M.D.Fla.: Compensatory Damages Available To Plaintiff In FLSA Retaliation Claim

Vaccaro v. Custom Sounds, Inc.

This case was before the Court, following Defendant’s default.  The Court set the matter for an evidentiary hearing on the issue of damages to be awarded in the final default judgment.  Of significance the Court ruled that an employee terminated in retaliation for engaging in FLSA protected activity may recover non-economic or compensatory damages. 

Discussing the issue of compensatory damages the Court stated:

“In addition to lost wages as a result of retaliation, Plaintiff seeks compensatory damages in the amount of $10,000.00 for emotional distress associated with the retaliation. See Total Damages Calculation. The damages provision for retaliation claims does not speak directly to compensatory damages for emotional distress, but states that the employer “shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of [the anti-retaliation provision] …” 29 U.S.C. § 216(b).

At least two judges in the Middle District of Florida have come to apparently opposite conclusions regarding whether compensatory damages for emotional distress are available pursuant to section 216(b). The Court in Bolick v. Brevard County Sheriff’s Dept. held that “[p]unitive and emotional damages are not available under the FLSA” and granted partial summary judgment to a defendant on the issues of punitive and emotional damages. 937 F.Supp. 1560, 1566-67 (M.D.Fla.1996). Since then, in Bogacki, the Court was faced with the issue of whether the retaliation provision of the FLSA provides for compensatory damages as a result of emotional distress. 370 F.Supp.2d at 1201-02. The Bogacki Court referenced the Sixth Circuit’s recognition in Moore v. Freeman, 355 F.3d 558, 564 (6th Cir.2004) that the Seventh Circuit, the Eighth Circuit, and the Ninth Circuit “directly or indirectly have allowed emotional distress awards under the FLSA to stand.” Bogacki, 370 F.Supp.2d at 1203 (internal citations omitted). Ultimately, the Bogacki Court determined that “each [retaliation] case should stand or fall on its own merit” and denied without prejudice a defendant’s motion for summary judgment on mental anguish damages because “neither party ha[d] addressed the strength, weakness, or absence of any evidence of the Plaintiff’s alleged emotional distress …” Id. at 1205-06.

Here, the Court has previously found that Defendants admitted, by defaulting, that “Plaintiff suffered emotional distress as a result of his termination.” Order (Doc. No. 19) at 2. Notwithstanding this factual finding, the Court recognized that “allegations relating to the amount and character of damages are not admitted by virtue of default. Rather, the Court determines the amount and character of damages to be awarded.” Id. at 3 (internal citation omitted). In assessing the issue of damages available for a retaliation claim, it is not entirely clear whether the Eleventh Circuit would approve awarding compensatory damages for emotional distress; however, the Court’s analysis in Bogacki, combined with other circuits’ approval of such damages and the Eleventh Circuit’s handling of the issues presented in Olivas, leads the undersigned to believe that the Eleventh Circuit would conclude that compensatory damages for emotional distress can be awarded in FLSA cases. 

Plaintiff testified his employer fired him as a result of his inquiry regarding unpaid overtime. When Plaintiff attempted to pick up his last paycheck, Plaintiff was told to “take it out of [his employer’s] a* *.” No other egregious actions were undertaken or words spoken by the employer.

During his unemployment, Plaintiff was engaged to be married, had a two-year-old daughter, and had to rely on his parents to support his family. Plaintiff stayed with his soonto-be father-in-law. Plaintiff’s “mother” helped him pay for necessaries, his cellular phone bill, and insurance. According to Plaintiff, these stressful events caused him to be upset and embarrassed. The events “took a toll” on his relationship with his fiancé. The undersigned credits Plaintiff’s testimony in this regard. However, considering Plaintiff’s testimony in the framework of other cases in which courts have considered appropriate amount of damages for emotional distress claims, the undersigned finds as a factual matter that based upon the harm suffered by Plaintiff, $5,000.00 is a fair and reasonable amount. See Perez v. Jasper Trading, Inc., No. 05 CV 1725(ILG)(VVP), 2007 WL 4441062, at *8 (E.D.N.Y. Dec. 17, 2007) (unpublished) (recognizing emotional distress awards involving facts similar to those in that case “usually range from $5,000 to $30,000”) (internal citations omitted).  Although it is undeniable that Plaintiff suffered some form of emotional distress (and indeed the Court has already so found), the facts of this relatively unremarkable FLSA case do not warrant an award of $10,000.00 for such distress.  Accordingly, the undersigned recommends awarding $5,000.00 in compensatory damages for emotional distress.”