                                                                  [PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                  FILED
                                                         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                               APR 05 2000
                                                            THOMAS K. KAHN
                                No. 98-2936                      CLERK



                   D. C. Docket No. 96-00707-CIV-J-21A


     BRIAN SNAPP,

                                                            Plaintiff-Appellant,

                                   versus

     UNLIMITED CONCEPTS, INC. d.b.a. Ramshackle’s Café,
     GLEN GERKIN,

                                                         Defendants-Appellees.



                 Appeal from the United States District Court
                     for the Middle District of Florida

                               (April 5, 2000)


Before TJOFLAT and CARNES, Circuit Judges, and RONEY, Senior Circuit Judge.



TJOFLAT, Circuit Judge:
        Brian Snapp filed this action under the Fair Labor Standards Act of 1938

(“FLSA”), 29 U.S.C. § 201-219 (1994), as amended, in the United States District

Court for the Middle District of Florida against Unlimited Concepts, Inc., doing

business as Ramshackle’s Café, and Glen Gerken, the owner, President, and Chief

Executive Officer of Ramshackle’s.1 Plaintiff alleged that the Ramshackle’s Café was

“Ramshackle” in more than name only.2 Snapp complained that while working at the

café, he suffered violations of the minimum wage, overtime wage, and anti-retaliation

provisions of the FLSA. He sought judgment for unpaid minimum compensation,

overtime compensation, liquidated damages, and attorneys fees; plaintiff also sought

compensatory and punitive damages for his alleged retaliatory discharge.3 The issue

in this appeal is whether plaintiff can recover punitive damages on his retaliatory

discharge claim.



                                                   I.


   1
     Plaintiff also named as a defendant Staff Leasing, Inc., now known as Bill Mullis Enterprises,
Inc., but the district court later dismissed the complaint as to Staff Leasing because of the plaintiff’s
failure to perfect service of process as required by Federal Rule of Civil Procedure 4.
   2
    Webster’s Third defines “ramshackle” as, inter alia, “having little moral sense,” and lists as
synonyms the words “dissipated” and “unruly.” Webster’s Third New International Dictionary 1879
(1993).
   3
     Plaintiff’s prayer for compensatory damages was based upon his allegation that he suffered
severe physical and emotional pain and suffering because of his retaliatory discharge.

                                                   2
                                                A.

       The FLSA requires, inter alia, employers to pay covered employees a minimum

wage, and to provide additional compensation for overtime work. 29 U.S.C. §

206(a)(1) specifies minimum rates of compensation, and section 207(a)(1) requires

employers to pay employees “at a rate not less than one and one-half times the regular

rate” of pay for any time spent working in excess of forty hours per week. The Act

also contains an anti-retaliation provision. Section 215(a)(3) prohibits employers

from

       discharg[ing] or in any other manner discriminat[ing] against any
       employee because such employee has filed any complaint or instituted
       or caused to be instituted any proceeding under or related to this chapter,
       or has testified or is about to testify in any such proceeding, or has
       served or is about to serve on an industry committee.

       The penalties section of the Act, 29 U.S.C. § 216, provides for both criminal

sanctions and private rights of action. Under section 216(a),

       [a]ny person who willfully violates any of the provisions of section 215
       of this title shall upon conviction thereof be subject to a fine of not more
       than $10,000, or to imprisonment for not more than six months, or both.
       No person shall be imprisoned under this subsection except for an
       offense committed after the conviction of such person for a prior offense
       under this subsection.4




  4
    Section 215(a)(2) makes it unlawful “to violate any of the provisions of section 206 or section
207,” and as noted above, section 215(a)(3) contains the FLSA’s anti-retaliation provision.

                                                3
In contrast to the criminal penalties provided in section 216(a), section 216(b)

authorizes private causes of action against employers for violations of the Act.

Section 216(b) also describes the relief afforded to a successful plaintiff:

      [a]ny employer who violates the provisions of section 206 or section 207
      [the minimum wage and overtime wage provisions] . . . 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) [the anti-
      retaliation provision] . . . 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 . . . . The court in such action shall, in
      addition to any judgment awarded to the plaintiff or plaintiffs, allow a
      reasonable attorney’s fee to be paid by the defendant, and costs of the
      action. . . .

29 U.S.C. § 216(b). Congress added the language allowing suits against employers

for violations of section 215(a)(3)’s anti-retaliation provision in 1977. See Fair Labor

Standards Amendments of 1977, Pub. L. 95-151, 91 Stat. 1245, 1252 (1977). Before

then, employees had to rely on the criminal and injunctive relief provided in sections

216(a) and 217 to discourage employers from retaliating against them. See Mitchell

v. Robert De Mario Jewelry, Inc., 361 U.S. 288, 289, 80 S. Ct. 332, 333-34, 4 L. Ed.




                                            4
2d 323 (1960).5 Plaintiff contends that the 1977 amendment authorizes courts to

award punitive damages in retaliation suits against employers.



                                                B.

       The events giving rise to plaintiff’s grievance occurred while he was working

as a waiter at the Ramshackle’s Café. In his complaint, plaintiff alleged that he was

paid less than the minimum wage for time spent performing janitorial and cooking

duties (for which he was not tipped), and that he was not paid overtime wages for time

worked in excess of forty hours per week. Weeks before filing the complaint, plaintiff

was alerted that such practices might be unlawful under the FLSA when he spoke to

an attorney friend at a social gathering. Plaintiff first wrote to the Wage and Hour

Division of the United States Department of Labor to express his concern that he was

“being taken advantage of.” This backfired, however, when plaintiff’s boss, Glen

Gerken, discovered that he had contacted the Department. After telling plaintiff that

he should have voiced his concerns to restaurant management rather than involving



   5
     29 U.S.C. § 217 provides, in pertinent part:
        The district courts . . . shall have jurisdiction, for cause shown, to restrain violations
        of section 215 of this title . . . .
In Mitchell, the Supreme Court interpreted that section to allow courts to award lost wages to
employees who had been retaliated against by their employers, in addition to injunctive relief, in
cases brought by the Secretary of Labor to enforce the Act. Mitchell, 361 U.S. at 296, 80 S. Ct. at
337.

                                                5
outsiders, Gerken terminated plaintiff from further employment.                       Included in

plaintiff’s complaint was an allegation that he had been fired in retaliation for

asserting his rights under the FLSA in violation of section 215(a)(3).

       After plaintiff filed his complaint in the district court, defendants filed a motion

to dismiss all damages claims against Glen Gerken, individually, and all claims for

compensatory and punitive damages. The district court denied the motion, finding

that the statutory definition of an “employer” under the FLSA, see 29 U.S.C. §

203(d),6 could encompass the defendant Gerken, individually,7 and that appropriate

legal relief under section 216(b) for an employer’s retaliation could include

compensation for emotional distress and punitive damages.

       At trial, the jury found that plaintiff had failed to prove by a preponderance of

the evidence that he had not been paid a minimum wage under the FLSA, but also

found that the defendants were guilty of violating the overtime wage and anti-

retaliation provisions of the Act. The jury awarded plaintiff $200 in overtime wages,

$1,000 in wages lost because of his retaliatory discharge, and $35,000 in punitive

damages on the retaliation claim. The jury also found that Gerken, individually, was



  6
   “[E]mployer” includes, inter alia, “any person acting directly or indirectly in the interest of an
employer in relation to an employee.” 29 U.S.C. § 203(d).
   7
    We do not reach the issue of whether the district court’s determination that Gerken could be
sued individually as an “employer” under the FLSA is correct.

                                                 6
plaintiff’s “employer” (along with the Ramshackle’s Café) under the FLSA, and

recommended that Gerken be liable for thirty percentof the punitive damage award.

       Thereafter the district court ordered the parties to file memoranda of law

regarding the availability of punitive damages in suits for retaliation under section

216(b) of the FLSA.8 The court decided to revisit the issue after noting that an

intervening decision by a sister court had interpreted binding circuit precedent to

prohibit punitive damages under the FLSA, see Bolick v. Brevard County Sheriff’s

Dep’t., 937 F. Supp. 1560, 1566-67 (M.D. Fla. 1996). After examining Bolick, the

court concluded that it was persuasive and granted the defendants’ renewed motion

for judgment as a matter of law on the issue of punitive damages. The court thus




  8
    Defendants moved for judgment as a matter of law on the issue of punitive damages at the close
of all the evidence. The court took the issue under submission, pending the jury’s verdict. After the
jury returned a verdict for $35,000 in punitive damages on the retaliation claim, the court stated that
it was still considering the punitive damages issue, and then directed the parties to file relevant
memoranda of law. Because the court appears to have engaged in a dialogue with the defendants
concerning the availability of punitive damages in retaliation cases immediately after the jury
returned its verdict, we find that the Rule 50(b) requirements for a renewed motion for judgment as
a matter of law were met in this case.

                                                  7
struck the $35,000 in punitive damages awarded to plaintiff on his retaliation claim.9

Plaintiff now appeals.



                                                  II.

       We review the district court’s grant of defendants’ motion for judgment as a

matter of law on the issue of punitive damages de novo. Dade County v. Alvarez,

124 F.3d 1380, 1383 (11th Cir. 1997). Whether a court can award punitive damages

to a plaintiff who has proven a violation of the FLSA’s anti-retaliation provision


   9
     Under 29 U.S.C. § 260,
         [i]n any action . . . to recover unpaid minimum wages, unpaid overtime
         compensation, or liquidated damages, under the Fair Labor Standards Act of 1938,
         as amended, if the employer shows to the satisfaction of the court that the act or
         omission giving rise to such action was in good faith and that he had reasonable
         grounds for believing that his act or omission was not a violation of the Fair Labor
         Standards Act of 1938, as amended, the court may, in its sound discretion, award no
         liquidated damages or award any amount thereof not to exceed the amount specified
         in section 216 of this title.
The district court noted that section 260 only appears to provide a good faith defense to an award
of liquidated damages when an employer has been found to violate either the minimum wage, or the
overtime wage provisions of the FLSA, see 29 U.S.C. §§ 206, 207. Section 215(a)(3)’s anti-
retaliation provision is not mentioned. Nevertheless, the court concluded that the same good faith
defense available for violations of sections 206 and 207 is also available for violations of section
215(a)(3). On the merits, however, the court concluded that the defendants had failed to prove their
entitlement to the good faith defense to liquidated damages on either the overtime wage or the
retaliation claims. After the court set aside the punitive damage award, plaintiff was left with a jury
award of $200 in overtime wages and $1,000 in lost wages as a result of his retaliatory discharge.
Section 216(b) provides that a court may award “an additional equal amount as liquidated damages”
for both of these violations. Therefore the court doubled the sum of plaintiff’s awards on overtime
and lost wages, and entered judgment in favor of the plaintiff against the defendant Unlimited
Concepts, Inc. in the amount of $2,400. Defendant Glen Gerken was relieved of any personal
liability for damages since the jury had made him thirty percent liable on the punitive damages
award only.

                                                  8
consistent with 29 U.S.C. § 216(b) is a question of statutory interpretation. Questions

of statutory interpretation are pure questions of law. See Caro-Galvan v. Curtis

Richardson, Inc., 993 F.2d 1500, 1504 (11th Cir. 1993).



                                          III.

                                          A.

      This case presents us with a question of first impression in this circuit regarding

the proper construction of section 216(b). The question is, when Congress amended

the FLSA in 1977 to provide for a private right of action when an employer violates

section 215(a)(3), did the amendment include language allowing plaintiffs to recover

punitive damages as part of their legal relief? Plaintiff, of course, answers this

question in the affirmative; and he finds support from the only other circuit to have

addressed the issue. In Travis v. Gary Community Mental Health Ctr., Inc., 921 F.2d

108, 112 (7th Cir. 1990), the Seventh Circuit held that “punitive damages[] are

appropriate for intentional torts such as retaliatory discharge.” The court reached its

holding after observing that the 1977 retaliation amendment to section 216(b) includes

broader language than the original language providing remedies for violations of




                                           9
sections 206 and 207 (the minimum wage and overtime wage provisions).10 How

much broader Congress declined to state explicitly; so without much discussion, the

Seventh Circuit concluded that Congress had tossed the issue to the judiciary, and that

in the judgment of the court, punitive damages were a reasonable component of the

legal relief afforded to successful plaintiffs in retaliation cases.

              Because the original text prescribed as a remedy double the
       shortfall of wages [for violations of sections 206 and 207], and the
       amendment says that damages include this “without limitation”,
       Congress has authorized other measures of relief. Which other forms?
       The answer has been left to the courts. We could not find any case
       interpreting this amendment. The legislative history is unhelpful. The
       language originated in the Senate; the committee report does not discuss
       it. The Conference Committee adopted the Senate’s proposal, remarking
       that the bill authorizes suits “for appropriate legal or equitable relief”
       without describing what relief might be “appropriate”. H.R. Conf. Rep.
       No. 95-497, 95th Cong., 1st Sess. 16 (1977).
              Appropriate legal relief includes damages. Congress could limit
       these damages, but the 1977 amendment does away with the old
       limitations without establishing new ones. Compensation for emotional
       distress, and punitive damages, are appropriate for intentional torts such
       as retaliatory discharge.

Travis, 921 F.2d at 111-12.




  10
      As noted supra, section 216(b) of the FLSA limits a plaintiff’s remedies to “unpaid minimum
wages, or . . . unpaid overtime compensation, as the case may be, and . . . an additional equal amount
as liquidated damages” for violations of sections 206 and 207. The damages a court may impose
against an employer who violates section 215(a)(3) appear more expansive, including any “legal or
equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3).” 29 U.S.C.
§ 216(b).

                                                 10
                                           B.

      We disagree with the Seventh Circuit’s conclusion that punitive damages are

available under section 216(b). In interpreting the statute we begin, as always, with

the plain language Congress enacted. As noted above, the statute provides that

      [a]ny employer who violates the provisions of section 215(a)(3) 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.

29 U.S.C. § 216(b). Plaintiff contends that the “legal relief” courts are empowered to

award is broad enough to include punitive damages.

      “Legal relief” is certainly a broad formulation. It would have almost no

boundary at all were it not for the commonly understood division between the “legal”

and “equitable” powers of a court. Where such an expansive term is used, we look for

clues within the statute to help us understand the exact nature of the “legal relief” that

Congress intended; and we are not disappointed when we look to section 216(b).

When an employer violates the minimum wage or overtime wage provisions of

sections 206 and 207, Congress has provided that the employer is liable for “unpaid

minimum wages, or . . . unpaid overtime compensation, as the case may be, and . . .

an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b). And for

violations of section 215(a)(3)’s anti-retaliation provision, Congress has not

                                           11
abandoned all specificity. Although the statute says that these forms of relief may be

included in a judgment “without limitation,” Congress has specifically empowered a

court to order “employment, reinstatement, promotion, and the payment of wages lost

and an additional equal amount as liquidated damages.” Id.

        Although it is clear that Congress did not limit a court in retaliation cases to the

enumerated forms of relief, there is something that all of the relief provided in section

216(b) has in common: it is meant to compensate the plaintiff. Awards of unpaid

minimum wages, unpaid overtime compensation, employment, reinstatement,

promotion, and the payment of wages lost all attempt to put the plaintiff in the place

she would have been absent the employer’s misconduct. Even the liquidated damages

provision is compensatory in nature. “[T]he liquidated damage provision is not penal

in its nature but constitutes compensation for the retention of a workman’s pay which

might result in damages too obscure and difficult of proof for estimate other than by

liquidated damages.” Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 707, 65 S. Ct.

895, 902, 89 L. Ed. 1296 (1945); see also Overnight Motor Transp. Co. v. Missel, 316

U.S. 572, 583, 62 S. Ct. 1216, 1223, 86 L. Ed. 1682 (1942).11



   11
     The Supreme Court in Brooklyn Savings Bank and Overnight Motor Transportation Co. was
addressing the liquidated damages provision in the part of section 216(b) dealing with violations of
sections 206 and 207. However, the same compensatory rationale would apply to awards of
liquidated damages in retaliation suits.

                                                12
      Given that the evident purpose of section 216(b) is compensation, we reject

plaintiff’s argument that “legal relief” includes punitive damages. When so broad a

term as “legal relief” is included in a statutory provision that delineates more specific

forms of redress, the judicial mind naturally turns to the principle of ejusdem generis.

We must interpret “a general statutory term . . . in light of the specific terms that

surround it.” Hughey v. United States, 495 U.S. 411, 419, 110 S. Ct. 1979, 1984, 109

L. Ed. 2d 408 (1990). It is clear that all of the relief provided in section 216(b) is

compensatory in nature. Punitive damages, however, have nothing to do with

compensation. Punitive damages are generally available for willful or intentional

violations of a common law or statutory duty, and their purpose is to punish and deter

the wrongdoer rather than to compensate the aggrieved party. Therefore, punitive

damages would be out of place in a statutory provision aimed at making the plaintiff

whole.

      We are strengthened in our holding when we look at the rest of the remedial

scheme provided in section 216. We read each statutory provision with reference to

the whole Act. “[I]n expounding a statute, we [are] not . . . guided by a single

sentence or member of a sentence, but look to the provisions of the whole law.”

Massachusetts v. Morash, 490 U.S. 107, 115, 109 S. Ct. 1668, 1673, 104 L. Ed. 2d 98

(1989) (quoting Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 51, 107 S. Ct. 1549,


                                           13
1555, 95 L. Ed. 2d 39 (1987)); see also Pavelic & LeFlore v. Marvel Entertainment

Group, Inc., 493 U.S. 120, 123, 110 S. Ct. 456, 458, 107 L. Ed. 2d 438 (1989).

Further, we should avoid reading statutory language to address an issue not

specifically covered in the text when Congress has addressed the issue in more

specific language elsewhere. See generally West Virginia Univ. Hosps., Inc. v. Casey,

499 U.S. 83, 111 S. Ct. 1138, 113 L. Ed. 2d 68 (1991).

       In contrast to the make-whole provisions of section 216(b), Congress provided

for punitive sanctions in section 216(a):

       Any person who willfully violates any of the provisions of section 215
       of this title shall upon conviction thereof be subject to a fine of not more
       than $10,000, or to imprisonment for not more than six months, or both.
       No person shall be imprisoned under this subsection except for an
       offense committed after the conviction of such person for a prior offense
       under this subsection.

29 U.S.C. § 216(a). We disagree with the Seventh Circuit’s contention that Congress

has “left [the issue of appropriate remedies in retaliation cases] to the courts.” Travis,

921 F.2d at 111. Congress has enacted a comprehensive remedial scheme for

violations of the FLSA’s substantive provisions that covers the whole terrain of

punitive sanctions, compensatory relief, private rights of action, and actions brought

by the Secretary of Labor.12 It is clear that section 216(a), which provides criminal

  12
    In addition to providing for private rights of action for suits against employers who violate the
FLSA’s minimum wage, overtime wage, and anti-retaliation provisions, section 216(b) further
provides:

                                                 14
penalties for “willful[]” violations, is punitive in purpose; and section 216(b), as we

have already found, is clearly compensatory. Even if we were to ignore the obvious

ramifications of the ejusdem generis canon in interpreting “legal relief” in section

216(b), we would still not find that Congress meant that term to include punitive

damages. This is because Congress has already covered punitive sanctions in section

216(a); and there is simply no reason to carry the punitive element over from section

216(a) to section 216(b), a provision intended to compensate, not punish.13

       Nor would it be a sort of “harmless error” to include punitive damages as part

of the “legal relief” authorized by Congress in section 216(b). It may be that Congress

has deliberately chosen, in some contexts, to leave statutory language ambiguous;

such a choice is predicated on the idea that courts can use their expertise to develop

a particular area of law most effectively when they are given the power to operate


       The right provided by this subsection to bring an action by or on behalf of any
       employee, and the right of any employee to become a party plaintiff to any such
       action, shall terminate upon the filing of a complaint by the Secretary of Labor in an
       action under section 217 of this title in which (1) restraint is sought of any further
       delay in payment of unpaid minimum wages, or the amount of unpaid overtime
       compensation, as the case may be, owing to such employee under section 206 or
       section 207 of this title by an employer liable therefor under the provisions of this
       subsection or (2) legal or equitable relief is sought as a result of alleged violations
       of section 215(a)(3) of this title.
29 U.S.C. § 216(b).
  13
     We also note that even though the purpose of section 216(b) is compensation, the actual effect
of the liquidated damages provision provides further deterrence to an employer’s violation of the
FLSA’s anti-retaliation provision. See Brooklyn Sav. Bank, 324 U.S. at 709-10, 65 S. Ct. at 903
(finding that Congress plainly intended section 16(b) to have a “deterrent effect”).

                                                 15
within broad legislative guidelines (though, from a separation of powers standpoint,

this idea is problematic, cf. Chevron v. Natural Resources Defense Council, Inc., 467

U.S. 837, 865, 104 S. Ct. 2778, 2793, 81 L. Ed. 2d 694 (1984) (“Courts must, in some

cases, reconcile competing political interests, but not on the basis of the judges’

personal policy preferences.”)). Thus comes the Seventh Circuit’s conclusion that the

answer to what remedies are appropriate in retaliation cases “has been left to the

courts.” Travis, 921 F.2d at 111. But we should not be quick to conclude that

Congress either neglected to consider an issue related to its enactments, or decided to

avoid the issue and leave its resolution to the courts. Such a predisposition on our part

makes for activist judges and lazy Congressmen. Instead, we should search the

statutory language and structure with the assumption that Congress knew what it was

doing when it enacted the statute at issue.

      When we search the FLSA with that assumption in mind, we discover that it

really does matter whether we import punitive damages into section 216(b)’s

allowance for “legal relief.” Punitive damages, in general, are the exception and not

the rule; they are awarded when a jury finds that a defendant’s act was wrongful in

that it was willful or intentional (as opposed to merely negligent). Every act of

retaliation, however, is inherently willful – the act is motivated by the employer’s

conscious desire to “get back” at the employee for exercising her protected rights.


                                           16
What this means is that if punitive damages can be awarded in retaliation cases under

section 216(b), then they should be awarded in every case as a matter of course. A

jury could hardly refuse to award them; given the jury instruction that the plaintiff is

entitled to punitive damages if the retaliation was intentional (and given that all

retaliation is inherently intentional), the damages would flow inexorably from any

finding for the plaintiff.

       When we look at the FLSA’s remedial scheme, however, it becomes clear that

Congress did not intend that punitive sanctions be imposed in all retaliation cases.

Section 216(a) vests the executive branch with the responsibility of exacting punitive

sanctions from the employer; and the enforcement of section 216(a)’s criminal

provisions is discretionary. All retaliation is intentional. In charging the executive

branch with the duty of enforcing section 216(a), Congress meant the Executive to

make a determination concerning which cases of intentional retaliation are so

egregious that they warrant the imposition of an additional punitive deterrent. This

grant of discretion is plainly at odds with a reading of section 216(b) that would, by

necessity, require the imposition of punitive damages in every case. Further, by

addressing punitive sanctions with a criminal rather than a civil remedy, Congress

clearly sought to limit their application to cases in which the government can prove

beyond a reasonable doubt that the defendant acted willfully to violate the anti-


                                          17
retaliation provisions of the Act. That Congress made the imposition of punitive

sanctions dependent on the government’s carrying the heightened burden of proof

involved in criminal prosecution is more evidence that it would be a mistake to allow

plaintiffs to recover punitive damages under section 216(b)’s civil preponderance

burden.14

       We think, therefore, that the Seventh Circuit’s reading of section 216(b) cannot

be squared with the statutory design. It is true that the language in section 216(b)

dealing with violations of section 215(a)(3) appears broader than the original language

addressing violations of sections 206 and 207. See supra n.9. We do not think,

however, that this difference indicates that Congress meant to abandon all restraints

and throw open the doors to every conceivable variety of damages in retaliation cases.

We think, instead, that the difference in the remedial language is tied to differences

in the nature of minimum wage and overtime wage cases on the one hand, and


  14
      We also note that section 216(a) limits punitive sanctions “to a fine of not more than $10,000,
or to imprisonment for not more than six months, or both.” It also provides that “[n]o person shall
be imprisoned under this subsection except for an offense committed after the conviction of such
person for a prior offense under this subsection.” Civil punitive damage awards, on the other hand,
might reach six or seven figures, depending on the defendant’s net worth and ability to pay. We
realize that there is nothing extraordinary about the fact that Congress set out the exact level of
sanction to be imposed on criminal violators of the FLSA. Congress sets out the penalty in every
criminal statute. But there is something incongruous about allowing plaintiffs to recover punitive
damage awards that far exceed the punitive sanctions imposed under section 216(a), even though
civil plaintiffs only have to prove their case by a preponderance of the evidence, and even though
the Executive may decline to enforce section 216(a) in many cases because the employer’s violation
is not viewed as sufficiently egregious to warrant a punitive sanction.

                                                 18
retaliation cases on the other. In minimum wage and overtime wage cases, plaintiffs

are limited to recovering “their unpaid minimum wages, or their unpaid overtime

compensation . . . and . . . an additional equal amount as liquidated damages” because

those are the only damages necessary to compensate the aggrieved employee. 29

U.S.C. § 216(b). In retaliation cases, on the other hand, “employment, reinstatement,

promotion, and the payment of wages lost” may not fully compensate the plaintiff.

Id. Congress provided for, in addition, “such legal or equitable relief as may be

appropriate to effectuate the purposes of section 215(a)(3)” because the kinds of relief

that a district court may need to award to compensate the plaintiff fully will vary with

the facts of each case. Front pay is just one example, when for various reasons the

court finds it undesirable to order an employee’s reinstatement. That district courts

may have to exercise some creativity in awarding relief in retaliation cases does not

mean that Congress meant that courts can award damages that go completely outside

the boundaries of section 216(b)’s compensatory purpose.

      Plaintiff also argues that the Supreme Court’s decision in Franklin v. Gwinett

County Public Schools, 503 U.S. 60, 112 S. Ct. 1028, 117 L. Ed. 2d 208 (1992),

compels the conclusion that “legal relief” includes punitive damages. In that case the

Supreme Court held that “[w]here       legal rights have been invaded, and a federal

statute provides for a general right to sue for such invasion, federal courts may use any


                                           19
available remedy to make good the wrong done.” Id. at 66, 112 S. Ct. at 1033

(quoting Bell v. Hood, 327 U.S. 678, 684, 66 S. Ct. 773, 777, 90 L. Ed. 939 (1946)).

The Franklin presumption only applies, however, when “a right of action exists to

enforce a federal right and Congress is silent on the question of remedies.” Id. at 69,

112 S. Ct. at 1034; see also Lane v. Pena, 518 U.S. 187, 197, 116 S. Ct. 2092, 2099,

135 L. Ed. 2d 486 (1996) (finding that the Rehabilitation Act of 1973, 29 U.S.C. §

791-794e (1994), fell outside of the rule of Franklin because “Congress has . . .

spoken to the question of remedies”); Landgraf v. USI Film Prods., 511 U.S. 244, 286

n.38, 114 S. Ct. 1483, 1508 n.38, 128 L. Ed. 2d 229 (1994) (“Title VII of the Civil

Rights Act of 1964 is not a statute to which we would apply the ‘traditional

presumption in favor of all available remedies.’ That statute did not create a ‘general

right to sue’ for employment discrimination, but instead specified a set of

‘circumscribed remedies.’ ” (citations omitted)). Congress has been far from silent

on the question of remedies for violations of the FLSA. That Congress saw fit to

detail so many forms of appropriate relief in section 216 makes plaintiff’s contention

that the legislature provided for nothing more than a “general right to sue” almost

laughable. And when Congress has laid out a statutory scheme that redresses

violations of a federal right, it is not the judiciary’s role to supplement the legislative

determination. Cf. Touche Ross & Co. v. Redington, 442 U.S. 560, 568-69, 99 S. Ct.


                                            20
2479, 2485, 61 L. Ed. 2d 82 (1979) (declining to infer a private cause of action under

section 17(a) of the Securities Exchange Act because the judicial “task is limited

solely to determining whether Congress intended to create the private right of

action”); cf. also Chandler v. James, 180 F.3d 1254, 1275 (11th Cir. 1999) (Tjoflat,

J., specially concurring), petition for cert. filed, 68 U.S.L.W. 3391 (U.S. Dec. 2, 1999)

(No. 99-935) (discussing the separation of powers concerns that arise when courts use

the injunctive remedy beyond what Congress has prescribed).

        We also feel some constraint to exclude punitive damages from the “legal

relief” provided in section 216(b) by the former Fifth Circuit’s decision in Dean v.

American Security Ins. Co., 559 F.2d 1036 (5th Cir. 1977).15 In Dean, the court was

called upon to decide, inter alia, whether remedial language in the Age Discrimination

in Employment Act (ADEA), 29 U.S.C. § 621-634 (1994), allowed plaintiffs to

recover punitive damages. The language in section 626 of the ADEA is similar to that

found in the remedial portions of the FLSA:

        Amounts owing to a person as a result of a violation of this chapter shall
        be deemed to be unpaid minimum wages or unpaid overtime
        compensation for purposes of sections 216 and 217 of this title:
        Provided, That liquidated damages shall be payable only in cases of
        willful violations of this chapter. In any action brought to enforce this
        chapter the court shall have jurisdiction to grant such legal or equitable

   15
      In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court
adopted as binding precedent all of the decisions of the former Fifth Circuit handed down on or
before September 30, 1981.

                                              21
      relief as may be appropriate to effectuate the 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.

29 U.S.C. § 626(b) (emphasis added). The Dean court concluded,

      [t]he provisions for liquidated damages for willful violation of the Act
      and its silence as to punitive damages convinces us that the omission of
      any reference thereto was intentional. In 1968, only one year after the
      passage of the ADEA, Congress passed the fair housing provisions of
      Title VIII of the Civil Rights Act of 1968, 42 U.S.C. §§ 3601-3619.
      Section 3612(c) thereof expressly authorizes the recovery of punitive
      damages . . . . Thus it is obvious that, if Congress believed punitive
      damages necessary to eliminate discrimination in employment based on
      age, it knew exactly how to provide for them.

Dean, 559 F.2d at 1039. The “legal relief” language in the ADEA is exactly the same

as that found in the FLSA, and so we conclude that the FLSA should be interpreted

similarly to preclude an award of punitive damages. See Bolick, 937 F. Supp. at

1566-67.

      Plaintiff counters by arguing that the liquidated damages provisions in the two

statutes serve different purposes. In the FLSA, liquidated damages are compensatory

in nature, but the ADEA’s requirement of “willful[ness]” for an award of liquidated

damages means that they serve a punitive purpose. See Commissioner of Internal

Revenue v. Schleier, 515 U.S. 323, 331, 115 S. Ct. 2159, 2165, 132 L. Ed. 2d 294

(1995) (“[T]he liquidated damages provisions of the ADEA were a significant


                                         22
departure from those in the FLSA.”); Trans World Airlines, Inc. v. Thurston, 469 U.S.

111, 125, 105 S. Ct. 613, 624, 83 L. Ed. 2d 523 (1985) (“The legislative history of the

ADEA indicates that Congress intended for liquidated damages to be punitive in

nature.”); Lindsey v. American Cast Iron Pipe Co., 810 F.2d 1094, 1102 (11th Cir.

1987) (“ADEA liquidated damages awards punish and deter violators, while FLSA

liquidated damages merely compensate for damages that would be difficult to

calculate.”). Plaintiff reasons that the liquidated damages provision in the ADEA

covers the issue of punitive sanctions; therefore, there was no reason, in Dean, to

interpret “legal relief” to include punitive damage awards when punitive sanctions

were already addressed by the liquidated damages provision. In the FLSA, on the

other hand, awards of liquidated damages do not cover the punitive component.

        The problem with plaintiff’s theory is that even though liquidated damages are

not punitive in the FLSA, there is an entire statutory provision, section 216(a), that

does cover punitive sanctions. The same willfulness requirement included in the

ADEA for awards of liquidated damages was included in the FLSA as a requirement

for the imposition of criminal penalties. Congress did not “leave out” punitive

sanctions in the FLSA; it merely addressed them in a different manner.16

   16
      Our conclusion that the criminal penalties provided in section 216(a) are meant to cover the
field of punitive sanctions in the FLSA is bolstered by the fact that Congress incorporated many of
the provisions of the FLSA into the ADEA, but specifically omitted the FLSA’s criminal penalties
section in favor of a willfulness requirement for awards of liquidated damages. In Thurston, the

                                                23
                                                IV.

       We are cognizant of the Supreme Court’s direction that the FLSA is “remedial

and humanitarian in purpose,” and that it “must not be interpreted . . . in a narrow,

grudging manner.” Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321

U.S. 590, 597, 64 S. Ct. 698, 703, 88 L. Ed. 949 (1944). “By giving a broad

construction to the anti-retaliation provision . . . its purpose will be further promoted.”

EEOC v. White & Sons Enters., 881 F.2d 1006, 1011 (11th Cir. 1989); see also

Mitchell, 361 U.S. at 292, 80 S. Ct. at 335. There is a wide difference, however,

between interpreting the FLSA in a “narrow, grudging manner,” and interpreting it in

a way that is faithful to the congressional design. Inferring remedies that Congress

never contemplated both disturbs the constitutional balance by arrogating law-making




Supreme Court discussed this drafting decision:
        The original [ADEA] bill proposed by the administration incorporated § 16(a) of the
        FLSA, which imposes criminal liability for a willful violation. See 113 Cong. Rec.
        2199 (1967). Senator Javits found “certain serious defects” in the administration bill.
        He stated that “difficult problems of proof . . . would arise under a criminal
        provision,” and that the employer’s invocation of the Fifth Amendment might
        impede investigation, conciliation, and enforcement. Id., at 7076. Therefore, he
        proposed that “the [FLSA’s] criminal penalty in cases of willful violation . . . [be]
        eliminated and a double damage liability substituted.” Ibid. Senator Javits argued
        that his proposed amendment would “furnish an effective deterrent to willful
        violations [of the ADEA],” ibid., and it was incorporated into the ADEA with only
        minor modification, S. 788, 90th Cong., 1st Sess. (1967).
Thurston, 469 U.S. at 125-26, 105 S. Ct. at 624. If the liquidated damages provision of the ADEA
was meant to be a substitute for the FLSA’s criminal penalties section, and liquidated damages were
the “effective deterrent to willful violations” of the ADEA, then the criminal penalties provision of
the FLSA is, similarly, Congress’ primary method of addressing punitive sanctions in the FLSA.

                                                 24
power to the judiciary, and also allows legislators to escape their responsibility by

enlisting judges as supplemental draftsmen. Where Congress




                                         25
has set out a clear scheme to remedy violations of a federal right, as we think it did in

the FLSA, our task is limited to carrying out the congressional command.

      For the foregoing reasons, we AFFIRM the district court’s grant of defendants’

motion for judgment as a matter of law on the issue of punitive damages.

      AFFRIMED.




                                           26
CARNES, Circuit Judge, specially concurring:

      I agree with the Court’s conclusion that the Fair Labor Standards Act does not

provide for the recovery of punitive damages, and I agree with most of the reasoning

the majority opinion uses to reach that conclusion. The part I disagree with is the

proposition that Congress’ provision for criminal penalties, see 29 U.S.C. § 216(a),

indicates an intent to exclude punitive damages. Tellingly, the majority opinion cites

no authority for that counter-intuitive proposition. The provision of criminal penalties

means Congress thought compliance with the statute sufficiently important that wilful

violation of it should subject the culprit to the possibility of criminal prosecution and

penalties upon conviction. That hardly forecloses punitive damages.

      The majority opinion says that the enforcement of the criminal provision of the

FLSA is “discretionary,” but it is no more discretionary than any other criminal

provision of any other statute. What section 216(a) provides is:


                     Any person who willfully violates any of the provisions of
             section 215 of this title shall upon conviction thereof be subject to
             a fine of not more than $10,000, or to imprisonment for not more
             than six months, or both. No person shall be imprisoned under this
             subsection except for an offense committed after the conviction of
             such person for a prior offense under this subsection.




                                           27
Where is the discretion in that? The majority also points out that no person may be

punished under § 216(a) unless the government proves guilt beyond a reasonable

      doubt. But that is true of any criminal provision in any statute.

      The part of the majority opinion that relies upon the existence of a criminal

penalty in the FLSA to negate punitive damages rests upon this proposition:

Whenever Congress decides that a statute’s provisions are sufficiently important to

warrant reinforcing compensatory remedies with a criminal sanction, we should infer

Congress intended that punitive damages not be available. I disagree with that

proposition. For the other reasons discussed in the majority opinion, however, I

agree with the Court’s conclusion that Congress did not intend for punitive damages

to be available for violations of the FLSA.




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