                                                                        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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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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