Wilkes v. United States Postal Service, 548 F. Supp. 642 (N.D. Ill. 1982)

Murray B. Woolley, Chicago, Ill., for plaintiff.

Dan K. Webb, U. S. Atty., Edward J. Moran, Asst. U. S. Atty., Chicago, Ill., for defendant.

SHADUR, District Judge.

Lloyd Wilkes ("Wilkes") has sued United States Postal Service ("USPS") under the section of the Age Discrimination in Employment Act applicable to the Federal Government, 29 U.S.C. § 633a.^[1] USPS has filed a motion stated as aimed at the entire relief portion of Wilkes' Second Amended Complaint, but in fact addressed only to Paragraphs b, d and e of the prayer for relief. As so limited USPS' motion is granted for the reasons stated in this memorandum opinion and order.

Paragraph d asks for damages for mental distress allegedly incurred by Wilkes because of his discharge. In Pfeiffer v. Essex Wire Corp., 682 F.2d 684 (7th Cir. 1982), our Court of Appeals recently decided such damages are not recoverable under ADEA. Pfeiffer of course controls, and Paragraph d is therefore stricken.

As for Paragraphs b and e, they seek a finding of USPS' willful violation of ADEA in discharging Wilkes, with a corollary award of liquidated damages. What Wilkes has failed to take into account is that the Federal Government stands in a different position from other employers under ADEA:

1. Liquidated damages are a creature of statute, awardable under § 626(b). But the statutory structure that extends ADEA to the Government as employer (§ 633a(f)) specifically makes the other statutory provisionsincluding § 626(b)inapplicable.^[2]

2. That reading is consistent with and called for by Lehman v. Nakshian, 453 *643 U.S. 156 [101 S. Ct. 2698, 69 L. Ed. 2d 548] (1981), both in terms of statutory construction and as a matter of sovereign immunity.

3. It is true that § 633a(c) allows the Court, in ADEA actions against the Federal Government, to grant "such legal or equitable relief as will effectuate the purposes of this chapter." That language however should be read in conjunction with the specific inapplicability of the liquidated damages provision of § 626(b). This Court will not, in light of Lehman, imply the remedy of liquidated damages from the general provision for "legal or equitable relief."

Accord, Muth v. Marsh, 525 F. Supp. 604, 608-9 (D.D.C.1981). For that reason, Paragraphs b and e are stricken as well.

[1] All further references to Title 29 will simply take the form "§".

[2] This Court anticipated and reserved that question in Edmondson v. Simon, 87 F.R.D. 487, 489 n.1 (N.D.Ill.1980). Edmondson preceded the Supreme Court's decision in Lehman next referred to in the text of this opinion.