     Case: 16-60104   Document: 00513877675     Page: 1   Date Filed: 02/15/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals

                                 No. 16-60104
                                                                        Fifth Circuit

                                                                      FILED
                                                               February 15, 2017

SUSAN L. VAUGHAN,                                                Lyle W. Cayce
                                                                      Clerk
             Plaintiff - Appellant

v.

ANDERSON REGIONAL MEDICAL CENTER,

             Defendant - Appellee




                Appeal from the United States District Court
                  for the Southern District of Mississippi


Before BENAVIDES, HAYNES, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      Treating Appellant’s Petition for Rehearing En Banc as a Petition for
Panel Rehearing, the Petition is DENIED. We withdraw the prior opinion and
substitute the following.
      This single-issue interlocutory appeal arises out of a wrongful
termination lawsuit filed by Susan Vaughan, a nurse supervisor, against
Anderson Regional Medical Center. Vaughan alleges the Medical Center
discharged her in retaliation for raising age-discrimination complaints.
Vaughan’s claims invoke the Age Discrimination in Employment Act (ADEA),
and she seeks, among other things, damages for pain and suffering and
punitive damages.
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                                       No. 16-60104
       The district court dismissed Vaughan’s claims for pain and suffering
damages and punitive damages because Fifth Circuit precedent bars such
recoveries under the ADEA. The district court’s dismissal order did, however,
note divergent views held by other circuits and the Equal Employment
Opportunity Commission. Finding the damages issue “a controlling question
of law as to which there is substantial ground for difference of opinion,” the
district court certified an appeal to this Court under 28 U.S.C. § 1292(b). We
granted leave to file an interlocutory appeal.
       The district court correctly concluded that Dean v. Am. Sec. Ins. Co., 559
F.2d 1036 (5th Cir. 1977) requires dismissal of Vaughan’s pain and suffering
and punitive damages claims. 1 Accordingly, we AFFIRM.
                                    JURISDICTION
       We have jurisdiction over Vaughan’s interlocutory appeal pursuant to 28
U.S.C. § 1292(b). The district court properly exercised its jurisdiction over the
federal statutory claim under 28 U.S.C. § 1331.




       1 To avoid any confusion of terms, this opinion uses the phrase “pain and suffering
damages” as a more precise method of referencing the “general compensatory damages” Dean
foreclosed. Dean’s convention of referring to pain and suffering damages, which a plaintiff
may not recover under the ADEA, as “general compensatory damages” does not prevent other
types of ADEA recoveries our precedents sometimes label “compensatory,” such as back pay
awards. See Dean, 559 F.2d at 1039 (recognizing availability of ADEA back pay awards); see
also Tyler v. Union Oil Co. of Cal., 304 F.3d 379, 400–02 (5th Cir. 2002) (referring to a
permissible     ADEA       back     pay      award     as     “compensatory    damages”).

         The Medical Center’s motion below sought dismissal of all “compensatory” damages
claims, “including but not limited to deep pain, humiliation, anxiety and emotional distress,”
and its appellate briefing phrases the question before this court as “whether a plaintiff can
be awarded general compensatory (e.g., pain and suffering) and/or punitive damages for an
ADEA retaliation claim,” Appellee’s Br. at 1. We emphasize that the examples of damages
the Medical Center identifies—damages we hold Dean forecloses in all private ADEA
actions—should not be read to limit the availability of other types of monetary damages the
ADEA plainly permits, such as back pay awards.


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                          STANDARD OF REVIEW
      The district court dismissed Vaughan’s damages claims pursuant to Fed.
R. Civ. P. 12(b)(6). Accordingly, this Court reviews the decision below de novo,
“accepting all well-pleaded facts as true and viewing those facts in the light
most favorable to the plaintiff.” True v. Robles, 571 F.3d 412, 417 (5th Cir.
2009). “Dismissal is appropriate when the plaintiff has not alleged ‘enough
facts to state a claim to relief that is plausible on its face’ and has failed to
‘raise a right to relief above the speculative level.’” Id. (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555, 570 (2007)).
                                   ANALYSIS
      The parties dispute Dean’s applicability. The district court relied upon
Dean below, but certified its ruling for interlocutory review after recognizing a
circuit split regarding the availability of pain and suffering and punitive
damages in ADEA retaliation cases.
      This Court adheres to a “rule of orderliness,” under which a panel may
not overturn a controlling precedent “absent an intervening change in law,
such as by a statutory amendment, or the Supreme Court, or our en banc court.
Indeed, even if a panel’s interpretation of the law appears flawed, the rule of
orderliness prevents a subsequent panel from declaring it void.” Sprong v.
Fidelity Nat’l Property & Cas. Ins. Co., 787 F.3d 296, 305 (5th Cir. 2015) (block
quotation and citation omitted). To decide whether the rule of orderliness
applies, we must therefore analyze whether: (1) Dean is distinguishable from
this case; or (2) an intervening change in law justifies setting Dean aside.
      We conclude that the answer to both questions is “no.”
           I.   Dean is not distinguishable
      We perceive no basis upon which to distinguish Dean. Vaughan concedes
that Dean forecloses pain and suffering and punitive recoveries for ADEA age


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discrimination claims, see Appellant’s Br. at 2, but suggests that Dean does not
control ADEA retaliation claims. We disagree.
      Dean held in unqualified terms that “neither general damages [i.e.,
compensatory damages for pain and suffering] nor punitive damages are
recoverable in private actions posited upon the ADEA.” Dean, 559 F.2d at 1040.
ADEA age discrimination and retaliation claims are equally “private actions
posited upon the ADEA,” and the ADEA has contained a prohibition on
employer retaliation since its inception. See Age Discrimination in
Employment Act of 1967, Pub. L. 90-202 at § 4(d), 81 Stat. at 603 (1967) (“It
shall be unlawful for an employer to discriminate against any of his employees
or applicants for employment, for an employment agency to discriminate
against any individual, or for a labor organization to discriminate against any
member thereof or applicant for membership, because such individual,
member or applicant for membership has opposed any practice made unlawful
by this section, or because such individual, member or applicant for
membership has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or litigation under this Act.”) (current
version at 29 U.S.C. § 623(d)). A plaintiff could file a retaliation claim under
the ADEA when we decided Dean, and Dean contains no suggestion that its
holding regarding damages for “private actions posited upon the ADEA”
silently excluded ADEA retaliation actions. See Dean, 559 F.2d at 1036.
      Dean’s holding therefore controls this case if, as we will conclude below,
no intervening changes in law undermine its continued vitality.
         II.   No intervening change in law justifies setting Dean
               aside
      Vaughan’s effort to undermine Dean relies heavily upon the 1977
amendments to the remedies provided for retaliatory discharges under the
Fair Labor Standards Act (FLSA), a statute we interpret to provide remedies

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“consistent” with the ADEA. 2 Vaughan’s argument that the 1977 FLSA
amendments enlarged the remedies available for ADEA retaliation claims
finds support in the decisions of at least one circuit, and the EEOC endorses
that interpretation. See Moskowitz v. Trustees of Purdue Univ., 5 F.3d 279, 284
(7th Cir. 1993) (indicating that the 1977 FLSA amendments “enlarge[d] the
remedies . . . beyond those standardly available for . . . ADEA . . . violations”
when a plaintiff brings retaliation claims); see also EEOC Directive No.
915.004, EEOC Enforcement Guidance on Retaliation and Related Issues, at n.
186 (Aug. 25, 2016) (“The FLSA, as amended in 1977, 29 U.S.C. § 216(b),
authorizes compensatory and punitive damages for retaliation claims under
. . . the ADEA.”), available at https://www.eeoc.gov/laws/guidance/retaliation-
guidance.cfm#_ftnref186 (last accessed Dec. 12, 2016).
      We conclude, however, that Vaughan’s argument fails to recognize the
1977 FLSA amendments incorporated remedial language substantively
identical to passages already provided in the ADEA. Put simply, the 1977
FLSA amendments do not disturb our holding in Dean, because they added
language to the FLSA that we have already construed in the context of the
ADEA—in Dean.
      We issued our opinion in Dean on September 23, 1977, more than a
month prior to the 1977 FLSA amendments. Compare Dean, 559 F.2d at 1036,
with Fair Labor Standards Amendments of 1977, Pub. L. No. 95–151, 91 Stat.
1245 (Nov. 1, 1977) (current version at 29 U.S.C. §§ 201–219). By the time we
interpreted it in Dean, the ADEA had for nearly ten years “authori[zed] a court
to grant such ‘legal or equitable relief as may be appropriate to effectuate the




      2 See Lubke v. City Of Arlington, 455 F.3d 489, 499 (5th Cir. 2006) (“Because the
remedies available under the ADEA and the FMLA both track the FLSA, cases interpreting
remedies under the statutes should be consistent.”).
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purposes of this chapter, including without limitation judgments compelling
employment, reinstatement or promotion, or enforcing the liability for
amounts deemed to be unpaid minimum wages or unpaid overtime
compensation under this section.’” Dean, 559 F.3d at 1037-38; see also Age
Discrimination in Employment Act of 1967, Pub. L. No. 90-902 at § 7(b), 81
Stat. 604–05 (1967) (current version at 29 U.S.C. § 626(b)). Several weeks after
we decided Dean, Congress added the following similar remedial language to
the FLSA: “Any employer who violates the provisions of section 15(a)(3) of this
Act, 29 USC 215, shall be liable for such legal or equitable relief as may be
appropriate to effectuate the purposes of section 15(a)(3), including without
limitation employment, reinstatement, promotion, and the payment of wages
lost and an additional equal amount as liquidated damages.” 91 Stat. 1245 at
1252 (current version at 29 U.S.C. § 216(b). Dean held that similar language
in the ADEA’s remedy provision did not make pain and suffering damages
available, because such damages would frustrate the ADEA’s preference for
administrative resolutions. See Dean, 559 F.2d at 1038–39. That preference
remains in the ADEA, and requires the same result we reached in Dean for all
“private actions posited upon the ADEA.” See id. at 1040. We express no view
on how the remedial language discussed above should be applied in FLSA
retaliation cases.
      Our interpretation is buttressed by our history of applying Dean long
after the 1977 FLSA amendments. See Smith v. Berry Co., 165 F.3d 390, 396
(5th Cir. 1999) (citing Dean for the proposition that “punitive damages and
damages for mental pain and suffering . . . are not available” for age
discrimination claims under the ADEA). The Eleventh Circuit, which views




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Fifth Circuit precedents predating Sept. 30, 1981, as binding precedent, 3 has
also continued to cite Dean. See Snapp v. Unlimited Concepts, Inc., 208 F.3d
928, 938 (11th Cir. 2000) (“We . . . feel some constraint to exclude punitive
damages from the ‘legal relief’ provided in the [FLSA] by the former Fifth
Circuit’s decision in Dean.”); 4 see also Goldstein v. Manhattan Industries, Inc.,
758 F.2d 1435, 1446 (11th Cir. 1985) (citing Dean for the proposition that
“neither punitive damages nor compensatory damages for pain and suffering
are recoverable under the ADEA.”).
       Having concluded that the 1977 FLSA amendments’ borrowing of the
ADEA’s remedial language does not constitute an intervening change in the
ADEA warranting our departure from Dean, we address two other points
raised by Vaughan’s briefing.
       First, the fact that the EEOC believes the ADEA permits pain and
suffering and punitive recoveries does not constitute an intervening legal
change sufficient to displace Dean. The EEOC has stated its interpretation of
the ADEA’s remedial provisions in a policy directive and at least three sections
of its Compliance Manual, 5 and we are mindful that the EEOC’s


       3 See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc)
(stating that Fifth Circuit decisions handed down prior to the close of business of Sept. 30,
1981, serve as binding precedent within the Eleventh Circuit).
       4  In the Snapp litigation, the district court denied defendant’s motion to dismiss a
claim for pain and suffering damages. See Appellees’ Br. at *2, Snapp v. Unlimited Concepts,
No. 98-2936-GG, 1999 WL 33617525 (11th Cir. 1999). The Eleventh Circuit never analyzed
the substance of that ruling, as the jury “awarded . . . no money in compensatory damages.”
Id. at *4.
       5 See EEOC Directive No. 915.004, EEOC Enforcement Guidance on Retaliation and
Related Issues, at n. 186 (Aug. 25, 2016) (“The FLSA, as amended in 1977, 29 U.S.C. § 216(b),
authorizes compensatory and punitive damages for retaliation claims under . . . the ADEA.”),
available at https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm#_ftnref186 (last
accessed Dec. 12, 2016); see also EEOC Compliance Manual § 8, Charge-Processing Outline
at IV(B), 2006 WL 4672791; EEOC Compliance Manual § 8-III, Special Remedial Issues at
B(1), 2006 WL 4672794; EEOC Compliance Manual § 10, Compensation Discrimination, 2006
WL 4672894.
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interpretations of the ADEA reflect “a body of experience and informed
judgment to which courts and litigants may properly resort for guidance.” Fed.
Exp. Corp. v. Holowecki, 552 U.S. 389, 399 (2008) (quoting Bragdon v. Abbott,
524 U.S. 624, 642 (1998)). The EEOC’s interpretation merits Skidmore
deference “to the extent that . . . interpretation[] ha[s] the power to persuade.”
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 111 n.6 (2002) (quotations
and citations omitted); see also Holowecki, 552 U.S. at 399. In this case, the
EEOC’s interpretation of the ADEA’s remedial provision appears to depend
almost entirely upon Moskowitz, an opinion we find unpersuasive. 6 Even if we
found the EEOC’s interpretation persuasive, however, it would not provide a
sufficient basis for departing from an established precedent. See Spong v. Fid.
Nat. Prop. & Cas. Ins. Co., 787 F.3d 296, 306 (5th Cir. 2015) (noting that “[a]n
intervening change in law must be binding on this court,” and “merely
persuasive, not binding” interpretations do not overcome the rule of
orderliness).
      Second, the transfer of ADEA functions previously performed by the
Secretary of Labor to the EEOC does not constitute an intervening change in
law sufficient to displace Dean. When we decided Dean, the ADEA gave certain
roles and powers to the Secretary of Labor. See Dean, 559 F.2d at 1038–40. As
Vaughan notes, the current version of the statute gives those roles and powers
to the EEOC. The transfer of ADEA functions occurred pursuant to
Reorganization Plan No. 1 of 1978, which called for a straightforward
substitution of the EEOC in place of certain statutory references to the



      6  Moskowitz suggested that the 1977 FLSA amendments “enlarge[d] the remedies . . .
beyond those standardly available for . . . ADEA . . . violations” when a plaintiff brings
retaliation claims. 5 F.3d at 284. Because the ADEA already permitted retaliation claims
before the 1977 FLSA amendments, and appears to have supplied the 1977 FLSA’s remedial
text, we decline to view Moskowitz as persuasive authority.
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Secretary of Labor. 7 Vaughan fails to demonstrate that the transfer of
functions created any significant differences for ADEA plaintiffs.
       For example, Vaughan argues that “[i]n the past private suits for age
discrimination were secondary to administrative proceedings by the Secretary
of Labor, which did not allow for compensatory damages.” Appellant’s Br. at 5.
The ADEA’s current text demonstrates no less of a preference for
administrative proceedings than the version Dean interpreted. In Dean, we
concluded that the ADEA “patently encouraged and preferred . . .
administrative remedies and suits brought by the Secretary of Labor . . . to
private actions.” Dean, 559 F.2d at 1038. As evidence of this preference, we
noted two specific aspects of the statute: (1) its requirement that private
individuals give the Secretary of Labor 60 days’ advance notice of their
intention to file a private ADEA claim, and (2) the Secretary of Labor’s ability
to cut off an individual’s right to maintain a private ADEA suit by commencing
an enforcement action within the notice period. See id. Those aspects of the
statute remain the same, other than the substitution of the EEOC for the
Secretary of Labor. See 29 U.S.C. § 626(d)(1) (notice requirement); § 626(c)(1)
(termination of private right of action upon commencement of EEOC action).
                                     CONCLUSION
       Our opinion in Dean applies to all “private actions posited upon the
ADEA,” Dean, 559 F.2d at 1040, including Vaughan’s ADEA retaliation claim.
Under Dean, Vaughan may not invoke the ADEA as a basis for general


       7  See Reorganization Plan No. 1 of 1978, 92 Stat. 3781 at § 2 (1978) (“All functions
vested in the Secretary of Labor or in the Civil Service Commission pursuant to Sections 2,
4, 7, 8, 9, 10, 11, 12, 13, 14, and 15 of the Age Discrimination in Employment Act of 1967, as
amended, (29 U.S.C. 621, 623, 626, 627, 628, 629, 630, 631, 632, 633, and 633a) are hereby
transferred to the Equal Employment Opportunity Commission. All functions related to age
discrimination administration and enforcement pursuant to Sections 6 and 16 of the Age
Discrimination in Employment Act of 1967, as amended, (29 U.S.C. 625 and 634) are hereby
transferred to the Equal Employment Opportunity Commission.”).
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compensatory damages for pain and suffering or punitive damages. Id.
Perceiving no intervening change in law that would lead us to set Dean aside,
we AFFIRM.




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