United States District Court, D. Nebraska
KAYLEEN M. HARMEL, an individual; Plaintiff,
TERRY HUGHES TREE SERVICE, INC., a Nebraska Corporation; Defendant.
MEMORANDUM AND ORDER
Smith Camp Senior United States District Judge
matter is before the Court on the Motion to Strike, ECF No.
7, filed by Defendant Terry Hughes Tree Service, Inc. (THTS).
For the reasons stated below, the Motion will be granted.
Kayleen Harmel brought this action against THTS for age
discrimination and retaliation under the Age Discrimination
in Employment Act (ADEA), 29 U.S.C. § 623, the Nebraska
Age Discrimination in Employment Act (NADEA); Neb. Rev. Stat.
§ 48-1004; and the Nebraska Fair Employment Practices
Act (NFEPA), Neb. Rev. Stat. § 48-1114. Compl., ECF No.
1. In her request for relief, Harmel listed “[p]unitive
damages for THTS's knowing violation of federal
discrimination laws.” Id. at Page ID 6. THTS
filed the pending Motion to Strike under Federal Rule of
Civil Procedure 12(f) arguing Harmel's request for
punitive damages should be stricken because such damages are
not recoverable under the ADEA, the NADEA, or the NFEPA.
Harmel did not respond to THTS's Motion.
Rule 12(f), “[t]he court may strike from a pleading an
insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f).
“Judges enjoy liberal discretion to strike pleadings
under Rule 12(f).” BJC Health Sys. v. Columbia Cas.
Co., 478 F.3d 908, 917 (8th Cir. 2007).
Harmel cannot recover punitive damages under Nebraska law,
O'Brien v. Cessna Aircraft Co., 903 N.W.2d 432,
458 (Neb. 2017) (citing Neb. Const. art. VII, § 5), the
Court must determine whether punitive damages are recoverable
under the ADEA. If not, the Court will strike Harmel's
request for punitive damages from the Complaint. See BJC
Health Sys., 478 F.3d at 917.
[t]he provisions of this chapter shall be enforced in
accordance with the . . . remedies . . . provided in sections
211(b), 216 (except for subsection (a) thereof), and 217 of
this title, and subsection (c) of this section. Any act
prohibited under section 623 of this title shall be deemed to
be a prohibited act under section 215 of this title. Amounts
owing to a person as a result of a violation of this chapter
shall be deemed to be unpaid minimum wages or unpaid overtime
compensation for purposes of sections 216 and 217 of this
title: Provided, That liquidated damages shall be
payable only in cases of willful violations of this chapter.
In any action brought to enforce this chapter the court shall
have jurisdiction to grant such legal or equitable relief as
may be appropriate to effectuate the purposes of this
chapter, including without limitation judgments compelling
employment, reinstatement or promotion, or enforcing the
liability for amounts deemed to be unpaid minimum wages or
unpaid overtime compensation under this section.
29 U.S.C. § 626(b) (emphasis in original). The Eighth
Circuit has explained that § 626(b) “contains two
tiers of liability. It awards compensatory damages when an
employer violates the [ADEA] and liquidated damages when that
violation is willful.” Spencer v. Stuart Hall Co.,
Inc., 173 F.3d 1124, 1129 (8th Cir. 1999).
“Liquidated damages serve as a deterrent to willful
violations of the [ADEA], and while there is an aspect to
such damages that is punitive in nature, they are not the
equivalent of punitive damages.” Williams v.
Valentec Kisco, Inc., 964 F.2d 723, 729 (8th Cir. 1992)
(internal citations omitted); see also Newhouse v.
McCormick & Co., Inc., 110 F.3d 635, 640 (8th Cir.
1997) (quoting Wiehoff v. GTE Directories Corp., 61
F.3d 588, 593 (8th Cir. 1995) (“Liquidated damages
amount to a punitive double recovery, ‘intended to
deter willful conduct.'”)). “Punitive damages
are not recoverable under the ADEA.” Williams,
964 F.2d at 729 (citing 29 U.S.C. §
on the foregoing Eighth Circuit precedent, the Court finds
that Harmel cannot recover punitive damages under the ADEA.
Id. She may seek compensatory and liquidated
damages, which are expressly provided for in §
626(b). Spencer, 173 F.3d at 1129.
Accordingly, IT IS ORDERED:
Motion to Strike, ECF No. 7, filed by Defendant Terry Hughes
Tree Service, Inc., is granted; and
request for punitive damages in Plaintiff Kayleen
Harmel's Complaint is stricken.