The opinion of the court was delivered by: NICKERSON
Plaintiff brought this action under the Age Discrimination in Employment Act of 1967, ("the Act"), 29 U.S.C. § 626, claiming that defendant bank in terminating his employment on March 15, 1978, discriminated on the basis of age. Plaintiff alleges that he is forty-two years old, that he was employed by defendant as an Assistant Secretary in the Stock Transfer Department in charge of night operations, that defendant informed him of its plans to close this department and assured him of an offer of a job elsewhere in the bank, that other night employees younger and less experienced than he were transferred to positions for which he was better qualified, and that defendant thereafter told him that no position was available for him. Plaintiff seeks reinstatement, back wages and damages for other economic deprivation and for physical and mental suffering.
Defendant has moved for partial dismissal of plaintiff's complaint, in particular paragraph 16, which alleges that his termination was in violation of Title VII of the Civil Rights Act of 1964, and paragraph 17 of the complaint, which alleges physical and mental suffering, and paragraph 2 of the demand for relief, which claims monetary damages other than lost wages. Defendant argues that plaintiff has asserted no facts supporting his claim of a Title VII violation. Defendant also maintains that only back pay and not other compensatory damages are recoverable under the Act. Because of the importance of the latter issue, the court will consider it first.
Compensatory Damages Under the Act
The Court of Appeals for the Second Circuit has not yet decided whether compensatory damages may be awarded under the Act, and the issue is one which has divided other federal courts. Three circuit courts have concluded that damages available under the Act are restricted to those specified in section 7(b), 29 U.S.C. § 626(b). See Vazquez v. Eastern Air Lines, Inc., 579 F.2d 107 (1st Cir. 1978); Dean v. American Sec. Ins. Co., 559 F.2d 1036 (5th Cir. 1977), Cert. denied, 434 U.S. 1066, 98 S. Ct. 1243, 55 L. Ed. 2d 767 (1978); 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).
A number of district courts have awarded compensatory damages for pain and suffering and occasionally punitive damages. See Kennedy v. Mountain States Tel. & Tel. Co., 449 F. Supp. 1008 (D.Colo.1978); Walker v. Pettit Construction Co., 437 F. Supp. 730 (D.S.C.1977); Coates v. National Cash Register Co., 433 F. Supp. 655 (W.D.Va.1977); Combes v. Griffin Television, Inc., 421 F. Supp. 841 (W.D.Okl.1976); Murphy v. American Motors Sales Corporation, 410 F. Supp. 1403 (N.D.Ga.1976). Contra, Seider v. Canada Dry Corp., 17 Empl. Prac. Dec. P8369 (S.D.N.Y.1978); Jaeger v. American Cyanamid Co., 442 F. Supp. 1270 (E.D.Wis.1978); Travers v. Corning Glass Works, 76 F.R.D. 431 (S.D.N.Y.1977); Postemski v. Pratt & Whitney Aircraft, 443 F. Supp. 101 (D.Conn.1977); Looney v. Commercial Union Assur. Companies, 428 F. Supp. 533 (E.D.Mich.1977).
Despite this conflict the Supreme Court has heretofore denied certiorari in cases raising the issue. In the absence of higher authority in this circuit this court must choose between the conflicting decisions.
The remedy provisions of the Act, contained in section 7(b) of the Act, provide:
"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 (the Fair Labor Standards Act): Provided, that liquidated damages shall be payable only in cases of willful violation 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."
29 U.S.C. § 626(b). Section 7(c) permits
"(any) person aggrieved (to) bring a civil action in any court of competent jurisdiction for such legal and equitable relief as will effectuate the purposes of this chapter . . . ." 29 U.S.C. § 626(c).
The enforcement provisions of the Act thus make explicit reference to the Fair Labor Standards Act ("FLSA"), and the enforcement procedures and remedies of the FLSA were incorporated into the Act. See Lorillard v. Pons, 434 U.S. 575, 98 S. Ct. 866, 55 L. Ed. 2d 40 (1978). Damages available under the FLSA are limited to unpaid minimum wages or overtime compensation and an additional amount as liquidated damages. 29 U.S.C. § 216(b). Compensatory damages have not been awarded. See, e.g., Bonner v. Elizabeth Arden, Inc., 177 F.2d 703, 705 (2d Cir. 1949). If the scope of the remedy available under the Act is identical to that under the FLSA, plaintiff may not claim compensatory damages.
The pertinent language of section 7(b), however, is broader than that contained in the FLSA and recites that a court may award "such legal or equitable relief as may be appropriate to effectuate the purposes" of the Act. This language suggests that in proper circumstances courts are not limited to the FLSA remedies. See Vazquez v. Eastern Air Lines, Inc., supra, 579 F.2d at 110-11. The issue is whether damages as so limited would provide relief to victims of age discrimination "appropriate to effectuate the purposes" of the Act. This court concludes, contrary to the decisions of the Courts of Appeals in the First, Third and Fifth Circuits, that compensatory damages may be essential to that end.
The Congressional debates concerning the Act show awareness and concern that the effects of age discrimination are not solely economic. The process of aging may be anxiety-producing. To force an older worker to retire despite continued willingness to, and belief in an ability to, work effectively can inflict a serious blow to one's self-esteem as well as to one's pocketbook. While the average American's life span and period of productivity have been expanding, misunderstanding of the effects of aging and industry's emphasis on youth have produced a class of functionless older Americans. The effect of such forced immobilization is felt not only by ...