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February 3, 1978

Cornelia CARTER et al., Plaintiffs,
F. Ray MARSHALL, Secretary, Department of Labor, et al., Defendants

The opinion of the court was delivered by: FLANNERY


This matter comes before the court on defendants' motion to dismiss for, Inter alia, lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. Plaintiffs, employees of the United States Department of Labor, allege claims of discrimination because of their race, sex, and age under Title VII of the Civil Rights Act of 1964, the Equal Pay Act, and the Age Discrimination in Employment Act. The defendants include the Secretary and other officials of the Department of Labor.

 The first ground for dismissal that the defendants assert is that this court lacks jurisdiction over this action because of insufficient service of process. A review of the file indicates that all of the defendants have been adequately served except defendant Deslongchamps who has never been served. The Attorney General was served with a copy of the complaint and the amended complaint and defendants Marshall and Zuck were adequately served. Thus, defendants' motion will be denied, except as to defendant Deslongchamps.

 Defendants also move to dismiss all the claims brought under Title VII against individuals other than Secretary of Labor Marshall. See 42 U.S.C. § 2000e-16(c). Plaintiffs agree that only Marshall can be sued, in his official capacity, under Title VII and contend that they have not asserted any other claims against any other individuals under Title VII. Therefore, there is no dispute as to the Title VII claims asserted. The defendants also assert that the plaintiffs cannot recover exemplary, punitive, or actual damages in a Title VII case. Plaintiffs again agree with the defendants' assertions and state that they only seek backpay, retroactive promotion, attorneys' fees, and costs under Title VII. See 42 U.S.C. §§ 2000e-5(g), 2000e-5(k). Therefore, it is agreed that the plaintiffs cannot recover compensatory, punitive, or actual damages for their Title VII claims.

 The defendants next move to dismiss all claims against all defendants under the Equal Pay Act. The defendants assert that the only proper defendant in an Equal Pay Act case is the employer and they contend that the employer is the United States as to these plaintiffs. See 29 U.S.C. § 216(b). The defendants make this assertion despite the language of the statute defining employer as "any person acting directly or indirectly in the interest of an employer in relation to an employee." 29 U.S.C. § 203(d). Thus, it appears that the Secretary and other officials of the Labor Department are appropriate defendants as to the Equal Pay Act claims and that the court can order appropriate relief against them in their official capacity. Also in reference to the Equal Pay Act claims, the parties now agree that plaintiff Carter has not asserted claims under the Act and that plaintiff Stephens did file her consent to become a party as to these claims pursuant to 29 U.S.C. § 216(b).

 The defendants also contend that the plaintiffs are not entitled to recover punitive, exemplary, or actual damages under the Equal Pay Act. 29 U.S.C. § 216(b) provides that an employer who has violated the Act shall be liable to the employee:

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.

 In addition, 29 U.S.C. § 217 provides for injunctive relief where appropriate and § 216 provides for criminal penalties. Because the statute specifically outlines the type of relief available and also provides for liquidated damages, it appears that Congress intended the relief provided to be exclusive. See Martinez v. Behring's Bearings Service, Inc., 363 F. Supp. 428, 429-30 (M.D.La.1973), Aff'd, 501 F.2d 104 (5th Cir. 1974); Lerwill v. Inflight Motion Pictures, Inc., 343 F. Supp. 1027, 1028-29 (N.D.Cal.1972); Cf. Brooklyn Savings Bank v. O'Neil, 324 U.S. 697, 715-16, 65 S. Ct. 895, 89 L. Ed. 1296 (1945). Furthermore, the established rule is that absent express consent by Congress, "punitive damages cannot be recovered from the United States or its agencies." Painter v. TVA, 476 F.2d 943, 944 (5th Cir. 1973); See Missouri Pacific R.R. v. Ault, 256 U.S. 554, 563-64, 41 S. Ct. 593, 65 L. Ed. 1087 (1921); Littleton v. Vitro Corp. of America, 130 F. Supp. 774 776 (N.D.Ala.1955). Therefore, plaintiffs are limited to the relief provided for by the Equal Pay Act for their claims under the Act and they cannot recover punitive, exemplary, or compensatory damages for their claims. Thus, the claims for punitive, exemplary, and compensatory damages under the Equal Pay Act will be dismissed.

 Next the defendants move to dismiss all claims against all defendants brought under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 Et seq. First the defendants assert that none of the defendants named are proper under the ADEA. Unlike Title VII, the proper defendant in an action brought under the ADEA is not specified in the statute as to government employees. Logically, the proper defendant would appear to be the plaintiff's employer. Absent an expansive definition of employer as in the Equal Pay Act, Supra, plaintiff Stephens' employer is the Department of Labor or the United States. Neither the United States nor the Department of Labor is a party to this action. It does seem, however, that the court can provide relief under the Act against the Secretary in his official capacity by an appropriate order. As to the possibility of individual liability of the officials, as is casually mentioned by the plaintiff, serious issues of immunity are presented. See Barr v. Matteo, 360 U.S. 564, 79 S. Ct. 1335, 3 L. Ed. 2d 1434 (1964); Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institution, 184 U.S.App.D.C. 397, 566 F.2d 289 (1977) (en banc).

 Defendants also move to dismiss Stephens' claims under the ADEA because she has failed to file with the court her consent to become a party to this action as to the ADEA claims. The right of federal employees to bring a civil action under the ADEA is granted by 29 U.S.C. § 633a(c). Section 633a(c) is enforced via § 626(b) which states:

The provisions of this chapter shall be enforced in accordance with the powers, remedies and procedures provided in sections 211(b), 216 . . . and 217 . . .

 The relevant section in this case is 29 U.S.C. § 216(b) which states Inter alia, that:

No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which the action is brought.

 The United States Court of Appeals for the Fifth Circuit has held that § 626(b) adopts the requirements of § 216(b). LaChapelle v. Owens-Illinois, Inc., 513 F.2d 286, 289 (5th Cir. 1975). Thus, plaintiff Stephens has failed to meet the requirement that a plaintiff in a suit under the ADEA file her consent to become a plaintiff with the court. The ...

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