Ida Martinez v. Behring's Bearings Service, Inc.

501 F.2d 104, 1974 U.S. App. LEXIS 5844

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 2, 1974
• Docket: 73-3649
• Status: Published

Opinions

RIVES, Circuit Judge:

The issue to be decided in this case is whether section 15(a) (3) of the Fair Labor Standards Act (29 U.S.C. § (a)(3)) should be construed to give a right of action for damages to an employee who claims that the cause of her dismissal from employment was her having twice complained about her wage scale to the Wage and Hour Division of the U. S. Department of Labor. The district court dismissed the plaintiff’s complaint for lack of jurisdiction and for failure to state a claim upon which relief could be granted. 363 F.Supp. 428. We affirm.

Plaintiff alleges that she filed a complaint with the Wage and Hour Division in October, 1969, which resulted in her being paid $445.22 in back wages; and a second complaint in September, 1970,. which resulted in her being paid $445.74 in back wages. On March 1, 1972, she was dismissed from her employment for the assigned cause of “numerous consumer complaints,” but in fact, so the plaintiff alleges, because of her two complaints to the Wage and Hour Division.

The plaintiff makes no claim to a fixed or ascertainable term of employment. Under Louisiana law, in the absence of such a claim, she would have no right of action for dismissal whether with or without cause. 23 La.L.Rev. 553, 556 and cases there cited. Instead the plaintiff bases her claim upon the following provision of section 15(a)(3) of the Fair Labor Standards Act.

“(a) ... it shall be unlawful for any person—

". . . . . .

“(3) to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.”

The plaintiff relies on Judge Rubin’s scholarly opinion in Fagot v. Flintkote Company, E.D.La.1969, 305 F.Supp. 407. She acknowledges that the following earlier decisions have reached the opposite conclusion, namely, that there is no private right of action for damages for an employer violation of section 15(a)(3) of the Fair Labor Standards Act. Powell v. Washington Post Co., 1959, 105 U.S.App.D.C. 374, 267 F.2d 651, cert. den., 360 U.S. 930, 79 S.Ct. 1449, 3 L.Ed.2d 1544; Bonner v. Elizabeth Arden, Inc., 2 Cir. 1949, 177 F.2d 703; Britton v. Grace Line, Inc., S.D.N.Y.1962, 214 F.Supp. 295. Thus, among cases construing the Fair Labor Standards Act, the only one supporting the plaintiff’s claim is Fagot, supra.

The Act provides for its enforcement by both criminal and civil proceedings. Those provisions include criminal penalties for violation of section 15, civil rights of action for unpaid overtime and for unpaid minimum wages, and injunctive relief. See 29 U. S.C. § 216. It seems evident to us that Congress did not see fit to provide any right of action for damages for wrongful discharge of an employee. Powell v. Washington Post Co., supra, holding that no such right of action should be implied, was decided more than fourteen years ago, and Congress has not yet seen fit to provide such a remedy. After all, the courts’ duty in the premises is simply to make effective the purpose and intent of Congress. We conclude, that under the circumstances, there is not such necessity for effectuating the congressional purpose as to place on the courts either the duty or the privilege to add a remedy to those provided by Congress. See J. I. Case Co. v. Borak, 1964, 377 U.S. 426, 433, 84 S.Ct. 1556, 12 L.Ed.2d 423; Breitwieser v. KMS Industries, Inc., 5 Cir., 1972, 467 F.2d 1391, 1394; Love v. Temple University, E.D.Pa.1973, 366 F.Supp. 835, 841.

The judgment is therefore

Affirmed.