LORILLARD v. PONS

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Argument of Thornton H. Brooks

Chief Justice Warren E. Burger: We will hear arguments next in 1346, Lorillard A Division of Loew's Theaters against Pons.

Mr. Brooks, you may proceed whenever you are ready.

Mr. Thornton H. Brooks: Mr. Chief Justice Burger, Members of the court.

This case is here on Certiorari to the Fourth Circuit to review the question, whether a discharged employee who brings action against her former employee under the Age Discrimination in Employment Act and seeks as recovery, reinstatement to her position and monetary damages in the form of back pay, is entitled to a jury trial under that Act or under the Seventh Amendment.

The facts are briefly stated in the complaint and that is what we are proceeding on in this case, is that plaintiff was a 48 year-old employee of the defendant company and was terminated from her employment.

It is alleged that this discharge was because of her age and was a part of the company's policy to terminate where possible older employees and retain where possible younger employees.

Plaintiff made a timely demand for jury trial and defendant moved to strike the jury demand.

The District Court granted the motion to strike the demand, principally basing his ruling on the rationale that a Age Discrimination Act was akin to or parallel with Title 7 discrimination of account of race, sex, national origin and religion.

An interlocutory appeal was granted by the Fourth Circuit and that court reversed the opinion of the District Court, therefore basis of the opinion of the Circuit court, number one, it found in the language of the ADEA, those words 'legal relief' or 'equitable relief' as making a distinction in the Title 7 cases and the court further found or held that the opinion that Curtis v. Loether mandated that kind of a ruling that being a Title 8 case.

Third, the court felt that as a matter of constitutional right this was -- they were entitled to recover on that basis.

The Sixth Circuit in Morelock v. NCR Corp, held to the contrary and petition was granted.

I might state that pending the case before the Court of Appeal, plaintiff filed a motion in that court to have the case remanded after disposition before the Fourth Circuit to permit plaintiff to amend her complaint to allege that her termination caused her embarrassment, anxiety and constituted grounds for common law of punitive damages.

The Court of Appeals said that since that matter had been raised for the first time before that court, it should properly be raised only upon remand, it did not find it necessary to pass on the question of whether asking for punitive damages in an ADEA complaint made any difference.

Unknown Speaker: On this remand Mr. Brooks, is there anything to prevent the District Judge within the framework of the Fourth Circuit opinion?

Anything to prevent the District Judge from reserving to himself all of the truly equitable decisions, injunctive relief, for example, on relying the jury to deal with the damage issue?

Mr. Thornton H. Brooks: No, sir, I would take he could do that, he could have a bifurcated trial.

Unknown Speaker: Because you have to have first --

Mr. Thornton H. Brooks: I would think on the substantive issue of whether the Act had been violated.

Unknown Speaker: And that would require a jury trial, if the Court of Appeals is correct and that would have to come first under Beacon Theaters, wouldn't it?

Mr. Thornton H. Brooks: Right Sir.

And so it is our position that first we have to look at the Legislative Act, the ADEA to see if it provides for a jury trial, if so we do not have to reach the constitutional issue.

The Act itself has no expressed language that even tangent of the late deals with the matter of the jury trial.

It's utterly silent on the question of the jury trial.

In so far as the Legislative History is concerned it does not even rise to the extent of being ambiguous.

There is no Legislative History with respect to the jury trial aspect of the case.

There is a Legislative History about the purpose of the Act, and we consider that the legislative purpose in enacting the Act was to fill in the gap of employment discrimination areas that were not covered.

It already covered eight, I mean,sex, race, sex, religion, national origin and age was being to be a proper subject to prohibit discrimination in that field.

As a matter of fact, Title 7 has a provision authorizing the section.

Secretory of Labor to make a investigation and report back to Congress on the needs for that legislation, and that was done.

Unknown Speaker: Mr. Brooks, if the statute had said nothing whatever about jury trail, as it apparently doesn't and if there was absolutely nothing in the Legislative History indicating that Congress intended a jury trial, if nonetheless it had provided for the mandatory award of damages were found under Curtis v. Loether, these people who didn't have a jury trial.

Mr. Thornton H. Brooks: Certainly, in so far, if it provided for punitive damages as it does in Title 8.

Unknown Speaker: How about compensatory damages?

Mr. Thornton H. Brooks: We say 'no' because we say under the teachings of Title 7 cases, that's an incident to the equitable relief.

The main relief in the ADEA cases in Title 7 is reinstatement, that is Mrs. Pons wants.

She wants to get back her job.

The matter compensating her for lost wages and earnings -- she of course, didn't presume that but her main request and her main interest in this litigation is to be restored to her position.

Unknown Speaker: But she is asserting a claim for damage.

Mr. Thornton H. Brooks: Yes, in the form of back pay, which is what the typical Title 7 case is.

Unknown Speaker: Does the Legislative History show Congress elected to enact a separate statute rather than amend Title 7.

Mr. Thornton H. Brooks: Not directly this -- there was some suggestion that it be amendment to Title 7 and just include age along with the other categories but there was also some suggestion that before the committees that the EEOC which was charged with the administration of Title 7 was so behind in its caseload, that it would be better to entrust this to the Secretory of Labor which presumably had more time and could handle this aspect of it, but that would be the only indication in there that as to why that was in the separate Act.

Some of the commentators have suggested that there maybe not a legal distinction but a psychological distinction between discrimination on account of age and on account of these other factors.

Unknown Speaker: The other factors are immutable and constant.

Age is that constantly changes by the minute.

Mr. Thornton H. Brooks: Right Sir, and it is subject to everyone.

Unknown Speaker: It gets worse.

Mr. Thornton H. Brooks: Indeed Sir, and Congress now is contemplating moving it up because it figured that it's holding the clock back, I suppose.

So we contend that there is nothing in the Act, even indirectly that speaks to whether there should be a jury trail.

Arguably we say that Congress did not intend or contemplate one, otherwise it could have said so.

In Title 7, where they speak a jury trial in contempt cases, they expressly provide that the party is entitled to jury trial in that instant and so we say that they could have said so in this case if that had been their intent.

Chief Justice Warren E. Burger: Would you say that whenever Congress does not expressly provide for jury trial, then that is -- means it's a non jury case?

Mr. Thornton H. Brooks: No Sir, because Curtis v. Loether,a Title 8 case did not provide, and we consider that that case was correct what they decided because of the wording of that statute.

But then we would move to the constitutional issue and we would stand on this very concise proposition that set forth in the latest case of this court Pernell v. Southall Realty, where justice Marshall said that trial by jury and actions unheard of a common law permitted by are required by the Seventh Amendment provided that the action involves rights and remedies of this sort traditionally enforced in the action at law rather than in an action at equity or admity and all difference between the parties in this case is whether this is an action that traditionally would be brought in equity or in law.

Unknown Speaker: Supposing Mr. Brooks, that the plaintiff here had been suing your client not under the age discrimination, but for breach of contract.

And there was a diversity case in the federal court and hers claim for damages was back pay, she had been fired when she shouldn't have been.

She would be entitled to a jury trial then.

Mr. Thornton H. Brooks: Right Sir.

Unknown Speaker: What is the difference between her claim for back pay in a contract case and her claim for back pay in this case?

Mr. Thornton H. Brooks: Because, to come within the Seventh Amendment must not only have a right but you must have remedies, in the conjunction and not disjunctive and the remedies in these cases are injunctive and the claim back pay is merely an incident to the main thrust of the action which is restoring the person to the previous condition, whereas in the breach of contract, that is a action for a judgment that would be enforced by writ of attachment or by --

Unknown Speaker: What if she coupled in her breach of contract that action, with a prayer for injunction before restoration for her job assuming that Lumley v Wagner wasn't the law in the jurisdiction and its contract personal performance were specifically enforcible.

Mr. Thornton H. Brooks: If she had for example, a specific contract that was a breach, I mean, I were told that you would be employed for a certain length of time and they terminated before that is distinguished from termination at will which is a type of situation we are dealing with here, I would say she would be entitled to the jury trial on the contract plot and her measure of damages would be different, her remedy would be different.

Unknown Speaker: But wouldn't coupling and a claim for equitable relief in the contract case, along with the damages then make that case look a great deal like the case that is being asserted against your client?

Mr. Thornton H. Brooks: No Sir, because Mrs. Pons's action is based entirely on the ADEA, not at all on any common law, not on any contract.

Unknown Speaker: What if your client had been on a work for a while and then taking another job, that's a job she -- very satisfactory, within one reinstatement but wanted to -- then legally she claimed that deprived of her pay for six months, she sued for her pay.

Mr. Thornton H. Brooks: That causes trouble to the court, I might say this --

Unknown Speaker: That causes very little trouble isn't it?

Mr. Thornton H. Brooks: It certainly does Sir.

Unknown Speaker: And what would she do then?

Would she be entitled to a jury trial?

Mr. Thornton H. Brooks: I really don't think so.

Unknown Speaker: Although, it isn't seem, she really wouldn't be asking for any reinstatement, so there wouldn't be any equitable orders that this back pay would be incidental as you say.

Mr. Thornton H. Brooks: But that would be the only type of those situation under this if she is asking for promotion which is a frequent thing or she is asking to be hired which is a frequent cause of action or she is asking for difference in pay because she was discriminated there on account of age, all of those things can take injunctive relief or declaratory relief to a thing.

Unknown Speaker: The case can be -- if we were to decide against you, we could decide against you on the statute, never reach the constitutional issue as such.

Mr. Thornton H. Brooks: You could, yes sir, I would suggest --

Unknown Speaker: You suggest that we didn't, I know you.

Mr. Thornton H. Brooks: Well, if you could not find justification in the Curtis against Lother on the basis of this statute, I hardly say, I could find it here.

Because there is no basis -- well, there is that language of legal remedies, present in this case that is not in there.

I might say that this matter does trouble the Trial Court since the handing down of the decision in this case, in the Morelock case, there have been a number of District Court decisions, some following the teaching in Lorilard case and some following the teaching in Morelock, so it's not an easy proposition and only last week this court denied Certiorari in case of (Inaudible) v. Delaware which was a Title 7 case where request to jury trial was turned down and not that -- not granting the certiorari means anything but the courts are looking to this court for guidance on whether in discrimination litigations, party is entitled to trial and if it is our basic position that when you finally analyze the cases, there is no real difference from the standpoint of remedies and rights in an action brought under Title 7 in ADEA.

Unknown Speaker: Well, may be but Congress would have the power, I suppose expressly to grant a jury trail under the one statute and not under the other.

Mr. Thornton H. Brooks: Yes Sir, they would and we say that --

Unknown Speaker: And one of the arguments here is that that's exactly what they did.

Mr. Thornton H. Brooks: Yes Sir, and one of the arguments is that that's exactly what they did not there --

Unknown Speaker: I understand.

Mr. Thornton H. Brooks: And they can correct however --

Unknown Speaker: And we granted your petition for certiorari.

Mr. Thornton H. Brooks: Right Sir.

The one further point that I think needs to be stressed is that if we read the cases and as many of the lower court read the cases that -- where the relief is merely incident to on an -- the remedies merely incident to the equitable relief that you do not have to have a trial by jury and language in Moody v. Albemarle Paper Co. and the language in Boman Transportation, we think clearly say that back wages, lost wages do not have to automatically be granted and within the discretion of the court and therefore they are merely an incident to the main relief asked for and it is not cited in our brief but I would call the court's attention to the latest announcement of this court on the matter of jury, is in Atlas Roofing Company which was in, March of this year and as I read Footnote number 10, it says that going back to Jones & Laughlin, this is an alternate ground, it's a separate ground as to whether or not that that case was based on, that recovery of money damages is an incident to the non-legal relief even though damages might have been recovered in an action at law.

I would like to reserve a few minutes for reply.

Chief Justice Warren E. Burger: Very well Mr. Brooks.

Mr. Smith.

Argument of Norman B. Smith

Mr. Norman B. Smith: Mr. Chief Justice, May it please the court.

I read the briefs of petitioner and its amicus with care and listened to oral argument to try to see if there was some way that the meaning of a statute when it says legal or equitable relief could be rendered nugatory and I have failed to find that.

I think that the Third, Fourth and Fifth Circuits are correct and the Sixth Circuit is wrong in the way in which the lower courts have dealt with this jury trial question.

The statute clearly says legal or equitable relief can be awarded.

The statute goes on to give certain examples of all types of relief, examples set forth in the statute of equitable relief include compelling employment, reinstatement and promotion and to me, the example of legal relief that the stature on its face contains is enforcing liability for amounts deemed, unpaid minimum wages or unpaid overtime compensation, and in doing this the court has -- the Congress has incorporated by reference, Section 260 in the private remedy provision of the Fair Labor standards Act.

The lower court cases over the last 30 years interpreting the Section 216 are unanimous in holding that a jury trial right does obtain under the statute.

We feel that this judicial construction history must have been in the mind of Congress when it passed the law that we have here, when it was incorporated by reference.

We feel that not only do we have the items of relief deemed, unpaid minimum wages or unpaid overtime compensation, not only do we have these forms of relief as legal relief but we feel that other forms of relief provided by the statute or the statute as interpreted by the courts would also be legal relief.

Among these would be included in my view the statutory liquidated damages which is posited on a finding of willfulness.

I further feel that actual damages or payment suffering an injury to reputation maybe recoverable under the statute and furthermore that common law of punitive damages maybe recoverable under the law.

The court of course does not need to reach the question as to precisely what kinds of damages are recoverable because that does not arise in the scope of this case.

Unknown Speaker: Mr. Smith, do you agree with the cases that hold that jury trial is not required by Title 7?

Mr. Norman B. Smith: Your Honor please, I do not.

I think that those cases are wrongly decided but that's a personal view and I think that one could rule in my favor under the ADEA and still rule with the lower courts under the Title 7.

Unknown Speaker: In expressing that opinion, I take it you rely primarily on the language of he statute?

Mr. Norman B. Smith: Yes Your Honor.

I do.

Unknown Speaker: Any policy considerations that would prompt one to suggest a distinction between the two Acts in this respect.

Mr. Norman B. Smith: To me there's one that's more significant and that is related to the question which was asked to Mr. Brooks, a few moments ago about the process of aging being something that we all have to encounter.

I think we find in our society that we don't have a pervasive prejudice against elderly people, mindless sort of a prejudice that we found against persons of alien extraction or persons of minority races that we dealt with in Title 7.

Unknown Speaker: Does that exist with respect to Sex?

Mr. Norman B. Smith: Well, that's somewhat different type of prejudice but because our society is one that's dominated by males, I am inclined to think that this is a type of prejudice which is very pervasive and very malevolent and often very hard to detect.

And I suppose the framers of Title 7 felt that because such prejudices are so widely here, there might be jury nullification of the law.

This is suggested in some of the Legislative History as well as in some of the law review articles that have been published on the subject. I am of the view that -- same view that was expressed by this court in Curtis v. Loether that such considerations cannot overwrite the Seventh Amendment but I again emphasize that that is not the case that the court has before it and happily we don't seem to be concerned with jury nullification because all the plaintiffs in age cases want jurys and all the defendants don't want jurys.

I don't feel that --

Unknown Speaker: In age cases under this statute.

How about Title 7 cases?

Mr. Norman B. Smith: Well I think opinions differ there Your Honor of course, 15 years ago, 12 years ago when the statute was first enacted, I think most of us felt that the jurys would tend to nullify particularly in this all.

My own views are now that as a primarily a plaintiffs attorney, I just assume to have a jury trail under Title 7 case, as any other kind of case, in fact I prefer to but --

Unknown Speaker: Mr. Smith, suppose Congress changed its mind as to how to administer these two statutes, Title 7 and this Act and concluded in view of the mass of litigation that have resulted 120000 claims now pending in EEOC, that administrative remedies would be more appropriate throughout, perhaps there was an appeal ultimately to Court of Appeals, would you think that would violate the constitution of the United States on Seventh Amendment?

Mr. Norman B. Smith: Your Honor, reading Atlas Roofing and Jones Lauglin, I mean, I cant be compelled to say no.

I think that we could take very large spheres of newly created rights and put them before administrative tribunes, I think special courts of equity I think maybe Mr. Justice White characterized, I mean, I have seen in one of his opinion.

I am troubled by that if I saw too much of it going on, if I saw it too much in the way of classic or legal rights and remedies becoming institutionalized in the administrative process, I would be disturbed that a very great in run around the Seventh Amendment were being made --

Unknown Speaker: You are talking about the creation of new rights.

Mr. Norman B. Smith: Yes Sir, but of course this right now it has been in existence for 10 years and if we were to suddenly take this right and make a one that's determined solely in a administrative context, it would be to some degree troublesome to me.

Unknown Speaker: Well, of course in the workmen's compensation statute, the legislatures took rights that have been available not for ten years but for centuries and abolished them.

Abolished the Common Law of Rights of Actions and created instead a system of workmen's compensation having nothing to do with negligence or all the other common law rules.

Mr. Norman B. Smith: But wasn't it true Your Honor that the defenses were so merely absolute to those claims that the claims before the common law courts were for the most part not worth pursuing.

Unknown Speaker: But they wholly abolished that.

Mr. Norman B. Smith: I know that, but, my point is that the assumption, there is going to fill a certain rule and all those things were so pervasive that it was essentially impossible for the workmen to have an effective common law claim but I certainly agree with you Your Honor that the are instances where it has been done and it has been upheld by the courts happily.

We don't have such a difficult question.

Unknown Speaker: What if we had a statute that Congress enacted where it said up to now there has been no federal remedy for age discrimination, we intend to confer one and do so by this statute and we want the plaintiffs to be entitled to recover actual damages, punitive damages, but we do not want them to have a jury trial because it's going to cause too much congestion in the federal judicial system, isn't it conceivable that your client under the Seventh Amendment might be required to take the better with the suite and take the remedy that Congress has given whereas the defendant might have a Seventh Amendment claim?

Mr. Norman B. Smith: Well, I haven't thought about that Your Honor, my initial reaction would be that was good, for the goose and ought to be good for the gander in such instances but I -- that's a difficult question and I am really not equipped to respond to it.

Unknown Speaker: Generally speaking a lot of the answer to that interesting question might be -- there is a rule of law that prevents a legislature from imposing unconstitutional conditions upon grant of a right.

Mr. Norman B. Smith: Surely.

Unknown Speaker: But that's a question for you perhaps to that question.

Mr. Norman B. Smith: Well, I am very strongly of the opinion that there are limitations on the power of Congress to deny litigants their Seventh Amendment rights.

They may have done so under Title 7 happily that case is not here.

We respectfully contend that because legal relief is set forth on the face of the statute and illustrative types of legal relief are also set forth.

We don't think that there is any reason for the court to engage in the statutory construction by using extrinsic aids to construction and hence we see no reason for the court even to look at Title 7 in this case, but where the court to do so, the differences between the statutes are very dramatic.

Under Title 7 Congress went to considerable length to deliberately exclude jury trials.

The statute allows only for equitable relief on its face.

The statutory history including the floor debates and committee reports are replete with statements that there will be no trial by jury except in the narrow area of criminal contempts that came in pursuant to the Dirksen-Mansfield series of amendments.

Also it's instructive that back pay under the Title 7 is said maybe awarded by the court and not that it must be that but that it maybe to discretionary matter whereas the amounts deemed unpaid minimum wages and unpaid overtime compensation apparently must be awarded by the way the Age Discrimination Act is phrased.

Unknown Speaker: Is there statutory addition, a 100 percent addition?

Mr. Norman B. Smith: That is not automatic Your Honor, it requires a finding of willfulness.

Liquidated damages can be granted if the trial or fact determines that the defendants was willful.

Unknown Speaker: But the damages are -- the liquidation has to double the actual damages right?

Mr. Norman B. Smith: Yes sir, and it's very important to note that the Portal Act provision which allow similar liquidated damages under the FLSA was not carried forward into Age Act, under the Portal Act there's a discretionary provision.

The court had discretion to grant or deny liquidated damages depending on whether or not the court finds the defendant acted in good faith.

Here I think, Congress is telling us, let's let the jury decide whether or not the defendants was willful because the word discretion nowhere appears on the face of the Age Act and the Portal Act was not incorporated by reference as many of the other provisions of the FLSA were, turning --

Unknown Speaker: Did you tell us Mr. Smith whether or not the Fourth Circuit has decided that there is a right to jury trial in Title 7 cases and if you didn't tell us would you?

Mr. Norman B. Smith: The Fourth Circuit appears to join with virtually all other courts holding that there is no jury trail right, and they have even done so in some employment discrimination cases arising under 1983.

I don't think those cases any longer can be sustained in light of the Fourth Circuit's decision in Pons.

I am saying those public employment cases, I am not saying, of course of Title 7 cases which is a different animal.

Turning briefly to the constitutional issue which I don't think the court really needs to reach, I think it's a statutory construction problem but nonetheless the court should consider the constitutionality of jury trail in this case, we would say that this appears to be certainly one of those cases in which the seventh Amendment requires a jury trial to be given.

I think what the petitioners are tempting to do here is to reinstate the now defunct equitable cleanup doctrine and to ask that the damages consisting of lost wages be tried as an adjunct to the claim for equitable relief.

This clearly said in Beacon Theaters and Ross v. Bernhard that the right to jury trail will not be lost by trial of the equitable issues to the court in treating the legal issues merely as an incidental to them.

In Ross, there were the three tests identified for the purpose of assisting the court in establishing whether jury trials must be granted or not in a given context, one was whether the claim was legal or equitable.

I take it the petitioner really doesn't raise much of an issue here, I think the petitioner essentially concedes that respondent's claim is a legal claim because it so neatly fits in to the common law analog of the breach of contract of employment in the action for damages, as a result there are and further taking a suggestion from this court's decision in Curtis v. Loether, I suppose one could also say that a new statutory tort was created consisting of discrimination in employment and that this is somewhat akin to the common law cause of action for intentional infliction of emotional distress which is to tried on the law side and not on the equitable side.

I find no pre-merger equitable antecedent to the cause of action here.

The second inquiry required by Ross is whether the remedy is legal or equitable and we respectfully submit that the remedy here sought is a legal one, at least the remedy for lost wages.

Petitioner argued that reinstatement was the primary relief sought by the respondent, that's not necessarily so.

Two years have gone by now and it's really not necessarily true that by the time this case ultimately comes to trail the respondent will either wish to or be in a position to try and have her job back.

And certainly it's conceptually possible that that would be -- that claim would be withdrawn before the action comes to trial.

What respondent has particularly asked for here is her damages consisting of lost wages.

This is a classic legal remedy.

The lost wages under the Age Act are not discretionary as petitioner argues.

They are mandated by the Act.

The Act uses the word shall and not may and it incorporates all of this history of construction under the FLSA, all of which holds that such damages are automatic and calculable with precision.

Furthermore the claims for punitive or liquidated damages are historically unavailable and equally unavailable on the law side and these remedies as well would indicate that our claim here is want to be tried by jury.

The third and final element expressed in Ross is whether the action could be managed as a jury case given their practical limitations, we would respectfully submit that this type cases are ideal for resolution by jury as Justice Stevens noted in the Curtis case at the Circuit court level, such cases as these deal primarily with motive and credibility which are classic issues for jury resolution.

Computation of damages is relatively simple and straightforward and even in our own district we have the history that two cases have been tried by jury and that then this case came along and the jury demand was stricken so we know that you can't try these cases by jury because in our district, we tried two of them, in fact I was counsel for plaintiff.

Unknown Speaker: You did want to pray for punitive or liquidated or double then did you?

Mr. Norman B. Smith: Your Honor please, we prayed in the initial complaint from statutory liquidated damages before the Circuit court we saw who had other prayers for relief for common law punitive damages and for actual damages, other than back pay, are damages for injury to reputation, mental suffering and that sort of thing.

Unknown Speaker: Is that a customary thing to do on the Court of Appeal?

Mr. Norman B. Smith: No, Your Honor but I saw the lower courts going off in all kinds of different directions in these cases deciding in different ways depending on the prayers for relief.

I wanted to have the whole thing in front of a court and to get it resolved.

And the Circuit court decided to let it go back to the district court for ruling on that motion, of course we have not been back there because we came up here.

Unknown Speaker: What I am trying to get at is do you concede that if you had simply prayed for reinstatement you would not be entitled to a jury trail.

Mr. Norman B. Smith: If we simply prayed for reinstatement and no monetary relief?

Unknown Speaker: Yes.

Mr. Norman B. Smith: I am inclined to think that that would be tried on equity side.

Unknown Speaker: Well, then it does vary almost by virtue of your prayer whether or not you are entitled to a jury trail doesn't it?

Mr. Norman B. Smith: But I think under Ross v. Bernhard and the Dairy Queen and those cases that if you ask for any legal relief that determines how the case is going to be handled.

Unknown Speaker: That maybe where the line is drawn, but it does depend on the kind of relief that a particular plaintiff seeks.

Mr. Norman B. Smith: So, what I was saying, I think there was a decision by the Eastern District of Michigan where in they said, well the prayer for lost wages done appear to be very serious or very prompt and then I was seeing these kinds of distinctions which I thought were not proper.

Unknown Speaker: You want to make your prayer very prompt.

Mr. Norman B. Smith: As broad as I could and hopefully broad enough to ensure a trail by jury.

Unknown Speaker: Your original complaint is if or at least the complaint maybe as amended but then still on the district court in paragraph 3 of the prayer, certainly ask for what is called monetary damages and equal amount of liquidated damages, on page 4 of the Appendix.

Mr. Norman B. Smith: Yes Sir, Your Honor please, the word 'attorney' is inserted after the word 'plaintiff' and before the word 'monetary 'that's a typographical error and its corrected in Footnote One on page 6 of my brief and the record itself will show that that's typographical error.

Well, unless there are further questions, that does conclude my presentation.

Thank you very much.

Chief Justice Warren E. Burger: Very well.

Do you have anything further Mr. Brooks.

Rebuttal of Thornton H. Brooks

Mr. Thornton H. Brooks: One or two words on the matter of liquidated damages to which we were just devoting our attention.

Mr. Smith, before the District Court and was so interpreted before the Court of Appeals that he made no claim that that issue was triable by jury, that's found in the petition for certiorari in the decisions of the courts.

Before the District Court had in Footnote Two on page 8a and in the Court of Appeals on page 2a, in Footnote Three where it states this appeal involves only the right to jury trial on the claim of lost wages.

Mr. Smith has stated that in our argument we had made no mention about the wording and the act of legal relief.

I might say that without exaggeration that ADEA is not a hallmark of clarity.

They have the language in that that says you can enforce the liability for amounts deemed to the unpaid minimum wages or unpaid overtime compensation under this section.

They make that statement in two places in Section 7b, and there's no way possible that you can have unpaid wages or overtime compensation under a ADEA case.

This was barred from the language of FLSA case, the standard case where the only issue was the employee paid the minimum wages if not, they were entitled to a definite amount to bring that wages up to the minimum wage.

If the other part of the overtime compensation under the fairly the Standards Act, if you worked over 40 hours and did not pay time and they have to regulerate those hours, you are automatically entitled to a judgment for that amount.

That was a fixed amount that not capable of ascertainment within the discretion of any court.

Furthermore, my brother Mr. Smith says that we do not discuss what legal relief means, I would call his attention, the court's attention to his opposition for the petition for certiorari on page 7 in the third paragraph, when he states that “The term legal relief set out in the Age Discrimination and Employment Act clearly relates to the enumerated remedy of 'enforcing the liability for amounts deemed to the unpaid minimum wages or unpaid overtime compensation under this section', and also may relate to other types of legal claims such as common law damage claims which are not specifically enumerated in the statute”.

But we are not dealing with unpaid minimum wages or overtime, we are dealing with a claim for back wages, lost wages, and in conclusion I would say that we -- if a jury trial is permissible in an ADEA case, and is not permissible in the Title 7 case, we end up in the anomalous situation that Mrs. Pons being a female, an old age party could have coupled both actions in both claims in her complaint and she would have been entitled to a jury trail and therefore but if she brought only a Title 7 case, she would not have been.

We feel that this is all a part of Congress's intent to put discrimination cases in the same basket or category and the same kind of result should obtain with respect to whether her part is entitled to a jury trail.

Thank you Sir.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.