* At the parties’ request, the case is unanimously or dered submitted without

oral argument pursuant to the applicable rules. Th is order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 22 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

SHERI L. BROWN,

Plaintiff-AppelleeCross-Appellant,

v. PIZZA HUT OF AMERICA INCORPORATED, Delaware corporation, Defendant-AppellantCross-Appellee. Nos. 96-6244 & 96-6260 (D.C. No. CIV-95-1293-C) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY, BARRETT, and LUCERO, Circuit Judges.-2-

Plaintiff, a former Pizza Hut restaurant manager, p revailed at trial on her claim under the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219, that she was constructively discharged by defendant Pizza Hut in retaliation for complaining about its break policy and nonpayment o f overtime compensation. The jury awarded Brown $2,500.00 in unpaid overtime ; $34,394.17 in back pay; and a lump sum of $15,605.83 in compensatory damage s. Under the jury instruction and verdict form, the compensatory dama ge award may have included front pay as well as damages for other, nonpecuniary losses. See Appellant’s App. at 40-41, 50. At Brown’s request, the distric t court awarded her an additional amount as liquidated damages equal to th e jury’s unpaid overtime and back pay awards under 29 U.S.C. § 216(b). On appeal, Pizza Hut contends that the district cou rt erred in doubling the back pay award on Brown’s retaliation claim. PizzaHut argues that the liquidated damages award improperly duplicates dama ges provided by the jury in its compensatory damages award. Brown contends on cross-appeal that the district court was required by the statute to doubl e the jury’s compensatory damages award as well as the back pay and overtime awards. We exercise jurisdiction under 28 U.S.C. § 1291, and affirm. The parties do not agree on the appropriate standar d of review. Pizza Hut argues that we should review the district court’s i nterpretation of the statute de1 The first two sentences of 29 U.S.C. § 216(b) state :

Any employer who violates the provisions of section206 [minimum wages] or section 207 [overtime compensation] of th is title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime comp ensation, as the case may be, and in an additional equal amount as liquidated damages. Any employer who violates the provisions of section 215(a)(3) [retaliatory discharge] of this title sha ll be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3) of this title, includ ing without limitation employment, reinstatement, promotion, an d the payment of wages lost and an additional equal amount as liquid ated damages.

-3- novo, while Brown argues that we should review the district court’s award of liquidated damages only for abuse of discretion. W e see no inconsistency in these contentions. Pizza Hut’s claim that the district c ourt wrongly interpreted 29 U.S.C. § 216(b) raises a legal issue that we review de novo. See Burlington N.R.R. v. Huddleston , 94 F.3d 1413, 1416 (10th Cir. 1996). To the exte nt a proper interpretation of the statute gives the dist rict court discretion, however, we review its action under the statute only for abuse of discretion. See Crenshaw v. Quarles Drilling Corp. , 798 F.2d 1345, 1351 (10th Cir. 1986). With these standards in mind, we turn to the merits. The liquidated damages award provided in the first sentence of § 216(b) 1

-- for violations of the FLSA’s minimum wage and overt ime compensation provisions--is intended to compensate the plaintiff for “damages too obscure and-4-

difficult of proof for estimate other than by liqui dated damages.” Overnight Motor Transp. Co. v. Missel , 316 U.S. 572, 583-84 (1942). The statutory language gives us no reason to conclude that the aw ard of liquidated damages provided in the second sentence of § 216(b)--for vi olations of the FLSA’s retaliation provision--is intended to serve a diffe rent purpose. Whether the provision for an award of liquidated da mages in retaliation cases is discretionary or mandatory is a separate q uestion. Although we have held that the award of liquidated damages in wage and ov ertime cases provided in the first sentence of § 216(b) is mandatory unless the district court finds that the employer acted reasonably and in good faith, as pro vided in 29 U.S.C. § 260, see,
e.g. Crenshaw , 798 F.2d at 1351 (case involving overtime provisi on of FLSA); Doty v. Elias , 733 F.2d 720, 725-26 (10th Cir. 1984) (case invol ving minimum wage provision of FLSA), we have not yet had occasi on to consider whether the liquidated damages award provided in the secondsentence of the statute--for violations of the FLSA’s retaliatory conduct provis ion--is mandatory or discretionary. Compare Blanton v. City of Murfreesboro , 856 F.2d 731, 737 (6th Cir. 1988), andYork v. City of Wichita Falls , 763 F. Supp. 876, 880 (N.D. Tex. 1990), andProfessional Firefighters Ass’n v. City of Clayton , 759 F. Supp. 1408, 1413-14 (E.D. Mo. 1991), withAvitia v. Metropolitan Club of Chicago, Inc. , 49 F.3d 1219, 1226, 1232 (7th Cir. 1995), andLowe v. Southmark Corp. , 998 F.2d-5-

335, 337 (5th Cir. 1993). We need not determine th is issue today. Whether mandatory or discretionary, the plain language of t he second sentence of § 216(b) clearly implies that only “wages lost” are subject to doubling in a retaliation case. If the award of liquidated damages on Brown’s back pay award (which obviously represents lost wages) is mandated by § 216(b), the n Pizza Hut cannot show that the district court erred in making the award. Even if the award is discretionary, the only compen satory damages that could arguably be improperly duplicated by the liqu idated damages award on back pay are those awarded for nonpecuniary losses, and Pizza Hut cannot show what portion of Brown’s lump-sum compensatory damages aw ard represents nonpecuniary losses. According to the jury instruc tion and the verdict form, Brown’s compensatory damages award might include fr ont pay and/or compensation for “future losses, emotional pain, su ffering, inconvenience, mental anguish, and loss of enjoyment of life.” Appellant ’s App. at 40, 50. Pizza Hut has not in any way indicated that it objected in th e district court to both pecuniary and nonpecuniary damages being combined on the verd ict form and, accordingly, it has waived any objection to the district court’s treatment of this award. Cf. Patton v. TIC United Corp. , 77 F.3d 1235, 1241 (10th Cir.), cert. denied , 116 S. Ct. 2525 (1996); Fortier v. Dona Anna Plaza Partner s , 747 F.2d 1324, 1337 (10th Cir. 1984); Dixson v. Newsweek, Inc. , 562 F.2d 626, 631 (10th Cir. 1977).-6-

By the same token, Brown cannot prevail on her cros s-appeal that § 216(b) mandates that her compensatory damages award be dou bled. Although front pay at least arguably constitutes lost wages, Brown can not show what portion of her lump-sum compensatory damages award represents front pay. There is no indication in the record that Brown objected to bot h pecuniary and nonpecuniary damages being combined on the verdict form and, as a result, she cannot show that the district court erred in declining to doubl e her compensatory damages award.
AFFIRMED.

Entered for the Court

Carlos F. Lucero Circuit Judge