Vazquez v. Eastern Air Lines, Inc.

• Decision Date: 21 June 1978
• Docket Number: No. 77-1563,77-1563
• Parties: 17 Fair Empl.Prac.Cas. 1116, 17 Empl. Prac. Dec. P 8394 Miguel VAZQUEZ et al., Plaintiffs-Appellees, v. EASTERN AIR LINES, INC., Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 107

579 F.2d 107

17 Fair Empl.Prac.Cas. 1116, 17 Empl. Prac.

Dec. P 8394

Miguel VAZQUEZ et al., Plaintiffs-Appellees, v. EASTERN AIR LINES, INC., Defendant-Appellant.

No. 77-1563.

United States Court of Appeals, First Circuit.

June 21, 1978.

Edda Ponsa Flores, San Juan, P. R., with whom Francisco Ponsa Feliu, Francisco Ponsa Flores, San Juan, P. R., and Lawrence E. Duffy, Rio Piedras, P. R., were on brief, for defendant-appellant.

Antonio Moreda Toledo, San Juan, P. R., with whom George L. Weasler, Santurce, P. R., was on brief, for plaintiffs-appellees.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

BOWNES, Circuit Judge.

We face the issue of whether damages for pain and suffering are authorized under the Age Discrimination in Employment Act of 1967 (ADEA). The district court, in a well-reasoned opinion, found that such damages were justified under the Act, but, recognizing it as a controlling question of law as to which there was a substantial ground for difference of opinion, certified it as an interlocutory issue for appeal. 28 U.S.C. § 1292(b).

The Act proscribes discrimination against the protected class of individuals, forty to sixty-five years of age, on the basis of age. Congress was moved to enact the statute because of incorrect assumptions and misconceptions concerning productivity and age. 113 Cong.Rec. 31254, 34742, 34752 (1967). The insidious effects of being barred at the door of the employment market were recognized as undermining one's self-esteem in a work-oriented society. Id. at 34745. In line with the broad humanitarian goals of the statute, liberal construction should be favored. Moses v. Falstaff Brewing Corp., 525 F.2d 92, 93 (8th Cir. 1975). Any interpretation should strive to further a substantial goal of the Act. Id. at 94. With this framework in mind, we address the specific question presented.

Two other circuit courts have recently faced the question here, Viz., whether compensatory damages are permissible in a suit brought pursuant to the ADEA, and have answered in the negative. Dean v. American Sec. Ins. Co., 559 F.2d 1036 (5th Cir. 1977), Cert. denied, --- U.S. ----, 98 S.Ct. 1243, 55 L.Ed.2d 767 (1978); Rogers v. Exxon Research & Engineering Co., 550 F.2d 834 (3d Cir. 1977), Cert. denied, 434 U.S. 1022, 98 S.Ct. 749, 54 L.Ed.2d 770 (1978). After a thorough review and analysis of the issue, outlined below, we arrive at the same result.

The remedy provisions of the ADEA, 29 U.S.C. § 626(b), (c), indicate that enforcement is to be sought pursuant to certain enforcement provisions of the Fair Labor Standards Act, specifically sections 211(b), 216 (except for subsection (a) thereof), and 217 of title 29. The ADEA further provides:

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.

(emphasis added). 29 U.S.C. § 626(b). See also 29 U.S.C. § 626(c). While the underscored language appears to warrant the broad interpretation given by the district court, ¹ that language is limited by the reference to the enforcement procedures authorized under the FLSA and the fact that amounts owing as a result of a violation are to be treated as if they were unpaid minimum wages or unpaid overtime compensation.

The Fair Labor Standards Act was enacted in 1938; during the intervening years, courts have frequently had the opportunity to construe various sections of the statute. We have found, after a careful review, that, other than those damages specifically provided for in the statute, I. e., the amounts owing by employers who violate the Act and an additional amount as liquidated damages, 29 U.S.C. § 216(b), ² compensatory damages have not been permitted. See e. g., Bonner v. Elizabeth Arden, Inc., 177 F.2d 703, 705 (2d Cir. 1949); Powell v. Washington Post Co., 105 U.S.App.D.C. 374 375, 267 F.2d 651, 652, Cert. denied, 360 U.S. 930, 79 S.Ct. 1449, 3 L.Ed.2d 1544 (1959); Martinez v. Behring's Service, Inc., 501 F.2d 104, 105 (5th Cir. 1974). But see id. at 105-108 (dissenting opinion); Fagot v. Flintkote, 305 F.Supp. 407 (E.D.La.1969).

If, therefore relief is to be had solely by reference to the FLSA, the solid line of cases holding that no compensatory damages are available under the Act, presents a formidable barrier to those seeking damages for pain and suffering. The Supreme Court, speaking recently to the separate issue of whether right to a jury trial is assured a private litigant suing under the ADEA, referred to the enforcement provision of the ADEA, 29 U.S.C. § 626(b), which indicated that the ADEA was to be enforced in accordance with the " powers, remedies, and procedures" of the FLSA. Lorillard v. Pons, --- U.S. ----, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978). The Court frequently alluded to the ADEA's selective adoption of the enforcement provisions of the FLSA.

This selectivity that Congress exhibited in incorporating provisions and in modifying certain FLSA practices strongly suggests that but for those changes Congress expressly made, it intended to incorporate fully the remedies and procedures of the FLSA.

Id. at ----, 98 S.Ct. at 871. The Court, in concluding that the ADEA did guarantee the right to a jury trial, observed that it had been long established that one suing under the FLSA had the right to a trial by jury. The Court continued that Congress, by adopting the enforcement procedures of the FLSA for implementation of the ADEA, was presumed to be aware of the judicial and administrative interpretations given that statute. Id. In like vein, we conclude that Congress is presumed to know, See Albemarle Paper Co. v. Moody, 422 U.S. 405, 414 n. 8, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), that courts have consistently refused to grant FLSA litigants compensatory damages, other than those allowed under 29 U.S.C. § 216(b).

A review of the legislative history of the ADEA discloses that the Act intentionally eschewed other avenues of enforcement in favor of the selective adoption of FLSA provisions. 113 Cong.Rec. 7076, 31250 (1967). Senator Javits, an early proponent of age discrimination legislation, introduced the amendment regarding enforcement procedures which ultimately became section 7 of the ADEA, 29 U.S.C. § 626. In testimony before the Labor Subcommittee of the Senate and Public Welfare Committee, Senator Javits explained:

First the administration and enforcement of the law is placed in the hands of the Wage-Hour Division, and the method of enforcement almost exactly parallels that used in minimum wage and hour cases. . . .

Second, the criminal penalty in case of willful violation has been eliminated and a double damage liability substituted. This will furnish an effective deterrent to willful violations. . . .

Id. (emphasis in original). ³ Later, in floor debates on the bill, Senator Javits reiterated, "(t)he enforcement techniques provided by S. 830 (I. e., ADEA) are directly analogous to those available under the Fair Labor Standards Act; in fact, S. 830 incorporates by reference, to the greatest extent possible, the provisions of the Fair Labor Standards Act." Id. at 31254. Clearly, it was the intent of Congress to graft enforcement provisions of the FLSA onto the ADEA in instances where appropriate.

This does not, however, conclude our inquiry. While the enforcement provision of the FLSA is adopted by the ADEA, there is the expansive statutory language (cited and underscored, Supra at 109, in the ADEA which is absent from the FLSA. This suggests to us the propriety of looking to the reasonableness of the expectation that the FLSA remedy will effectuate the purposes of the age discrimination act. The Third Circuit in Rogers, 550 F.2d 834, and the Fifth Circuit in Dean, 559 F.2d 1036, both endorsed the view that compensatory damages would be incompatible with the general compliance scheme envisioned by the statute. They suggested that such damages could undermine the conciliation process to be undertaken by the Secretary of Labor prior to the inauguration of any private suit. 29 U.S.C. § 626(d). The Secretary is given the authority to seek voluntary compliance for a period of sixty days prior to the time an aggrieved individual can file suit. The argument is that, if an individual realized that he could obtain compensatory damages in a successful suit against the employer, the individual might be less likely to settle the case voluntarily, 550 F.2d at 841. While we appreciate the concern expressed by both circuits in Rogers and Dean, we are not persuaded that a contrary result might not be as logically reached. If an employer realizes that the most it stands to lose in a private suit is lost wages, possibly doubled for a willful violation, we think it arguable that the employer might be less likely to compromise the claim short of a lawsuit. We find added support for our position in the Report prepared by the Secretary, pursuant to 29 U.S.C. § 632, covering activities under the ADEA during 1976. Age Discrimination in Employment Act of 1967: A Report Covering Activities Under the Act During 1976 Submitted to Congress in 1977 in Accordance with Section 13 of the Act (hereafter "Report"). The statistics compiled by the Secretary indicate that in fiscal year 1976, 7,877 establishments were contacted for compliance action; of those, only 2,490 or 32% Were resolved by conciliation. Id. at 11. Although the...