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United States District Court, Eastern District of Pennsylvania

October 4, 2001


The opinion of the court was delivered by: Pollak, District Judge.


Plaintiff Harry Marrow alleges that he informed the Department of Labor early last year of improprieties in wages and benefits provided to him by his employer, Allstate Security & Investigative Services. He contends that Allstate retaliated by firing him several months later. He has filed a complaint in this court asserting a number of causes of action, including violations of the Pennsylvania Whistleblower Law ("PAWBL"), 43 P.S. § 1421 et seq., the Employee Retirement and Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq., and the antiretaliation provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 215.

Allstate has moved to dismiss Marrow's complaint in part and to strike several portions of the complaint. First, Allstate contends that because it is not a "public body" within the meaning of the PAWBL, see 43 P.S. § 1422, it is not covered by the terms of that law. Second, Allstate contends that Marrow is not entitled to a jury trial or to punitive damages on his ERISA claim. Third and finally, Allstate contends that Marrow is not entitled to seek punitive damages for his FLSA claim. In response, Marrow concedes all but the last of Allstate's points. As a result, only one dispute remains before the court at this time: whether Marrow is entitled to seek punitive damages for retaliation in violation of the FLSA. For the reasons stated below, I believe that he is.


The anti-retaliation provision of the FLSA is codified within 29 U.S.C. § 215. The subsections of § 215 make it unlawful to violate provisions of the FLSA which, among other things, set minimum wage and maximum hour requirements and prohibit the use of oppressive child labor. This action involves § 215(a)(3), the "antiretaliation" provision of the FLSA, which makes it unlawful

to discharge or in any other manner discriminate 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. . . .

As enacted in 1938, the FLSA provided a remedy for improper retaliation equal to "double the shortfall of wages." See Travis v. Gary Community Mental Health Center, Inc., 921 F.2d 108, 111 (7th Cir. 1990). It did not provide for punitive damages. In 1977, however, Congress amended the Act to include § 216. Subsection (a) of § 216*fn1 authorizes the imposition of criminal penalties, including fines and imprisonment, on any person who "willfully violates any of the provisions of section 215 of this title." 29 U.S.C. § 216(a). Subsection (b),*fn2 the one at issue in this case, has two basic provisions. Its first sentence establishes the civil liability, for unpaid wages and an equal amount of liquidated damages, of an employer who fails to pay employees the minimum wages or the overtime pay mandated by the FLSA. The second sentence establishes the civil liability of an employer who discharges an employee in a manner proscribed by § 215(a)(3) — i.e., in retaliation for complaining of an employer's alleged violation of the FLSA:

Any 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.

The third sentence of § 216(b) authorizes "any one or more employees" to bring suit in federal or state court to recover the damages specified in either of the first two sentences. The remainder of § 216(b) further describes the specifics of such an action, and also provides that if the Secretary of Labor institutes an action on behalf of aggrieved employees under 29 U.S.C. § 217,
*fn3 the private right of action brought by the employee or employees shall terminate.

The issue in this case boils down to whether the phrase "legal or equitable relief" in the second sentence of § 216(b) includes punitive damages within its meaning. "Remarkably, [this] question . . . seems to have been little litigated." Lanza v. Sugarland Run Homeowner's Ass'n, Inc., 97 F. Supp.2d 737, 739 (E.D.Va. 2000). The only two circuit courts to reach the question — the Seventh and the Eleventh — have split. See Marjorie A. Shields, Annotation, Availability of Punitive Damages in Action for Retaliatory Discharge Under § 16(b) of Fair Labor Standards Act, 2001 A.L.R. Fed. 1 (2001); The Fair Labor Standards Act § 15.VII.B.6(b) at 943 (Ellen C. Kearns, ed. 2000).

The leading case allowing punitive damage awards in cases brought under the second sentence of § 216(b) is Travis v. Gary Community Mental Health Center, 921 F.2d at 108. There, Judge Easterbrook stated briefly, in reference to § 216(b),

This amendment authorizes "legal" relief, a term commonly understood to include compensatory and punitive damages.

Because the original text prescribed as a remedy double the shortfall of wages, 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.

Id. at 111-12.

The position articulated by the Seventh Circuit in Travis in 1990 has been reaffirmed by that court. See, e.g., Shea v. Galaxie Lumber & Const. Co., Ltd., 152 F.3d 729, 736 (7th Cir. 1998); Soto v. Adams Elevator Equip. Co., 941 F.2d 543, 551 (7th Cir. 1991). In addition, district courts in other circuits have relied on Travis to reach the conclusion that § 216(b) authorizes punitive damages. See, e.g., Travis v. Knappenberger, 2000 WL 1853084 at *14 (Or. 2000) ("Because the statute provides that the legal and equitable relief available is `without limitation,' it may include compensatory and punitive damages."); Contreras v. Corinthian Vigor Ins. Brokerage, Inc., 25 F. Supp.2d 1053, 1059-60 (N.D.Cal. 1998) (relying on Travis and Ninth Circuit's "historically expansive view of remedies under federal labor laws"). In dictum, the Ninth Circuit has described Travis as "persuasive." See Lambert v. Ackerley, 180 F.3d 997, 1011 (9th Cir. 1999) (en banc).

The only other circuit court that has reached the issue has disagreed with Travis. In Snapp v. Unlimited Concepts, Inc., 208 F.3d 928 (11th Cir. 2000), the Eleventh Circuit evaluated the meaning of "legal relief" by "look[ing] for clues within the statute." Id. at 934; see also Lloyd v. Wyoming Valley Health Care System, Inc., 994 F. Supp. 288, 292 (M.D.Pa. 1998) (adopting the reasoning of Snapp in a Family and Medical Leave Act case). The Eleventh Circuit first noted that "all of the relief provided in section 216(b) has [something] in common: it is meant to compensate the plaintiff." 208 F.3d at 934. Applying the principle of eiusdem generis, the court argued that punitive damages "have nothing to do with compensation," and "would be out of place in a statutory provision aimed at making the plaintiff whole." Id.

Next, Snapp examined subsection (a) of 29 U.S.C. § 216, which, as described earlier, provides criminal penalties for willful violations of § 215. After considering this subsection together with § 216(b), the Eleventh Circuit concluded that Congress had "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 actions, and actions brought by the Secretary of Labor." Id. at 935. In the view of the Eleventh Circuit, Congress had not simply "left to the courts" the issue of punitive damages under § 216(b), as Judge Easterbrook had suggested in Travis. 921 F.2d at 111. The Eleventh Circuit observed that, under the Travis approach, punitive damages should be awarded for virtually every violation of § 215(a)(3), because retaliatory discharge is "inherently willful." 208 F.3d at 936. But because Congress explicitly mentioned punitive sanctions for willful misconduct only in a criminal enforcement section, the Eleventh Circuit concluded that the legislature "meant the Executive to make a determination regarding which cases of intentional retaliation are so egregious that they warrant the imposition of an additional punitive deterrent." Id.

Finally, Snapp relied on judicial decisions interpreting section 7(b) of the Age Discrimination in Employment Act ("ADEA"). That section states, in relevant part,

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 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). In Dean v. American Security Ins. Co., 559 F.2d 1036 (5th Cir. 1977), the Fifth Circuit had held that, by providing liquidated damages without mentioning punitive damages, Congress had meant to preclude punitive damages under the ADEA. Given the similarity of the "legal or equitable relief" phrasing in the FLSA, Snapp concluded that Dean supported a narrow reading of 29 U.S.C. § 216(b).


Despite the arguments presented by the Eleventh Circuit in Snapp, I, like the Seventh Circuit, conclude that punitive damages are available under the second sentence of § 216(b). I reach this conclusion for the reasons that follow.

Although the second sentence of § 216(b) does not speak directly to the issue, the simplest reading of its terms suggests that it contemplates the availability of punitive damages. The text provides that an employer who retaliates against a worker in violation of the FLSA "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." Punitive damages are undoubtedly a form of "legal . . . relief." See, e.g., Curtis v. Loether, 415 U.S. 189, 197, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974) ("[T]he relief sought here — actual and punitive damages — is the traditional form of relief offered in the courts of law."). The question, then, is whether such damages "may be appropriate to effectuate the purposes of section 215(a)(3) of this title."

In Mitchell v. Robert De Mario Jewelry, Inc., 361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960), the Supreme Court explained the purposes of the Fair Labor Standards Act, and in particular, § 215(a)(3), as follows:

The central aim of the Act was to achieve, in those industries within its scope, certain minimum labor standards. . . . For weighty practical and other reasons, Congress did not seek to secure compliance with prescribed standards through continuing detailed federal supervision or inspection of payrolls. Rather it chose to rely on information and complaints received from employees seeking to vindicate rights claimed to have been denied. Plainly, effective enforcement could thus only be expected if employees felt free to approach officials with their grievances. This end the prohibition of § [215(a)(3)] against discharges and other discriminatory practices was designed to serve. For it needs no argument to show that fear of economic retaliation might often operate to induce aggrieved employees quietly to accept substandard conditions. By the proscription of retaliatory acts set forth in § [215(a)(3)], and its enforcement in equity by the Secretary pursuant to § [217], Congress sought to foster a climate in which compliance with the substantive provisions of the Act would be enhanced.

Id. at 292, 80 S.Ct. 332 (citations omitted). According to Mitchell, § 215(a)(3) furthers the overall purposes of the FLSA by ensuring that employees feel secure in reporting violations of labor standards. Doing so is essentially a matter of deterring employers from retaliating against such employees. Deterrence, of course, is the special talent of punitive damages. See Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 121 S.Ct. 1678, 1683, 149 L.Ed.2d 674 (2001) (purpose of punitive damages is to "punish the defendant and to deter future wrongdoing"). It therefore stands to reason that the second sentence of § 216(b) would "effectuate the purposes of section 215(a)(3)" by encompassing punitive damages.*fn4

This result mirrors not only common sense but also common law. Most jurisdictions have created common-law protections for employees who are wrongfully discharged in retaliation for conduct they have taken that furthers public policy. With few exceptions, these cases have provided that tort damages are available in such cases, including punitive damages where the employer has acted in an egregious manner. See 1 Lex K. Larson, Unjust Dismissal, § 9A.03[2][b] at 9A-43, 9A-44 (2001); Daniel P. Westman, Whistleblowing: The Law of Retaliatory Discharge 116 (1991). This seems to reinforce what might otherwise be obvious: punitive damages can deter undesirable conduct by employers. Moreover, it supports the position that, if § 216(b) is read to include punitive damages as a remedy for retaliatory discharge, the statutory provision would not be a legal anomaly.

As described above, the Eleventh Circuit has reached a conclusion with which I differ. Several of the arguments in Snapp seem to me misplaced. First of all, application of the maxim of eiusdem generis to § 216(b) is inappropriate because that subsection prefaces its list of various forms of relief with the phrase "including without limitation." (Emphasis added). The most sensible reading of that phrase leads to the conclusion that by listing several potential forms of relief, Congress did not mean to exclude others. Moreover, as described by Mitchell, the purpose of § 215(a)(3) is not purely compensatory. These provisions are meant to safeguard the overall operation of the FLSA by providing employees with protection substantial enough to discourage employers from engaging in retaliation. As such, confining their purpose to "making the plaintiff whole" would fail fully to implement the intent of Congress.

I have concerns regarding Snapp's second argument as well. As an initial matter, I disagree with its premise, which contends that, if punitive damages were available under the second sentence of § 216(b), they would have to be awarded in every case because retaliation is "inherently willful." 208 F.3d at 936.*fn5 A jury confronted with a § 216(b) suit for violation of § 215(a)(3) need not necessarily award punitive damages, nor impose such damages in a more than nominal amount. Moreover, it seems unpersuasive to say that, since punitive damages would have to be awarded in every case, Congress cannot possibly have meant that they be awarded at all. As described earlier, common law actions for retaliatory discharge in violation of public policy have included punitive damages as a matter of course.

Moreover, with respect to the implications of § 216(a) — the subsection that makes willful violations of § 215 a crime — I agree with the position advanced by a concurring member of the Snapp court. While supporting the majority's result, Judge Carnes stated that, in his view, "[t]he provision of criminal penalties [in § 216(a)] means Congress thought compliance with the statute sufficiently important that willful violation of it should subject the culprit to the possibility of criminal prosecution and penalties upon conviction. That hardly forecloses punitive damages." 208 F.3d at 939-40. Judge Carnes went on to point out that the majority's argument rested on the proposition that

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.

Id. at 940. So do I. The mere availability of fines for criminal violations of § 215(a)(3) does not foreclose the availability of punitive damages in private enforcement actions. Civil remedies can be broadly described by using phrases such as "equitable and legal relief," but criminal penalties are normally specified with more precision. It is therefore not dispositive that Congress specifically mentioned the availability of monetary fines in cases of criminal violations without doing so an cases of civil violations.

The final Snapp argument relies on an analogy to section 7(b) of the ADEA (codified at 29 U.S.C. § 626(b)). For reasons that I will explain, I find this analogy unpersuasive. Snapp relies on the holding of Dean v. American Security Ins. Co., 559 F.2d at 1036, where the Fifth Circuit had held that by providing liquidated damages without mentioning punitive damages, Congress meant to preclude punitive damages under the ADEA. Given the similarity between the "legal and equitable relief" phrasing that appears in the ADEA and the FLSA, Snapp concluded that Dean supported a narrow reading of 29 U.S.C. § 216(b).

The circuits that have reached the issue of punitive damages under the ADEA agree with Dean's construction. See, e.g., Bruno v. Western Elec. Co., 829 F.2d 957 (10th Cir. 1987); Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143 (2d Cir. 1984); Kolb v. Goldring, Inc., 694 F.2d 869 (1st Cir. 1982); Pfeiffer v. Essex Wire Corp., 682 F.2d 684 (7th Cir. 1982); Walker v. Pettit Const. Co., Inc., 605 F.2d 128 (4th Cir. 1979). The Third Circuit has held that pain and suffering damages are unavailable under the ADEA, see Rogers v. Exxon Res. & Eng. Co., 550 F.2d 834, 839 (3d Cir. 1977), overruled on other grounds, Smith v. Jos. Schlitz Brewing Co., 604 F.2d 220 (3d Cir. 1979), but it has not reached the question of whether punitive damages are available. But even assuming that the Third Circuit would concur in the Dean analysis of 29 U.S.C. § 626, I am not persuaded that the syntactical similarity of the relevant provisions of the ADEA and FLSA means that they have identical effect. The Fifth Circuit's reading of the ADEA in Dean was heavily influenced by several features of that Act that are absent from the FLSA. For example, the ADEA provision that is now codified at 29 U.S.C. § 626(b) originally included a criminal enforcement provision that was removed prior to passage of the Act.*fn6 See 113 Cong. Rec. § 31254 (Sept. 6, 1967) (Statement of Sen. Javits) (describing amendments to what was then S.830, including "the elimination of the criminal penalty in favor of a provision for double damage in cases of willful violations"). Based on this change, the Dean court concluded that "Congress preferred liquidated damages in lieu of punitive damages." 559 F.2d at 1039. That conclusion cannot be applied to the FLSA; Snapp not only recognizes the continuing existence of criminal penalties for FLSA violations, but actually relies on those penalties in arguing that further punitive sanctions cannot have been contemplated by the FLSA's drafters.

Restricting the availability of punitive damages under the ADEA makes sense in light of the fact that § 626(b) limits the availability of liquidated damages to cases involving "willful violations" of the Act. That limitation makes it plausible to infer, as the Dean court did, that liquidated damages are to be the sole remedy for willful violations. See also Pfeiffer, 682 F.2d at 686 (noting that "willful" language was "intended to limit the scope of remedies under the ADEA"); Walker, 605 F.2d at 130 (drawing same inference as Dean). But the FLSA grants liquidated damages for retaliation without a showing of willfulness, making it harder to conclude that it does not authorize other damages upon such a showing. The Third Circuit's opinion in Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1102 (3d Cir. 1995), points this out in arguing that similarities in syntax between certain provisions of the FLSA and the ADEA do not compel the conclusion that those provisions must accomplish the same things. See 54 F.3d at 1103 n. 16 ("The difficulty with [arguing that the ADEA incorporates the damages provisions of the FLSA] is compounded by the ADEA requirement of willfulness, which is not found in the FLSA."); id. at 1102 ("[W]e reject the reasoning of those courts that believe Congress intended to incorporate into the ADEA all of the damage provisions of the [FLSA].").*fn7


For the foregoing reasons, I conclude that the second sentence of § 216(b) allows a FLSA plaintiff to obtain punitive damages against an employer who violates the provisions of § 215(a)(3). Accordingly, in an order accompanying this opinion, the defendant's motion to strike plaintiffs claim for such damages will be denied.

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