Ronald W. Ramey and Joni J. Ramey - Page 9




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          sec. 216(b) (1994).  These liquidated damages are intended to               
          compensate employees not for personal injury but for damages that           
          may be too obscure or difficult to estimate because of the delay            
          of wage payment.  See Overnight Motor Transp. Co. v. Missel, 316            
          U.S. 572, 583-584 (1942).                                                   
               Accordingly, if a claim arose solely under the FLSA,                   
          petitioner would most likely fail to meet the test of                       
          Commissioner v. Schleier, supra.  However, petitioner argues                
          that, along with the FLSA claim, another claim existed–-the                 
          intentional and/or negligent infliction of emotional distress.5             
          Petitioner contends that this, and not the FLSA claim, was the              
          claim upon which the lawsuit was settled.                                   
               Indisputably, no claims for personal injury were alleged in            
          the 1993 class action pleadings.  Nevertheless, petitioner points           
          out that under Pipitone v. United States, 180 F.3d 859, 863 (7th            
          Cir. 1999), the absence of an allegation does not bar the                   
          existence of a tort claim or the ability of the parties to settle           
          upon it.                                                                    


               We agree that claims need not be specifically enumerated to            
          be the basis of a settlement.  Nonetheless, the payor must be               
          aware of that claim.  Id.  Practically speaking, the complaint is           


               5 Petitioner claims that she experienced “dry heaves” and              
          had to take prescription Tagamet to prevent an ulcer.  She also             
          claims that her marriage suffered because of job-related stress.            




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