Can a plaintiff get pain and suffering or punitive damages in a retaliation claim under the Age Discrimination in Employment Act (ADEA)? In Vaughan v. Anderson Regional Medical Center, the Fifth Circuit, denying both an interlocutory appeal and a petition for rehearing, says “no”.
As we all know, the ADEA explicitly limits a successful plaintiff’s recovery to lost wages and liquidated damages, following the damages scheme of the Fair Labor Standards Act rather than Title VII. However, both the ADEA and the FLSA provide for retaliation claims and that is where the similarity in damages ends (at least in the Fifth Circuit). In 1977, Congress amended the FLSA to provide for compensatory and punitive damages in a retaliation case. Congress did not amend the ADEA.
Facts and Arguments in Vaughan.
Susan L. Vaughan, who worked for Anderson Regional Medical Center as a nurse supervisor, sued claiming she was terminated because of her age and in retaliation for complaining about her supervisor’s discriminatory comments relating to her age. While Vaughan conceded that she could not receive pain and suffering or punitive damages for her age discrimination claim, she argued those damages were available for her retaliation claim. ARMC filed a motion to dismiss the claim for those damages. The trial court dismissed Vaughan’s claims, relying on Dean v. American Sec. Ins. Co., 1977 Fifth Circuit precedent that barred those damages under the ADEA.
On interlocutory appeal, Vaughan pointed to Seventh and Eleventh Circuit cases, and EEOC advisory guidance, that supported her claim for these damages for her ADEA retaliation claim. Given that Dean explicitly prohibited the damages for age discrimination claims but did not mention retaliation claims, she argued that it silently excluded ADEA retaliation claims from its ruling. Vaughan also argued that because the Fifth Circuit interprets the FLSA to provide remedies consistent with the ADEA, the 1977 amendment to FLSA retaliation remedies enlarged the ADEA retaliation remedies as well. The Fifth Circuit disagreed on both counts, affirming the trial court, holding that Dean is the controlling law for all ADEA damages claims and was unaffected by the 1977 FLSA amendment.
But What About FLSA Retaliation Claims in the Fifth Circuit?
Three days prior to its Vaughan ruling, however, the Fifth Circuit in Pineda v. JTCH Apts., LLC, ruled that the 1977 amendment did allow emotional distress damages in FLSA claims. So– does the Fifth Circuit still interpret the FLSA to provide remedies consistent with the ADEA? That is the question that Vaughan and the AARP, as Amici Curiae, asked in a petition for rehearing and en banc consideration. Given that the two cases use the same statute for damages the opinions appear a little contradictory. Not so, says the Fifth Circuit—which withdrew its prior opinion in Vaughan and issued a new opinion with the same holding and almost exact same reasoning. Bottom line, the Fifth Circuit has made clear that Dean controls all claims under the ADEA, including retaliation claims.
What Does This Mean?
The Fifth Circuit appears to have deviated from its position that damages for retaliation claims under the FLSA and the ADEA will be interpreted consistently and seems to be holding steady that ADEA retaliation only gets liquidated damages. As Vaughan pointed out, however, some other circuits and the EEOC believe that emotional distress and punitive damages are available for ADEA retaliation claims. For employers, this decision emphasizes the importance of avoiding potential retaliation claims under the ADEA or any other law.