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If the plaintiff in a federal age discrimination suit cannot prove any lost wages, the case must be dismissed because the Age Discrimination in Employment Act does not allow awards of compensatory or even nominal damages, a federal magistrate judge has ruled. In Beverly v. Desmond Hotel & Conference Center, U.S. Magistrate Judge Jacob P. Hart said he discovered on the eve of trial that the case was fatally flawed because the only remaining claim was an ADEA claim for which the plaintiff could not show any lost wages. As a result, Hart concluded that even if a jury were to find a violation of the ADEA in James Beverly’s case, no damages would be available. Plaintiff’s attorney Joseph D. Dinoto of Cherry Hill, N.J., urged Hart to allow the case to go to trial, arguing that his client was still eligible for an award of liquidated damages if he could prove a willful violation of the ADEA. Hart disagreed, saying that liquidated damages must be calculated on the basis of the plaintiff’s award for lost wages. “If no nominal damages can be awarded, there is no way to double them to arrive at a correct award for liquidated damages,” Hart wrote. “Since the ADEA specifically provides that liquidated damages are to be awarded in an amount equal to the lost wages recoverable, I am plainly not permitted to dream up another way of calculating them,” Hart wrote. Beverly, acting as his own lawyer, originally filed the suit and alleged claims under the ADEA and race discrimination claims under Title VII. Dinoto entered his appearance through a program in which the U.S. District Court for the Eastern District of Pennsylvania helps unrepresented plaintiffs in employment discrimination cases find lawyers. Most of Beverly’s claims were dismissed when U.S. District Judge Stewart Dalzell ruled that the Desmond Hotel was entitled to summary on the Title VII claims. In the suit, Beverly, who is black, claimed that he was the only one fired after he had a fistfight with a white kitchen worker. But Dalzell determined that the hotel was justified in firing Beverly since he had threatened to stab the other worker in the heart. “It is not implausible that after investigating a workplace brawl, [the hotel] would distinguish between the employee who threatened to use a weapon and the employee who used his fists,” Dalzell wrote. As a result of Dalzell’s rulings, the only remaining claim in Beverly’s case was an ADEA claim in which he alleged that he was denied a promotion from the kitchen to a post as busboy. Beverly claims that he was directly told that he was “too old” to work as a busboy. The case was referred to Hart, and jury selection was scheduled for Jan. 20. But on the eve of trial, Hart informed the lawyers that he was considering dismissal of the case due to Beverly’s inability to prove any damages. Both sides agreed that the salary for a busboy was lower than the salary for a kitchen worker, but Beverly insisted that he viewed the job change as a promotion because it offered more prestige, better working conditions, and was a stepping-stone to a waiter position that would have been well-paid. Hart concluded that since Dalzell’s prior rulings had exonerated the hotel for all claims relating to the firing of Beverly, the only remaining issue was whether Beverly was the victim of age discrimination during his final few months as a kitchen worker. And since the “promotion” to a busboy post would have paid less, Hart concluded that Beverly was unable to show any lost wages. Under the ADEA, Hart said, a plaintiff is entitled to recovery of lost wages and “an additional equal amount as liquidated damages” in the case of a willful violation. But unlike Title VII, which was amended to allow recovery of compensatory damages, Hart said, “the ADEA does not permit a separate recovery of compensatory damages for pain and suffering or emotional distress.” In Rogers v. Exxon, Hart said, the 3rd U.S. Circuit Court of Appeals reversed a trial court that had permitted the recovery of damages for pain and suffering in an ADEA case, on the basis that “the ADEA created a new tort.” “After examining the language of the statute, and its legislative history, the Rogers court essentially decided that Congress permitted the recovery of liquidated damages in lieu of the recovery of compensatory damages. It concluded that permitting an award for pain and suffering would thwart the recovery scheme planned by Congress, and would also present administrative problems,” Hart wrote. Although the 3rd Circuit has never considered whether nominal damages are available in an ADEA case, Hart concluded that they are not. In a 1994 decision in Rivadeneira v. City of Philadelphia, Hart said, U.S. District Judge Lowell A. Reed Jr. determined that nominal damages were not available in a Title VII case applying the pre-1991 statute because “the fact that Title VII does not provide for compensatory or punitive damages [as it did not, pre-1991] indicates that Congress did not intend for nominal damages to be available under Title VII.” Hart determined that the Rivadeneira decision’s logic applies to the ADEA. “I believe that the same reasoning applies to the ADEA, which does not permit compensatory or punitive damages. The restrictions placed by Congress on the damages available in an ADEA case signal its intention to make only direct economic losses recoverable,” Hart wrote. Without access to nominal damages and no provable lost wages, Hart said, Beverly’s claim failed. “Even if Beverly’s argument is that liquidated damages can, in themselves, be used as a form of nominal damages, it is still unacceptable,” Hart wrote. “First … it is completely inconsistent with the ADEA’s specific directions as to the calculation of liquidated damages. Secondly, it would represent an ‘end run’ around Congress’s decision not to provide for the recovery of nominal damages under the ADEA.” The Desmond Hotel & Conference Center was represented by attorneys Edward S. Mazurek and Sean V. Burke of Morgan Lewis & Bockius.

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