Brown v. Pizza Hut of America

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 22 1997
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
SHERI L. BROWN,
Plaintiff-Appellee-
Cross-Appellant,
Nos. 96-6244
v. &
96-6260
PIZZA HUT OF AMERICA (D.C. No. CIV-95-1293-C)
INCORPORATED, Delaware (W.D. Okla.)
corporation,
Defendant-Appellant-
Cross-Appellee.
ORDER AND JUDGMENT *
Before BRORBY, BARRETT, and LUCERO, Circuit Judges.
*
At the parties’ request, the case is unanimously ordered submitted without
oral argument pursuant to the applicable rules. This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Plaintiff, a former Pizza Hut restaurant manager, prevailed at trial on her
claim under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219, that she
was constructively discharged by defendant Pizza Hut in retaliation for
complaining about its break policy and nonpayment of overtime compensation.
The jury awarded Brown $2,500.00 in unpaid overtime; $34,394.17 in back pay;
and a lump sum of $15,605.83 in compensatory damages. Under the jury
instruction and verdict form, the compensatory damage award may have included
front pay as well as damages for other, nonpecuniary losses. See Appellant’s
App. at 40-41, 50. At Brown’s request, the district court awarded her an
additional amount as liquidated damages equal to the jury’s unpaid overtime and
back pay awards under 29 U.S.C. § 216(b).
On appeal, Pizza Hut contends that the district court erred in doubling the
back pay award on Brown’s retaliation claim. Pizza Hut argues that the
liquidated damages award improperly duplicates damages provided by the jury in
its compensatory damages award. Brown contends on cross-appeal that the
district court was required by the statute to double the jury’s compensatory
damages award as well as the back pay and overtime awards. We exercise
jurisdiction under 28 U.S.C. § 1291, and affirm.
The parties do not agree on the appropriate standard of review. Pizza Hut
argues that we should review the district court’s interpretation of the statute de
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novo, while Brown argues that we should review the district court’s award of
liquidated damages only for abuse of discretion. We see no inconsistency in these
contentions. Pizza Hut’s claim that the district court wrongly interpreted 29
U.S.C. § 216(b) raises a legal issue that we review de novo. See Burlington
N.R.R. v. Huddleston, 94 F.3d 1413, 1416 (10th Cir. 1996). To the extent a
proper interpretation of the statute gives the district court discretion, however, we
review its action under the statute only for abuse of discretion. See Crenshaw v.
Quarles Drilling Corp., 798 F.2d 1345, 1351 (10th Cir. 1986). With these
standards in mind, we turn to the merits.
The liquidated damages award provided in the first sentence of § 216(b) 1--
for violations of the FLSA’s minimum wage and overtime compensation
provisions--is intended to compensate the plaintiff for “damages too obscure and
1
The first two sentences of 29 U.S.C. § 216(b) state:
Any employer who violates the provisions of section 206 [minimum
wages] or section 207 [overtime compensation] of this title 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) [retaliatory discharge] 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.
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difficult of proof for estimate other than by liquidated damages.” Overnight
Motor Transp. Co. v. Missel, 316 U.S. 572, 583-84 (1942). The statutory
language gives us no reason to conclude that the award of liquidated damages
provided in the second sentence of § 216(b)--for violations of the FLSA’s
retaliation provision--is intended to serve a different purpose.
Whether the provision for an award of liquidated damages in retaliation
cases is discretionary or mandatory is a separate question. Although we have held
that the award of liquidated damages in wage and overtime cases provided in the
first sentence of § 216(b) is mandatory unless the district court finds that the
employer acted reasonably and in good faith, as provided in 29 U.S.C. § 260, see,
e.g. Crenshaw, 798 F.2d at 1351 (case involving overtime provision of FLSA);
Doty v. Elias, 733 F.2d 720, 725-26 (10th Cir. 1984) (case involving minimum
wage provision of FLSA), we have not yet had occasion to consider whether the
liquidated damages award provided in the second sentence of the statute--for
violations of the FLSA’s retaliatory conduct provision--is mandatory or
discretionary. Compare Blanton v. City of Murfreesboro, 856 F.2d 731, 737 (6th
Cir. 1988), and York v. City of Wichita Falls, 763 F. Supp. 876, 880 (N.D. Tex.
1990), and Professional Firefighters Ass’n v. City of Clayton, 759 F. Supp. 1408,
1413-14 (E.D. Mo. 1991), with Avitia v. Metropolitan Club of Chicago, Inc., 49
F.3d 1219, 1226, 1232 (7th Cir. 1995), and Lowe v. Southmark Corp., 998 F.2d
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335, 337 (5th Cir. 1993). We need not determine this issue today. Whether
mandatory or discretionary, the plain language of the second sentence of § 216(b)
clearly implies that only “wages lost” are subject to doubling in a retaliation case.
If the award of liquidated damages on Brown’s back pay award (which obviously
represents lost wages) is mandated by § 216(b), then Pizza Hut cannot show that
the district court erred in making the award.
Even if the award is discretionary, the only compensatory damages that
could arguably be improperly duplicated by the liquidated damages award on back
pay are those awarded for nonpecuniary losses, and Pizza Hut cannot show what
portion of Brown’s lump-sum compensatory damages award represents
nonpecuniary losses. According to the jury instruction and the verdict form,
Brown’s compensatory damages award might include front pay and/or
compensation for “future losses, emotional pain, suffering, inconvenience, mental
anguish, and loss of enjoyment of life.” Appellant’s App. at 40, 50. Pizza Hut
has not in any way indicated that it objected in the district court to both pecuniary
and nonpecuniary damages being combined on the verdict form and, accordingly,
it has waived any objection to the district court’s treatment of this award. Cf.
Patton v. TIC United Corp., 77 F.3d 1235, 1241 (10th Cir.), cert. denied, 116 S.
Ct. 2525 (1996); Fortier v. Dona Anna Plaza Partners, 747 F.2d 1324, 1337 (10th
Cir. 1984); Dixson v. Newsweek, Inc., 562 F.2d 626, 631 (10th Cir. 1977).
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By the same token, Brown cannot prevail on her cross-appeal that § 216(b)
mandates that her compensatory damages award be doubled. Although front pay
at least arguably constitutes lost wages, Brown cannot show what portion of her
lump-sum compensatory damages award represents front pay. There is no
indication in the record that Brown objected to both pecuniary and nonpecuniary
damages being combined on the verdict form and, as a result, she cannot show
that the district court erred in declining to double her compensatory damages
award.
AFFIRMED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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