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One of those opinions has been withdrawn and a new opinion substituted, but the inconsistency remains, The Vaughan v. Anderson Regional Medical Center decision was first issued on December 16, 2016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.