United States District Court, E.D. Pennsylvania
January 23, 2004.
DESMOND HOTEL & CONFERENCE CENTER
The opinion of the court was delivered by: JACOB HART, Magistrate Judge
In this action, James Beverly ("Beverly"), originally alleged that the
Desmond Hotel and Conference Center, (the "Desmond"), was liable to him
under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.,
for racial and religious discrimination, and under the ADEA,
29 U.S.C. § 621 et seq., for discrimination on the basis of age. The
Honorable Stewart Dalzell, to whom this case was originally assigned,
classified Beverly's claims as follows: (a) for hostile work environment
on the basis of race religion and age; (b) for failure to promote on the
basis of race, religion and age; (c) for discriminatory discharge on the
basis of race, religion and age; and (d) for retaliatory discharge.
Order, of July 2, 2003, at ftn. 1.
However, in two orders entered on the Desmond's motion for summary
judgment, dated July 2, 2003, and September 25, 2003, Judge Dalzell
dismissed all of Beverly's claims except for the claim of failure to
promote on the basis of age, in violation of the ADEA. This case was
subsequently transferred here by consent of the parties, and in
accordance with 28 U.S.C. § 636(c).
Trial in this case was scheduled for the afternoon of Tuesday, January
20, 2004, with the jury to be chosen that morning. On Friday, January 16,
2004, however, I informed the parties in a telephone conference that I
would hear argument on the morning of January 20, before jury selection,
as to whether summary judgment should be entered in favor of the Desmond
because of Beverly's inability to prove damages.
On the morning of January 20, 2004, I heard oral argument on this
issue. After this, I stated on the record my intention to grant summary
judgment in favor of the Desmond. Transcript of January 20, 2004, Hearing
at 15-18. I issued a written order to that effect on the same day. Order
of January 20, 2004, Docketed as Document No. 42. I specified in court,
and in my written order, however, that I would issue an opinion fully
explaining my holding. I now set forth that opinion.
II. Factual Background
Beverly worked at the Desmond between July 1999 and April, 2000.
Pretrial Stipulation at 1-2 ¶¶ 1, 10. He claimed that he expressed to
the Desmond his interest in a job as a busboy in the dining room, and was
told that he would be trained for this position. Pretrial Stipulation at
2-3, ¶¶ 5-6, 9. However, he was never trained or selected as a
busboy. Beverly claimed that, in a conversation which took place shortly
after he left the Desmond, General Manger Michael Chain told him that he
had never been made a busboy because he was too old. Judge Dalzell's
Order of July 2, 2003, at 4, ¶ (m), citing Beverly Deposition at
The parties agreed that the salary for a busboy was actually lower than
the salary for a kitchen worker. Pretrial stipulation at 1, ¶¶ 3-4.
Nevertheless, Beverly maintains that he viewed the job change as a
promotion because it offered more prestige, better working conditions,
was a stepping stone to a waiter position which would have been
well-paid. Pretrial Stipulation at 2-3, ¶¶ 7-8.
III. Legal Standards
A. Summary Judgment
Summary judgment is warranted where the pleadings and discovery, as
well as any affidavits, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a
matter of law. Fed.R.Civ.Pr. 56. A court may grant summary judgment sua
sponte to a non-moving party in appropriate circumstances. Gibson v. City
of Wilmington, No. 02-3952, 2004 WL 36059 at * 4 (3d Cir. Jan. 8, 2004);
Chambers Development Company v. Passaic County Utilities Authority,
62 F.3d 582, 584 n. 3 (3d Cir. 1995).
In Gibson, the Court of Appeals for the Third Circuit pointed to a
quote from an earlier Third Circuit case which held that a sua sponte
grant of summary judgment was inappropriate where the party against which
it was granted was not afforded the ten days notice required by
Fed.R.Civ.Pr. 56(c). 2004 WL 36059 at *5, quoting Otis Elevator Company
v. George Washington Hotel Corporation, 27 F.3d 903, 910 (3d Cir. 1994).
The Gibson court held, however, that sua sponte summary judgment could
also be granted immediately before trial, even without ten-days notice,
where (a) the point at issue is purely legal; (b) the record is fully
developed and (c) the failure to give notice does not prejudice the party
against whom summary judgment was granted. 2004 WL 36059 at * 1.
Here, although Beverly was not given the Rule 56(c) ten days notice, he
was given five days notice, the opportunity to file briefing on the issue
of damages (in fact, Beverly took advantage of this opportunity and
submitted a memorandum of law), and the opportunity to argue
the issue at a formal hearing in open court at the end of the five
days' notice. Clearly, he was not prejudiced by any lack of notice.
Moreover, just as in Gibson, "because the Court's pronouncement came on
the morning of the trial, full opportunity for discovery had already
obtained." 2004 WL 36059 at * 5. Finally, the point at issue was purely
legal, as required by Gibson. The parties agreed that Beverly could
obtain no back pay, since he would actually have been receiving a lower
salary as a busboy until the date of discharge. The issue was whether he
was legally eligible for some other form of damages. It is apparent,
therefore, that I had the authority to grant summary judgment in favor of
the Desmond upon my own initiative.
It is also apparent that summary judgment in an ADEA case is
appropriate where no damages can be proven. Rivadeneira v. City of
Philadelphia, Civ. A. No. 90-4979, 1994 WL 594122 at * 9 (E.D. Pa. Oct.
31, 1994), (a Title VII case citing Snair v. City of Clearwater,
817 F. Supp. 108, 112-13 (M.D. Fla. 1993), in which summary judgment was
granted in an ADEA case for that reason).
B. Damages Available Under the ADEA
As to damages, the ADEA incorporates by reference the now-repealed
damages section of the Fair Labor Standards Act, ("FLSA"),
29 U.S.C. § 216, which provided:
Any employer who violates . . . this title 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.
29 U.S.C. § 626(b). Thus, relief available under the ADEA includes
the recovery of lost wages, "and an additional equal amount as liquidated
damages" in the case of a willful violation. Commissioner of Internal
Revenue v. Schleier, 515 U.S. 323, 325 (1995).
Compensatory damages are not available. In Commissioner of Internal
Revenue v. Schleier, supra, the United States Supreme Court observed that
"the Courts of Appeals have unanimously held . . . that the ADEA does not
permit a separate recovery of compensatory damages for pain and suffering
or emotional distress." 515 U.S. at 326; citing, inter alia, Rogers v.
Exxon Research & Engineering Company, 550 F.2d 834 (3d Cir. 1977),
cert. denied, 434 U.S. 1022 (1978) overruled on other grounds by Smith
v. Jos. Schlitz Brewing Company, 584 F.2d 1231 (3d Cir. 1978).
In Rogers v. Exxon, supra, the Court of Appeals for the Third Circuit
reversed a trial court which had permitted the recovery of damages for
pain and suffering in an ADEA case, on the basis that "the ADEA created a
new tort." 550 F.2d at 839. After examining the language of the statute,
and its legislative history, the Rogers court essentially decided that
Congress permitted the recovery of liquidated damages in lieu of the
recovery of compensatory damages. Id. It concluded that permitting an
award for pain and suffering would thwart the recovery scheme planned by
Congress, and would also present administrative problems. 550 F.2d at
839-842. See, also Rossi v. Sun Refining & Marketing Corp., Civ. A.
No. 94-3037, 1995 WL 12056 at* 10 (E.D. Pa. Jan. 11, 1995).
The Third Circuit has not considered whether nominal damages are
available in an ADEA case. In Rivadeneira, supra, however, the Honorable
Lowell A. Reed, Jr., found that nominal damages were not available in a
Title VII case applying the pre-1991 statute, because "the fact that
Title VII does not provide for compensatory or punitive damages [as it
did not, pre-1991] indicates that Congress did not intend for nominal
damages to be available under Title VII." 1994 WL 594122 at *9, brackets
supplied. I believe that the same reasoning applies to the
ADEA, which does not permit compensatory or punitive damages. The
restrictions placed by Congress on the damages available in an ADEA case
signal its intention to make only direct economic losses recoverable.*fn1
Crucial to this discussion is the fact that Judge Dalzell's earlier
rulings left alive only Beverly's ADEA claim for failure to promote. If a
Title VII claim had remained, Beverly would have been entitled to try to
prove to a jury that he was entitled to compensatory damages. In such a
case, I would not have granted summary judgment in favor of Desmond.
As the case stood before me on January 20, 2004, however, only one ADEA
claim remained. Accordingly, Beverly was entitled to reach a jury only if
he could prove lost wages. He was plainly unable to do this. If the act
of alleged discrimination had not occurred, it is undisputed that Beverly
would have been working for a lower wage than the wage he actually
received during his employment at the Desmond. Beverly did not even argue
that he would have become a waiter at any time before his termination.
Under these circumstances, I granted summary judgment in favor of the
Beverly argued that he was still eligible for an award of liquidated
damages, if he could prove a willful violation of the ADEA, predicated
upon an award of nominal damages. However, I cannot accept this argument.
If no nominal damages can be awarded, there is no way to double them to
arrive at a correct award for liquidated damages. Since the ADEA
specifically provides that liquidated damages are to be awarded in an
amount equal to the lost wages recoverable, I am plainly not permitted to
dream up another way of calculating them.
Even if Beverly's argument is that liquidated damages can, in
themselves, be used as a form of nominal damages, it is still
unacceptable. First, as above, it is completely inconsistent with the
ADEA's specific directions as to the calculation of liquidated damages.
Secondly, it would represent an "end run" around Congress's decision not
to provide for the recovery of nominal damages under the ADEA.
Beverly also argued that his complaint incorporated by reference a
claim under the Pennsylvania Human Relations Act, (the "PHRA"), 43 Pa.
C.S.A. § 951 et seq., under which compensatory damages may be
awarded. He pointed to Count III of his Complaint, entitled Plaintiff's
Claims Against the Defendant for Wrongful Discharge Based on
Retaliation, where it stated that the Desmond's actions "constituted a
wrongful termination in violation of the public policy of the Sate of
Pennsylvania." Amended Complaint at ¶ 59. However, even if this
language could be interpreted as a PHRA claim (which is doubtful) it was
no longer in the case on January 20, 2004. Judge Dalzell dismissed Count
III in his earlier orders on the Desmond's motion for summary judgment.
In short, because there was no possibility that Beverly could prove
that he suffered any form of damages available under the ADEA, I granted
summary judgment in favor of the Desmond. As a final point, I wish to
clarify that, for purposes of appeal, my Order of January 20, 2004,
incorporates Judge Dalzell's Orders of July 3, 2003 and September 25,
2003, which granted partial summary judgment.