Earlier we wrote that two Fifth Circuit cases seemed to reach inconsistent determinations about the availability of punitive and pain and suffering damages under the FLSA and ADEA. The Fifth Circuit previously expressed its intent to interpret the remedies provision under the FLSA and ADEA consistently with each other. Please see our discussion at via our January 13 blog post.
One of those opinions has been withdrawn and a new opinion substituted, but the inconsistency remains, The Vaughan v. Anderson Regional Medical Center decision was first issued on December 16, 2016 (we discussed the first issued version in our prior post). But because the opinion contained some manifest inconsistencies with the Pineda v. JTCH Apartments, LLC opinion issued just three days later, the plaintiff in Vaughan requested a rehearing en banc. Although the court denied the petition for a rehearing en banc, the court withdrew the prior opinion and substituted a new opinion. The new Vaughan opinion reaches the same ultimate conclusion and holding as the prior opinion, but it contains a few revisions that make clear its holding on ADEA remedies does not extend to FLSA remedies. But still, the two panels did not interpret remedies available under the ADEA and the FLSA consistently.
In the Pineda decision issued on December 19, 2016, a three-judge panel held that emotional distress damages are recoverable in FLSA retaliation cases. On February 15, 2017, however, in Vaughan, another Fifth Circuit panel reaffirmed that pain and suffering and punitive damages are not recoverable for ADEA discrimination or retaliation claims. In so holding, the two panels cited the same 1977 seminal case, Dean v. American Security Insurance Co., but reached different conclusions under similarly worded provisions of the two statutes.
In Pineda, the court held that employees suing for retaliation under the FLSA may recover pain and suffering damages by virtue of the 1977 FLSA amendments allowing private retaliation suits and enlarging the damages provision “as may be appropriate to effectuate the purposes” of the statute. The Fifth Circuit’s decision joins in the interpretations previously applied in decisions by the Seventh and Sixth Circuits. Although the Dean court interpreted strikingly similar language in the ADEA and concluded pain and suffering damages were not recoverable, the Pineda court said that Dean was “no obstacle” to its holding because the ADEA includes additional provisions distinguishing its purposes from FLSA. Specifically, the court noted that “FLSA has no comparable legislative preference for the ADEA’s administrative conciliation and mediation scheme that motivated the ruling in Dean.”
On the other hand, in Vaughan, the court rejected the plaintiff’s argument that the FLSA amendments constituted an intervening change in the law to allow for recovery of punitive and pain and suffering damages in ADEA claims. While the prior Vaughan opinion seemed to extend its reasoning to preclude punitive and pain and suffering damages for FLSA claims as well, the new opinion narrows in on effectuating the purposes specific to the ADEA. In reaching its conclusion, the court noted that such damages would frustrate the ADEA’s preference for administrative resolutions and states that they “express no view on how the remedial language discussed above should be applied in FLSA retaliation cases.”
While both the Vaughan and Pineda decisions relied on Dean’s emphasis on effectuating the purposes of the ADEA, the results run afoul of the Fifth Circuit’s stated desire for remedies provisions under the FLSA and the ADEA to be interpreted consistently. Nevertheless, the decisions establish that claims for emotional distress and punitive damages under the ADEA will be subject to dismissal in the Fifth Circuit, but such claims will be allowed in FLSA retaliation cases.