The Fifth Circuit has long held that pain and suffering damages and punitive damages are not recoverable under the ADEA. The Fifth Circuit has also expressed its intent to interpret remedies under the ADEA and FLSA consistently with each other since the ADEA incorporates the FLSA’s remedies provision. Thus, you would think that pain and suffering and punitive damages would not be recoverable in a FLSA retaliation case.
Not so fast. In a decision issued on December 16, 2016, a three-judge panel reaffirmed that pain and suffering and punitive damages are not recoverable for ADEA discrimination or retaliation claims. Only three days later, however, another Fifth Circuit panel issued a decision finding that emotional distress damages are recoverable in FLSA retaliation cases. 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. Obviously, the two panels did not interpret remedies available under the ADEA and the FLSA consistently.