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WHITEMAN v. KROGER CO.

September 29, 1982

MARY WHITEMAN, PLAINTIFF,
v.
THE KROGER COMPANY, DEFENDANT.



The opinion of the court was delivered by: Mihm, District Judge.

MEMORANDUM OPINION

FACTS:

This cause was initially brought in the Circuit Court of the Tenth Judicial Circuit of the State of Illinois and has been removed to this Court pursuant to 28 U.S.C. § 1441. Plaintiff is a 60 year old woman who worked at Kroger's for 24 years. She claims that Kroger's discriminated against her because of her age by scheduling her for hours without regard to her seniority; by having her lift heavy objects not required of other employees similarly situated; by telling her that she should retire because of her advanced age; and by singling her out for constant review and critique under more stringent standards than similarly situated employees. Counts I through III allege violations of the Age Discrimination in Employment Act (hereinafter ADEA), 29 U.S.C. § 621 et seq., and prays for compensatory, punitive, and mental distress damages. Count IV is a claim for wrongful discharge. Kroger's has filed a motion to dismiss all counts, but has asked that, for Count IV, the Court convert the motion into a motion for summary judgment pursuant to Rule 12(b).

DECISION AND ORDER:

1. PUNITIVE AND MENTAL DISTRESS DAMAGES

Kroger moves to dismiss Counts II and III on the grounds that punitive and mental distress damages are not recoverable under the ADEA. This Court agrees that punitive and mental distress damages are not recoverable under the ADEA and will therefore grant Kroger's motion to dismiss these Counts.

A handful of well-reasoned opinions allow recovery of these damages, including Wise v. Olan Mills, 485 F. Supp. 542 (D.Colo. 1980); Bertrand v. Orkin, 432 F. Supp. 952 (N.D.Ill. 1977); and Rogers v. Exxon Research and Engineering Co., 404 F. Supp. 324 (D.N.J. 1975) rev'd 550 F.2d 834 (3rd Cir. 1977), Cert. denied 434 U.S. 1022, 98 S.Ct. 749, 54 L.Ed.2d 770 (1978). However, the great weight of authority supports the view that punitive damages and mental distress damages are not recoverable under the ADEA. Fiedler v. Indianhead Truck Line, 670 F.2d 806 (8th Cir. 1982); Naton v. Bank of California, 649 F.2d 691 (9th Cir. 1981); Slatin v. Stanford Research Institute, 590 F.2d 1292 (4th Cir. 1979); Vazquez v. Eastern Airlines, Inc., 579 F.2d 107 (1st Cir. 1978); Dean v. American Security Ins. Co., 559 F.2d 1036 (5th Cir. 1977); Rogers v. Exxon Research & Engineering Co., 550 F.2d 834 (3rd Cir. 1977), Cert. denied 434 U.S. 1022, 98 S.Ct. 749, 54 L.Ed.2d 770 (1978); and Stevenson v. J. C. Penney, 464 F. Supp. 945 (N.D.Ill. 1979). This Court has reviewed both positions closely and recognizes that they present a difficult question. If a person has their livelihood wrongfully taken from them it is understandable that mental anguish will result. It is also true under general principles of law that, in certain circumstances, willful conduct results in punitive damages. Nonetheless, a literal reading of the enforcement provision of the ADEA, 29 U.S.C. § 626(b), leads this Court to the inescapable conclusion that punitive and mental distress damages are not recoverable under the ADEA.

Section 626(b) provides in part:

  "(b) * * * Any act prohibited under section 623 of this title
  shall be deemed to be a prohibited act under section 215 of
  this title. 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
  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. Before
  instituting any action under this section, the Secretary shall
  attempt to eliminate the discriminatory practice or practices
  alleged, and to effect voluntary compliance with the
  requirements of this chapter through informal methods of
  conciliation, conference, and persuasion."

On the surface, this section appears to give the district courts broad remedial powers. Specifically, this section directs the courts to "grant such legal or equitable relief as may be appropriate to effectuate the purposes of this chapter." However, this court cannot avoid the conclusion that this language merely modifies a very specific type of damages.

  "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."

The only money damages this court can award under this section are:

  (1) Unpaid minimum wages, or unpaid overtime ...

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