Wise v. Olan Mills Inc. of Texas, Civ. A. No. 79-C-1441.

• Decision Date: 11 March 1980
• Docket Number: Civ. A. No. 79-C-1441.
• Citation: 485 F. Supp. 542
• Parties: Ruby A. WISE, Plaintiff, v. OLAN MILLS INCORPORATED OF TEXAS, Defendant.
• Court: U.S. District Court — District of Colorado

485 F. Supp. 542

Ruby A. WISE, Plaintiff, v. OLAN MILLS INCORPORATED OF TEXAS, Defendant.

Civ. A. No. 79-C-1441.

United States District Court, D. Colorado.

March 11, 1980.

Philip Burton Green, Denver, Colo., for plaintiff.

E. Lee Dale, Robert J. Whitley, Denver, Colo., for defendant.

MEMORANDUM OPINION AND ORDER

CARRIGAN, District Judge.

The plaintiff filed this action pursuant to the Age Discrimination in Employment Act (the Act), 29 U.S.C. §§ 621 et seq., claiming that the defendant unlawfully discharged her from employment because of her age. The defendant has filed a motion to strike "all allegations or references in the Complaint relating to pain and suffering or to punitive damages." The motion is denied.

The United States Court of Appeals for the Tenth Circuit has not yet decided whether general compensatory damages and exemplary damages may be awarded under the Act. These issues have evoked considerable conflict among the federal courts. The subject has been discussed at length in numerous opinions and no useful purpose would be served by belaboring it here. It is sufficient to refer to the thorough discussions in Flynn v. Morgan Guaranty Company of New York, 463 F.Supp. 676 (E.D.N.Y.1979) (damages for pain and suffering) and Kennedy v. Mountain States Telephone & Telegraph Co., 449 F.Supp. 1008 (D.Colo.1978) (punitive damages), and cases cited in those two opinions. See also Hassan v. Delta Ortho Medical Group, 476 F.Supp. 1063 (E.D.Cal.1979).¹

Despite the authority to the contrary, this Court is not convinced that general compensatory and exemplary damages may never be awarded, in any circumstances, in age discrimination cases. Counsel for the defendant contends that since no legal remedy for age discrimination was recognized by the common law, the plaintiff is limited to the remedies provided by the Act. That argument is indeed persuasive. But it does not dispose of the issue, for 29 U.S.C. § 626(b) defines, in the broadest of terms, the Court's authority to provide relief.

"In any action brought to enforce this Act the court shall have jurisdiction to grant such legal or equitable relief as may be appropriate to effectuate the purposes of this Act, 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).

Clearly, the only statutory limitation on granting traditional legal relief, such as general damages, is the requirement that the relief be "appropriate to effectuate the purposes" of the Act. Those purposes, as expressed in 29 U.S.C. § 621, are "to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; to help employers and workers find ways of meeting problems arising from the impact of age on employment."

Congress' clear intent to provide a full remedy for the actual harm caused by age discrimination in employment is further reflected in the "Statement of findings and purpose" in § 621. That section expresses specific concern about the "deterioration of skill, morale, and employer acceptability" resulting from unemployment among older workers. A worker whose skills deteriorate, whose employability (and self image regarding worth) declines, and whose morale suffers, may well be subject to serious emotional distress or depression. Such a condition could make it very difficult to seek other employment, thus leading to extended unemployment. The Congressional intent to alleviate these problems simply cannot be effectuated in every case if the only remedies available are reinstatement, promotion, back pay, and possible double damages in cases of willful violations.

"In light of the psychological effects of age discrimination, the remedies of reinstatement and back pay may not be sufficient to afford adequate relief. Even prompt reinstatement and recovery of lost earnings may not alleviate the workers' fears about their diminished capacity, fears that have been reinforced by their dismissal." Flynn v. Morgan Guaranty Trust Company of New York, supra, 463 F.Supp. at 678.

Congress obviously sought to address this form of discrimination as forcefully as possible, and to discourage the practice of ignoring the work skills of older people while, in effect, junking them for replacement by newer models. To be thus discarded can have devastating psychological effects at a time in one's life that is often already traumatic enough. Moreover, the willful and arbitrary assignment of older citizens to society's trash heap may be so grossly unfair and unreasonable, in some cases, as to justify imposing exemplary damages.

Congress, in the Act, has plainly expressed a national policy opposed to wasting the talents, skills, experience and wisdom of older persons. In effect, Congress has declared their work capabilities a valuable national resource to be conserved and protected. A court's duty is to effectuate the Congressional purpose to the fullest extent possible by "such legal or equitable relief as may be appropriate." In proper cases, that relief, in this court, will include general compensatory and exemplary damages unless such damages are held, by a binding decision of the Supreme Court or the Tenth Circuit Court of Appeals, not within the Act's remedies.

The defendant contends, however, that the Conference Committee Report accompanying 1978 amendments to the Act demonstrates a contrary Congressional intent. In that report the committee stated, inter alia that the "ADEA as amended by this act does not provide remedies of a punitive nature." House Conference...