Monthly Archives: August 2011

11th Cir.: Board of Dental Examiners Not “Arm of the State” Entitled to Sovereign Immunity

***** EDITOR’S UPDATE *****:

On July 13, 2012, the Eleventh Circuit granted the Board of Dental Examiners of Alabama’s motion for rehearing, based on a subsequent decision of Alabama’s highest court which held that the Board was in fact an “arm of the state.”  As they had in the prior decision, the Eleventh Circuit deferred to the courts of Alabama.  Since a higher court in Alabama had ruled that the Board was an “arm of the state,” the Eleventh Circuit reversed itself (and the court below) and entered judgment on behalf of the Board holding that it was sovereign immune as an “arm of the state” of Alabama.  Thus, the initial Opinion discussed below is no longer good law.

Click Versiglio v. Board of Dental Examiners of Alabama to read the entire substituted Opinion on Petition for Rehearing.

Versiglio v. Board of Dental Examiners of Alabama

This case was before the Eleventh Circuit on the Board’s appeal asserting that the court below erred when it held that it was not subject to Eleventh Amendment immunity from the FLSA as an “arm of the state.”  Rejecting this contention and affirming the decision below, the Eleventh Circuit relied, almost entirely, on the fact that the highest court of Alabama had previously held that the Board was not entitled to Eleventh Amendment immunity.

The Court summarized the issue before it as follows:

“Appellant Board of Dental Examiners of Alabama (the “Board”) appeals the district court’s judgment denying it sovereign immunity protection as an arm of the state of Alabama. Appellee Natalie Versiglio contends that the Board is sufficiently independent from the state of Alabama, that it is not entitled to Eleventh Amendment immunity, and that her claim under the Fair Labor Standards Act should be allowed to continue. The Supreme Court in Alden v. Maine settled the matter of state employees suing under the FLSA, writing, “We hold that the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts. We decide as well that the State of Maine has not consented to suits for overtime pay and liquidated damages under the FLSA.” 527 U.S. 706, 712, 119 S.Ct. 2240, 2246 (1999). Thus, the question before this court is whether the Board is an arm of the state. For the reasons stated below, we conclude that at this time it is not and affirm the judgment of the district court.”

Discussing the parties assertions regarding the applicability of the Eleventh Amendment to Defendant the Eleventh Circuit, the court appeared to find Board’s arguments more compelling.  Specifically, the court noted that in creating the Board, the Alabama legislature made specific findings that supported the argument that the Board was an “arm of the state.”  Further, the Eleventh Circuit rejected the Plaintiffs’ arguments that Board’s independence- including the composition of its Board and its discretion to spend its funds- supported the finding that it was not an “arm of the state,” based on prior jurisprudence.  Curiously, the court also questioned the Plaintiffs’ assertion that the State treasury was not implicated by the case before it.  Instead, the court reasoned that- despite the fact that the State does not allocate, administer or collect the funds used by the Board- ultimately the State would likely have to pay any judgment.

Notwithstanding all of the above, the court still concluded that that the Board was not subject to Eleventh Amendment immunity, but relied almost entirely on a decision by Alabama’s highest court in reaching its holding.  The court reasoned:

“Despite the strength of the Board’s claim of sovereign immunity under the Miccosukee test, one factor weighs heavily against it. On April 1, 2011, the Court of Civil Appeals of Alabama released its opinion in Wilkinson v. Board of Dental Examiners of Alabama, 2011 WL 1205669, 2011 Ala. Civ.App. LEXIS 88 (Ala. Civ.App. April 1, 2011). FN3 In its opinion, the state appeals court conducted the first substantial analysis by a state court of the Board’s status as a state agency. FN4 The Board argued that it was immune from suit in state court pursuant to Article 1, Section 14 of the Alabama Constitution. That section provides that “the State of Alabama shall never be made a defendant in any court of law or equity.” Alabama courts have construed this immunity to extend to arms of the state. Armory Comm’n v. Staudt, 388 So.2d 991, 993 (Ala.1980). The test for entities seeking immunity is much like this court’s test: whether “a lawsuit against a body created by legislative enactment is a suit against the state depends on the character of power delegated to the body, the relation of the body to the state, and the nature of the function performed by the body.” Id. Applying this test, the Court of Civil Appeals examined many of the provisions discussed above, concluding that the Board is not an arm of the state and thus “is not entitled to § 14 immunity.” Wilkinson, 2011 Ala. Civ.App. Lexis 88 at *16, 2011 WL 1205669 at *5.

This court gives great deference to how state courts characterize the entity in question. This practice is in keeping with the ordinary deference granted state courts when they interpret matters of state concern. See Silverberg v. Paine, Webber, Jackson & Curtis, Inc., 710 F.2d 678, 690 (11th Cir.1983) (“A federal court applying state law is bound to adhere to decisions of the state’s intermediate appellate courts absent some persuasive indication that the state’s highest court would decide the issue otherwise.”). Federal courts are often more skeptical of state court decisions involving issues of sovereign immunity, as otherwise “[a] state would have too much self-interest in extending sovereign immunity to as many of its agencies and corporate creations as possible.” Miller–Davis Co. v. Illinois State Toll Highway Auth., 567 F.2d 323, 330 (7th Cir.1977). However, that concern is obviated when, as here, the state court finds that an entity is not an arm of the state. Id. (“Especially when a state supreme court does not extend immunity but, rather, holds that an entity is not to be deemed the state for purposes of sovereign immunity, we think the federal courts must pay careful attention to the state opinion.”).

Finding that the Board is entitled to sovereign immunity would require this court to interpret Alabama law in a way that is diametrically opposed to the findings of the highest state court to consider the issue. Such a ruling would also create the incongruous result of having a “state agency” that is immune from suit under federal law but not under state law. Cf. Alden, 527 U.S. at 793 n.29, 119 S.Ct. at 2285 n.29 (noting in a different context that the Framers of the Eleventh Amendment “would have considered it absurd that States immune in federal court could be subjected to suit in their own courts”). As such, we believe that a holding by this court that the Board is an arm of the state for purposes of sovereign immunity would be inappropriate.

For the aforementioned reasons, we affirm the district court’s finding that the Board is not entitled to sovereign immunity protection as an arm of the state of Alabama.”

Click Versiglio v. Board of Dental Examiners of Alabama to read the entire decision.

Leave a comment

Filed under Sovereign Immunity

4th Cir.: Job Applicant Lacked Standing Under § 215 for Retaliation Against Prospective Employer; Protections Extend Only to “Employees”

Dellinger v. Science Applications International Corp.

Plaintiff commenced this action under the Fair Labor Standards Act of 1938 (“FLSA”) against Science Applications International Corporation which, she alleges, retaliated against her, in violation of the FLSA’s anti-retaliation provision, 29 U.S.C. § 215(a)(3), by refusing to hire her after learning that she had sued her former employer under the FLSA.  As discussed here, the district court granted Science Applications’ motion to dismiss, concluding that Plaintiff was not an “employee” of Science Applications, as defined in the FLSA, and that the FLSA’s anti-retaliation provision does not cover prospective employees.  On appeal, Dellinger contended that the district court’s reading of the statute was too narrow and that the FLSA’s anti-retaliation provision protects any employee that has been the victim of FLSA retaliation by “any person,” including future employers.  Affirming the dismissal, the Fourth Circuit concluded that the FLSA gives an employee the right to sue only his or her current or former employer and that a prospective employee cannot sue a prospective employer for retaliation.

Rejecting the common sense approach proffered by the Plaintiff (and supported by the DOL, who filed an Amicus Brief in support of the Plaintiff), the Fourth Circuit reasoned:

“While § 215(a)(3) does prohibit all “persons” from engaging in certain acts, including retaliation against employees, it does not authorize employees to sue “any person.” An employee may only sue employers for retaliation, as explicitly provided in § 216(b). The use of the term “person” in § 215(a) is attributable to the structure of the provision, which prohibits a number of separate acts in addition to retaliation, not all of which are acts performed by employers. For instance, § 215(a)(1) prohibits any person from transporting “any goods in the production of which any employee was employed in violation of section 206 [minimum wages] or section 207 [maximum hours] of this title.” Thus, Congress prohibited the shipment of goods produced by employees who are paid in violation of the Act, and for enforcement, it authorized the criminal prosecution of any “person” violating the prohibition. See 29 U.S.C. § 216(a). Just as there is no remedy for an employee to sue such a shipper, there is also no remedy for an employee to sue anyone but his employer for violations of the anti-retaliation provision. Accordingly, if the person retaliating against an employee is not an employer, the person is not subject to a private civil action by an employee under § 216(b).

Considering the Act more broadly, we cannot overlook the fact that the FLSA was intended at its core to provide minimum wages and maximum hours of work to ensure employees a minimum standard of living necessary for “health, efficiency, and general well-being of workers.” 29 U.S.C. § 202(a). The anti-retaliation provision is included, not as a free-standing protection against any societal retaliation, but rather as an effort “to foster a climate in which compliance with the substantive provisions of the [FLSA] would be enhanced.” Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 293 (1960). Thus, the anti-retaliation provision was meant to ensure that employees could sue to obtain minimum wages and maximum hours from their employers without the employers taking adverse action against them for the exercise of those rights. This purpose is inherent in the employment relationship, which is the context in which the substantive provisions operate.

We have been unable to find any case that extends FLSA protections to applicants or prospective employees. Indeed, prior cases have reached the conclusion that we have, applying the anti-retaliation provision only within the employer-employee relationship. See, e.g., Glover v. City of North Charleston, S.C., 942 F.Supp. 243, 245 (D.S.C.1996) (noting that the “any employee” language in the anti-retaliation provision mandates that the plaintiff have an employment relationship with the defendant); Harper v. San Luis Valley Reg’l Med. Ctr., 848 F.Supp. 911 (D.Col.1994) (same); cf. Darveau v. Detecon, Inc., 515 F.3d 334, 340 (4th Cir.2008) (requiring, as part of a prima facie FLSA retaliation case, a showing of “adverse action by the employer”); Dunlop v. Carriage Carpet Co., 548 F.2d 139 (6th Cir.1977) (holding that an employee could sue his former employer when the former employer retaliated against the employee by advising a prospective employer that the employee had previously filed an FLSA suit).

We are sympathetic to Dellinger’s argument that it could be problematic to permit future employers effectively to discriminate against prospective employees for having exercised their rights under the FLSA in the past. The notion, however, that any person who once in the past sued an employer could then sue any prospective employer claiming that she was denied employment because of her past litigation would clearly broaden the scope of the FLSA beyond its explicit purpose of fixing minimum wages and maximum hours between employees and employers. We are, of course, not free to broaden the scope of a statute whose scope is defined in plain terms, even when “morally unacceptable retaliatory conduct” may be involved. Ball v. Memphis Bar–B–Q Co., 228 F.3d 360, 364 (4th Cir.2000).

Dellinger urges us to extend the FLSA’s definition of “employee” to protect job applicants, pointing to other statutes under which applicants are protected. In particular, she refers to the Energy Reorganization Act, the National Labor Relations Act (“NLRA”), the Occupational Safety and Health Act (“OSHA”), and the Pipeline Safety Improvement Act. Reference to these statutes, however, does not advance her cause. The case cited by Dellinger with respect to the Energy Reorganization Act merely assumed, without deciding, that an applicant was covered under that Act. See Doyle v. Secretary of Labor, 285 F.3d 243, 251 n. 13 (3d Cir.2002). While the NLRA does protect prospective employees from retaliation, the Act itself defines “employee” more broadly than does the FLSA, providing that the term “employee” “shall not be limited to the employees of a particular employer” unless explicitly stated. See 29 U.S.C. § 152(3). With respect to OSHA and the Pipeline Safety Improvement Act, regulations implementing those statutes have been promulgated to extend protections to prospective employees. See 29 C.F.R. § 1977.5(b) (OSHA); 29 C.F.R. § 1981.101 (Pipeline Safety Improvement Act). The Secretary of Labor has not, however, promulgated a similar regulation for the FLSA.

Because we conclude that the text and purpose of the Fair Labor Standards Act of 1938 link the Act’s application closely to the employment relationship and because the text of the applicable remedy allows for private civil actions only by employees against their employers, we hold that the FLSA anti-retaliation provision, 29 U.S.C. § 215(a)(3), does not authorize prospective employees to bring retaliation claims against prospective employers. The judgment of the district court is accordingly affirmed.”

In a must-read strong dissent, authored by Judge King, he indicated that he would have reversed the dismissal at the district court below.  Following a lengthy discussion of the parallels in this case to the Robinson case- in which the Supreme Court reversed an en banc decision of the Fourth Circuit and concluded that similar statutory text in Title VII should be read expansively to protect former employees- Judge King explained that he would have held that job applicants are protected by § 215.  Judge King challenges the majority who he asserts ignored binding opinions from both the Supreme Court and the Fourth Circuit in favor of what he calls their “textualist” approach:

“It is unlawful under the FLSA ‘for any person,’ not just employers, ‘to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted … any proceeding under or related to this chapter[.]‘ 29 U.S.C. § 215(a), -(a)(3). The Act criminalizes willful violations of § 215, and it also provides civil recourse to ‘employees affected’ by the retaliatory acts described in subsection (a)(3). See § 216(a), -(b). Affected employees are entitled to “legal or equitable relief as may be appropriate to effectuate the purposes of” the antiretaliation provision, ‘including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages.’ § 216(b). Liability attaches to ‘[a]ny employer,’ id., which ‘includes any person acting directly or indirectly in the interest of an employer in relation to an employee .’ § 203(d).

A plain reading of these several sections of the Act, taken together, indicates that Congress was concerned enough with retaliatory conduct to impose criminal penalties on actual decisionmakers (“any person”), regardless of whether that person could also be considered the employing entity or was acting at the entity’s behest. Civil liability for retaliation, on the other hand, is reserved for employers and their agents who are sued by an “employee,” which generally means “any individual employed by an employer.” § 203(e)(1). Science Applications is undoubtedly an employer subject to the Act, and Ms. Dellinger broadly qualifies as an employee, having once sued her former employer for allegedly violating the FLSA. It does not follow perforce, however, that “Dellinger could only sue Science Applications if she could show … that Science Applications was her employer.” Ante at 7 (emphasis added).

It would hardly be a stretch to interpret the FLSA to permit Ms. Dellinger’s action, particularly considering that other, similar remedial statutes already apply to employees in her situation…

…I am therefore left to wonder why, in the face of a statute’s relative silence as to a material enforcement term, we must presume that a particular avenue is foreclosed because it is not explicitly mentioned, rather than permitted because it is not specifically prohibited. See Healy Tibbitts Builders, Inc. v. Dir., Office of Workers’ Comp. Programs, 444 F.3d 1095, 1100 (9th Cir.2006) (“[F]aced with two reasonable and conflicting interpretations, [an act] should be interpreted to further its remedial purpose.”). The majority’s decision today bucks the trend begun by Robinson, which is indisputably toward an expansive interpretation of protective statutes like Title VII and the FLSA to thwart employer retaliation. See, e.g., Gomez–Perez v. Potter, 553 U.S. 474, 491 (2008) (concluding that, under applicable provision of ADEA, federal employee may state claim for retaliation as form of discrimination); CBOCS West, Inc. v. Humphries, 553 U.S. 442, 457 (2008) (ruling that anti-discrimination provisions of 42 U.S.C. § 1981 encompass action for retaliation); Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 178 (2005) (same with respect to Title IX).

Behind this impressive array of authority is the Supreme Court’s acknowledgment of the vital role that antiretaliation provisions play in regulating a vast range of undesirable behaviors on the part of employers. See, e.g., Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn., 129 S.Ct. 846, 852 (2009) (observing that fear of retaliation is primary motivation behind employees’ failure to voice concerns about bias and discrimination and reversing Sixth Circuit’s judgment in employer’s favor as inconsistent with primary objective of Title VII to avoid harm to employees) (citations omitted); Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006) (explaining that liability for Title VII retaliation extends well beyond those actions affecting terms and conditions of employment to include employer’s acts outside workplace that are “materially adverse to a reasonable employee or job applicant”). There is no reason to doubt that similar concerns obtain in the FLSA context, as expressed in Reyes–Fuentes v. Shannon Produce Farm, 671 F.Supp.2d 1365, 1368 (S.D.Ga.2009) (“Congress chose to rely upon information and complaints from employees seeking to vindicate their rights. Plainly, effective enforcement could thus only be expected if employees felt free to approach officials with their grievances”) (citations omitted).”

Given the strong dissent of Judge King, it is possible if not likely that this case might be headed to the Supreme Court.  This is certainly one to keep an eye on.

Click Dellinger v. Science Applications International Corp. to read the entire Opinion and Dissent.

Leave a comment

Filed under Retaliation

9th Cir.: Defendant in Putative Wage and Hour Class Action May Not “Pick Off” Class With OJ to Named Plaintiff

Pitts v. Terrible Herbst, Inc.

This case was before the Ninth Circuit on any issue that has become more and more prevalent in recent years, with the increased wage and hour putative class and collective action filings.  Specifically, the issue before the Ninth Circuit was “whether a rejected offer of judgment (OJ) for the full amount of a putative class representative’s claim moots a class action complaint where the offer precedes the filing of a motion for class certification.”  The Ninth Circuit held that it does not and a defendant may not “pick off” a class by making such an offer to the named-plaintiff alone.

The procedural history in the case is worth discussing, because there were other issues, not discussed in detail, also addressed in the opinion.  The trial court had not set a bright-line deadline for filing a motion for class certification simultaneously.  And, because the defendant failed to provide plaintiff with the records pertaining to the putative class members during the initial discovery period, plaintiff filed a motion to compel and sought to extend the discovery deadline as well.  The court ultimately granted both motions.  However, while it held that the OJ did not moot the claim, it nonetheless dismissed the case, because the plaintiff had failed to move for class certification as of the initial discovery deadline.  This appeal ensued.

After reviewing surveying applicable case law from around the country, the court held that the district court below properly concluded that a defendant may not “pick off” a putative class action, by tendering payment to the named-plaintiff alone.

Other issues the court discussed included whether state law class actions (Rule 23 classes) are “inherently incompatable” with FLSA opt-in actions.  However, because the plaintiff had volutarily dismissed his FLSA claims at the lower court, the Ninth Circuit declined to address this hot-button issue, addressed earlier in the year by the Seventh Circuit and currently pending before the Third Circuit.  The court did rule however, that the court below erred in dismissing the case based on plaintiff’s perceived failure to move for class certification in a timely manner.  On this issue the Ninth Circuit opined, “[w]ithout a clear statement from the district court setting a deadline for the filing of the motion for class certification, Pitts could not predict that he was expected to file his motion by the end of the initial discovery deadline.”

Click Pitts v. Terrible Herbst, Inc. to read the entire decision.

Leave a comment

Filed under Class Certification, Offer of Judgment