Snapp v. Unlimited Concepts , 208 F.3d 928 ( 2000 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APR 05 2000
THOMAS K. KAHN
No. 98-2936 CLERK
D. C. Docket No. 96-00707-CIV-J-21A
BRIAN SNAPP,
Plaintiff-Appellant,
versus
UNLIMITED CONCEPTS, INC. d.b.a. Ramshackle’s Café,
GLEN GERKIN,
Defendants-Appellees.
Appeal from the United States District Court
for the Middle District of Florida
(April 5, 2000)
Before TJOFLAT and CARNES, Circuit Judges, and RONEY, Senior Circuit Judge.
TJOFLAT, Circuit Judge:
Brian Snapp filed this action under the Fair Labor Standards Act of 1938
(“FLSA”), 29 U.S.C. § 201-219 (1994), as amended, in the United States District
Court for the Middle District of Florida against Unlimited Concepts, Inc., doing
business as Ramshackle’s Café, and Glen Gerken, the owner, President, and Chief
Executive Officer of Ramshackle’s.1 Plaintiff alleged that the Ramshackle’s Café was
“Ramshackle” in more than name only.2 Snapp complained that while working at the
café, he suffered violations of the minimum wage, overtime wage, and anti-retaliation
provisions of the FLSA. He sought judgment for unpaid minimum compensation,
overtime compensation, liquidated damages, and attorneys fees; plaintiff also sought
compensatory and punitive damages for his alleged retaliatory discharge.3 The issue
in this appeal is whether plaintiff can recover punitive damages on his retaliatory
discharge claim.
I.
1
Plaintiff also named as a defendant Staff Leasing, Inc., now known as Bill Mullis Enterprises,
Inc., but the district court later dismissed the complaint as to Staff Leasing because of the plaintiff’s
failure to perfect service of process as required by Federal Rule of Civil Procedure 4.
2
Webster’s Third defines “ramshackle” as, inter alia, “having little moral sense,” and lists as
synonyms the words “dissipated” and “unruly.” Webster’s Third New International Dictionary 1879
(1993).
3
Plaintiff’s prayer for compensatory damages was based upon his allegation that he suffered
severe physical and emotional pain and suffering because of his retaliatory discharge.
2
A.
The FLSA requires, inter alia, employers to pay covered employees a minimum
wage, and to provide additional compensation for overtime work. 29 U.S.C. §
206(a)(1) specifies minimum rates of compensation, and section 207(a)(1) requires
employers to pay employees “at a rate not less than one and one-half times the regular
rate” of pay for any time spent working in excess of forty hours per week. The Act
also contains an anti-retaliation provision. Section 215(a)(3) prohibits employers
from
discharg[ing] or in any other manner discriminat[ing] against any
employee because such employee has filed any complaint or instituted
or caused to be instituted any proceeding under or related to this chapter,
or has testified or is about to testify in any such proceeding, or has
served or is about to serve on an industry committee.
The penalties section of the Act, 29 U.S.C. § 216, provides for both criminal
sanctions and private rights of action. Under section 216(a),
[a]ny person who willfully violates any of the provisions of section 215
of this title shall upon conviction thereof be subject to a fine of not more
than $10,000, or to imprisonment for not more than six months, or both.
No person shall be imprisoned under this subsection except for an
offense committed after the conviction of such person for a prior offense
under this subsection.4
4
Section 215(a)(2) makes it unlawful “to violate any of the provisions of section 206 or section
207,” and as noted above, section 215(a)(3) contains the FLSA’s anti-retaliation provision.
3
In contrast to the criminal penalties provided in section 216(a), section 216(b)
authorizes private causes of action against employers for violations of the Act.
Section 216(b) also describes the relief afforded to a successful plaintiff:
[a]ny employer who violates the provisions of section 206 or section 207
[the minimum wage and overtime wage provisions] . . . shall be liable to
the employee or employees affected in the amount of their unpaid
minimum wages, or their unpaid overtime compensation, as the case may
be, and in an additional equal amount as liquidated damages. Any
employer who violates the provisions of section 215(a)(3) [the anti-
retaliation provision] . . . shall be liable for such legal or equitable relief
as may be appropriate to effectuate the purposes of section 215(a)(3) of
this title, including without limitation employment, reinstatement,
promotion, and the payment of wages lost and an additional equal
amount as liquidated damages . . . . The court in such action shall, in
addition to any judgment awarded to the plaintiff or plaintiffs, allow a
reasonable attorney’s fee to be paid by the defendant, and costs of the
action. . . .
29 U.S.C. § 216(b). Congress added the language allowing suits against employers
for violations of section 215(a)(3)’s anti-retaliation provision in 1977. See Fair Labor
Standards Amendments of 1977, Pub. L. 95-151, 91 Stat. 1245, 1252 (1977). Before
then, employees had to rely on the criminal and injunctive relief provided in sections
216(a) and 217 to discourage employers from retaliating against them. See Mitchell
v. Robert De Mario Jewelry, Inc., 361 U.S. 288, 289, 80 S. Ct. 332, 333-34, 4 L. Ed.
42d 323 (1960).5 Plaintiff contends that the 1977 amendment authorizes courts to
award punitive damages in retaliation suits against employers.
B.
The events giving rise to plaintiff’s grievance occurred while he was working
as a waiter at the Ramshackle’s Café. In his complaint, plaintiff alleged that he was
paid less than the minimum wage for time spent performing janitorial and cooking
duties (for which he was not tipped), and that he was not paid overtime wages for time
worked in excess of forty hours per week. Weeks before filing the complaint, plaintiff
was alerted that such practices might be unlawful under the FLSA when he spoke to
an attorney friend at a social gathering. Plaintiff first wrote to the Wage and Hour
Division of the United States Department of Labor to express his concern that he was
“being taken advantage of.” This backfired, however, when plaintiff’s boss, Glen
Gerken, discovered that he had contacted the Department. After telling plaintiff that
he should have voiced his concerns to restaurant management rather than involving
5
29 U.S.C. § 217 provides, in pertinent part:
The district courts . . . shall have jurisdiction, for cause shown, to restrain violations
of section 215 of this title . . . .
In Mitchell, the Supreme Court interpreted that section to allow courts to award lost wages to
employees who had been retaliated against by their employers, in addition to injunctive relief, in
cases brought by the Secretary of Labor to enforce the Act. Mitchell, 361 U.S. at 296, 80 S. Ct. at
337.
5
outsiders, Gerken terminated plaintiff from further employment. Included in
plaintiff’s complaint was an allegation that he had been fired in retaliation for
asserting his rights under the FLSA in violation of section 215(a)(3).
After plaintiff filed his complaint in the district court, defendants filed a motion
to dismiss all damages claims against Glen Gerken, individually, and all claims for
compensatory and punitive damages. The district court denied the motion, finding
that the statutory definition of an “employer” under the FLSA, see 29 U.S.C. §
203(d),6 could encompass the defendant Gerken, individually,7 and that appropriate
legal relief under section 216(b) for an employer’s retaliation could include
compensation for emotional distress and punitive damages.
At trial, the jury found that plaintiff had failed to prove by a preponderance of
the evidence that he had not been paid a minimum wage under the FLSA, but also
found that the defendants were guilty of violating the overtime wage and anti-
retaliation provisions of the Act. The jury awarded plaintiff $200 in overtime wages,
$1,000 in wages lost because of his retaliatory discharge, and $35,000 in punitive
damages on the retaliation claim. The jury also found that Gerken, individually, was
6
“[E]mployer” includes, inter alia, “any person acting directly or indirectly in the interest of an
employer in relation to an employee.” 29 U.S.C. § 203(d).
7
We do not reach the issue of whether the district court’s determination that Gerken could be
sued individually as an “employer” under the FLSA is correct.
6
plaintiff’s “employer” (along with the Ramshackle’s Café) under the FLSA, and
recommended that Gerken be liable for thirty percentof the punitive damage award.
Thereafter the district court ordered the parties to file memoranda of law
regarding the availability of punitive damages in suits for retaliation under section
216(b) of the FLSA.8 The court decided to revisit the issue after noting that an
intervening decision by a sister court had interpreted binding circuit precedent to
prohibit punitive damages under the FLSA, see Bolick v. Brevard County Sheriff’s
Dep’t., 937 F. Supp. 1560, 1566-67 (M.D. Fla. 1996). After examining Bolick, the
court concluded that it was persuasive and granted the defendants’ renewed motion
for judgment as a matter of law on the issue of punitive damages. The court thus
8
Defendants moved for judgment as a matter of law on the issue of punitive damages at the close
of all the evidence. The court took the issue under submission, pending the jury’s verdict. After the
jury returned a verdict for $35,000 in punitive damages on the retaliation claim, the court stated that
it was still considering the punitive damages issue, and then directed the parties to file relevant
memoranda of law. Because the court appears to have engaged in a dialogue with the defendants
concerning the availability of punitive damages in retaliation cases immediately after the jury
returned its verdict, we find that the Rule 50(b) requirements for a renewed motion for judgment as
a matter of law were met in this case.
7
struck the $35,000 in punitive damages awarded to plaintiff on his retaliation claim.9
Plaintiff now appeals.
II.
We review the district court’s grant of defendants’ motion for judgment as a
matter of law on the issue of punitive damages de novo. Dade County v. Alvarez,
124 F.3d 1380, 1383 (11th Cir. 1997). Whether a court can award punitive damages
to a plaintiff who has proven a violation of the FLSA’s anti-retaliation provision
9
Under 29 U.S.C. § 260,
[i]n any action . . . to recover unpaid minimum wages, unpaid overtime
compensation, or liquidated damages, under the Fair Labor Standards Act of 1938,
as amended, if the employer shows to the satisfaction of the court that the act or
omission giving rise to such action was in good faith and that he had reasonable
grounds for believing that his act or omission was not a violation of the Fair Labor
Standards Act of 1938, as amended, the court may, in its sound discretion, award no
liquidated damages or award any amount thereof not to exceed the amount specified
in section 216 of this title.
The district court noted that section 260 only appears to provide a good faith defense to an award
of liquidated damages when an employer has been found to violate either the minimum wage, or the
overtime wage provisions of the FLSA, see 29 U.S.C. §§ 206, 207. Section 215(a)(3)’s anti-
retaliation provision is not mentioned. Nevertheless, the court concluded that the same good faith
defense available for violations of sections 206 and 207 is also available for violations of section
215(a)(3). On the merits, however, the court concluded that the defendants had failed to prove their
entitlement to the good faith defense to liquidated damages on either the overtime wage or the
retaliation claims. After the court set aside the punitive damage award, plaintiff was left with a jury
award of $200 in overtime wages and $1,000 in lost wages as a result of his retaliatory discharge.
Section 216(b) provides that a court may award “an additional equal amount as liquidated damages”
for both of these violations. Therefore the court doubled the sum of plaintiff’s awards on overtime
and lost wages, and entered judgment in favor of the plaintiff against the defendant Unlimited
Concepts, Inc. in the amount of $2,400. Defendant Glen Gerken was relieved of any personal
liability for damages since the jury had made him thirty percent liable on the punitive damages
award only.
8
consistent with 29 U.S.C. § 216(b) is a question of statutory interpretation. Questions
of statutory interpretation are pure questions of law. See Caro-Galvan v. Curtis
Richardson, Inc., 993 F.2d 1500, 1504 (11th Cir. 1993).
III.
A.
This case presents us with a question of first impression in this circuit regarding
the proper construction of section 216(b). The question is, when Congress amended
the FLSA in 1977 to provide for a private right of action when an employer violates
section 215(a)(3), did the amendment include language allowing plaintiffs to recover
punitive damages as part of their legal relief? Plaintiff, of course, answers this
question in the affirmative; and he finds support from the only other circuit to have
addressed the issue. In Travis v. Gary Community Mental Health Ctr., Inc., 921 F.2d
108, 112 (7th Cir. 1990), the Seventh Circuit held that “punitive damages[] are
appropriate for intentional torts such as retaliatory discharge.” The court reached its
holding after observing that the 1977 retaliation amendment to section 216(b) includes
broader language than the original language providing remedies for violations of
9
sections 206 and 207 (the minimum wage and overtime wage provisions).10 How
much broader Congress declined to state explicitly; so without much discussion, the
Seventh Circuit concluded that Congress had tossed the issue to the judiciary, and that
in the judgment of the court, punitive damages were a reasonable component of the
legal relief afforded to successful plaintiffs in retaliation cases.
Because the original text prescribed as a remedy double the
shortfall of wages [for violations of sections 206 and 207], and the
amendment says that damages include this “without limitation”,
Congress has authorized other measures of relief. Which other forms?
The answer has been left to the courts. We could not find any case
interpreting this amendment. The legislative history is unhelpful. The
language originated in the Senate; the committee report does not discuss
it. The Conference Committee adopted the Senate’s proposal, remarking
that the bill authorizes suits “for appropriate legal or equitable relief”
without describing what relief might be “appropriate”. H.R. Conf. Rep.
No. 95-497, 95th Cong., 1st Sess. 16 (1977).
Appropriate legal relief includes damages. Congress could limit
these damages, but the 1977 amendment does away with the old
limitations without establishing new ones. Compensation for emotional
distress, and punitive damages, are appropriate for intentional torts such
as retaliatory discharge.
Travis, 921 F.2d at 111-12.
10
As noted supra, section 216(b) of the FLSA limits a plaintiff’s remedies to “unpaid minimum
wages, or . . . unpaid overtime compensation, as the case may be, and . . . an additional equal amount
as liquidated damages” for violations of sections 206 and 207. The damages a court may impose
against an employer who violates section 215(a)(3) appear more expansive, including any “legal or
equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3).” 29 U.S.C.
§ 216(b).
10
B.
We disagree with the Seventh Circuit’s conclusion that punitive damages are
available under section 216(b). In interpreting the statute we begin, as always, with
the plain language Congress enacted. As noted above, the statute provides that
[a]ny employer who violates the provisions of section 215(a)(3) of this
title shall be liable for such legal or equitable relief as may be
appropriate to effectuate the purposes of section 215(a)(3) of this title,
including without limitation employment, reinstatement, promotion, and
the payment of wages lost and an additional equal amount as liquidated
damages.
29 U.S.C. § 216(b). Plaintiff contends that the “legal relief” courts are empowered to
award is broad enough to include punitive damages.
“Legal relief” is certainly a broad formulation. It would have almost no
boundary at all were it not for the commonly understood division between the “legal”
and “equitable” powers of a court. Where such an expansive term is used, we look for
clues within the statute to help us understand the exact nature of the “legal relief” that
Congress intended; and we are not disappointed when we look to section 216(b).
When an employer violates the minimum wage or overtime wage provisions of
sections 206 and 207, Congress has provided that the employer is liable for “unpaid
minimum wages, or . . . unpaid overtime compensation, as the case may be, and . . .
an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). And for
violations of section 215(a)(3)’s anti-retaliation provision, Congress has not
11
abandoned all specificity. Although the statute says that these forms of relief may be
included in a judgment “without limitation,” Congress has specifically empowered a
court to order “employment, reinstatement, promotion, and the payment of wages lost
and an additional equal amount as liquidated damages.” Id.Although it is clear that Congress did not limit a court in retaliation cases to the
enumerated forms of relief, there is something that all of the relief provided in section
216(b) has in common: it is meant to compensate the plaintiff. Awards of unpaid
minimum wages, unpaid overtime compensation, employment, reinstatement,
promotion, and the payment of wages lost all attempt to put the plaintiff in the place
she would have been absent the employer’s misconduct. Even the liquidated damages
provision is compensatory in nature. “[T]he liquidated damage provision is not penal
in its nature but constitutes compensation for the retention of a workman’s pay which
might result in damages too obscure and difficult of proof for estimate other than by
liquidated damages.” Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 707, 65 S. Ct.
895, 902, 89 L. Ed. 1296 (1945); see also Overnight Motor Transp. Co. v. Missel, 316
U.S. 572, 583, 62 S. Ct. 1216, 1223, 86 L. Ed. 1682 (1942).11
11
The Supreme Court in Brooklyn Savings Bank and Overnight Motor Transportation Co. was
addressing the liquidated damages provision in the part of section 216(b) dealing with violations of
sections 206 and 207. However, the same compensatory rationale would apply to awards of
liquidated damages in retaliation suits.
12
Given that the evident purpose of section 216(b) is compensation, we reject
plaintiff’s argument that “legal relief” includes punitive damages. When so broad a
term as “legal relief” is included in a statutory provision that delineates more specific
forms of redress, the judicial mind naturally turns to the principle of ejusdem generis.
We must interpret “a general statutory term . . . in light of the specific terms that
surround it.” Hughey v. United States, 495 U.S. 411, 419, 110 S. Ct. 1979, 1984, 109
L. Ed. 2d 408 (1990). It is clear that all of the relief provided in section 216(b) is
compensatory in nature. Punitive damages, however, have nothing to do with
compensation. Punitive damages are generally available for willful or intentional
violations of a common law or statutory duty, and their purpose is to punish and deter
the wrongdoer rather than to compensate the aggrieved party. Therefore, punitive
damages would be out of place in a statutory provision aimed at making the plaintiff
whole.
We are strengthened in our holding when we look at the rest of the remedial
scheme provided in section 216. We read each statutory provision with reference to
the whole Act. “[I]n expounding a statute, we [are] not . . . guided by a single
sentence or member of a sentence, but look to the provisions of the whole law.”
Massachusetts v. Morash, 490 U.S. 107, 115, 109 S. Ct. 1668, 1673, 104 L. Ed. 2d 98(1989) (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 51, 107 S. Ct. 1549,
13
1555, 95 L. Ed. 2d 39 (1987)); see also Pavelic & LeFlore v. Marvel Entertainment
Group, Inc., 493 U.S. 120, 123, 110 S. Ct. 456, 458, 107 L. Ed. 2d 438 (1989).
Further, we should avoid reading statutory language to address an issue not
specifically covered in the text when Congress has addressed the issue in more
specific language elsewhere. See generally West Virginia Univ. Hosps., Inc. v. Casey,
499 U.S. 83, 111 S. Ct. 1138, 113 L. Ed. 2d 68 (1991).
In contrast to the make-whole provisions of section 216(b), Congress provided
for punitive sanctions in section 216(a):
Any person who willfully violates any of the provisions of section 215
of this title shall upon conviction thereof be subject to a fine of not more
than $10,000, or to imprisonment for not more than six months, or both.
No person shall be imprisoned under this subsection except for an
offense committed after the conviction of such person for a prior offense
under this subsection.
29 U.S.C. § 216(a). We disagree with the Seventh Circuit’s contention that Congress
has “left [the issue of appropriate remedies in retaliation cases] to the courts.” Travis,
921 F.2d at 111. Congress has enacted a comprehensive remedial scheme for
violations of the FLSA’s substantive provisions that covers the whole terrain of
punitive sanctions, compensatory relief, private rights of action, and actions brought
by the Secretary of Labor.12 It is clear that section 216(a), which provides criminal
12
In addition to providing for private rights of action for suits against employers who violate the
FLSA’s minimum wage, overtime wage, and anti-retaliation provisions, section 216(b) further
provides:
14
penalties for “willful[]” violations, is punitive in purpose; and section 216(b), as we
have already found, is clearly compensatory. Even if we were to ignore the obvious
ramifications of the ejusdem generis canon in interpreting “legal relief” in section
216(b), we would still not find that Congress meant that term to include punitive
damages. This is because Congress has already covered punitive sanctions in section
216(a); and there is simply no reason to carry the punitive element over from section
216(a) to section 216(b), a provision intended to compensate, not punish.13
Nor would it be a sort of “harmless error” to include punitive damages as part
of the “legal relief” authorized by Congress in section 216(b). It may be that Congress
has deliberately chosen, in some contexts, to leave statutory language ambiguous;
such a choice is predicated on the idea that courts can use their expertise to develop
a particular area of law most effectively when they are given the power to operate
The right provided by this subsection to bring an action by or on behalf of any
employee, and the right of any employee to become a party plaintiff to any such
action, shall terminate upon the filing of a complaint by the Secretary of Labor in an
action under section 217 of this title in which (1) restraint is sought of any further
delay in payment of unpaid minimum wages, or the amount of unpaid overtime
compensation, as the case may be, owing to such employee under section 206 or
section 207 of this title by an employer liable therefor under the provisions of this
subsection or (2) legal or equitable relief is sought as a result of alleged violations
of section 215(a)(3) of this title.
29 U.S.C. § 216(b).
13
We also note that even though the purpose of section 216(b) is compensation, the actual effect
of the liquidated damages provision provides further deterrence to an employer’s violation of the
FLSA’s anti-retaliation provision. See Brooklyn Sav. Bank, 324 U.S. at 709-10, 65 S. Ct. at 903(finding that Congress plainly intended section 16(b) to have a “deterrent effect”).
15
within broad legislative guidelines (though, from a separation of powers standpoint,
this idea is problematic, cf. Chevron v. Natural Resources Defense Council, Inc., 467
U.S. 837, 865, 104 S. Ct. 2778, 2793, 81 L. Ed. 2d 694 (1984) (“Courts must, in some
cases, reconcile competing political interests, but not on the basis of the judges’
personal policy preferences.”)). Thus comes the Seventh Circuit’s conclusion that the
answer to what remedies are appropriate in retaliation cases “has been left to the
courts.” Travis, 921 F.2d at 111. But we should not be quick to conclude that
Congress either neglected to consider an issue related to its enactments, or decided to
avoid the issue and leave its resolution to the courts. Such a predisposition on our part
makes for activist judges and lazy Congressmen. Instead, we should search the
statutory language and structure with the assumption that Congress knew what it was
doing when it enacted the statute at issue.
When we search the FLSA with that assumption in mind, we discover that it
really does matter whether we import punitive damages into section 216(b)’s
allowance for “legal relief.” Punitive damages, in general, are the exception and not
the rule; they are awarded when a jury finds that a defendant’s act was wrongful in
that it was willful or intentional (as opposed to merely negligent). Every act of
retaliation, however, is inherently willful – the act is motivated by the employer’s
conscious desire to “get back” at the employee for exercising her protected rights.
16
What this means is that if punitive damages can be awarded in retaliation cases under
section 216(b), then they should be awarded in every case as a matter of course. A
jury could hardly refuse to award them; given the jury instruction that the plaintiff is
entitled to punitive damages if the retaliation was intentional (and given that all
retaliation is inherently intentional), the damages would flow inexorably from any
finding for the plaintiff.
When we look at the FLSA’s remedial scheme, however, it becomes clear that
Congress did not intend that punitive sanctions be imposed in all retaliation cases.
Section 216(a) vests the executive branch with the responsibility of exacting punitive
sanctions from the employer; and the enforcement of section 216(a)’s criminal
provisions is discretionary. All retaliation is intentional. In charging the executive
branch with the duty of enforcing section 216(a), Congress meant the Executive to
make a determination concerning which cases of intentional retaliation are so
egregious that they warrant the imposition of an additional punitive deterrent. This
grant of discretion is plainly at odds with a reading of section 216(b) that would, by
necessity, require the imposition of punitive damages in every case. Further, by
addressing punitive sanctions with a criminal rather than a civil remedy, Congress
clearly sought to limit their application to cases in which the government can prove
beyond a reasonable doubt that the defendant acted willfully to violate the anti-
17
retaliation provisions of the Act. That Congress made the imposition of punitive
sanctions dependent on the government’s carrying the heightened burden of proof
involved in criminal prosecution is more evidence that it would be a mistake to allow
plaintiffs to recover punitive damages under section 216(b)’s civil preponderance
burden.14
We think, therefore, that the Seventh Circuit’s reading of section 216(b) cannot
be squared with the statutory design. It is true that the language in section 216(b)
dealing with violations of section 215(a)(3) appears broader than the original language
addressing violations of sections 206 and 207. See supra n.9. We do not think,
however, that this difference indicates that Congress meant to abandon all restraints
and throw open the doors to every conceivable variety of damages in retaliation cases.
We think, instead, that the difference in the remedial language is tied to differences
in the nature of minimum wage and overtime wage cases on the one hand, and
14
We also note that section 216(a) limits punitive sanctions “to a fine of not more than $10,000,
or to imprisonment for not more than six months, or both.” It also provides that “[n]o person shall
be imprisoned under this subsection except for an offense committed after the conviction of such
person for a prior offense under this subsection.” Civil punitive damage awards, on the other hand,
might reach six or seven figures, depending on the defendant’s net worth and ability to pay. We
realize that there is nothing extraordinary about the fact that Congress set out the exact level of
sanction to be imposed on criminal violators of the FLSA. Congress sets out the penalty in every
criminal statute. But there is something incongruous about allowing plaintiffs to recover punitive
damage awards that far exceed the punitive sanctions imposed under section 216(a), even though
civil plaintiffs only have to prove their case by a preponderance of the evidence, and even though
the Executive may decline to enforce section 216(a) in many cases because the employer’s violation
is not viewed as sufficiently egregious to warrant a punitive sanction.
18
retaliation cases on the other. In minimum wage and overtime wage cases, plaintiffs
are limited to recovering “their unpaid minimum wages, or their unpaid overtime
compensation . . . and . . . an additional equal amount as liquidated damages” because
those are the only damages necessary to compensate the aggrieved employee. 29
U.S.C. § 216(b). In retaliation cases, on the other hand, “employment, reinstatement,
promotion, and the payment of wages lost” may not fully compensate the plaintiff.
Id. Congress provided for, in addition, “such legal or equitable relief as may be
appropriate to effectuate the purposes of section 215(a)(3)” because the kinds of relief
that a district court may need to award to compensate the plaintiff fully will vary with
the facts of each case. Front pay is just one example, when for various reasons the
court finds it undesirable to order an employee’s reinstatement. That district courts
may have to exercise some creativity in awarding relief in retaliation cases does not
mean that Congress meant that courts can award damages that go completely outside
the boundaries of section 216(b)’s compensatory purpose.
Plaintiff also argues that the Supreme Court’s decision in Franklin v. Gwinett
County Public Schools, 503 U.S. 60, 112 S. Ct. 1028, 117 L. Ed. 2d 208 (1992),
compels the conclusion that “legal relief” includes punitive damages. In that case the
Supreme Court held that “[w]here legal rights have been invaded, and a federal
statute provides for a general right to sue for such invasion, federal courts may use any
19
available remedy to make good the wrong done.” Id. at 66, 112 S. Ct. at 1033(quoting Bell v. Hood, 327 U.S. 678, 684, 66 S. Ct. 773, 777, 90 L. Ed. 939 (1946)).
The Franklin presumption only applies, however, when “a right of action exists to
enforce a federal right and Congress is silent on the question of remedies.” Id. at 69,
112 S. Ct. at 1034; see also Lane v. Pena, 518 U.S. 187, 197, 116 S. Ct. 2092, 2099,
135 L. Ed. 2d 486 (1996) (finding that the Rehabilitation Act of 1973, 29 U.S.C. §
791-794e (1994), fell outside of the rule of Franklin because “Congress has . . .
spoken to the question of remedies”); Landgraf v. USI Film Prods., 511 U.S. 244, 286
n.38, 114 S. Ct. 1483, 1508 n.38, 128 L. Ed. 2d 229 (1994) (“Title VII of the Civil
Rights Act of 1964 is not a statute to which we would apply the ‘traditional
presumption in favor of all available remedies.’ That statute did not create a ‘general
right to sue’ for employment discrimination, but instead specified a set of
‘circumscribed remedies.’ ” (citations omitted)). Congress has been far from silent
on the question of remedies for violations of the FLSA. That Congress saw fit to
detail so many forms of appropriate relief in section 216 makes plaintiff’s contention
that the legislature provided for nothing more than a “general right to sue” almost
laughable. And when Congress has laid out a statutory scheme that redresses
violations of a federal right, it is not the judiciary’s role to supplement the legislative
determination. Cf. Touche Ross & Co. v. Redington, 442 U.S. 560, 568-69, 99 S. Ct.
202479, 2485, 61 L. Ed. 2d 82 (1979) (declining to infer a private cause of action under
section 17(a) of the Securities Exchange Act because the judicial “task is limited
solely to determining whether Congress intended to create the private right of
action”); cf. also Chandler v. James, 180 F.3d 1254, 1275 (11th Cir. 1999) (Tjoflat,
J., specially concurring), petition for cert. filed, 68 U.S.L.W. 3391 (U.S. Dec. 2, 1999)
(No. 99-935) (discussing the separation of powers concerns that arise when courts use
the injunctive remedy beyond what Congress has prescribed).
We also feel some constraint to exclude punitive damages from the “legal
relief” provided in section 216(b) by the former Fifth Circuit’s decision in Dean v.
American Security Ins. Co., 559 F.2d 1036 (5th Cir. 1977).15 In Dean, the court was
called upon to decide, inter alia, whether remedial language in the Age Discrimination
in Employment Act (ADEA), 29 U.S.C. § 621-634 (1994), allowed plaintiffs to
recover punitive damages. The language in section 626 of the ADEA is similar to that
found in the remedial portions of the FLSA:
Amounts owing to a person as a result of a violation of this chapter shall
be deemed to be unpaid minimum wages or unpaid overtime
compensation for purposes of sections 216 and 217 of this title:
Provided, That liquidated damages shall be payable only in cases of
willful violations of this chapter. In any action brought to enforce this
chapter the court shall have jurisdiction to grant such legal or equitable
15
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down on or
before September 30, 1981.
21
relief as may be appropriate to effectuate the purposes of this chapter,
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.
29 U.S.C. § 626(b) (emphasis added). The Dean court concluded,
[t]he provisions for liquidated damages for willful violation of the Act
and its silence as to punitive damages convinces us that the omission of
any reference thereto was intentional. In 1968, only one year after the
passage of the ADEA, Congress passed the fair housing provisions of
Title VIII of the Civil Rights Act of 1968, 42 U.S.C. §§ 3601-3619.
Section 3612(c) thereof expressly authorizes the recovery of punitive
damages . . . . Thus it is obvious that, if Congress believed punitive
damages necessary to eliminate discrimination in employment based on
age, it knew exactly how to provide for them.
Dean, 559 F.2d at 1039. The “legal relief” language in the ADEA is exactly the same
as that found in the FLSA, and so we conclude that the FLSA should be interpreted
similarly to preclude an award of punitive damages. See Bolick, 937 F. Supp. at
1566-67.
Plaintiff counters by arguing that the liquidated damages provisions in the two
statutes serve different purposes. In the FLSA, liquidated damages are compensatory
in nature, but the ADEA’s requirement of “willful[ness]” for an award of liquidated
damages means that they serve a punitive purpose. See Commissioner of Internal
Revenue v. Schleier, 515 U.S. 323, 331, 115 S. Ct. 2159, 2165, 132 L. Ed. 2d 294(1995) (“[T]he liquidated damages provisions of the ADEA were a significant
22
departure from those in the FLSA.”); Trans World Airlines, Inc. v. Thurston, 469 U.S.
111, 125, 105 S. Ct. 613, 624, 83 L. Ed. 2d 523 (1985) (“The legislative history of the
ADEA indicates that Congress intended for liquidated damages to be punitive in
nature.”); Lindsey v. American Cast Iron Pipe Co., 810 F.2d 1094, 1102 (11th Cir.
1987) (“ADEA liquidated damages awards punish and deter violators, while FLSA
liquidated damages merely compensate for damages that would be difficult to
calculate.”). Plaintiff reasons that the liquidated damages provision in the ADEA
covers the issue of punitive sanctions; therefore, there was no reason, in Dean, to
interpret “legal relief” to include punitive damage awards when punitive sanctions
were already addressed by the liquidated damages provision. In the FLSA, on the
other hand, awards of liquidated damages do not cover the punitive component.
The problem with plaintiff’s theory is that even though liquidated damages are
not punitive in the FLSA, there is an entire statutory provision, section 216(a), that
does cover punitive sanctions. The same willfulness requirement included in the
ADEA for awards of liquidated damages was included in the FLSA as a requirement
for the imposition of criminal penalties. Congress did not “leave out” punitive
sanctions in the FLSA; it merely addressed them in a different manner.16
16
Our conclusion that the criminal penalties provided in section 216(a) are meant to cover the
field of punitive sanctions in the FLSA is bolstered by the fact that Congress incorporated many of
the provisions of the FLSA into the ADEA, but specifically omitted the FLSA’s criminal penalties
section in favor of a willfulness requirement for awards of liquidated damages. In Thurston, the
23
IV.
We are cognizant of the Supreme Court’s direction that the FLSA is “remedial
and humanitarian in purpose,” and that it “must not be interpreted . . . in a narrow,
grudging manner.” Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321
U.S. 590, 597, 64 S. Ct. 698, 703, 88 L. Ed. 949 (1944). “By giving a broad
construction to the anti-retaliation provision . . . its purpose will be further promoted.”
EEOC v. White & Sons Enters., 881 F.2d 1006, 1011 (11th Cir. 1989); see also
Mitchell, 361 U.S. at 292, 80 S. Ct. at 335. There is a wide difference, however,
between interpreting the FLSA in a “narrow, grudging manner,” and interpreting it in
a way that is faithful to the congressional design. Inferring remedies that Congress
never contemplated both disturbs the constitutional balance by arrogating law-making
Supreme Court discussed this drafting decision:
The original [ADEA] bill proposed by the administration incorporated § 16(a) of the
FLSA, which imposes criminal liability for a willful violation. See 113 Cong. Rec.
2199 (1967). Senator Javits found “certain serious defects” in the administration bill.
He stated that “difficult problems of proof . . . would arise under a criminal
provision,” and that the employer’s invocation of the Fifth Amendment might
impede investigation, conciliation, and enforcement. Id., at 7076. Therefore, he
proposed that “the [FLSA’s] criminal penalty in cases of willful violation . . . [be]
eliminated and a double damage liability substituted.” Ibid. Senator Javits argued
that his proposed amendment would “furnish an effective deterrent to willful
violations [of the ADEA],” ibid., and it was incorporated into the ADEA with only
minor modification, S. 788, 90th Cong., 1st Sess. (1967).
Thurston, 469 U.S. at 125-26, 105 S. Ct. at 624. If the liquidated damages provision of the ADEA
was meant to be a substitute for the FLSA’s criminal penalties section, and liquidated damages were
the “effective deterrent to willful violations” of the ADEA, then the criminal penalties provision of
the FLSA is, similarly, Congress’ primary method of addressing punitive sanctions in the FLSA.
24
power to the judiciary, and also allows legislators to escape their responsibility by
enlisting judges as supplemental draftsmen. Where Congress
25
has set out a clear scheme to remedy violations of a federal right, as we think it did in
the FLSA, our task is limited to carrying out the congressional command.
For the foregoing reasons, we AFFIRM the district court’s grant of defendants’
motion for judgment as a matter of law on the issue of punitive damages.
AFFRIMED.
26
CARNES, Circuit Judge, specially concurring:
I agree with the Court’s conclusion that the Fair Labor Standards Act does not
provide for the recovery of punitive damages, and I agree with most of the reasoning
the majority opinion uses to reach that conclusion. The part I disagree with is the
proposition that Congress’ provision for criminal penalties, see 29 U.S.C. § 216(a),
indicates an intent to exclude punitive damages. Tellingly, the majority opinion cites
no authority for that counter-intuitive proposition. The provision of criminal penalties
means Congress thought compliance with the statute sufficiently important that wilful
violation of it should subject the culprit to the possibility of criminal prosecution and
penalties upon conviction. That hardly forecloses punitive damages.
The majority opinion says that the enforcement of the criminal provision of the
FLSA is “discretionary,” but it is no more discretionary than any other criminal
provision of any other statute. What section 216(a) provides is:
Any person who willfully violates any of the provisions of
section 215 of this title shall upon conviction thereof be subject to
a fine of not more than $10,000, or to imprisonment for not more
than six months, or both. No person shall be imprisoned under this
subsection except for an offense committed after the conviction of
such person for a prior offense under this subsection.
27
Where is the discretion in that? The majority also points out that no person may be
punished under § 216(a) unless the government proves guilt beyond a reasonable
doubt. But that is true of any criminal provision in any statute.
The part of the majority opinion that relies upon the existence of a criminal
penalty in the FLSA to negate punitive damages rests upon this proposition:
Whenever Congress decides that a statute’s provisions are sufficiently important to
warrant reinforcing compensatory remedies with a criminal sanction, we should infer
Congress intended that punitive damages not be available. I disagree with that
proposition. For the other reasons discussed in the majority opinion, however, I
agree with the Court’s conclusion that Congress did not intend for punitive damages
to be available for violations of the FLSA.
28