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MARROW v. ALLSTATE SEC. & INVESTIGATIVE SERVICES

October 4, 2001

HARRY MARROW, PLAINTIFF,
V.
ALLSTATE SECURITY & INVESTIGATIVE SERVICES, INC., DEFENDANT.



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

OPINION

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.

I

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 ...

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