West et al v. City of Holly Springs, Mississippi et al

Filing 185

ORDER regarding punitive damages. Signed by District Judge Michael P. Mills on 06/12/2019. (rmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
BOBBY WEST, ET AL.

PLAINTIFFS

VS.

CAUSE NO. 3:16CV79-MPM-RP

CITY OF HOLLY SPRINGS, MISSISSIPPI, ET AL.

DEFENDANTS

ORDER
During the late stages of the trial in this matter, defendant City of Holly Springs raised,
for the first time, an argument that punitive damages are not available in FLSA retaliation cases.
Defendant did not mention this issue in either summary judgment briefing or in the pretrial order,
and it initially submitted its own proposed instruction on the punitive damages issue. While the
court does not find defendant’s arguments on this issue to have been waived, the late hour at
which they were raised does serve to drastically reduce the amount of time which it has had to
consider it. With this caveat, this court will briefly set forth its ruling on this issue.
Based upon this court’s rather hurried research, there is a split among circuit courts
regarding the availability of punitive damages in FLSA retaliation cases. Compare Shea v.
Galaxie Lumber & Const. Co., 152 F.3d 729, 734 (7th Cir. 1998)(punitive damages available in
FLSA retaliation cases) with Snapp v. Unlimited Concepts, Inc., 208 F.3d 928, 934 (11th Cir.
2000)(punitive damages not available). While the Fifth Circuit does not appear to have directly
addressed this issue, a Texas district court concluded, based on the Fifth Circuit’s decision in
Dean v. Am. Sec. Ins. Co., 559 F.2d 1036, 1039 (5th Cir.1977), that it would likely reject the

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awarding of punitive damages in FLSA retaliation cases. In so concluding, U.S. District Judge
Kathleen Cardone wrote in a 2010 order that:
Just as it held with respect to emotional distress damages, the Fifth Circuit in Dean held
that punitive damages are unavailable under the ADEA. 559 F.2d at 1038. As discussed
above, because the ADEA and FLSA must be interpreted consistently with respect to
remedies, this Court must hold that punitive damages are not recoverable in an antiretaliation claim brought under the FLSA.
Douglas v. Mission Chevrolet, 757 F. Supp. 2d 637, 640 (W.D. Tex. 2010). Judge Cardone thus
concluded, based on Dean, that neither emotional distress nor punitive damages were available
in FLSA retaliation cases.
If this court had considered this issue in 2010, it might well have reached the same result
as Judge Cardone. As it happens, however, this court has the benefit of the Fifth Circuit’s 2016
decision in Pineda v. JTCH Apartments, L.L.C., 843 F.3d 1062 (5th Cir. 2016), which counsels
in favor of a different result here. In Pineda, the Fifth Circuit found that emotional distress
damages are, in fact, available in FLSA retaliation cases. Pineda, 843 F.3d at 1066. Moreover,
while the Fifth Circuit in Pineda did not address the availability of punitive damages in FLSA
retaliation cases, it appeared to reject the application of Dean’s ADEA-based holding in the
FLSA context. Specifically, the Fifth Circuit emphasized in Pineda that Dean applied the “pre1977 FLSA” which “limited relief to economic damages and did not even allow private
retaliation suits.” Id. at 1065. The Fifth Circuit further wrote in Pineda that:
[T]he final “as may be appropriate to effectuate the purposes” phrase on which Dean
focuses warrant a different result when it comes to the FLSA retaliation provision. The
FLSA has no comparable legislative preference for the ADEA’s administrative
conciliation and mediation scheme that motivated the ruling in Dean. . . . We thus
conclude that our case law interpreting the ADEA is no obstacle to joining other circuits
in deciding that the FLSA’s broad authorization of “legal and equitable relief”
encompasses compensation for emotional injuries suffered by an employee on account of
employer retaliation.

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Id. As noted by Judge Cardone in Douglas, it is Dean which provides the strongest argument
that the Fifth Circuit would reject punitive damages in the FLSA retaliation context. Given that
Pineda appeared to disavow Dean in the FLSA context, this certainly seems to increase the
likelihood that the Fifth Circuit would follow the lead of the Seventh Circuit and hold that
punitive damages are available in FLSA retaliation cases.
For its part, this court can discern legitimate arguments on both sides of this issue, and it
offers no firm opinion on how the Fifth Circuit will eventually resolve it. This court does believe,
however, that the facts of this case provide some support for keeping punitive damages as one
option in FLSA retaliation cases. In concluding that punitive damages should not be allowed in
ADEA cases, the Fifth Circuit in Dean relied heavily upon the fact that liquidated damages were
available under that statute. Dean, 559 F.2d at 1039. (“The provisions for liquidated damages
for willful violation of the Act and its silence as to punitive damages convinces us that the
omission of any reference thereto was intentional.”). While the FLSA similarly allows for the
possibility of liquidated damages, such damages are calculated by doubling the lost wages which
are awarded. The simple fact, however, is that there are many plaintiffs who suffer from a form
of retaliation which results in no lost wages and who thus have no apparent basis for seeking
liquidated damages.
In this case, for example, plaintiff Coya Jackson alleges that defendant filed baseless
criminal charges against him in retaliation for this lawsuit. Clearly, there are no lost wages
involved in Jackson’s claim, and liquidated damages are thus not applicable with regard to that
claim. And yet it could scarcely be denied that filing baseless criminal charges is a very serious
form of retaliation as to which punitive damages might be considered an appropriate sanction, at
least in some cases. In light of the foregoing, it is unclear to this court why punitive damages

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should be taken off the table as one potential remedy based upon the existence of a liquidated
damages remedy which is not even available to many retaliation plaintiffs.
It is unclear exactly what standards the Fifth Circuit would apply in the FLSA punitive
damages context if it chooses to recognize them, but it seems likely that it would apply the
standards adopted by the U.S. Supreme Court in Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 535,
119 S.Ct. 2118, 2124 (1999). The Fifth Circuit has applied Kolstad in a number of employment
discrimination contexts, and it largely requires a showing that the employer knew that its actions
were contrary to federal law. As noted by the Fifth Circuit in a 2007 decision:
In Kolstad, the Court laid out the necessary evidentiary burden for a title VII plaintiff to
recover punitive damages. The defendant employer “must at least discriminate in the face
of a perceived risk that its actions will violate federal law.” Kolstad, 527 U.S. at 536, 119
S.Ct. 2118. Even intentional discrimination may not meet this standard where the
employer is “unaware of the relevant provision” or “discriminates with the distinct belief
that its discrimination is lawful.” Id. at 537, 119 S.Ct. 2118. The plaintiff must impute
liability to the defendant company through some theory of vicarious liability, id. at 539,
119 S.Ct. 2118, and must overcome the employer's good-faith exception.
E.E.O.C. v. Stocks, Inc., 228 F. App'x 429, 431 (5th Cir. 2007).
With these standards in mind, this court notes that it has found triable fact issues with
regard to whether three of the seven FLSA plaintiffs in this case were retaliated against. This
strikes this court as a rather high rate of alleged retaliation. This alleged retaliation took on quite
serious forms, including termination and the filing of criminal charges. Given the serious and
pervasive nature of the alleged retaliation in this case, this court concludes that, if defendant
actually committed these acts of retaliation, it did so “in the face of a perceived risk that its
actions will violate federal law” within the meaning of Kolstad. Indeed, the Fifth Circuit in
Pineda appeared to find that FLSA retaliation claims involve the sort of misconduct which
would tend to make punitive damages appropriate, writing that while “an employer can
inadvertently pay less than the law requires . . . it cannot unintentionally retaliate against an
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employee who complains about it.” Pineda, 843 F.3d at 1064–65. This language appears to
increase the likelihood that the Fifth Circuit would want to at least keep punitive damages as an
option in FLSA retaliation cases.
As a final note, this court is of the view that considerations of judicial economy support
allowing the jury in this case to at least make findings on the issue of punitive damages to
maximize the options which are available to the Fifth Circuit on appeal. If this court were to
prevent the jury from ruling on the punitive damages issue, then the Fifth Circuit would be
forced to remand this case for a new trial on damages in the event that it concluded that punitive
damages are, in fact, available in FLSA retaliation cases. By contrast, if the Fifth Circuit should
conclude on appeal that punitive damages are not available in FLSA retaliation cases, then it can
simply vacate any award of punitive damages in this case. This court therefore concludes that it
should at least make a record regarding the punitive damages issue in this case, and it will
instruct the jury to render verdicts on this issue. With regard to the contents of the punitive
damages jury instruction, defendant submitted a proposed instruction which reflects its view of
the proper punitive jury instruction, in the event that they are available. Plaintiffs have advised
this court that they do not object to this proposed instruction, and it will accordingly be granted
as submitted.
This, the 12th day of June, 2019.
/s/ Michael P. Mills
U.S. DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI

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