IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-60104

SUSAN L. VAUGHAN, 

 Plaintiff - Appellant 

v. 

ANDERSON REGIONAL MEDICAL CENTER, 

 Defendant - Appellee 

Appeal from the United States District Court 

for the Southern District of Mississippi 

Before BENAVIDES, HAYNES, and GRAVES, Circuit Judges. 

JAMES E. GRAVES, JR., Circuit Judge: 

This single-issue interlocutory appeal arises out of a wrongful 

termination lawsuit filed by Susan Vaughan, a nurse supervisor, against 

Anderson Regional Medical Center. Vaughan alleges the Medical Center 

discharged her in retaliation for raising age-discrimination complaints. 

Vaughan’s claims invoke the Age Discrimination in Employment Act (ADEA), 

and she seeks, among other things, damages for pain and suffering and 

punitive damages. 

The district court dismissed Vaughan’s claims for pain and suffering 

damages and punitive damages because Fifth Circuit precedent bars such 

recoveries under the ADEA. The district court’s dismissal order did, however, 

United States Court of Appeals

Fifth Circuit

FILED

December 16, 2016

Lyle W. Cayce

Clerk

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note divergent views held by other circuits and the Equal Employment 

Opportunity Commission. Finding the damages issue “a controlling question 

of law as to which there is substantial ground for difference of opinion,” the 

district court certified an appeal to this Court under 28 U.S.C. § 1292(b). We 

granted leave to file an interlocutory appeal. 

The district court correctly concluded that Dean v. Am. Sec. Ins. Co., 559 

F.2d 1036 (5th Cir. 1977) requires dismissal of Vaughan’s pain and suffering 

and punitive damages claims.1 Accordingly, we AFFIRM. 

JURISDICTION 

We have jurisdiction over Vaughan’s interlocutory appeal pursuant to 28 

U.S.C. § 1292(b). The district court properly exercised its jurisdiction over the 

federal statutory claim under 28 U.S.C. § 1331. 

STANDARD OF REVIEW 

The district court dismissed Vaughan’s damages claims pursuant to Fed. 

R. Civ. P. 12(b)(6). Accordingly, this Court reviews the decision below de novo, 

“accepting all well-pleaded facts as true and viewing those facts in the light 

 

1 To avoid any confusion of terms, this opinion uses the phrase “pain and suffering 

damages” as a more precise method of referencing the “general compensatory damages” Dean 

foreclosed. Dean’s convention of referring to pain and suffering damages, which a plaintiff 

may not recover under the ADEA, as “general compensatory damages” does not prevent other 

types of ADEA recoveries our precedents sometimes label “compensatory,” such as back pay 

awards. See Dean, 559 F.2d at 1039 (recognizing availability of ADEA back pay awards); see 

also Tyler v. Union Oil Co. of Cal., 304 F.3d 379, 400–02 (5th Cir. 2002) (referring to a 

permissible ADEA back pay award as “compensatory damages”). 

 The Medical Center’s motion below sought dismissal of all “compensatory” damages 

claims, “including but not limited to deep pain, humiliation, anxiety and emotional distress,” 

and its appellate briefing phrases the question before this court as “whether a plaintiff can 

be awarded general compensatory (e.g., pain and suffering) and/or punitive damages for an 

ADEA retaliation claim,” Appellee’s Br. at 1. We emphasize that the examples of damages 

the Medical Center identifies—damages we hold Dean forecloses in all private ADEA 

actions—should not be read to limit the availability of other types of monetary damages the 

ADEA plainly permits, such as back pay awards. 

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most favorable to the plaintiff.” True v. Robles, 571 F.3d 412, 417 (5th Cir. 

2009). “Dismissal is appropriate when the plaintiff has not alleged ‘enough 

facts to state a claim to relief that is plausible on its face’ and has failed to 

‘raise a right to relief above the speculative level.’” Id. (quoting Bell Atl. Corp. 

v. Twombly, 550 U.S. 544, 555, 570 (2007)).

ANALYSIS 

The parties dispute Dean’s applicability. The district court relied upon 

Dean below, but certified its ruling for interlocutory review after recognizing a 

circuit split regarding the availability of pain and suffering and punitive 

damages in ADEA retaliation cases. 

This Court adheres to a “rule of orderliness,” under which a panel may 

not overturn a controlling precedent “absent an intervening change in law, 

such as by a statutory amendment, or the Supreme Court, or our en banc court. 

Indeed, even if a panel’s interpretation of the law appears flawed, the rule of 

orderliness prevents a subsequent panel from declaring it void.” Sprong v. 

Fidelity Nat’l Property & Cas. Ins. Co., 787 F.3d 296, 305 (5th Cir. 2015) (block 

quotation and citation omitted). To decide whether the rule of orderliness 

applies, we must therefore analyze whether: (1) Dean is distinguishable from 

this case; or (2) an intervening change in law justifies setting Dean aside. 

 We conclude that the answer to both questions is “no.” 

I. Dean is not distinguishable 

We perceive no basis upon which to distinguish Dean. Vaughan concedes 

that Dean forecloses pain and suffering and punitive recoveries for ADEA age 

discrimination claims, see Appellant’s Br. at 2, but suggests that Dean does not

control ADEA retaliation claims. We disagree. 

Dean held in unqualified terms that “neither general damages [i.e., 

compensatory damages for pain and suffering] nor punitive damages are 

recoverable in private actions posited upon the ADEA.” Dean, 559 F.2d at 1040. 

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ADEA age discrimination and retaliation claims are equally “private actions 

posited upon the ADEA,” and the ADEA has contained a prohibition on 

employer retaliation since its inception. See Age Discrimination in 

Employment Act of 1967, Pub. L. 90-202 at § 4(d), 81 Stat. at 603 (1967) (“It 

shall be unlawful for an employer to discriminate against any of his employees 

or applicants for employment, for an employment agency to discriminate 

against any individual, or for a labor organization to discriminate against any 

member thereof or applicant for membership, because such individual, 

member or applicant for membership has opposed any practice made unlawful 

by this section, or because such individual, member or applicant for 

membership has made a charge, testified, assisted, or participated in any 

manner in an investigation, proceeding, or litigation under this Act.”) (current 

version at 29 U.S.C. § 623(d)). A plaintiff could file a retaliation claim under 

the ADEA when we decided Dean, and Dean contains no suggestion that its 

holding regarding damages for “private actions posited upon the ADEA” 

silently excluded ADEA retaliation actions. See Dean, 559 F.2d at 1036.

Dean’s holding therefore controls this case if, as we will conclude below, 

no intervening changes in law undermine its continued vitality. 

II. No intervening change in law justifies setting Dean 

aside 

 Vaughan’s effort to undermine Dean relies heavily upon the 1977 

amendments to the remedies provided for retaliatory discharges under the 

Fair Labor Standards Act (FLSA), a statute we interpret to provide remedies 

“consistent” with the ADEA.2 Vaughan’s argument that the 1977 FLSA 

amendments enlarged the remedies available for ADEA retaliation claims 

 

2 See Lubke v. City Of Arlington, 455 F.3d 489, 499 (5th Cir. 2006) (“Because the 

remedies available under the ADEA and the FMLA both track the FLSA, cases interpreting 

remedies under the statutes should be consistent.”). 

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finds support in the decisions of at least one circuit, and the EEOC endorses 

that interpretation. See Moskowitz v. Trustees of Purdue Univ., 5 F.3d 279, 284 

(7th Cir. 1993) (indicating that the 1977 FLSA amendments “enlarge[d] the 

remedies . . . beyond those standardly available for . . . ADEA . . . violations” 

when a plaintiff brings retaliation claims); see also EEOC Directive No. 

915.004, EEOC Enforcement Guidance on Retaliation and Related Issues, at n. 

186 (Aug. 25, 2016) (“The FLSA, as amended in 1977, 29 U.S.C. § 216(b), 

authorizes compensatory and punitive damages for retaliation claims under 

. . . the ADEA.”), available at https://www.eeoc.gov/laws/guidance/retaliationguidance.cfm# ftnref186 (last accessed Dec. 12, 2016). 

We conclude, however, that Vaughan’s argument fails to recognize the 

1977 FLSA amendments incorporated remedial language substantively 

identical to passages already provided in the ADEA. Put simply, the 1977 

FLSA amendments do not disturb our holding in Dean, because they added 

language to the FLSA that we have already construed in the context of the 

ADEA—in Dean. 

We issued our opinion in Dean on September 23, 1977, more than a 

month prior to the 1977 FLSA amendments. Compare Dean, 559 F.2d at 1036, 

with Fair Labor Standards Amendments of 1977, Pub. L. No. 95–151, 91 Stat. 

1245 (Nov. 1, 1977) (current version at 29 U.S.C. §§ 201–219). By the time we 

interpreted it in Dean, the ADEA had for nearly ten years “authori[zed] a court 

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.’” Dean, 559 F.3d at 1037-38; see also Age 

Discrimination in Employment Act of 1967, Pub. L. No. 90-902 at § 7(b), 81 

Stat. 604–05 (1967) (current version at 29 U.S.C. § 626(b)). Several weeks after 

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we decided Dean, Congress added the following substantively equivalent 

remedial language to the FLSA: “Any employer who violates the provisions of 

section 15(a)(3) of this Act, 29 USC 215, shall be liable for such legal or 

equitable relief as may be appropriate to effectuate the purposes of section 

15(a)(3), including without limitation employment, reinstatement, promotion, 

and the payment of wages lost and an additional equal amount as liquidated 

damages.” 91 Stat. 1245 at 1252 (current version at 29 U.S.C. § 216(b). 

Given the remedial passages’ textual similarities, we conclude that the 

1977 FLSA amendments simply brought the FLSA’s remedies for employer 

retaliation into line with the ADEA’s remedies for similar conduct. This 

interpretation comports with our history of applying Dean long after the 1977 

FLSA amendments. See Smith v. Berry Co., 165 F.3d 390, 396 (5th Cir. 1999) 

(citing Dean for the proposition that “punitive damages and damages for 

mental pain and suffering . . . are not available” for age discrimination claims 

under the ADEA). The Eleventh Circuit, which views Fifth Circuit precedents 

predating Sept. 30, 1981, as binding precedent,3 has also continued to cite 

Dean. See Snapp v. Unlimited Concepts, Inc., 208 F.3d 928, 938 (11th Cir. 2000)

(“We . . . feel some constraint to exclude punitive damages from the ‘legal relief’ 

provided in the [FLSA] by the former Fifth Circuit’s decision in Dean.”);4 see 

also Goldstein v. Manhattan Industries, Inc., 758 F.2d 1435, 1446 (11th Cir. 

1985) (citing Dean for the proposition that “neither punitive damages nor 

 

3 See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) 

(stating that Fifth Circuit decisions handed down prior to the close of business of Sept. 30, 

1981, serve as binding precedent within the Eleventh Circuit).

4 In the Snapp litigation, the district court denied defendant’s motion to dismiss a 

claim for pain and suffering damages. See Appellees’ Br. at *2, Snapp v. Unlimited Concepts, 

No. 98-2936-GG, 1999 WL 33617525 (11th Cir. 1999). The Eleventh Circuit never analyzed 

the substance of that ruling, as the jury “awarded . . . no money in compensatory damages.” 

Id. at *4. 

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compensatory damages for pain and suffering are recoverable under the 

ADEA.”). Within this circuit, our district courts have reasonably inferred that 

Dean remains good law, and therefore forecloses pain and suffering and 

punitive damages under the FLSA. See, e.g., Douglas v. Mission Chevrolet, 757 

F. Supp. 2d 637, 640 (W.D. Tex. 2010) (“Because of the Fifth Circuit’s expressed 

desire for remedies under the ADEA and the FLSA to be interpreted 

consistently, and because the Fifth Circuit has held that emotional distress 

damages and punitive damages are unavailable under the ADEA, this Court 

holds that emotional distress damages and punitive damages are unavailable 

in an FLSA anti-retaliation claim.”).5 

Having concluded that the 1977 FLSA amendments’ borrowing of the 

ADEA’s remedial language does not constitute an intervening change in the 

ADEA warranting our departure from Dean, we address two other points 

raised by Vaughan’s briefing. 

 First, the fact that the EEOC believes the ADEA permits pain and 

suffering and punitive recoveries does not constitute an intervening legal 

change sufficient to displace Dean. The EEOC has stated its interpretation of 

the ADEA’s remedial provisions in a policy directive and at least three sections 

of its Compliance Manual,6 and we are mindful that the EEOC’s 

 

5 One district court within this circuit relied upon Dean as a bar to FLSA punitive 

damages claims, but did not analyze or apply Dean as a bar to compensatory damages for 

injuries including mental anguish. See Little v. Tech. Specialty Prod., LLC, 940 F. Supp. 2d 

460, 480 (E.D. Tex. 2013). That case appears to be an outlier. Little relied upon Lee v. U.S. 

Sec. Associates, Inc., No. A-07-CA-395-AWA, 2008 WL 958219, at *7 (W.D. Tex. Apr. 8, 2008), 

but the Western District of Texas actually changed its position before the Little ruling. See 

Douglas, 747 F. Supp. 2d at 640 (finding that the FLSA does not permit emotional distress

damages) (NB: Douglas does not expressly acknowledge Lee, but Douglas rejects the same 

out-of-circuit precedents Lee relied upon). 

6 See EEOC Directive No. 915.004, EEOC Enforcement Guidance on Retaliation and 

Related Issues, at n. 186 (Aug. 25, 2016) (“The FLSA, as amended in 1977, 29 U.S.C. § 216(b), 

authorizes compensatory and punitive damages for retaliation claims under . . . the ADEA.”), 

available at https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm#_ftnref186 (last 

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interpretations of the ADEA reflect “a body of experience and informed 

judgment to which courts and litigants may properly resort for guidance.” Fed. 

Exp. Corp. v. Holowecki, 552 U.S. 389, 399 (2008) (quoting Bragdon v. Abbott, 

524 U.S. 624, 642 (1998)). The EEOC’s interpretation merits Skidmore

deference “to the extent that . . . interpretation[] ha[s] the power to persuade.” 

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 111 n.6 (2002) (quotations 

and citations omitted); see also Holowecki, 552 U.S. at 399. In this case, the 

EEOC’s interpretation of the ADEA’s remedial provision appears to depend 

almost entirely upon Moskowitz, an opinion we find unpersuasive.7 Even if we 

found the EEOC’s interpretation persuasive, however, it would not provide a 

sufficient basis for departing from an established precedent. See Spong v. Fid. 

Nat. Prop. & Cas. Ins. Co., 787 F.3d 296, 306 (5th Cir. 2015) (noting that “[a]n 

intervening change in law must be binding on this court,” and “merely 

persuasive, not binding” interpretations do not overcome the rule of 

orderliness). 

 Second, the transfer of ADEA functions previously performed by the 

Secretary of Labor to the EEOC does not constitute an intervening change in 

law sufficient to displace Dean. When we decided Dean, the ADEA gave certain 

roles and powers to the Secretary of Labor. See Dean, 559 F.2d at 1038–40. As 

Vaughan notes, the current version of the statute gives those roles and powers 

to the EEOC. The transfer of ADEA functions occurred pursuant to 

 

accessed Dec. 12, 2016); see also EEOC Compliance Manual § 8, Charge-Processing Outline 

at IV(B), 2006 WL 4672791; EEOC Compliance Manual § 8-III, Special Remedial Issues at 

B(1), 2006 WL 4672794; EEOC Compliance Manual § 10, Compensation Discrimination, 2006 

WL 4672894. 

7 Moskowitz suggested that the 1977 FLSA amendments “enlarge[d] the remedies . . . 

beyond those standardly available for . . . ADEA . . . violations” when a plaintiff brings 

retaliation claims. 5 F.3d at 284. Because the ADEA already permitted retaliation claims 

before the 1977 FLSA amendments, and appears to have supplied the 1977 FLSA’s remedial 

text, we decline to view Moskowitz as persuasive authority.

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Reorganization Plan No. 1 of 1978, which called for a straightforward 

substitution of the EEOC in place of certain statutory references to the 

Secretary of Labor.8 Vaughan fails to demonstrate that the transfer of 

functions created any significant differences for ADEA plaintiffs. 

For example, Vaughan argues that “[i]n the past private suits for age 

discrimination were secondary to administrative proceedings by the Secretary 

of Labor, which did not allow for compensatory damages.” Appellant’s Br. at 5. 

The ADEA’s current text demonstrates no less of a preference for 

administrative proceedings than the version Dean interpreted. In Dean, we 

concluded that the ADEA “patently encouraged and preferred . . . 

administrative remedies and suits brought by the Secretary of Labor . . . to 

private actions.” Dean, 559 F.2d at 1038. As evidence of this preference, we 

noted two specific aspects of the statute: (1) its requirement that private 

individuals give the Secretary of Labor 60 days’ advance notice of their 

intention to file a private ADEA claim, and (2) the Secretary of Labor’s ability 

to cut off an individual’s right to maintain a private ADEA suit by commencing 

an enforcement action within the notice period. See id. Those aspects of the 

statute remain the same, other than the substitution of the EEOC for the 

Secretary of Labor. See 29 U.S.C. § 626(d)(1) (notice requirement); § 626(c)(1) 

(termination of private right of action upon commencement of EEOC action). 

 

8 See Reorganization Plan No. 1 of 1978, 92 Stat. 3781 at § 2 (1978) (“All functions 

vested in the Secretary of Labor or in the Civil Service Commission pursuant to Sections 2, 

4, 7, 8, 9, 10, 11, 12, 13, 14, and 15 of the Age Discrimination in Employment Act of 1967, as 

amended, (29 U.S.C. 621, 623, 626, 627, 628, 629, 630, 631, 632, 633, and 633a) are hereby 

transferred to the Equal Employment Opportunity Commission. All functions related to age 

discrimination administration and enforcement pursuant to Sections 6 and 16 of the Age 

Discrimination in Employment Act of 1967, as amended, (29 U.S.C. 625 and 634) are hereby 

transferred to the Equal Employment Opportunity Commission.”).

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CONCLUSION 

Our opinion in Dean applies to all “private actions posited upon the 

ADEA,” Dean, 559 F.2d at 1040, including Vaughan’s ADEA retaliation claim. 

Under Dean, Vaughan may not invoke the ADEA as a basis for general 

compensatory damages for pain and suffering or punitive damages. Id. 

Perceiving no intervening change in law that would lead us to set Dean aside, 

we AFFIRM. 

 

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