Walker v. Pettit Const. Co., Inc., Civ. A. No. 77-984.

• Decision Date: 30 September 1977
• Docket Number: Civ. A. No. 77-984.
• Parties: Morris T. WALKER, Plaintiff, v. PETTIT CONSTRUCTION CO., INC., Defendant.
• Court: U.S. District Court — District of South Carolina

437 F. Supp. 730

Morris T. WALKER, Plaintiff, v. PETTIT CONSTRUCTION CO., INC., Defendant.

Civ. A. No. 77-984.

United States District Court, D. South Carolina, Spartanburg Division.

September 30, 1977.

C. Robert Faucette, Spartanburg, S.C., Daniel T. Stacey, Columbia, S.C., for plaintiff.

Thomas C. Bradley, Jr., Spartanburg, S.C., for defendant.

ORDER ON DEFENDANT'S MOTION TO STRIKE

HEMPHILL, District Judge.

This action is brought by a former employee of defendant under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621, et seq. Plaintiff seeks reinstatement, back pay, liquidated damages, attorneys' fees, costs, compensatory damages for pain, suffering, emotional and mental distress, and punitive damages for a willful violation on the basis of his claim to have been discharged in violation of the ADEA. Plaintiff has also demanded a jury trial.

Defendant has moved to strike the prayer for compensatory damages for pain and suffering, emotional and mental distress, the prayer for punitive damages and the demand for jury trial.

Defendant's motion to strike plaintiff's demand for a jury trial is denied. The Fourth Circuit, in Pons v. Lorillard, 549 F.2d 950 (4th Cir. 1977) held that a jury trial is available as a matter of right on the issue of lost wages in actions brought under the ADEA. Since the present case includes prayer for lost wages, defendant's motion to strike must fail.

The issue of punitive damages under the ADEA has not been considered in a published opinion in this Circuit. Additionally, the case law in various other United States Courts reveals a sharp divergence of authority. Punitive damages were allowed in Murphy v. American Motor Sales Corp., 410 F.Supp. 1403 (N.D.Ga.1976) and Dean v. American Security Ins. Co., 429 F.Supp. 3 (N.D.Ga.1976). Other courts have denied recovery of punitive damages under the ADEA, Looney v. Commercial Union Assurance Co., 428 F.Supp. 533 (D.Mich.1977); Hannon v. Continental National Bank, 427 F.Supp. 215 (D.Colo.1977); Platt v. Burroughs Corp., 424 F.Supp. 1329 (E.D.Pa. 1976); Fellows v. Medford Corp., 431 F.Supp. 199 (D.Or.1977). The relevant enforcement provision of the ADEA is contained in 29 U.S.C. § 626(b) which provides:

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.

The statute clearly states that "the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter . . .." Punitive damages have historically been a common form of legal relief which have served as a deterrent to improper conduct in the field of intentional torts. Wrongful discrimination, when willful and forbidden by statute, is in the nature of an intentional tort and, should willfulness be proven, punitive damages are appropriate to discourage and deter such conduct from others in the future. Section 626(b) provides that "this chapter shall be enforced in accordance with the powers, remedies, and procedures provided" in the Fair Labor Standards Act. Punitive damages are not recoverable under the Fair Labor Standards Act. See 29 U.S.C. § 216(b). However, § 626(b) specifically provides for additional remedies which are not contained in the Fair Labor Standards Act of 1938. The only logical, and uncontradictory reading of § 626(b) would provide that the Act "shall be enforced in accordance with the powers, remedies, and procedures provided in" the Fair Labor Standards Act insofar as those remedies parallel the remedies specifically provided by Congress in § 626(b). In addition to those remedies, the "court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of the Act." For this reason, the provisions of the Fair Labor Standards Act do not restrict the implementation of the additional remedies provided in 29 U.S.C. § 626(b). Therefore, the defendant's motion to strike plaintiff's request for punitive damages for a willful violation of the ADEA is denied.

By the...