Appeal from the United States District Court for the Western District of Pennsylvania - Erie.
Aldisert and Weis, Circuit Judges, and Re, Chief Judge.*fn*
In this age discrimination case, plaintiff-appellant, the Equal Employment Opportunity Commission, suing on behalf of John Downey and others for backpay, damages, and injunctive relief, appeals from an order of the United States District Court for the Western District of Pennsylvania which denied its demand for a jury trial. The appeal followed a full bench trial on the merits that resulted in a judgment for defendant-appellee, the Corry Jamestown Corporation.
The question presented on this appeal is whether the Commission has a right to a jury trial when it sues on behalf of an individual employee for violations under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634 (1976). Since we hold that the Commission was entitled to a jury trial and did not waive it, we reverse.
On July 30, 1980, the Commission sued in the District Court for the Western District of Pennsylvania for backpay, damages, and injunctive relief pursuant to § 7(b) of the ADEA, 29 U.S.C. § 626(b). The Commission alleged that Corry Jamestown had violated § 4(a) of the ADEA, 29 U.S.C. § 623(a), by discharging John Downey and other similarly situated employees because of their age. The Commission demanded a jury trial on all issues of fact raised by the complaint.
On September 2, 1980, Corry Jamestown answered and moved to strike the Commission's demand for a jury trial. The district court granted the motion on September 24, 1980 and ruled that only private litigants were entitled to a trial by jury in ADEA actions. The court construed the statutory phrase contained in § 7(c)(2), "a person shall be entitled to a trial by jury of any issue of fact," as excluding the Commission.
At the trial, the Commission presented evidence that Downey was discharged from his position as personnel manager at age fifty-four, within the age band protected by the ADEA, § 12(a), 29 U.S.C. § 631(a), and was replaced by a younger person. Evidence was also adduced that demonstrated that employees over forty years of age had a much greater termination rate than those under forty. Although contradicted, there was evidence that tended to show that the reasons given for Downey's dismissal were pretextual. The district court entered judgment in favor of Corry Jamestown on September 21, 1982, and on November 18, 1982, the Commission appealed.
Section 4(a) of the ADEA broadly prohibits arbitrary discrimination in the workplace based on age. 29 U.S.C. § 623(a) (1976). In addition, § 7(b) of the ADEA, 29 U.S.C. § 626(b), expressly incorporates the powers, remedies, and procedures of the Fair Labor Standards Act (FLSA) as provided for in §§ 16(b), 16(c) and 17, 29 U.S.C. §§ 216(b), 216(c) and 217. Specifically, § 16(b) provides that employees may bring suit against their employer on their own behalf, and on behalf of all others similarly situated for both legal and equitable relief. Section 16(c) provides that the Secretary (now the Commission)*fn1 may bring suit against an employer on behalf of an employee to recover unpaid minimum wages, overtime compensation, and liquidated damages. If the Commission sues under § 16(c), the employee's right to sue under § 16(b) is terminated. A suit under § 16(c), therefore, is essentially a representative action brought to enforce the private rights described in § 16(b). It has been held that these actions are analogous to actions at law and are triable before a jury. See, e.g., Wirtz v. Jones, 340 F.2d 901 (5th Cir. 1965); Mitchell v. City Ice Co., 273 F.2d 560 (5th Cir. 1960); Lewis v. Times Publishing Co., 185 F.2d 457 (5th Cir. 1950); Marshall v. Hanioti Hotel Corp., 490 F. Supp. 1020 (N.D. Ga. 1980); Olearchick v. American Steel Foundries, 73 F. Supp. 273 (W.D. Pa. 1947). Finally, § 17 empowers the Commission to seek injunctive relief.
As originally enacted, the ADEA did not contain any references regarding the availability of jury trials in actions instituted either by private individuals or brought by the government. In 1978, however, after the Supreme Court in Lorillard v. Pons, 434 U.S. 575, 98 S. Ct. 866, 55 L. Ed. 2d 40 (1978), held that the incorporation of FLSA procedures into the ADEA included the right to a trial by jury, Congress amended the ADEA so that a trial by jury would be available in private actions under the ADEA. The 1978 amendment to the Act revised § 7(c) to read as follows:
(c)(1) Any person aggrieved may bring a civil action in any court of competent jurisdiction for such legal and equitable relief as will effectuate the purposes of this chapter: Provided, That the right of any person to bring such action shall terminate upon the commencement of an action by the Secretary [now the Commission] to enforce the right of such employee under this chapter.
(2) In an action brought under paragraph (1), a person shall be entitled to a trial by jury of any issue of fact in any such action for recovery of amounts owing as a result of a violation of this chapter, regardless of ...