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Employee may recover under FLSA for emotional injury resulting from retaliation

By Kathleen Kapusta, J.D.

Finding that case law interpreting the ADEA did not prevent it from joining other circuits in holding that the FLSA’s broad authorization of “legal and equitable relief” encompasses compensation for emotional injuries suffered by an employee on account of retaliation by her employer, the Fifth Circuit remanded an employee’s retaliation claim for a determination of whether he had proven any such harm. Further, because the FLSA allows only employees to bring suit, the appeals court affirmed the dismissal of a retaliation claim brought by his wife in which she contended she was within the zone of interests protected by the statute. Judge Jones wrote a separate concurring opinion emphasizing the court’s admonition that the case ought to be terminated expeditiously and at minimum cost to the employer (Pineda v. JTCH Apartments, L.L.C., December 19, 2016, Costa, G.).

As part of his compensation for performing maintenance work in and around the apartment complex where he and his wife lived, the employer discounted the employee’s rent. Three days after the employee sued, seeking unpaid overtime under the FLSA, he and his wife were told to vacate their apartment for nonpayment of rent. The amount of rent the employer demanded equaled the rent reductions the employee had received during his employment.

Lower court proceedings. The employee and his wife then filed an amended complaint to include a claim of retaliation. During the jury trial, the court granted the employer’s motion for judgment as a matter of law on the wife’s retaliation claim, finding she was outside the protections of the FLSA. The employee unsuccessfully sought an instruction on emotional distress damages for his retaliation claim. The jury subsequently found for him on both claims, awarding him $1,426 on the overtime claim and $3,775 on the retaliation claim. The district court awarded him liquidated damages and attorneys’ fees of $76,732.

Emotional distress damages. On appeal, the employee argued that the lower court should have instructed the jury on damages for emotional harm. In retaliation claims, the appeals court observed, the FLSA provides that “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.”

Although it had not yet decided whether this language allows a plaintiff to recover for emotional distress damages, the court noted that the Sixth and Seventh Circuits—the two courts of appeals that have analyzed the question—have. Further, a number of other circuits have upheld jury awards for emotional damages in FLSA retaliation cases even though the legal question was not challenged on appeal.

ADEA and FLSA. Pointing out that the district court was not the only court in the circuit to conclude to the contrary, the appeals court explained that this resulted from its decisions stating that the remedies provisions of the FLSA and the ADEA should be interpreted consistently because the ADEA incorporated the FLSA’s remedy provision. Specifically, it noted that some courts have concluded that its ruling in Dean v. American Security Insurance Co., that emotional distress damages were not available under the ADEA, must mean they are also unavailable under the FLSA.

However, observed the court, when Dean considered whether the ADEA afforded a remedy for emotional harm by looking to the FLSA remedy provision, it looked at the pre-1977 FLSA, which limited relief to economic damages and did not even allow private retaliation suits. The remedies provision for retaliation claims was added to the FLSA in 1977. Further, in granting employees the ability to enforce the anti-retaliation provision on their own, Congress allowed them to recover not just wages and liquidated damages, but also “such legal or equitable relief as may be appropriate.”

Noting that after the ADEA incorporates the FLSA damages provision, it goes on to provide that: “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 . . . .” the court pointed out that it has never said “this freestanding language in the ADEA automatically applies to the FLSA, and that would make little sense. Although the ADEA incorporates portions of the FLSA, the FLSA does not incorporate the ADEA.”

The final “as may be appropriate to effectuate the purposes” phrase on which Dean focused warrants a different result when it comes to the FLSA retaliation provision, the court stated, explaining that the FLSA has no comparable legislative preference for the ADEA’s administrative conciliation and mediation scheme that motivated the ruling in Dean. Instead of requiring exhaustion of remedies before an agency like the EEOC, the FLSA authorizes immediate suits by employees to provide compensation and deterrence.

Jury question. After concluding that an employee may recover under the FLSA for emotional injury resulting from retaliation, the court noted that during the trial, the employee testified to experiencing marital discord, sleepless nights, and anxiety about where his family would live after his employer made what the jury found to be a retaliatory demand for back rent. Because this was sufficient to enable a jury to find that he experienced compensable emotional distress, a question asking whether he had proven any emotional damages should have been submitted to the jury. Thus the court remanded for a determination of whether the employee had proven any harm.

Wife’s retaliation claim. Turning to his wife’s claim that she was within the zone of interest protected by the FLSA, the court noted that she relied on Thompson v. N. Am. Stainless, LP, which applied the zone of interests test for determining who may bring a Title VII retaliation claim. Her attempt, however, to apply Thompson to her situation ignored a critical distinction between the text of Title VII and the FLSA’s retaliation provision. While the remedies provisions of Title VII permit a “person claiming to be aggrieved” to file a civil suit, under the FLSA, it is only unlawful “to discharge or . . . discriminate against any employee because such employee has filed any complaint.” Thus, the district court correctly dismissed the wife’s retaliation claim.