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Alicia Netterville joined the firm as a part of the Construction and Litigation groups after completing a clerkship with the Honorable Carlton W. Reeves of the U.S. District Court, Southern District of Mississippi. She graduated from the University of Mississippi School of Law (magna cum laude), where she served on the Mississippi Moot Court Board and the Dean’s Leadership Council. She was also a member of the Black Law Students Association, the Mississippi Defense Lawyers Association and the Public Interest Law Foundation. View articles by Alicia

EEOC Pulls the Hood Off of Employer’s Attempt to Retaliate against Its EmployeeCan an employer force an employee to agree that his complaints have been adequately addressed? On April 26, the EEOC announced that Downhole Technology LLC will pay a former employee $120,000 and provide other relief after it terminated an employee who refused to do just that.

In Equal Opportunity Equal Employment Opportunity Commission v. Downhole Technology LLC, Kenneth Echols, an African-American employee, reported that white coworkers wore white hoods similar to those used by the Ku Klux Klan to intimidate him. After the report, Echols later reported that those same employees physically and verbally threatened him.

The EEOC alleged that, instead of addressing the reported incidents, Downhole asked Echols to sign an agreement stating that he had not been harassed because of his race and that Downhole had adequately addressed his concerns. When Echols refused, Downhole terminated him despite a prior unblemished employment record.

The EEOC filed suit against Downhole alleging violations of Title VII. Shortly after the lawsuit was filed and after extensive negotiations, the EEOC and the company resolved the claim which led to a two-year consent decree. Under that decree, Downhole Technology must:

  • Pay Echols $120,000 in monetary relief;
  • Give Echols a job recommendation by a senior level manager;
  • Not discuss, mention, or allude to Echols’ charge of discrimination;
  • Exclude any information regarding the charge of discrimination from Echols’ personnel file;
  • Designate and train a liaison to conduct annual training on employees’ rights under Title VII and avoiding unlawful discrimination in the workplace;
  • Adopt an anti-discrimination policy that meets minimum requirements as set out in the decree; and
  • Maintain a toll-free telephone number for employees to report any alleged discrimination.

Obviously, we don’t know what exactly happened in this case—only what the plaintiff and the EEOC alleged. However, as reported in the complaint, this case is a cautionary tale about how NOT to conclude a harassment investigation. Although, an employer has the right to ask for a waiver of past employment claims in exchange for severance payments when the relationship is ending, the significant fact here is that the employee would have continued to be employed with his complaints of harassment allegedly unaddressed to his satisfaction. Even under these alleged facts, Downhole could have just agreed to disagree with Mr. Echols—who could have then filed his harassment complaint while he continued as an employee. Downhole could then have defended the harassment complaint based on its investigation and the fact that it had stopped the conduct as soon as it was brought to its attention. Significantly, it may have been able to avoid the retaliation claim.

age discriminationCan a plaintiff get pain and suffering or punitive damages in a retaliation claim under the Age Discrimination in Employment Act (ADEA)? In Vaughan v. Anderson Regional Medical Center, the Fifth Circuit, denying both an interlocutory appeal and a petition for rehearing, says “no”.

Legal Framework.

As we all know, the ADEA explicitly limits a successful plaintiff’s recovery to lost wages and liquidated damages, following the damages scheme of the Fair Labor Standards Act rather than Title VII. However, both the ADEA and the FLSA provide for retaliation claims and that is where the similarity in damages ends (at least in the Fifth Circuit). In 1977, Congress amended the FLSA to provide for compensatory and punitive damages in a retaliation case. Congress did not amend the ADEA.

Facts and Arguments in Vaughan.

Susan L. Vaughan, who worked for Anderson Regional Medical Center as a nurse supervisor, sued claiming she was terminated because of her age and in retaliation for complaining about her supervisor’s discriminatory comments relating to her age. While Vaughan conceded that she could not receive pain and suffering or punitive damages for her age discrimination claim, she argued those damages were available for her retaliation claim. ARMC filed a motion to dismiss the claim for those damages. The trial court dismissed Vaughan’s claims, relying on Dean v. American Sec. Ins. Co., 1977 Fifth Circuit precedent that barred those damages under the ADEA.

On interlocutory appeal, Vaughan pointed to Seventh and Eleventh Circuit cases, and EEOC advisory guidance, that supported her claim for these damages for her ADEA retaliation claim. Given that Dean explicitly prohibited the damages for age discrimination claims but did not mention retaliation claims, she argued that it silently excluded ADEA retaliation claims from its ruling. Vaughan also argued that because the Fifth Circuit interprets the FLSA to provide remedies consistent with the ADEA, the 1977 amendment to FLSA retaliation remedies enlarged the ADEA retaliation remedies as well. The Fifth Circuit disagreed on both counts, affirming the trial court, holding that Dean is the controlling law for all ADEA damages claims and was unaffected by the 1977 FLSA amendment.

But What About FLSA Retaliation Claims in the Fifth Circuit?

Three days prior to its Vaughan ruling, however, the Fifth Circuit in Pineda v. JTCH Apts., LLC, ruled that the 1977 amendment did allow emotional distress damages in FLSA claims.  So– does the Fifth Circuit still interpret the FLSA to provide remedies consistent with the ADEA? That is the question that Vaughan and the AARP, as Amici Curiae, asked in a petition for rehearing and en banc consideration. Given that the two cases use the same statute for damages the opinions appear a little contradictory. Not so, says the Fifth Circuit—which withdrew its prior opinion in Vaughan and issued a new opinion with the same holding and almost exact same reasoning. Bottom line, the Fifth Circuit has made clear that Dean controls all claims under the ADEA, including retaliation claims.

What Does This Mean?

The Fifth Circuit appears to have deviated from its position that damages for retaliation claims under the FLSA and the ADEA will be interpreted consistently and seems to be holding steady that ADEA retaliation only gets liquidated damages. As Vaughan pointed out, however, some other circuits and the EEOC believe that emotional distress and punitive damages are available for ADEA retaliation claims. For employers, this decision emphasizes the importance of avoiding potential retaliation claims under the ADEA or any other law.