Walling v. O'GRADY, No. 124.

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtSWAN, AUGUSTUS N. HAND, and FRANK, Circuit
Citation146 F.2d 422
Docket NumberNo. 124.
Decision Date29 December 1944
PartiesWALLING, Adm'r of Wage and Hour Division, U. S. Dept. of Labor, v. O'GRADY et al.

146 F.2d 422 (1944)

WALLING, Adm'r of Wage and Hour Division, U. S. Dept. of Labor,
v.
O'GRADY et al.

No. 124.

Circuit Court of Appeals, Second Circuit.

December 29, 1944.


Douglas B. Maggs, Sol., and Bessie Margolin, Asst. Sol., both of Washington, D. C., Irving Rozen, Regional Atty., of New York City, and Edward D. Friedman, of Washington, D. C., for L. Metcalfe Walling, Administrator, plaintiff-appellant.

Aaron E. Koota, of New York City, for John J. O'Grady, Executor, et al., defendants-appellees.

Before SWAN, AUGUSTUS N. HAND, and FRANK, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

On August 27, 1942, the defendants discharged an elevator operator whom they employed in a building which they owned at No. 100 East 37th Street, in New York City. He had been employed for some four years before his discharge which was found to have been because he had sued the defendants on August 19, 1942 in the Municipal Court of the City of New York under Section 16(b) of the Fair Labor Standards Act, 29 U.S.C.A. § 216(b) to recover back wages which he claimed to be owing by virtue of Section 7 of that Act, 29 U.S. C.A. § 207. On November 16, 1942 he obtained other employment.

The Administrator of the Wage and Hour Division thereupon brought the present suit to enjoin the defendants from continuing to violate the provisions of Section 15(a) (3) of the Fair Labor Standards Act, 29 U.S.C.A. § 215(a) (3), and to require them to offer the employee reinstatement of his former position and to make him whole for loss of wages.

Upon the facts we have recited the trial court found that the defendants had violated Section 15(a) (3) of the Act which makes it unlawful: "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 sections 1 to 19 of this title * * *."

The trial court issued a mandatory injunction requiring the defendants to offer the employee reinstatement to his former position but held that it was without authority to grant the further relief of ordering back pay. From such part of the judgment as denied back pay, the Administrator has appealed. The correctness of the judgment in granting injunctive relief and reinstatement is not questioned. We think the decision as to back pay was wrong and that the judgment to that extent should be reversed.

The District Court obtained jurisdiction of this suit under...

To continue reading

Request your trial
16 practice notes
  • Donovan v. Brown Equipment and Service Tools, Inc., No. 80-1708
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 21, 1982
    ...McComb v. Frank Scerbo & Sons, 177 F.2d 137, 138-39 (2d Cir. 1949) (reimbursement of unpaid overtime wages); Walling v. O'Grady, 146 F.2d 422, 423 (2d Cir. 1944) (reparations for wages lost due to wrongful discharge under section 15(a)(3) of the Congress reacted to the Scerbo decision and o......
  • Hodgson v. Wheaton Glass Co., No. 19558.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • July 22, 1971
    ...requiring the payment of back wages. McComb v. Frank Scerbo & Sons, Inc., 177 F.2d 137 (2nd Cir. 1949) (underpayment); Walling v. O'Grady, 146 F.2d 422 (2nd Cir. 1944) (wrongful discharge). The evolution of what became known as the Scerbo type remedy suggested certain problems. In the Porta......
  • Mitchell v. Robert De Mario Jewelry, Inc, No. 39
    • United States
    • United States Supreme Court
    • January 18, 1960
    ...5 Cir., 260 F.2d 929. The decision being in conflict with that of the Court of Appeals for the Second Circuit in Walling v. O'Grady, 146 F.2d 422, we granted certiorari. 359 U.S. 964, 79 S.Ct. 879, 3 L.Ed.2d 833. We initially consider § 17 apart from the effect of its proviso, which was add......
  • Bowles v. Warner Holding Co., No. 13087.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 31, 1945
    ...88 L.Ed. 1024; Walling v. Miller, 8 Cir., 138 F.2d 629, 633; Fleming v. Alderman, D.C.Conn., 51 F.Supp. 800; Walling v. O'Grady, 2 Cir., 146 F.2d 422); that plenary jurisdiction to effectuate the policy of a statute includes power to restore the status quo; that this enforcement action is a......
  • Request a trial to view additional results
16 cases
  • Donovan v. Brown Equipment and Service Tools, Inc., No. 80-1708
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 21, 1982
    ...McComb v. Frank Scerbo & Sons, 177 F.2d 137, 138-39 (2d Cir. 1949) (reimbursement of unpaid overtime wages); Walling v. O'Grady, 146 F.2d 422, 423 (2d Cir. 1944) (reparations for wages lost due to wrongful discharge under section 15(a)(3) of the Congress reacted to the Scerbo decision and o......
  • Hodgson v. Wheaton Glass Co., No. 19558.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • July 22, 1971
    ...requiring the payment of back wages. McComb v. Frank Scerbo & Sons, Inc., 177 F.2d 137 (2nd Cir. 1949) (underpayment); Walling v. O'Grady, 146 F.2d 422 (2nd Cir. 1944) (wrongful discharge). The evolution of what became known as the Scerbo type remedy suggested certain problems. In the Porta......
  • Mitchell v. Robert De Mario Jewelry, Inc, No. 39
    • United States
    • United States Supreme Court
    • January 18, 1960
    ...5 Cir., 260 F.2d 929. The decision being in conflict with that of the Court of Appeals for the Second Circuit in Walling v. O'Grady, 146 F.2d 422, we granted certiorari. 359 U.S. 964, 79 S.Ct. 879, 3 L.Ed.2d 833. We initially consider § 17 apart from the effect of its proviso, which was add......
  • Bowles v. Warner Holding Co., No. 13087.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 31, 1945
    ...88 L.Ed. 1024; Walling v. Miller, 8 Cir., 138 F.2d 629, 633; Fleming v. Alderman, D.C.Conn., 51 F.Supp. 800; Walling v. O'Grady, 2 Cir., 146 F.2d 422); that plenary jurisdiction to effectuate the policy of a statute includes power to restore the status quo; that this enforcement action is a......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT