IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

WILLIAM C. HUNTER )

 )

Plaintiff, ) 

 )

v. ) CIVIL ACTION NO. 08-00666-KD-M

 )

CITY OF MOBILE )

 )

Defendant . )

ORDER

Before the Court is Defendant City of Mobile’s trial brief regarding damages (Doc. 97), and

the plaintiff’s response (Doc. 100). The defendant asks the Court to strike the plaintiff’s claims for

liquidated damages under the ADEA and Alabama ADEA. 

The Court adopts the reasoning set out by the Third Circuit in Potence v. Hazelton Area

School Dist., 357 F. 3d 366 (3d Cir. 2004): 

The ADEA incorporates the enforcement powers, remedies, and

procedures of the Fair Labor Standards Act (“FLSA”) set forth in 29

U.S.C. §§ 211(b), 216 (except for subsection (a)), and 217. 29 U.S.C.

§ 626(b). The enforcement provision of the [ADEA] expressly

provides for imposition of liquidated damages payable “in cases of

willful violations of this chapter.” 29 U.S.C. § 626(b). The FLSA

further provides that “[a]ny employer who violates [the FLSA] shall

be liable to the employee or employees affected in the amount of

their unpaid minimum wages, or their unpaid overtime compensation,

as the case may be, and in an additional amount as liquidated

damages. 29 U.S.C. § 216(b). Thus, when a jury finds that an

employer willfully violated the ADEA, the basic damages award may

be doubled under this liquidated damages provision.

. . . .

The ADEA makes it unlawful for an employer “to fail or refuse to

hire or to discharge” an individual because of his or her age. 29

U.S.C. § 623(a)(1). Included in the ADEA’s definition of employer

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is “a State or political subdivision of a State and any agency or

instrumentality of a State or a political subdivision of a State.” 29

U.S.C. § 630(b). The ADEA could not be more explicit in imposing

liability for age discrimination against municipalities. Similarly

explicit is the ADEA’s contemplation of the imposition of liquidated

damages, as it states in pertinent part “[t]hat liquidated damages shall

be payable only in cases of willful violations of this chapter.” 29

U.S.C. § 626(b). The FLSA provisions incorporated in the ADEA

provide for the imposition of liquidated damages “against any

employer (including a public agency),” 29 U.S.C. § 216(b), and the

statutory definition of a “public agency” includes “State[s] or

political subdivisions thereof,” 29 U.S.C. § 203(x). 

Id. at 372-73. Accordingly, “[i]nasmuch as the statute expressly authorizes that imposition of

liquidated damages against a municipality, even though such damages are punitive in nature,” the

City’s request to strike Hunter’s claim for liquidated damages under the ADEA is DENIED. See

also Freeman v. City of Mobile, 146 F.3d 1292, 1305 (11th Cir. 1998) (Kravitch, J., concurring and

noting that “a public agency found to have violated FLSA’s overtime requirements is liable to its

employees in the amount of . . . unpaid overtime compensation . . . and in an additional equal

amount as liquidated damages . . . .” Id. (internal quotation omitted)).

DONE and ORDERED this the 13th day of April, 2010.

/s/ Kristi K. DuBose 

KRISTI K. DUBOSE

UNITED STATES DISTRICT JUDGE

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