The Fifth Circuit has long held that pain and suffering damages and punitive damages are not recoverable under the ADEA. The Fifth Circuit has also expressed its intent to interpret remedies under the ADEA and FLSA consistently with each other since the ADEA incorporates the FLSA’s remedies provision. Thus, you would think that pain and suffering and punitive damages would not be recoverable in a FLSA retaliation case.

Not so fast. In a decision issued on December 16, 2016, a three-judge panel reaffirmed that pain and suffering and punitive damages are not recoverable for ADEA discrimination or retaliation claims. Only three days later, however, another Fifth Circuit panel issued a decision finding that emotional distress damages are recoverable in FLSA retaliation cases. In so holding, the two panels cited the same 1977 seminal case, Dean v. American Security Insurance Co., but reached different conclusions under similarly worded provisions of the two statutes. Obviously, the two panels did not interpret remedies available under the ADEA and the FLSA consistently.

In Vaughan v. Anderson Regional Medical Center, a nurse supervisor filed a wrongful termination lawsuit against her employer alleging that it discharged her in retaliation for raising age-discrimination complaints. Relying on Dean, the panel affirmed the district court’s ruling dismissing claims for pain and suffering damages and punitive damages under the ADEA. (The Seventh Circuit and the EEOC hold a divergent view on this question as to ADEA retaliation claims).

In Vaughan, the court rejected the plaintiff’s argument that the 1977 FLSA amendments to the remedies provisions provided for retaliatory discharges constituted an intervening change in the law by virtue of the Fifth Circuit’s expressed intention to interpret remedies under the FLSA and the ADEA consistently. Nevertheless, the Fifth Circuit held that the 1977 FLSA amendments do not unseat the holding in Dean, because the amendments added language to the FLSA that that was strikingly similar to the language of the ADEA already interpreted in Dean. Therefore, the Vaughan panel found that the “1977 FLSA amendments simply brought the FLSA’s remedies for employer retaliation into line with the ADEA’s remedies for similar conduct.” The ADEA damages provision was in place before the Dean decision, and despite this, the Dean court still rejected pain and suffering damages for claims brought under the ADEA.

On the other hand, in Pineda v. JTCH Apartments, LLC, a ruling by a different three-judge panel in the Fifth Circuit, held that employees suing for retaliation under the FLSA may recover pain and suffering damages, stating that Dean was “no obstacle” to its holding. The plaintiff sued for overtime pay and claimed that the employer retaliated against him after he filed his lawsuit. The Fifth Circuit’s decision joins in the interpretations previously applied in decisions by the Seventh and Sixth Circuits.

In reaching its conclusion, the Pineda court noted that Dean predated FLSA amendments allowing private retaliation suits and enlarging the damages provision. Indeed, this was the argument made by the plaintiff in Vaughan and rejected just three days earlier. Ultimately, the Pineda court determined that the ADEA damages provision includes additional language that distinguishes it from the FLSA damages provision.

While the Pineda decision clarified that Dean is still good law, the reasoning in the Pineda and Vaughan decisions appear to be inconsistent. Given the Fifth Circuit’s stated desire for remedies provisions under the FLSA and the ADEA to be interpreted consistently, a decision by a full panel of the Fifth Circuit may be necessary to clarify the seemingly conflicting determinations. In both the Pineda and Vaughan, a rehearing en banc is being requested. Until then, claims for emotional distress and punitive damages under the ADEA will be subject to dismissal in the Fifth Circuit, but such claims will be allowed in FLSA retaliation cases.