NEW ORLEANS — The 5th Circuit Court of Appeals has affirmed the dismissal of a wrongful-termination lawsuit brought by a nurse who claimed she was fired for raising age-discrimination complaints.

Judges found that 5th Circuit precedent bars nurse supervisor Susan Vaughan's pain and suffering claims under the Age Discrimination in Employment Act against Anderson Regional Medical Center.

In an opinion filed Feb. 15, the panel pointed out that the district court at the Southern District of Mississippi wrote in its dismissal order that divergent views on recoveries under the ADEA are held by other circuit courts and the Equal Employment Opportunity Commission.

The district court, finding that there was "substantial ground for differences of opinion" on the availability of pain and suffering and punitive damages in ADEA retaliation cases, certified an appeal to the 5th Circuit, which granted leave to file an interlocutory appeal.

Fifth Circuit judges on the panel included James Graves Jr., Fortunato Benavides and Catharina Haynes.

The district court, in its analysis, relied on a case decided in 1977, Dean v. Am. Sec. Ins. Co.

However, the parties to the litigation disputed Dean's applicability, the appeals opinion stated.

Graves, who wrote the opinion for the panel, said that it adheres to a “rule of orderliness,” under which it “may not overturn a controlling precedent absent an intervening change in law, such as by a statutory amendment, or the Supreme Court,” or en banc court — which is the full court of judges.

"Indeed, even if a panel’s interpretation of the law appears flawed, the rule of orderliness prevents a subsequent panel from declaring it void,” Graves wrote.

Graves wrote that in order for the panel to determine if the rule of orderliness applies, it has to determine whether the precedent in Dean is “distinguishable” from this case or whether an intervening change in law justifies setting Dean aside.

“We conclude that the answer to both questions is ‘no,’” Graves wrote.

According to the opinion, Vaughan conceded that Dean did not allow for pain and suffering and punitive recoveries for ADEA age-discrimination claims. However, she argued that Dean does not control ADEA retaliation claims.

“We disagree,” Graves wrote.

He explained that the finding in Dean held that neither general damages, such as compensatory damages for pain and suffering, nor punitive damages are recoverable in private actions based on the ADEA.

Vaughan’s argument that the 1977 Fair Labor Standards Act amendments “enlarged” the remedies available for ADEA retaliation claims was supported by a decision in at least one circuit court and the EEOC had endorsed that interpretation, the opinion stated.

“We conclude, however, that Vaughan’s argument fails to recognize the 1977 FLSA amendments incorporated remedial language substantively identical to passages already provided in the ADEA,” Graves wrote. “Put simply, the 1977 FLSA amendments do not disturb our holding in Dean, because they added language to the FLSA that we have already construed in the context of the ADEA —in Dean.”

The 5th Circuit panel ruled that Vaughan may not invoke the ADEA as a basis for general compensatory damages for pain and suffering or for punitive damages.

"Perceiving no intervening change in law that would lead us to set Dean aside, we affirm (dismissal)," Graves wrote.

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