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November 5, 1975

Gladys E. Rogers et al., Plaintiffs
Exxon Research and Engineering Company, Defendant

Stern, D.J.

The opinion of the court was delivered by: STERN

This action, brought under the Age Discrimination in Employment Act of 1967 (ADEA), Title 29 U.S.C. § 621 et seq., was commenced as Dr. Dilworth T. Rogers v. Esso Research and Engineering Company. After his death, Dr. Rogers' wife and daughter were named co-executrices of his estate on June 11, 1973, and were substituted as plaintiffs. The caption was amended to reflect the defendant's corporate name change on June 14, 1974.

 Trial with a jury was moved before this Court on January 14, 1975. There was no dispute that defendant Exxon had forced Dr. Rogers to take early retirement at the age of 60. The question was the reason for defendant's action. Plaintiffs maintained that Dr. Rogers was retired early because of his age, while defendant contended that Dr. Rogers was retired because of medical disability, principally caused by mental instability. The trial was bifurcated, and the jury returned a verdict on the issue of liability in favor of plaintiffs on January 31, 1975. Counsel stipulated plaintiffs' out-of-pocket compensatory damages at $30,000, and the subsequent trial on the issue of damages was limited to the question of damages for the pain and suffering inflicted on plaintiffs' decedent by the defendant's unlawful conduct. On February 4, 1975, the jury returned a verdict setting the amount of compensation for pain and suffering at $750,000. Judgment in the amount of $780,000 was entered in favor of plaintiffs on February 18, 1975.

 On February 14, 1975, plaintiffs moved to fix the amount of attorneys' fees to be awarded them, and "to double the amount of damages as determined by stipulation of counsel and the verdict of the jury," pursuant to Title 29 U.S.C. §§ 626(b) and 216(b). After extensive briefing and argument of the issue, the latter part of the motion, which was in fact an application for liquidated damages, was granted with regard to the stipulated $30,000 out-of-pocket damages but denied with regard to the $750,000 damages for pain and suffering, on May 16, 1975.

 On March 3, 1975, defendant moved for judgment of no cause of action notwithstanding the verdict, or in the alternative for a new trial. On May 16, 1975, the Court denied the motion for judgment notwithstanding the verdict, and denied the motion for a new trial on the condition that plaintiffs consent to a remittitur of $550,000. Plaintiffs consented to the remittitur by letter to the Court dated May 20, 1975. The Court awarded attorneys' fees, and the sum of $65,000 was fixed by consent of counsel on May 30, 1975.

 This opinion deals with the Court's reasons for several of the rulings made in this case. The first section concerns the Court's finding that an action for compensatory damages for pain and suffering lies under this Act. In the second portion, the Court considers the attorneys' fees and liquidated damages provisions of the Age Discrimination in Employment Act, which incorporate certain sections of the Fair Labor Standards Act. Finally, the Court discusses the motions for judgment notwithstanding the verdict and for a new trial.

 I. Compensatory Damages For Pain and Suffering

 After the jury returned its verdict on the issue of liability, the Court ruled that plaintiffs were entitled to demonstrate damages for pain and suffering inflicted on plaintiffs' decedent by the unlawful actions of defendant Exxon. (Tr. 1/31/74: 2111-2112) In the course of deciding the motion for liquidated damages, on May 16, 1975, the Court reiterated that ruling. (Tr. 5/17/75: 32-33)

 It is the Court's view that the ADEA essentially establishes a new statutory tort. Once liability is established under the statute, therefore, the panoply of usual tort remedies is available to recompense injured parties for all provable damages. As the Supreme Court held in the context of Title VIII of the Civil Rights Act of 1968, as amended, Title 42 U.S.C. § 3612, a statute proscribing racial discrimination in housing:

"A damages action under the statute sounds basically in tort -- the statute merely defines a new legal duty and authorizes the courts to compensate a plaintiff for the injury caused by the defendant's wrongful breach. As one Court of Appeals noted, this cause of action is analogous to a number of tort actions recognized at common law. "

 Curtis v. Loether, 415 U.S. 189, 195, 39 L. Ed. 2d 260, 94 S. Ct. 1005 (1974) *fn1" The Supreme Court has also held that other civil rights statutes "should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions." Pierson v. Ray, 386 U.S. 547, 556, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (1967); Monroe v. Pape, 365 U.S. 167, 187, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961) (Title 42 U.S.C. § 1983); cf. Tillman v. Wheaton-Haven Recreation Ass'n, Inc., 517 F.2d 1141, 1143 (4th Cir. 1975) (Title 42 U.S.C. § 1982). See Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 238-240, 24 L. Ed. 2d 386, 90 S. Ct. 400 (1969) (Title 42 U.S.C. §§ 1981-1982), and Albemarle Paper Co. v. Moody, 422 U.S. 405, 95 S. Ct. 2362, 45 L. Ed. 2d 280, 43 U.S.L.W. 4880, 4884-4885 (1975) (Title 42 U.S.C. § 2000e et seq.).

"Where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief. And it is also well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done. "

 The Age Discrimination in Employment Act of 1967 may profitably be compared with Title VII of the Civil Rights Act of 1964, in both purpose and scope. As the Court observed in Hodgson v. First Federal Savings & Loan Ass'n, 455 F.2d 818, 820 (5th Cir. 1972), "with a few minor exceptions the prohibitions of this enactment are in terms identical to those of Title VII of the Civil Rights Act of 1964 except that 'age' has been substituted for 'race, color, religion, sex or national origin.'" Accord, Laugesen v. Anaconda Co., 510 F.2d 307, 311 (6th Cir. 1975). See, e.g., Hodgson v. Tamiami Trail Tours, 4 Fair Empl. Prac. Cas. (BNA) 728, 4 EPD para. 7795 (S.D. Fla. 1972). Thus "analogies to Title VII cases are often helpful in age discrimination cases." Schulz v. Hickok Manufacturing Co., Inc., 358 F. Supp. 1208, 1212, n. 2 (N.D. Ga. 1973). See 113 Cong.Rec. 34742 (90th Cong., 1st Sess.) (remarks of Rep. Matsunaga); Levien, "The Age Discrimination in Employment Act: Statutory Requirements and Recent Developments," 13 Duq.L.Rev. 227, 247 (1974). In its most recent analysis of Title VII remedies, the Supreme Court held that Congress intended for that statute "to make persons whole for injuries suffered on account of unlawful employment discrimination." Albemarle Paper Co. v. Moody, supra, 422 U.S. at 418. The Court continued:

"Title VII deals with legal injuries of an economic character occasioned by racial or other anti-minority discrimination. . . . Where racial discrimination is concerned, 'the [district] court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future. ' Louisiana v. United States, 380 U.S. 145, 154, 13 L. Ed. 2d 709, 85 S. Ct. 817. And where a legal injury is of an economic character,
" 'the general rule is, that when a wrong has been done, and the law gives a remedy, the compensation shall be equal to the injury. The latter is the standard by which the former is to be measured. The injured party is to be placed as near as may be, in the situation he would have occupied if the wrong had not been committed. ' Wicker v. Hoppock, 73 U.S. (6 Wall) 94, at 99, 18 L. Ed. 752
"The 'make whole ' purpose of Title VII is made evident by the legislative history. . . . "


 The cases which have examined the purpose and legislative history of the ADEA, although relatively few, agree that the Act shares Title VII's "make whole" purpose.

 In Brennan v. Paragon Employment Agency, Inc., 356 F. Supp. 286, 288 (S.D.N.Y. 1973), aff'd mem., 489 F.2d 752 (2d Cir. 1974), Judge Knapp wrote:

"The Act was intended to alleviate the serious economic and psychological suffering of people between the ages of 40 and 65 caused by wide-spread job discrimination against them. See §§ 621, 631 of the Act, 1967 U.S. Code Cong. & Admin. News, p. 2213, Cong. Rec. Nov. 6, Dec. 4, 1967. "

 It is important to note, as the Eighth Circuit has recognized, that the ADEA's remedial purpose should be liberally effectuated by the district court in fashioning appropriate relief:

"We note that the Age Discrimination in Employment Act of 1967 is remedial in nature. See 29 U.S.C. § 621; 1967 U.S. Code Cong. & Admin. News p. 2214. It prohibits a particularly subtle form of discrimination, and the courts must be receptive to its purposes and accord it the intended scope. "

 Surrisi v. Conwed Corp., 510 F.2d 1088, 1090 (8th Cir. 1975). Cf. Blankenship v. Ralston Purina Co., 62 F.R.D. 35, 38 (N.D. Ga. 1973); Woodford v. Kinney Shoe Corp., 369 F. Supp. 911 (N.D. Ga. 1973).

 In measuring the wrong done and ascertaining the appropriate remedy here, the Court is aware that the most pernicious effect of age discrimination is not to the pocketbook, but to the victim's self-respect. As in this case, the out-of-pocket loss occasioned by such discrimination is often negligible in comparison to the physiological and psychological damage caused by the employer's unlawful conduct. Various factors may combine to mitigate the victim's out-of-pocket loss. The older worker may have been contributing to a pension fund during his many years of employment, and may receive benefits when he retires. The worker who is illegally discharged because of his age is often a capable and productive employee; indeed, Congress' recognition of this fact is the foundation of the ...

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