Randolph et al v. ADT Security Services, Inc.

Filing 110

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 6/14/12. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
SHARON RANDOLPH, et al.
:
v.

:

Civil Action No. DKC 09-1790

:
ADT SECURITY SERVICES, INC.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this Fair
Labor Standards Act (“FLSA”) case are motions to identify a
“rebuttal” expert (ECF No. 94) and to seal (ECF No. 96) filed by
Defendant ADT Security Services, Inc. (“ADT” or “the company”),
and three motions filed by Plaintiffs Sharon Randolph and Tami
Thompson:

(1) a “motion for trial date and for punitive damages

jury instruction” (ECF No. 88), (2) a motion to seal (ECF No.
103),

and

memorandum

(3)

a

“motion

opinion”

(ECF

to
No.

publish
106).

the
The

court’s
issues

unpublished
are

fully

briefed, and the court now rules pursuant to Local Rule 105.6,
no hearing being deemed necessary.

For the reasons that follow,

the “motion for trial date and for punitive damages instruction”
will be granted in part and denied in part,1 while the motions to

1

Because a trial date was set during a telephone conference
on March 15, 2012, the portion of Plaintiffs’ motion seeking a
trial date will be denied as moot.

publish and to identify a defense expert will both be denied.
The motions to seal will be granted.
I.

Background
The

underlying

facts

of

this

case

have

been

set

forth

repeatedly in the court’s prior opinions, Randolph v. ADT Sec.
Servs., Inc., No. DKC 09-1790, 2011 WL 3476898 (D.Md. Aug. 8,
2011);

Randolph v. ADT Sec. Servs., Inc., 701 F.Supp.2d 740

(D.Md. 2010), and they need not be recounted in detail here.
Plaintiffs worked as residential sales representatives at ADT’s
Lanham,

Maryland,

basis.

When

office

they

and

were

were

hired,

paid

both

on

a

received

commission-only
copies

of

the

employee handbook and a Tyco “Guide to Ethical Conduct,” which
stressed

the

confidential

certain

company

files

nature

about

of

customer

proprietary

information

and

systems.2

business

Plaintiffs later became dissatisfied with their pay and voiced
their concerns to various company managers.
Concluding

that

ADT

did

not

respond

in

a

satisfactory

manner to these concerns, Plaintiffs thereafter contacted the
Maryland
(“DLLR”).

Department
A

DLLR

of

Labor,

Licensing,

representative

sent

Ms.

and

Regulation

Randolph

and

Ms.

Thompson a blank wage form to complete, and the form expressly

2

ADT is a subsidiary of Tyco International Ltd.
2

requested

that

they

submit

supporting

documentation,

such

as

wage agreements, commission statements, and invoices, along with
their wage forms.
submitted

copies

Plaintiffs both completed the wage form and
of

numerous

documents,

including

commission

statements, ADT’s company handbook, and sales reports to DLLR.
When ADT learned that Plaintiffs had disclosed this information,
it

suspended

and

subsequently

terminated

their

employment,

ostensibly for violating its confidentiality policy.
On July 21, 2009, Plaintiffs filed a complaint against ADT,
asserting a retaliation claim under the FLSA and a claim for
wrongful termination under Maryland law.
to

dismiss,

and

this

motion

was

ADT subsequently moved

denied.

ADT

answered

complaint, and an initial scheduling order was entered.
forth

the

discovery:

following

schedule

for

expert

the

It set

disclosures

and

Plaintiffs’ Rule 26(a)(2) expert disclosures were

due by June 7, 2010; ADT’s disclosures were due by July 7, 2010;
Plaintiffs’ rebuttal disclosures were due by July 21, 2010; all
supplemental disclosures and responses pursuant to Rule 26(e)(2)
were due by July 28, 2010; and, discovery would close on August
23, 2010.

(ECF No. 26).

On July 7, 2010, ADT filed a consent

motion for extension of time to make its expert disclosures,
stating that Plaintiffs had identified both of their experts but
that the report from one of those experts – Dr. Joel Morse – had
3

not

yet

been

provided.

ADT

explained

that

it

could

“[]not

properly evaluate its need for an expert witness without first
reviewing

Dr.

Morse’s

report.”

(ECF

No.

39,

at

2).

Accordingly, ADT requested that the court extend its “expert
disclosure deadline until a date 30 days after its receipt of
Dr. Morse’s expert report.”

(Id. at 3).

request the following day.

The court granted this

ADT received Dr. Morse’s report,

along with a copy of Ms. Thompson’s 2009 amended federal income
tax return – which was discussed within the report – during July
2010.
On August 12, 2010, the parties filed a joint motion to
revise

the

requested

scheduling

that

the

order.

court

(ECF

extend

the

No.
date

41).
for

This
ADT’s

motion
initial

expert disclosures until August 16, 2010, with its expert report
due on September 10, 2010, and the close of expert discovery on
September 24, 2010.

The court granted the motion.

It does not

appear that ADT identified an expert or provided Plaintiffs with
an

expert

report

by

these

dates.

Following

the

parties’

submission of cross-motions for partial summary judgment, they
sought to extend the date for expert discovery until two months
after the court had ruled on the summary judgment motions.
No. 62).

(ECF

The motion did not request any extension of time to

4

identify experts or provide expert reports.

This motion was

also granted.
On August 8, 2011, the court issued a memorandum opinion
and order granting in part and denying in part the parties’
cross-motions for partial summary judgment.

(ECF Nos. 68, 69).

With regard to the FLSA retaliation claim, the court entered
judgment in favor of Plaintiffs and against ADT on the issue of
liability.

With regard to the wrongful termination claim, the

court entered judgment in favor of ADT and against Plaintiffs.
Approximately two weeks later, ADT moved for reconsideration and
for certification of an interlocutory appeal.
While these motions were pending, the parties repeatedly
moved to revise the scheduling order to extend the due date of
Plaintiffs’ amended expert reports and the dates by which ADT
would

complete

depositions

of

these

experts.

The

court

subsequently granted the motions to revise the scheduling order.
According to the final revised order, Plaintiffs’ experts were
to provide their amended reports by January 12, 2012, and ADT
was

to

complete

its

depositions

of

Plaintiffs’

experts

by

February 20, 2012.
The parties abided by this schedule.

Plaintiffs provided

Dr. Morse’s amended report to ADT on January 12, 2012.

The

report stated that it was a “revision” based on the updated
5

report of Plaintiffs’ second expert and updated tax data.
No.

94-3,

at

2).

Plaintiffs

also

provided

ADT

Thompson’s 2010 tax return on February 17, 2012.

with

(ECF
Ms.

ADT conducted

Dr. Morse’s deposition on February 20, 2012.
During this period, the court issued an opinion and order
denying ADT’s motions for reconsideration and for certification
of an interlocutory appeal.

(ECF Nos. 86, 87).

On March 7,

2012, Plaintiffs filed their “motion for trial date and for
punitive damages jury instruction.”

(ECF No. 88).3

ADT has

opposed the portion of the motion seeking a jury instruction for
punitive
distress.

damages

and

compensatory

damages

from

emotional

On March 21, 2012, ADT filed a motion to identify a

“rebuttal” expert “to respond to [new] opinions offered by [Dr.
Morse]” during the February 20, 2012, deposition.
1, at 1).

(ECF No. 94-

It also moved to seal exhibits, either in whole or in

part, and portions of the memorandum accompanying this motion
because

those

papers

either

contained

or

referenced

Ms.

Thompson’s personal financial information or data from her tax
returns.

(ECF No. 96).

Plaintiffs opposed ADT’s motion to

identify an expert and then filed a consent motion to seal the
exhibit submitted in conjunction with its opposition (ECF No.

3

Although its title refers only to punitive damages,
Plaintiffs’ motion also requests compensatory damages stemming
from emotional distress.
6

103), which contained Ms. Thompson’s 2009 federal tax return.
Finally,
publish

on
the

opinion.”
II.

April

18,

court’s

2012,

Plaintiffs

unpublished

(ECF No. 106).

[August

filed
8,

a

“motion

2011,]

to

memorandum

ADT has opposed this motion.

Plaintiffs’ Motion “For Punitive Damages Instruction”
Plaintiffs’

first

motion,

ostensibly

seeking

a

jury

instruction as to punitive damages, argues that punitive damages
and

compensatory

damages

for

emotional

distress

are

proper

pursuant to 29 U.S.C. § 216(b), the civil remedies provision of
the FLSA.

ADT vigorously contests this argument, asserting that

neither form of damages is available under the FLSA.

As to

punitive damages, ADT alternatively argues that “the undisputed
facts” in this case would prevent Plaintiffs from making the
showing necessary to obtain such an award.
14).

(ECF No. 101, at

ADT further maintains that the only available remedies

here are equitable in nature and that “the trial in this matter
should proceed as a bench trial.”

(Id. at 1).

Both parties are

partially correct, and Plaintiffs’ motion will, therefore, be
granted in part and denied in part.
A.

Plaintiffs Have Not Shown that Punitive Damages Are
Warranted on the Facts of This Case

Section § 216(b) authorizes the following relief in private
causes of action against employers who have violated the FLSA.

7

Any employer who violates the provisions of
section 206 or section 207 [the FLSA’s
minimum wage and overtime wage provisions] .
. . 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.
Any
employer
who
violates the provisions of section 215(a)(3)
[the FLSA’s anti-retaliation provision] . .
. shall be liable for such legal or
equitable relief as may be appropriate to
effectuate
the
purposes
of
[the
antiretaliation provision], including without
limitation
employment,
reinstatement,
promotion, and the payment of wages lost and
an additional equal amount as liquidated
damages.
29

U.S.C.

§

authorizes

216(b).4

the

court

Plaintiffs

contend

to

punitive

award

that

this

damages

language
in

FLSA

retaliation suits.
“Remarkably, the question of the availability of punitive
damages under § 216(b) of the FLSA seems to have been little
litigated.”

Lanza v. Sugarland Run Homeowners Assoc., Inc., 97

F.Supp.2d 737, 739 (E.D.Va. 2000).
Appeals

for

the

Fourth

Circuit

The United States Court of
has

4

provided

virtually

no

Congress added the language permitting recovery under the
anti-retaliation provision in 1977.
Fair Labor Standards
Amendments of 1977, Pub.L. 95-151, 91 Stat. 1245, 1252 (1977).
Prior to that time, “employees had to rely on the criminal and
injunctive relief provided in sections 216(a) and 217 to
discourage employers from retaliating against them.” Snapp, 208
F.3d at 931 (citing Mitchell v. Robert De Mario Jewelry, Inc.,
361 U.S. 288, 289 (1960)).
8

guidance on the issue,5 and the two circuit courts that have
addressed this question do not agree on the answer.

Compare

Snapp v. Unlimited Concepts, Inc., 208 F.3d 928, 933-39 (11th
Cir. 2000) (reasoning that punitive damages are not available
under the FLSA), with Travis v. Gary Community Mental Health
Center, Inc., 921 F.2d 108, 111-12 (7th Cir. 1990) (Easterbrook,
J.) (holding that the 1977 FLSA amendments providing for “legal
relief” permit a court to award punitive damages).

District

courts throughout the country are similarly split.

Compare,

e.g., Lanza, 97 F.Supp.2d at 739-42 (concluding that punitive
damages were unavailable under § 216(b)), with, e.g., Marrow v.
Allstate Sec. & Investigative Servs., Inc., 167 F.Supp.2d 838,
839-46

5

(E.D.Pa.

2001)

(stating

that

a

plaintiff

may

recover

In a 1979 opinion, the Fourth Circuit stated in passing
that the FLSA “of course, makes no provision for the recovery of
punitive damages.” Walker v. Pettit Constr. Co., 605 F.2d 128,
130 (4th Cir. 1979), modified on reh’g on other grounds sub nom.
Frith v. E. Air Lines, Inc., 611 F.2d 950 (4th Cir. 1979). That
opinion does not control the outcome here, however, because the
panel did not consider the 1977 FLSA amendments, which added the
“such legal or equitable relief” language that is at issue in
this action, in reaching its conclusion.
In fact, other than
Lanza, only one other district court in this circuit has
directly discussed the issue.
Jordan v. GoBo, Inc., No. 6:09cv-00059, 2010 WL 1816361, at *8 (W.D.Va. Apr. 30, 2010)
(finding that an employer was not liable for violating the FLSA
and
subsequently
concluding,
without
discussion,
that
“[p]unitive damages [we]re not permitted under the FLSA” (citing
Lanza, 97 F.Supp.2d at 742)), aff’d, 393 F.App’x 118 (4th Cir.
2010) (unpublished opinion), cert. denied, 131 S.Ct. 1021
(2011).
The Fourth Circuit summarily affirmed Jordan without
holding oral argument and without discussing this issue.
9

punitive damages in an FLSA action).

At this juncture, the

decision on this legal issue need not be made.
not

demonstrated

facts

that

would

support

Plaintiffs have

the

imposition

of

punitive damages, so their in limine motion will be denied on
this issue.
The parties agree that the standard for punitive damages
initially set forth by the Supreme Court of the United States in
Smith v. Wade, 461 U.S. 30 (1983), and subsequently codified at
42 U.S.C. § 1981a(b)(1), applies to the present case.
101, at 14-15; ECF No. 105, at 1-4).6
Plaintiffs

to

prove

that

ADT

(ECF No.

This standard requires

“engaged

in

a

[retaliatory]

practice . . . with malice or with reckless indifference to
the[ir]

federally

protected

rights.”

EEOC

v.

Fed.

Express

Corp., 513 F.3d 360, 371 (4th Cir. 2008) (quoting 42 U.S.C. §
1981a(b)(1)).

“The terms ‘malice’ or ‘reckless indifference’

pertain to the employer’s knowledge that it may be acting in
violation of federal law, not its awareness that it is engaging

6

The court could identify no case law directly addressing
the appropriate standard to use when determining whether a
plaintiff is entitled to punitive damages in an FLSA action.
The Pattern Jury Instructions for the Third Circuit, however,
support the parties’ conclusion that the § 1981a standard should
apply. Indeed, the comments to those instructions indicate that
the punitive damages standard in § 1981a may be applied in
actions involving punitive damages under § 216(b).
Third
Circuit Model Civil Jury Instructions 11.3.7, in Modern Federal
Jury Instructions: Civil Pattern Instructions (2012).
10

in [retaliation].”
536

(1999).

Kolstad v. Am. Dental Ass’n, 527 U.S. 526,

Additionally,

“a

wrongdoing is always required.”
marks

omitted).

Thus,

even

positive

element

of

conscious

Id. at 538 (internal quotation
for

plaintiffs

seeking

punitive

damages on the basis of reckless indifference, there must be
evidence

demonstrating

that

the

employer

acted

with

“a

subjective consciousness of a risk of injury or illegality.”
Id. at 536 (internal quotation marks omitted) (“[A]n employer
must at least [retaliate] in the face of a perceived risk that
its actions will violate federal law to be liable in punitive
damages.”).

Where a plaintiff cannot produce such evidence,

submitting

the

issue

of

punitive

damages

to

the

jury

is

improper.

Id. at 539; see also Ocheltree v. Scollon Prods.,

Inc., 335 F.3d 325, 335-36 (4th Cir. 2003) (en banc) (setting
aside a punitive damages award where – after “comb[ing] the
record” – the Fourth Circuit could identify “no evidence that
would allow a jury to find that [the defendant] knew that it
might

have

been

acting

in

violation

of

[the

plaintiff’s]

‘federally protected rights’”).
The record here fails to suggest a “positive element of
conscious wrongdoing” on the part of any employee who played a
role

in

evidence

Plaintiffs’
even

termination.

suggesting

that

ADT
11

Plaintiffs
may

have

been

identify
aware

no
that

terminating

Plaintiffs

for

policy violated the FLSA.

disregarding

its

confidentiality

Indeed, the depositions of those

employees instead demonstrate that they believed the following:
(1) Tyco’s confidentiality policies were binding on ADT, (2)
those

policies

expressly

prohibited

employees

from

providing

customer or proprietary company information to any third party,
regardless of the reason, (3) dissemination of this information
could

significantly

product

harm

ADT

customers

and

(4)

Plaintiffs’

their

violation

development,

necessary

response

to

confidentiality policy.7
employees
unlawful.8

had

any

its

proprietary

termination
of

the

was

a

company’s

There is no evidence that any of these

indication

Notably,

and

one

Plaintiffs’

ADT

employee

terminations
involved

in

were
the

7

The assertion in Plaintiffs’ motion papers that “ADT
terminated [their] employment for complaining to DLLR and not
resolving the issue at ADT” (ECF No. 88, at 9) misconstrues the
deposition testimony of Robin McVey, one of the managers
involved in the termination decisions.
Indeed, McVey’s
testimony indicates only that ADT terminated Plaintiffs for
violating the company’s strict confidentiality policy, not
merely for filing a claim with DLLR.
8

These
employees
also
indicated
that
Plaintiffs’
terminations were discussed with both the human resources
department and legal counsel. According to Plaintiffs, “[t]hat
ADT’s decision makers sought advice from counsel reveals that
[they] had knowledge that terminating Randolph and Thompson may
have been an action in violation of the law.” (ECF No. 105, at
5).
This conclusion not only is unsupported by authority, but
also – if true - would have the perverse effect of discouraging
consultation with legal counsel in an effort to avoid punitive
12

terminations even emphasized that she had never received any
training

from

ADT

about

anti-discrimination

or

retaliation

statutes or the handling of any employee complaints, much less
those involving confidential documents.
Faced with analogous circumstances, numerous courts have
declined
trial.

to

permit

a

plaintiff

to

seek

punitive

damages

at

See Worldwide Network Servs., LLC v. Dyncorp Int’l, LLC,

365 F.App’x 432, 446-47 (4th Cir. 2010) (unpublished opinion)
(noting that punitive damage awards had been upheld where there
was evidence that a managerial employee knew about federal antidiscrimination laws, but holding that no such evidence existed
in

the

present

case),

cert.

denied,

131

S.Ct.

224

(2010);

Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 236 (2d Cir.
2000) (holding that punitive damages were not warranted in a
discrimination

case

former

employee

protect

itself

was

where

the

employer’s

“consistent

against”

a

with

legitimate

an

termination
employer

concern

about

of

acting

its
to

long-term

employee absences); EEOC v. Maha Prabhu, Inc., No. 3:07-cv-111RJC,

2008

WL

2795515,

at

*2-3

(W.D.N.C.

July

18,

2008)

damages should the action later be found unlawful. Accordingly,
the bare fact that some ADT employees spoke with legal counsel
about Plaintiffs’ termination does not indicate that they had
the subjective intent required for an award of punitive damages.
This conclusion is particularly appropriate given the novel
legal issues presented by this case.
13

(concluding that the employer’s decision not to hire an employee
because

she

had

Lupus

was

not

done

with

malice

or

reckless

indifference where the decisionmaker had not received training
about disability discrimination and was unaware that Lupus was a
recognized disability under federal law); cf. Kolstad, 527 U.S.
at

537

(“There

will

be

circumstances

were

intentional

discrimination does not give rise to punitive damages liability
. . . .

There will be cases . . . in which the employer

discriminates with the distinct belief that its discrimination
is lawful.”).
court’s

At bottom, Plaintiffs seek to argue that the

finding

of

liability

for

retaliation

should

itself

suffice for a jury to infer malice or reckless indifference.
This argument, however, contravenes well-settled jurisprudence
holding

to

(reasoning

the
that

contrary.
a

E.g.,

plaintiff

Kolstad,

must

make

527

U.S.

an

at

534

“additional

demonstration” beyond “intentional discrimination” in order to
obtain

punitive

damages

(internal

quotation

marks

omitted)).

Because Plaintiffs have presented no evidence to indicate that
ADT acted with malice or reckless indifference in terminating
them, their motion seeking in limine ruling will be denied.

14

B.

Compensatory
Damages
for
Emotional
Distress
Are
Available Under § 216(b), and Plaintiffs May Seek Them
Through a Jury Trial

The parties also disagree about whether the FLSA permits
recovery
distress.

of

compensatory

damages

stemming

from

emotional

ADT maintains that, as a matter of law, Plaintiffs

are precluded from seeking emotional distress damages because
such damages are unavailable under “the very similar damages
provision of the ADEA.”

(ECF No. 101, at 18).

Plaintiffs

disagree, pointing to several circuit court opinions upholding
such awards.

On this issue, Plaintiffs have the better end of

the argument.
Neither the Fourth Circuit nor any district court within
this circuit has previously determined whether a plaintiff may
recover compensatory damages from emotional distress in an FLSA
action.

Four circuit courts of appeal – the Sixth, Seventh,

Eighth, and Ninth Circuits – have, however, either directly or
indirectly

addressed

the

issue,

and

all

recovery of emotional distress damages.

have

permitted

the

Moore v. Freeman, 355

F.3d 558, 563-64 (6th Cir. 2004) (explaining that “consensus on
the

issue

of

compensatory

damages

for

mental

and

emotional

distress [in FLSA cases] seems to be developing”); Broadus v.
O.K. Indus., Inc., 238 F.3d 990, 992 (8th Cir. 2001) (upholding a
compensatory award that may have included damages for emotional
15

distress); Lambert v. Ackerley, 180 F.3d 997, 1011 (9th Cir.
1999) (affirming an award of emotional distress damages in an
FLSA action); Avitia v. Metro. Club of Chi., Inc., 49 F.3d 1219,
1226-30 (7th Cir. 1995) (reducing an award for emotional distress
damages after finding the award excessive, but noting that such
damages are available under the FLSA (citing Travis, 921 F.2d at
111-12)).
The

compensatory

nature

of

the

supports the outcome in these cases.
scheme

contemplates

compensation

in

remedies

in

§

216(b)

“The [FLSA’s] statutory
full

for

employees suffer from reporting grievances.”

any

retaliation

Moore, 355 F.3d at

563 (citing Snapp, 208 F.3d at 934; Lanza, 97 F.Supp.2d at 740);
Republic Franklin Ins. Co. v. Albemarle Cnty. Sch. Bd., 670 F.3d
563,

568

(4th

Cir.

proposition

that

compensatory

in

provides

for

2012)
the

(citing

relief

nature”).

“such

legal

and

text

of

Lanza

in

provided

The
or

Snapp

§

§

equitable

216(b)

216(b)

relief

for

as

the
“is

expressly
may

be

appropriate to effectuate” this compensatory purpose, employing
the

broad

that

the

enumerated remedies within that section are not exhaustive.

29

U.S.C.

§

phrase

216(b).

“without

“[L]ike

limitation”

the

forms

to

of

indicate

relief

mentioned

[therein], damages for mental anguish are intended to compensate
the injured party for harm suffered.”
16

Moore, 355 F.3d at 564.

Certainly, an argument could be made that
the
availability
of
liquidated
damages
[under § 216(b)] would be sufficient to
fully compensate a plaintiff with proof of
actual economic damages but only minor,
subjective mental anguish occasioned by an
employer’s
violation
of
the
[FLSA].
However, in a case involving only nominal
economic
losses
but
proved
retaliation
consisting
of
concerted,
directed
harassment, resulting in grave emotional
distress, such nominal economic damages or
the available doubling of those damages
would be insufficient to make the plaintiff
whole.
Damages for mental anguish would be
the necessary compensatory legal relief
“appropriate to effectuate the purposes of
[the anti-retaliation provision].”
Bogacki

v.

Buccaneers

Ltd.

P’ship,

370

F.Supp.2d

1201,

1203

(M.D.Fla. 2005) (quoting 29 U.S.C. § 216(b)); cf. Snapp, 208
F.3d

at

exercise

937
some

(reasoning
creativity

that
in

“district
awarding

courts

relief

in

may

have

to

retaliation

cases” beyond those forms set forth in the statutory text).
The district courts holding that emotional distress damages
are unavailable in FLSA actions have done so by relying on cases
interpreting the Age Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. §§ 621 et seq., which have uniformly held
that such damages are not permitted under that statutory scheme.
E.g.,

Douglas

v.

Mission

Chevrolet,

17

757

F.Supp.2d

637,

640

(W.D.Tex. 2010).9

Emphasizing that the ADEA was patterned after

the FLSA, Lorillard v. Pons, 434 U.S. 575, 579 (1978), these
courts

have

noted

the

similarity

in

language

between

the

remedies provisions of the two statutes and concluded that the
unavailability

of

emotional

distress

damages

under

the

ADEA

renders those damages unavailable under the FLSA, Douglas, 757
F.Supp.2d at 640.

This conclusion, however, fails to consider

that

authorized

the

relief

under

both

statutes

must

be

determined “not in isolation, but in conjunction with the other
provisions of the Act[s], the policies they further, and the

9

The remedies provision of the ADEA provides, in relevant
part, as follows:
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 . . . :
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).

18

enforcement

framework[s]

they

envision.”

Dean,

559

F.2d

at

1038; cf. Lorillard, 434 U.S. at 582 (“[The] selectivity that
Congress exhibited in incorporating provisions and in modifying
certain

FLSA

changes

Congress

fully

the

practices

strongly

expressly

remedies

and

suggests

made,

it

procedures

that

but

intended
of

the

to

for

those

incorporate

FLSA

[into

the

ADEA.]”).
The ADEA includes an administrative conciliation process
that is critical to its enforcement framework.
626(b);

Bogacki, 370 F.Supp.2d at 1204-05.

process,

circuit

courts

have

repeatedly

29 U.S.C. §

Looking to this

held

that

emotional

distress damages are unavailable in ADEA actions because they
would impede mediation and conciliation by discouraging early
resolution of ADEA claims.

Pfeiffer v. Essex Wire Corp., 682

F.2d 684, 687 (7th Cir. 1982); Slatin v. Stanford Research Inst.,
590 F.2d 1292 (4th Cir. 1979) (noting that “pain and suffering
damages are inconsistent with the administrative aspects of the
ADEA enforcement scheme”); Dean, 559 F.2d at 1038 (explaining
that

the

actions

availability
would

tripartite

of

emotional

“introduce[e]

negotiations

a

distress

volatile

involving

damages

ingredient

Secretary,

in

ADEA

into

the

employee

and

employer”); Rogers v. Exxon Research & Eng’g Co., 550 F.2d 834,
839-42 (3d Cir. 1977), overruled on other grounds by Smith v.
19

Joseph Schlitz Brewing Co., 584 F.2d 1231 (3d Cir. 1978) (citing
the mediation and conciliation process as one reason emotional
distress damages were unavailable in an ADEA action).10
includes no such conciliation provision.

The FLSA

Lorillard, 434 U.S. at

580.
This difference is instructive, and it must be considered
when

determining

recover

whether

emotional

a

plaintiff

distress

in

damages.

an

FLSA
See

action

may

Gilmer

v.

Interstate/Johnson Lane Corp., 895 F.2d 195, 199 (4th Cir. 1990)
(acknowledging

certain

differences

between

the

ADEA

and

the

FLSA, despite the similarities in the two statutory texts, based
on the presence of conciliation provisions in the former); cf.
Dorosiewicz v. Kayser-Roth Hosiery, Inc., 823 F.2d 546, 1987 WL
37945, at *2 (4th Cir. 1987) (unpublished table opinion) (“The .
. . provisions of the FLSA that are incorporated into the ADEA

10

Due to the similarities between the statutes, both Slatin
and Rogers also looked to pre-1977 version of the FLSA when
reaching this conclusion, noting that courts applying the
earlier version of the FLSA had “consistently refused to grant
FLSA
litigants
compensatory
damages,
other
than
those
specifically enumerated in the Act.” Slatin, 590 F.2d at 1296;
Rogers, 550 F.3d at 839-42. This reasoning does not change the
outcome of the present case, however, because the only remedies
set forth in the pre-1977 version of the statute were unpaid
minimum wages, unpaid overtime compensation, and “an additional
equal amount as liquidated damages” plus attorneys’ fees.
Travis, 921 F.2d at 111 (internal quotation marks omitted).
Upon enactment of the 1977 amendments, § 216(b) expressly
permitted courts to provide forms of relief beyond those
enumerated in the statute.
20

must

be

viewed

in

the

context

of

the

considerations underlying the two acts.”).

different

policy

For this reason,

ADEA cases holding that a plaintiff may not recover emotional
distress damages do not mandate – or even necessarily support the conclusion that such damages are unavailable under the FLSA.
Bogacki, 370 F.Supp. at 1205.
Because
paramount

“full

policy”

compensation
in

an

FLSA

is

the

evident

retaliation

purpose

action,

“the

and
more

reasoned approach” would permit a plaintiff who makes a proper
showing to recover damages for emotional distress.
355

F.3d

strength

at

563-64.

Neither

or

weakness

of

emotional distress.

party

here

Plaintiffs’

has

Id.; Moore,

addressed

evidence

of

the

alleged

Until the parties do so at trial, the court

cannot conclude – as a matter of law – “that damages for mental
anguish should be disallowed.”

11

Id. at 1205-06.11

Plaintiffs

Although a jury trial will now be held to determine the
amount of Plaintiffs’ damages from emotional distress, it is
worth noting that Plaintiffs would have been entitled to a jury
trial on the issue of lost wages regardless of whether emotional
distress damages were available under the FLSA. Lorillard, 434
U.S. at 580; see also Lewis v. Times Publ’g Co., 185 F.2d 457,
457 (5th Cir. 1950) (concluding that an FLSA action in which the
plaintiff sought a monetary award for unpaid wages required a
jury trial).
Indeed, the Fourth Circuit has previously
explained that awards for lost wages may constitute “legal
relief” in certain circumstances. Troy v. City of Hampton, 756
F.2d 1000, 1002-03 (4th Cir. 1985) (explaining that back pay
under the ADEA is “traditionally a legal remedy,” even though it
is an equitable remedy under other statutes, such as Title VII).
21

will be permitted to seek emotional distress damages through a
jury trial, and their motion on this issue will, therefore, be
granted.12
III. Plaintiffs’ Motion to Publish the Court’s August 8, 2011,
Opinion
Plaintiffs have also filed a motion requesting that the
court publish its August 8, 2011, memorandum opinion in the
Federal

Supplement.

They

articulate

no

reason

for

seeking

publication and acknowledge that “[t]here does not appear to be
a local rule governing the publication of opinions.”
106, at 1).

(ECF No.

Plaintiffs attempt to argue that Fourth Circuit

Local Rule 36(a) “provides guidance” on this issue.

(Id.).13

12

Plaintiffs submitted a jury instruction from the Third
Circuit regarding emotional distress damages in retaliation
cases, but neither party addressed the language of the
instruction in their motion papers.
Because the parties’
arguments center on the propriety of instructing the jury on
emotional distress damages, rather than on the language of the
instruction itself, the phrasing of the instruction that the
jury will receive need not be decided when resolving the
presently pending motions.
13

This local rule provides, in relevant part, as follows:
Opinions delivered by the Court will be
published only if the opinion satisfies one
or more of the standards for publication:
22

Local Rule 36(a), however, governs publication of decisions
by

the

Fourth

Circuit,

not

the

district

court.

Indeed,

“a

[district] court ordinarily is given broad discretion in the
writing and publication of its opinions.”
Corp.,

827

“precedential

F.2d

80,

weight”

(7th

83
of

Cir.

decisions

1987)

published

Krull v. Celotex
(discussing
in

the

the

Federal

Supplement (quoting Lowenschuss v. W. Publ’g Co., 542 F.2d 180,
183 (3d Cir. 1976))).
Plaintiffs’ request may stem from the mistaken belief that
opinions

published

in

the

Federal

Supplement

are

somehow

entitled to greater weight than those published on Westlaw or
LexisNexis.
[But w]hether a district court decision is
reported
in
the
Federal
Supplement
is
insignificant
in
the
modern
era
of
computerized
legal
research.
District
judges may decide to publish or not publish
a given decision in West’s bound volumes for
any number of reasons, but the fact of
publication in hard copy does not make a
district court decision any more or less

i.

It
establishes,
alters,
modifies,
clarifies, or explains a rule of law
within this Circuit; or
ii. It involves a legal issue of continuing
public interest; or
iii. It criticizes existing law; or
iv. It contains a historical review of a
legal rule that is not duplicative; or
v.
It resolves a conflict between panels
of this Court, or creates a conflict
with a decision in another circuit.
23

precedential or persuasive than one that is
only published electronically.
Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. BP Amoco P.L.C.,
319 F.Supp.2d 352, 362 n.6 (S.D.N.Y. 2004); see also Miner v.
Clinton Cnty., No. 8:06-CV-728 (GLS/RFT), 2009 WL 2156969, at *2
(N.D.N.Y.

July

16,

2009)

(“Contrary

to

plaintiffs’

counsel’s

contention, the fact that [a district court opinion] was not
published in the Federal Supplement is entirely immaterial to
its

weight.”);

Smith

v.

Astrue,

639

F.Supp.2d

836,

841-42

(W.D.Mich. 2009) (explaining that district court opinions are
merely persuasive authority for non-parties to a case, “whether
published in the Federal Supplement books or not”); Welch v.
Unum Life Ins. Co. of Am., 649 F.Supp.2d 1220, 1224 (“[T]he
court sees little relevance of whether the case is included in a
bound volume versus being available on-line.”).
Given
opinion

that

is

the

weight

unaffected

by

of

the

court’s

publication

and

August

8,

2011,

Plaintiffs

have

articulated no other basis for their request, the motion to
publish will be denied.
5287

OWW,

2006

WL

United States v. Arnett, No. CR-F-95-

2796448,

at

*22

(E.D.Cal.

July

20,

2006)

(denying a motion to publish where the petitioner provided no
authority to support the request); Cartwright v. District of
Columbia,

267

F.Supp.2d

83,

87

(D.D.C.

24

2003)

(denying

the

plaintiffs’ motion to publish and reasoning that the “motion
[was] not an appropriate issue for adjudication”).
IV.

ADT’s Motion to Identify a “Rebuttal” Expert
ADT moved to identify an expert to respond to Dr. Morse’s

amended report thirty days after its counsel had deposed Dr.
Morse about the report.

According to ADT, Rule 26(a)(2)(D)(ii)

gave ADT thirty days from the date of Dr. Morse’s deposition to
file its motion regarding the need for an expert.

ADT contends

that the court should grant its request because of opinions that
Dr.

Morse

February

“offered
20,

for

2012”

the

about

first

his

time

at

calculation

(ECF No. 94-1, at 1).14

mitigating income.

his
of

deposition
Ms.

on

Thompson’s

Plaintiffs oppose

this request, asserting that all opinions and methodology in Dr.
Morse’s amended report regarding this issue were set forth in
his initial report, which Plaintiffs submitted to ADT in July
2010.
At

the

outset,

despite

apparent

agreement

between

the

parties about the applicability of Rule 26(a)(2)(D)(ii) to this
issue,

that

rule

does

not

govern

here.

Rule

26(a)(2)(D)

provides, in relevant part, as follows:

14

Mitigating income refers to income that Ms. Thompson
earned following her termination from ADT. This income offsets
income purportedly lost as a result of the unlawful termination.
25

A party must make these [Rule 26(a)(2)]
disclosures at the times and in the sequence
that the court orders. Absent a stipulation
or court order, the disclosures must be
made: . . . (ii) if the evidence is intended
solely to contradict or rebut evidence on
the
same
subject
matter
identified
by
another party under Rule 26(a)(2)(B) or (C),
within 30 days after the other party’s
disclosure.
ADT asserts that the scheduling orders in this case did
“not specify a date by which [it] was to produce any rebuttal
reports.”

(ECF

No.

94-1,

at

2).

This

assertion,

however,

overlooks the fact that the court’s initial scheduling order
expressly stated that ADT would provide its expert disclosures
to Plaintiffs by July 7, 2010, thirty days after Plaintiffs’
expert

disclosures

were

due.

(ECF

No.

26).

ADT

clearly

understood this deadline to encompass identification of experts
prompted

by

Plaintiffs’

expert

disclosures,

as

the

company

subsequently requested that the court extend the due date for
its expert disclosures because it could “[]not properly evaluate
its

need

for

an

expert

witness

Morse’s [original] report.”
upon

the

order

to

parties’

request,

give

until

ADT

without

first

reviewing

(ECF No. 39, at 2).
the

court

September

26

10,

revised
2010,

the
to

Dr.

Ultimately,
scheduling
provide

its

expert

report

specified

Plaintiffs.15

to

the

deadline

for

Because

ADT’s

a

order

disclosures,

expert

scheduling

Rule

26(a)(2)(D)(ii) is inapplicable here, and ADT must satisfy Rule
16(b)’s good cause standard in order to modify the scheduling
order.

Akeva,

LLC

v.

Mizuno

Corp.,

212

F.R.D.

306,

309-10

(M.D.N.C. 2002).
“[A] scheduling order is not a frivolous piece of paper,
idly entered, which can be cavalierly disregarded by counsel
without peril.”
Supply,

Inc.,

Potomac Electric Power Co. v. Electric Motor
190

F.R.D.

quotation marks omitted)),
511 (D.Md. 2000).

372,

375

(D.Md.

1999)

(internal

reconsideration denied, 192 F.R.D.

The Rule 16(b) analysis thus focuses on the

timeliness of a requested amendment to the scheduling order and
requires the movant to show that it acted diligently.

Rassoull

v. Maximus, Inc., 209 F.R.D. 372, 374 (D.Md. 2002).

Indeed,

while the court may also consider factors such as whether the
non-moving party could be prejudiced by the delay and the length
of the delay, Tawwaab v. Va. Linen Serv., Inc., 729 F.Supp.2d
757, 768–69 (D.Md. 2010), “the primary consideration . . . in
[determin]ing whether ‘good cause’ has been shown under Rule

15

The parties did not thereafter request any additional
extensions of time with regard to ADT’s expert disclosures.
They did, however, request other revisions to the scheduling
order, such as an extended deadline for submission of
Plaintiffs’ amended expert reports.
27

16(b)

relates

to

the

movant’s

diligence,”

Reyazuddin

v.

Montgomery Cnty., Md., No. DKC 11-0951, 2012 WL 642838, at *3
(D.Md. Feb. 27, 2012).

“Lack of diligence and carelessness are

the ‘hallmarks of failure to meet the good cause standard.’”
Id.
Here,

ADT

has

failed

to

demonstrate

that

it

acted

diligently in moving to revise the scheduling order at this late
date.

On March 21, 2012, with trial slightly more than four

months

away,

purportedly

ADT
new

moved

to

opinions

identify

that

February 20, 2012, deposition.

Dr.

an

expert

Morse

to

offered

respond
during

to
his

According to ADT, until Dr.

Morse’s deposition, ADT was unaware that Dr. Morse had used the
net income listed on Ms. Thompson’s tax return to compute the
economic

loss

identify

an

determining

cited
expert

lost

in

his

who

amended

can

earnings

of

testify
the

report.
at

ADT

moves

to

trial

that

“when

self-employed,

there

is

a

distinction between net taxable income listed on a tax return
and economic income.”
also

testify

that

(ECF No. 94-1, at 4).
certain

expenses

on

ADT’s expert would

Schedule

C

of

Ms.

Thompson’s 2010 federal tax return “appear to be excessive.”
(Id.).

Through this testimony, ADT seeks to demonstrate that

the economic loss estimate provided by Dr. Morse is inflated,

28

and

that

the

loss

Ms.

Thompson

actually

suffered

was

significantly lower.
The problem with this effort is that ADT was on notice
about both of these issues as of July 2010, when Plaintiffs’
provided Dr. Morse’s original report to the company, but did not
identify an expert to address them.16

In the original report,

Dr. Morse stated that he calculated Ms. Thompson’s mitigating
income using an income figure from her 2009 federal tax return.
(ECF No. 94-2, at 2-4).

Plaintiffs provided ADT with a copy of

this tax return within days of submitting Dr. Morse’s original
report, and the return indicated that the income figure Dr.
Morse

used

receiving

was
this

Ms.

Thompson’s

information,

net

ADT

taxable
did

not

income.
make

Despite

any

expert

disclosures by the deadline it had requested in the scheduling
order.

Similarly, even though the expenses on Schedule C of Ms.

Thompson’s 2009 tax return were higher as a proportion of her
gross sales than the 2010 expenses ADT now challenges, ADT never
contended that these 2009 expenses were excessive or identified
an expert to testify about this issue at trial.

ADT’s failure

to

months

do

so

Plaintiffs’

16

until

March

disclosure

2012
of

–

more

Dr.

than

Morse’s

twenty

original

after

report

-

For this reason, the cases on which ADT relies to support
its motion – which involve new opinions that were not included
in earlier expert reports – are inapposite.
29

indicates a lack of diligence, warranting denial of its motion
to identify a “rebuttal” expert.

See Dag Enters., Inc. v. Exxon

Mobil Corp., 226 F.R.D. 95, 106-08 (D.D.C. 2005) (declining to
modify the scheduling order to permit additional discovery when
the plaintiffs were on notice about an issue well before the
time

when

they

requested

additional

discovery);

cf.

United

States v. 14.3 Acres of Land, more or less, situated in San
Diego Cnty., Ca., No. 07cv886-W(NLS), 2009 WL 249986, at *6-8
(S.D.Cal. Jan. 30, 2009) (refusing to permit the defendants to
designate

a

supplemental
forth

new

report

expert

in

report

response

where

the

the

same

conclusion

as

defendants

were

on

about

notice

the

to

the

Government’s

supplemental
original

the

report

report

relevant

and

issue

set
the

after

receiving the original report).
The fact that the trial is now less than two months away
supports

the

conclusion

that

ADT’s

motion

should

be

denied.

Indeed, if the court granted the motion, Plaintiffs would have
little

time

to

respond

to

the

report

of

ADT’s

expert,

particularly as it appears that the report has not yet been
prepared.

(ECF No. 94-1, at 7).

This lack of response time may

well prejudice Plaintiffs at trial.

See Benedict v. Zimmer,

Inc., 232 F.R.D. 305, 319 (N.D.Iowa 2005) (refusing to permit
the plaintiffs to submit expert reports after the deadline set
30

forth in the scheduling order and “little more than two months
in

advance

of

trial”

because

the

defendant

“would

have

insufficient time to prepare to refute the evidence at trial”).
Because ADT has wholly failed to demonstrate good cause, its
motion to identify an expert to respond to Dr. Morse’s amended
report will be denied.17
V.

Motions to Seal
Both parties have also filed motions to seal.

A motion to

seal must comply with Local Rule 105.11, which provides:
Any motion seeking the sealing of pleadings,
motions, exhibits or other papers to be
filed in the Court record shall include (a)
proposed
reasons
supported
by
specific
factual
representations
to
justify
the
sealing
and
(b)
an
explanation
why
alternatives to sealing would not provide
sufficient protections.
The Court will not
rule upon the motion until at least 14 days
after it is entered on the public docket to
permit
the
filing
of
objections
by
interested parties.
Materials that are the
subject
of
the
motion
shall
remain
temporarily sealed pending a ruling by the
Court.
If the motion is denied, the party
making
the
filing
will
be
given
an
opportunity to withdraw the materials.

17

Denial of ADT’s motion does not prevent its counsel from
emphasizing the potential weaknesses in Dr. Morse’s methodology
at trial.
Much like the process employed during Dr. Morse’s
deposition, counsel may cross-examine Dr. Morse about the reason
he used Ms. Thompson’s net income instead of her gross sales
income when calculating mitigating income and whether he
assessed the reasonableness of her Schedule C expenses in
determining this value.
31

This rule endeavors to protect the common law right to
inspect and copy judicial records and documents, Nixon v. Warner
Commc’ns, Inc., 435 U.S. 589, 597 (1978), while recognizing that
competing

interests

sometimes

outweigh

the

public’s

right

of

access, In re Knight Publ’g Co., 743 F.2d 231, 235 (4th Cir.
1984).
Before sealing any documents, the court must provide the
non-moving

party

with

notice

opportunity to object.
satisfied

by

either

of

Id.
notifying

the

request

to

seal

and

an

This notice requirement may be
the

persons

present

in

the

courtroom or by docketing the motion “reasonably in advance of
deciding the issue.”

Id. at 234.

Finally, the court should

consider less drastic alternatives to sealing, such as filing
redacted versions of the documents.
sealing

is

appropriate,

it

If the court decides that

should

also

provide

reasons,

supported by specific factual findings, for its decision to seal
and for rejecting alternatives.
ADT

seeks

to

seal

Id. at 235.

certain

exhibits

(or

portions

of

exhibits) filed in connection with its motion to identify a
“rebuttal” expert, as well as portions of the memorandum it

32

submitted in support of that motion.18
one

exhibit

(Ms.

Thompson’s

2009

Plaintiffs seek to seal

tax

return)

submitted

in

conjunction with their opposition to ADT’s motion to identify a
“rebuttal” expert.

These motions stand unopposed despite having

been on the docket for at least two months, and Plaintiffs’
motion is in fact a consent motion.

All of the documents the

parties wish to seal have been produced pursuant to a stipulated
protective order under a “confidential” designation.

Given that

these documents contain Ms. Thompson’s tax returns and other
personal

financial

data

designation is warranted.

or

discuss

such

information,

this

See Pittston Co. v. United States,

368 F.3d 385, 406 (4th Cir. 2004) (affirming decision to seal
certain

“confidential,

proprietary,

commercial,

or

financial

data” that was produced under a protective order); TransPacific
Tire & Wheel, Inc. v. Orteck Int’l, Inc., No. DKC 2006-0187,
2010 WL 2774445, at *3 (D.Md. July 13, 2010) (granting a motion
to

seal

tax

returns

attached

to

a

motion),

aff’d

on

other

grounds, 457 F.App’x 256 (4th Cir. 2011) (unpublished opinion).
These materials will, therefore, be sealed.

18

Specifically, ADT seeks to seal entirely the exhibit
consisting of Ms. Thompson’s 2010 tax return and other personal
financial data (ECF No. 94-4), and to seal in part references in
its memorandum and other exhibits to this information (ECF No.
94-1, at 2-3; ECF No. 94-2, at 3, 8, 9, 16, 17, 24, 25; ECF No.
94-3, at 7, 8, 15, 16, 23, 24; 94-5 at 4, 5).
33

VI.

Conclusion
For the foregoing reasons, Plaintiffs’ “motion for trial

date and for punitive damages instruction” will be granted in
part and denied in part, while their “motion to publish” will be
denied.

ADT’s motion to identify a “rebuttal” expert will also

be denied.

The parties’ motions to seal will be granted.

separate Order will follow.

/s/
_______
DEBORAH K. CHASANOW
United States District Judge

34

A