment agency to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because such individual, member or applicant for membership has opposed any practice made unlawful by this section, or because such individual, member or applicant for membership has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this Act.") (current version at 29 U.S.C. § 623(d) ). A plaintiff could file a retaliation claim under the ADEA when we decided Dean , and Dean contains no suggestion that its holding regarding damages for "private actions posited upon the ADEA" silently excluded ADEA retaliation actions. See Dean , 559 F.2d at 1036.

Dean 's holding therefore controls this case if, as we will conclude below, no intervening changes in law undermine its continued vitality.

II. No intervening change in law justifies setting Dean aside

Vaughan's effort to undermine Dean relies heavily upon the 1977 amendments to the remedies provided for retaliatory discharges under the Fair Labor Standards Act (FLSA), a statute we interpret to provide remedies "consistent" with the ADEA.² Vaughan's argument that the 1977 FLSA amendments enlarged the remedies available for ADEA retaliation claims finds support in the decisions of at least one circuit, and the EEOC endorses that interpretation. See Moskowitz v. Trustees of Purdue Univ. , 5 F.3d 279, 284 (7th Cir. 1993) (indicating that the 1977 FLSA amendments "enlarge[d] the remedies ... beyond those standardly available for ... ADEA ... violations" when a plaintiff brings retaliation claims); see also EEOC Directive No. 915.004, EEOC Enforcement Guidance on Retaliation and Related Issues , at n. 186 (Aug. 25, 2016) ("The FLSA, as amended in 1977, 29 U.S.C. § 216(b), authorizes compensatory and punitive damages for retaliation claims under ... the ADEA."), available athttps://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm#_ftnref186 (last accessed Dec. 12, 2016).

We conclude, however, that Vaughan's argument fails to recognize the 1977 FLSA amendments incorporated remedial language substantively identical to passages already provided in the ADEA. Put simply, the 1977 FLSA amendments do not disturb our holding in Dean , because they added language to the FLSA that we have already construed in the context of the ADEA—in Dean .

We issued our opinion in Dean on September 23, 1977, more than a month prior to the 1977 FLSA amendments. Compare Dean , 559 F.2d at 1036, with Fair Labor Standards Amendments of 1977, Pub. L. No. 95–151, 91 Stat. 1245 (Nov. 1, 1977) (current version at 29 U.S.C. §§ 201 –219 ). By the time we interpreted it in Dean , the ADEA had for nearly ten years "authori[zed] a court 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.’ " Dean , 559 F.3d at 1037–38; see also Age Discrimination in Employment Act of 1967, Pub. L. No. 90–902 at § 7(b), 81 Stat. 604–05 (1967) (current version at 29 U.S.C. § 626(b) ). Several weeks after we decided Dean , Congress added the following similar remedial language to the FLSA: "Any employer who violates the provisions of section 15(a)(3) of this Act, 29 USC 215, shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 15(a)(3), including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages." 91 Stat. 1245 at 1252 (current version at 29 U.S.C. § 216(b) ). Dean held that similar language in the ADEA's remedy provision did not make pain and suffering damages available, because such damages would frustrate the ADEA's preference for administrative resolutions. See Dean , 559 F.2d at 1038–39. That preference remains in the ADEA, and requires the same result we reached in Dean for all "private actions posited upon the ADEA." See id. at 1040. We express no view on how the remedial language discussed above should be applied in FLSA retaliation cases.

Our interpretation is buttressed by our history of applying Dean long after the 1977 FLSA amendments. See Smith v. Berry Co., 165 F.3d 390, 396 (5th Cir. 1999) (citing Dean for the proposition that "punitive damages and damages for mental pain and suffering ... are not available" for age discrimination claims under the ADEA). The Eleventh Circuit, which views Fifth Circuit precedents predating Sept. 30, 1981, as binding precedent,³ has also continued to cite Dean . See Snapp v. Unlimited Concepts, Inc. , 208 F.3d 928, 938 (11th Cir. 2000) ("We ... feel some constraint to exclude punitive damages from the ‘legal relief’ provided in the [FLSA] by the former Fifth Circuit's decision in Dean .");⁴ see also Goldstein...