Walling v. O'GRADY, 124.

Citation146 F.2d 422
Decision Date29 December 1944
Docket NumberNo. 124.,124.
PartiesWALLING, Adm'r of Wage and Hour Division, U. S. Dept. of Labor, v. O'GRADY et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

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 Section 17 of the Fair Labor Standards Act, 29 U.S.C.A. § 217. That section authorized it to restrain violations of Section 15, one violation specified in which was a discriminatory discharge prohibited by subdivision 3. The trial judge held that he could not grant back pay because there was nothing in the Act providing for back pay or allowing damages for a discriminatory discharge. But such a discharge was unlawful by Section 15(a) (3) and an injunction to prevent its continuance would have been proper under Section 17 as soon as the discharge took place. It seems unreasonable to suppose that the failure immediately to prevent it left the employee without remedy for loss of wages in the meantime and that the provisions for an injunction and for fines for disobedience of the Act are to be taken as nullifying any other remedy for the wrong. It is probable that the employee could have brought an individual action for loss of wages but such an action would not furnish a remedy adequate for such cases. The amount involved ordinarily would be small and the expense of recovery disproportionate and it seems more in accord with the spirit of sound labor legislation to allow the Administrator to restore all the rights of an employee in a single action instead of requiring one action for an injunction and reinstatement by the Administrator and another by the employee for loss of ad interim wages. We can see little difference between giving reparation to an employee for loss of wages as...

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16 cases
  • Donovan v. Brown Equipment and Service Tools, Inc.
    • United States
    • U.S. Court of Appeals — Fifth 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.
    • United States
    • U.S. Court of Appeals — Third 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, 39
    • United States
    • U.S. Supreme Court
    • January 18, 1960
    ...discharge. 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, wh......
  • Bowles v. Warner Holding Co.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • October 31, 1945
    ...64 S.Ct. 805, 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 enforceme......
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