Category Archives: Retaliation

M.D.Fla.: Compensatory Damages Available To Plaintiff In FLSA Retaliation Claim

Vaccaro v. Custom Sounds, Inc.

This case was before the Court, following Defendant’s default.  The Court set the matter for an evidentiary hearing on the issue of damages to be awarded in the final default judgment.  Of significance the Court ruled that an employee terminated in retaliation for engaging in FLSA protected activity may recover non-economic or compensatory damages. 

Discussing the issue of compensatory damages the Court stated:

“In addition to lost wages as a result of retaliation, Plaintiff seeks compensatory damages in the amount of $10,000.00 for emotional distress associated with the retaliation. See Total Damages Calculation. The damages provision for retaliation claims does not speak directly to compensatory damages for emotional distress, but states that the employer “shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of [the anti-retaliation provision] …” 29 U.S.C. § 216(b).

At least two judges in the Middle District of Florida have come to apparently opposite conclusions regarding whether compensatory damages for emotional distress are available pursuant to section 216(b). The Court in Bolick v. Brevard County Sheriff’s Dept. held that “[p]unitive and emotional damages are not available under the FLSA” and granted partial summary judgment to a defendant on the issues of punitive and emotional damages. 937 F.Supp. 1560, 1566-67 (M.D.Fla.1996). Since then, in Bogacki, the Court was faced with the issue of whether the retaliation provision of the FLSA provides for compensatory damages as a result of emotional distress. 370 F.Supp.2d at 1201-02. The Bogacki Court referenced the Sixth Circuit’s recognition in Moore v. Freeman, 355 F.3d 558, 564 (6th Cir.2004) that the Seventh Circuit, the Eighth Circuit, and the Ninth Circuit “directly or indirectly have allowed emotional distress awards under the FLSA to stand.” Bogacki, 370 F.Supp.2d at 1203 (internal citations omitted). Ultimately, the Bogacki Court determined that “each [retaliation] case should stand or fall on its own merit” and denied without prejudice a defendant’s motion for summary judgment on mental anguish damages because “neither party ha[d] addressed the strength, weakness, or absence of any evidence of the Plaintiff’s alleged emotional distress …” Id. at 1205-06.

Here, the Court has previously found that Defendants admitted, by defaulting, that “Plaintiff suffered emotional distress as a result of his termination.” Order (Doc. No. 19) at 2. Notwithstanding this factual finding, the Court recognized that “allegations relating to the amount and character of damages are not admitted by virtue of default. Rather, the Court determines the amount and character of damages to be awarded.” Id. at 3 (internal citation omitted). In assessing the issue of damages available for a retaliation claim, it is not entirely clear whether the Eleventh Circuit would approve awarding compensatory damages for emotional distress; however, the Court’s analysis in Bogacki, combined with other circuits’ approval of such damages and the Eleventh Circuit’s handling of the issues presented in Olivas, leads the undersigned to believe that the Eleventh Circuit would conclude that compensatory damages for emotional distress can be awarded in FLSA cases. 

Plaintiff testified his employer fired him as a result of his inquiry regarding unpaid overtime. When Plaintiff attempted to pick up his last paycheck, Plaintiff was told to “take it out of [his employer's] a* *.” No other egregious actions were undertaken or words spoken by the employer.

During his unemployment, Plaintiff was engaged to be married, had a two-year-old daughter, and had to rely on his parents to support his family. Plaintiff stayed with his soonto-be father-in-law. Plaintiff’s “mother” helped him pay for necessaries, his cellular phone bill, and insurance. According to Plaintiff, these stressful events caused him to be upset and embarrassed. The events “took a toll” on his relationship with his fiancé. The undersigned credits Plaintiff’s testimony in this regard. However, considering Plaintiff’s testimony in the framework of other cases in which courts have considered appropriate amount of damages for emotional distress claims, the undersigned finds as a factual matter that based upon the harm suffered by Plaintiff, $5,000.00 is a fair and reasonable amount. See Perez v. Jasper Trading, Inc., No. 05 CV 1725(ILG)(VVP), 2007 WL 4441062, at *8 (E.D.N.Y. Dec. 17, 2007) (unpublished) (recognizing emotional distress awards involving facts similar to those in that case “usually range from $5,000 to $30,000”) (internal citations omitted).  Although it is undeniable that Plaintiff suffered some form of emotional distress (and indeed the Court has already so found), the facts of this relatively unremarkable FLSA case do not warrant an award of $10,000.00 for such distress.  Accordingly, the undersigned recommends awarding $5,000.00 in compensatory damages for emotional distress.”

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Supreme Court Agrees To Decide Whether A Verbal Complaint To An Employer Is Sufficient To Trigger FLSA Anti-Retaliation Protections

Kasten v. Saint-Gobain Performance Plastics Corp.

The Supreme Court has granted certiorari to decide whether the question:

“Is an oral complaint of a violation of the Fair Labor Standards Act protected conduct under the anti-retaliation provision, 29 U.S.C. § 215(a)(3)?”

In a decision discussed here,  the 7th Circuit previously held that “any complaint” includes an employee’s internal complaint to his or her own company.  However, the Court also held that an employee who complains verbally, not in writing, has not engaged in statutorily protected activity, so he or she is not protected by the FLSA’s anti-retaliation provision.

Following the decision, the Plaintiff sought a rehearing en banc.  In the decision denying a rehearing en banc, three 7th Circuit judges dissented.  The dissenting judges noted that the 7th Circuit was the only Circuit to construe the definition of protected activity so narrowly.  Now the Supreme Court will decide whether they were right, or whether the remedial nature of the FLSA supports protection from retaliation for those who make verbal complaints, but not complaints in writing.

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M.D.Tenn.: Police Officers Who Allegedly Arrested Employees In Retaliation For Informal Unpaid Wage Complaints Are Properly Defendants In A 29 U.S.C. § 215(a) Case

Montano-Perez v. Durrett Cheese Sales, Inc.

Defendant, a local Police Department, sued for their alleged role in retaliating against Plaintiffs, in cooperation with Plaintiffs’ employer filed a Motion to Dismiss the FLSA Retaliation claims asserted against it.  For the reasons discussed below, the Court denied the Police Department’s motion.

The Court cited the following extensive facts as relevant to its inquiry:

“The plaintiffs are Latino immigrants who moved to the Manchester, Tennessee, area from impoverished regions of Mexico. The plaintiffs speak either Mixteco, an indigenous Mexican language, or Spanish as their primary language. Shanna Ramirez was a supervisor with Durrett Cheese during the relevant time period, and she recruited and hired members of the Mixteco community in Manchester to work in non-supervisory positions with Durrett Cheese. Mostly all of the non-supervisory positions in the Durrett Cheese factory were filled by Latino workers of Mexican descent. The plaintiffs were hired by Durrett Cheese at various points in the late 2006 to late 2007 time period. After being hired, the plaintiffs performed various jobs in the factory, including “in-line” jobs slicing, packaging, and processing cheese for sale. At the time of hire, the plaintiffs understood that Durrett Cheese would pay them on a weekly basis at an hourly rate between approximately $6.00 and $6.75 per hour.

The plaintiffs’ employment with Durrett Cheese was problematic. The plaintiffs’ direct supervisor, Ms. Ramirez, frequently made offensive and potentially humiliating comments to the plaintiffs about their race, national origin, intelligence, language, and customs, among other things. Durrett Cheese also frequently failed to timely pay the plaintiffs at the applicable federal minimum wage. These problems persisted before and after Durrett Cheese’s August 2007 bankruptcy filing.

Indeed, in many workweeks in August, September, and October 2007, Durrett Cheese grossly underpaid the plaintiffs. In some workweeks during this time period, the plaintiffs were not paid at all, and some plaintiffs worked for more than a month during this time period without being paid. The plaintiffs regularly requested their unpaid wages during this period, often approaching Ramirez in groups to inquire about their pay. Acting through Ramirez, Durrett Cheese either postponed pay days or simply refused to pay the plaintiffs for the work they had performed. Ramirez convinced the plaintiffs to continue working by telling them that they would not receive their back pay if they quit, and that they would receive more back pay if they worked at higher production levels.

The tension over pay and working conditions came to a head in October 2007. On Friday, October 19, 2007, the plaintiffs made repeated requests to Ramirez for several weeks of back pay. Ramirez informed the plaintiffs that they would not be paid until the following Monday. On hearing this news, the plaintiffs met to plan a collective action to protest the continued non-payment of wages.

The following Monday, October 22, 2007, during the usual mid-morning break, the plaintiffs assembled in the Durrett Cheese break room and again requested their overdue pay from Ramirez. The plaintiffs were told by Ramirez that no checks would be distributed until defendant Durrett arrived, and, until that time, the plaintiffs could either return to work or leave for good (and risk never receiving their back pay). The plaintiffs refused to return to work, stating that they would only do so when they received their wages. In response, Ramirez fired the plaintiffs and ordered them off company property. The plaintiffs informed Ramirez that they would not leave the break room until they received their wages.

As the plaintiffs continued to wait in the break room, Ramirez conferred with Ron Girts, another supervisor at Durrett Cheese, and defendant Durrett. Defendant Durrett ordered Girts and Ramirez to call the Coffee County Sheriff’s Department. Officer-defendants Jones, Partin, and Barker responded to the call and headed to the Durrett Cheese factory. When the officers arrived, Ramirez, Girts, and the plaintiffs informed the officers that management and the employees were engaged in a dispute over unpaid wages. The officers noted the nature of the dispute in their incident report.

The plaintiffs allege that, at this point, the officers with the Coffee County Sheriff’s Department and the supervisors employed by Durrett Cheese began working together to defeat the plaintiffs’ wage complaints. For instance, a supervisor, either Ramirez or Girts, informed the officers that the plaintiffs were undocumented immigrants and should, therefore, be reported to Immigration and Customs Enforcement (ICE). The officers were also provided with paperwork from Durrett Cheese to assist in reporting the plaintiffs.

The officers told the plaintiffs that, if they did not leave the Durrett Cheese premises, they would be arrested and taken to the Coffee County jail. After the plaintiffs expressed their intent to remain in the break room, the officers arrested the plaintiffs and transported them, via Sheriff’s Department van, to the Coffee County jail. The officers’ supervisors, defendants Freeman and Graves, were advised of the situation as it unfolded and approved of the arrests. During the arrests, the officers, along with Ramirez, laughed at the plaintiffs, referred to the plaintiffs’ race and national origin, and made statements about sending the plaintiffs “back to Mexico.” In total, the entire work stoppage incident lasted less than two hours, and, at all times, it was peaceful and entirely confined to the Durrett Cheese break room.

At the Coffee County jail, the plaintiffs were booked on charges of trespassing and were detained. Over the course of the day on October 22, the plaintiffs were separated from their families and kept in the dark about what would happen to them. The plaintiffs slept on mattresses in a crowded jail cell and were denied free access to restroom facilities. The next day, October 23, the Coffee County District Attorney dropped all charges against the plaintiffs.

The plaintiffs allege that, while they were detained, defendants Graves and Freeman consulted with supervisors at Durrett Cheese as to how to proceed, in light of the ongoing labor dispute between Durrett Cheese and the plaintiffs. Durrett Cheese and defendant Graves agreed that, regardless of the charges being dropped, the plaintiffs would remain at the Coffee County jail and that the plaintiffs would be reported to ICE. Shortly after this conversation, defendant Freeman contacted ICE to report the plaintiffs as suspected undocumented immigrants. On October 24, agents from ICE arrived at the Coffee County jail, and, at the behest of the County Defendants, transported the plaintiffs to a detention center in Nashville, Tennessee, where the plaintiffs, very fearful of what would happen to them and their families, were interrogated for several hours before their attorney was able to secure their release.”

Finding the Plaintiffs’ 215 claim of FLSA Retaliation to be a viable one, at this stage in the litigation, the Court explained:

“As noted above, the plaintiffs allege that the County Defendants violated Section 215(a)(3) of the FLSA. In relevant part, that provision states: “it shall be unlawful for any person to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or caused to be instituted any proceeding under or related to this chapter.” 29 U.S.C. § 215(a) (3). The Sixth Circuit has consistently interpreted an informal complaint to management regarding working conditions to constitute a “filed complaint” under Section 215(a)(3). Moore v. Freeman, 355 F.3d 558, 562 (6th 2004); EEOC v. Romeo Community Schools, 976 F.2d 985, 989 (6th Cir.1992). While there does not appear to be a wealth of law on this subject from the Sixth Circuit, it appears clear that, given the broad language of this provision, entities other than an individual’s employer can violate the FLSA. See e.g. Centeno-Bernuy v. Perry, 302 F.Supp.2d 128, 135 (W.D.N.Y.2003); Meek v. United States, 136 F.2d 679, 679-80 (6th Cir.1943).

In asserting that the plaintiffs’ FLSA claim should be dismissed as to them, the County Defendants argue that the plaintiffs’ Complaint does not establish the prima facie case for retaliation under the FLSA, and, even if it did, the claim could not survive the well-known McDonnell Douglas burden-shifting analysis that is typically applied in employment discrimination and retaliation suits, including claims brought under the FLSA. (Docket No. 46 at 4, citing Williams v. GM., 187 F.3d 553, 568 (6th Cir.1999)).

This is not a proper argument at this stage in the proceedings. In employment discrimination and retaliation suits, the plaintiff is not required, at the pleading stage, to demonstrate a prima facie case or to survive McDonnell Douglas burden shifting. See Swierkiewicz, 534 U.S. at 508; EEOC v. FPM Group, Ltd., 2009 WL 3088808, *6 (E.D.Tenn. Sept.28, 2009). Rather, as discussed above, in order to survive a motion to dismiss, the plaintiff’s Complaint need only outline a “facially plausible” claim for relief.

The plaintiffs have met that burden here. Again, the language of the FLSA provision at issue is very broad, prohibiting “any person” from “discriminat [ing]” against “any employee,” because that employee has filed a covered workplace complaint. 29 U.S.C. § 215(a)(3). Further, the County Defendants recognize that retaliatory reporting of an employee to immigration authorities could constitute “discrimination” under this provision. (Docket No. 46 at 6; see also Singh v. Jutla, 214 F.Supp.2d 1056, 1062 (N.D.Cal.2002) (denying motion to dismiss FLSA retaliation claims where allegations centered on an employer’s reporting of the employee to immigration authorities in retaliation for FLSA protected conduct); Dunlop v. Carriage Carpet Co., 548 F.2d 139, 147 (6th Cir.1977) (equating FLSA discrimination to “black listing” and other actions that prevent an employee from gaining future employment.)

Providing significant factual support, the plaintiffs have alleged that the County Defendants, working in concert with the Durrent Defendants, arrested the plaintiffs and then reported the plaintiffs to ICE because of the plaintiffs’ complaints about pay. While the County Defendants claim that the plaintiffs have only alleged a racial or ethnic animus as motivation for the defendants’ conduct here, that is simply not the case. (Docket No. 46 at 6.) The Complaint contains numerous allegations, backed by factual support, that the County Defendants reported the plaintiffs to ICE, at least in part, because the plaintiffs had made a complaint about pay.

The plaintiffs allege that, shortly after the officers arrived at the break room, they were advised that this was a dispute about pay. Then, “Ramirez and/or Girts supplied Defendants Jones, Partin, and Barker with paperwork to assist the Coffee County Defendants in reporting Plaintiffs to ICE.” (Docket No. 1 at 15.) There is no indication from the Complaint that Jones, Partin and Barker attempted to mediate or resolve the labor dispute; rather, it is clear from the Complaint that, throughout the entire process, the County Defendants simply imposed the will of the Durrett Defendants, which was to permanently remove the plaintiffs from the premises (and, perhaps, the country) because the plaintiffs had complained about pay. Indeed, the Complaint alleges that, after the charges were dropped, defendant Graves “consult[ed] with the Durrett Defendants and with full awareness that he was unlawfully intervening in a labor dispute, defendant Graves instructed defendant Freeman to call ICE to report Plaintiffs as suspected undocumented immigrants. Defendant Freeman did so on or about October 22 or October 23, 2007.” (Id. at 16.)

Clearly, accepting the plaintiffs’ allegations as true and drawing all reasonable inferences in the plaintiffs’ favor, the plaintiffs have sufficiently alleged that the County Defendants violated the FLSA. The plaintiffs allege, with specific factual support, that, in response to the plaintiffs’ complaint about pay, the County Defendants not only had the plaintiffs arrested but worked in concert with the Durrett Defendants to have the plaintiffs reported to ICE. As to this claim, the County Defendants’ Motion to Dismiss, which is premised on the notion that the FLSA claim lacks factual support, will be denied.

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D.Minn.: Defendant’s Request To Distribute Post-Notice Memorandum To Opt-ins Denied; Risk That Opt-ins Would Be Discouraged From Exercising FLSA Rights Outweighs Defendant’s Interests

Ahle v. Veracity Research Co.

Following the Court’s Order granting Notice, Defendant sought to send out a memorandum to all putative class members reminding them that they may not divulge trade secrets (without outlining what those trade secrets were).  Plaintiff objected and Defendant’s filed a Motion to send the memorandum out.  Finding that the chilling effect outweighed the probative value, if any, of such memorandum, the Court denied Defendant’s Motion.

The Court initially described the procedural history up until the point of the Motion and the contents of the memorandum Defendant sought to distribute.

“Veracity is a private investigative firm that specializes in insurance defense investigations. The Plaintiffs are current or former employees of Veracity, who work, or worked, as private investigators, and who claim that Veracity has violated the Fair Labor Standards Act, Title 29 U.S.C. §§ 201-219 (“FLSA”), by failing to pay them for certain hours that they had allegedly worked. Veracity denies any violation of the FLSA, and filed Counterclaims against certain of the Plaintiffs, including claims that those Plaintiffs had misappropriated confidential information, and trade secrets. In an Order dated July 28, 2009, the District Court, the Honorable Ann D. Montgomery presiding, granted the Plaintiffs’ Motion to Dismiss Veracity’s claims, on jurisdictional grounds, that those Plaintiffs had misappropriated Veracity’s confidential information, and trade secrets. See, Memorandum Opinion and Order dated July 28, 2009, Docket No. 67.

Veracity now seeks leave of the Court to distribute the following memorandum to those of its employees who elect to opt-into this collective action:

We understand that you recently elected to become a party plaintiff in this wage and hour lawsuit. We respect your decision and assure you that you will not be retaliated against in any way by [Veracity] because of your involvement in this case.

However, we want to remind you that, like all [Veracity] employees, you have a duty not to share or disclose any of our trade secrets or other confidential information outside of the Company except as authorized by [Veracity]. This includes any company property, whether in tangible or electronic form. Although we have no desire to interfere with your participation in this lawsuit, it does not relieve you of your obligations as a [Veracity] employee, including to protect our trade secrets and other confidential information.

Please let me know if you have any questions concerning this Memorandum or our policies prohibiting the nondisclosure and nonmisappropriation of [Veracity's] confidential information and property, as reflected in our Employee Manual and your Agreement with [Veracity].

Before distributing the memorandum to opt-ins, counsel for Veracity requested permission to do so from counsel for the Plaintiffs, who objected to the distribution, and urged that Veracity seek Court approval.

Without the knowledge of its counsel, on August 6, 2009, Veracity sent a copy of the memorandum, authored by Veracity’s Chief Executive Officer, to a current employee who had opted into the lawsuit, and followed that transmission with a personal email to the employee which directed that he confirm that he received, understood, and would comply, with the terms of that memorandum. According to the Plaintiffs, Veracity sent the memorandum to that employee “within 20 minutes” of the employee’s election to opt-into the case. See, Plaintiffs’ Memorandum in Opposition, Docket No 93 (“Pl’s Memo.”), at p. 4 of 8; see also, Sokolowski Aff., supra at p. 4 of 6. After counsel for the Plaintiffs reiterated their opposition to the distribution of the memorandum, Veracity filed their Motion for Court approval to do so.”

Veracity contends that the memorandum is “neither threatening, coercive, nor misleading, and Plaintiffs fail to explain why they object to it,” see, Veracity’s Memorandum in Support, Docket No. 89 (“Veracity’s Memo.”), at p. 1 of 6, and believes that, as the employer of those opt-ins who are current employees, Veracity is doing no more than reminding those employees of their obligation to maintain the secrecy of Veracity’s confidential information, and trade secrets. Id. at p. 1-2 of 6 (“The memo, which [Veracity] believed to be appropriate and benign, was intended to remind employees of their obligation not to disclose trade secrets or other confidential information.”). Accordingly, Veracity requests an Order that permits “it to distribute the memorandum to any future opt-in plaintiffs who are current employees of [Veracity] at the time they opt in to the lawsuit.” Id.

Addressing the competing interests, the Court noted, ” ‘Because of the potential for abuse, a district court has both the duty and the broad authority to exercise control over a class action and to enter appropriate orders governing the conduct of counsel and the parties.’ Gulf Oil Co. v. Bernard, 452 U.S. 89, 100 (1981). “But this discretion is not unlimited, and indeed is bounded by the relevant provisions of the Federal Rules.” Id., citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974). “Before entry of such an order, there must be a clear record and specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties.” Great Rivers Cooperative of Southeastern Iowa v. Farmland Industries, Inc., 59 F.3d 764, 766 (8th Cir.1995), citing Gulf Oil Co. v. Bernard, supra at 101.

‘In addition, such a weighing-identifying the potential abuses being addressed-should result in a carefully drawn order that limits speech as little as possible, consistent with the rights of the parties under the circumstances.’ Id., quoting Gulf Oil Co. v. Bernard, at 102. ‘Nevertheless, a limited restriction-such as precluding a defendant from soliciting class members to opt out of the litigation-will sometimes be justified.’ Id., quoting Manual for Complex Litigation, Second, at § 30.24 at p. 232, citing, in turn, Kleiner v. First Nat’l Bank of Atlanta, 751 F.3d 1193 (11th Cir.1985). While the foregoing authorities specifically address class action proceedings, the same principles have been extended to collective actions, such as this one. See, Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165, 170-71 (1989). In Hoffman-La Roche, the Court specifically recognized that the benefits of the collective form of litigation “depend on employees receiving accurate and timely notice concerning the pendency of the collective action, so that they can make informed decisions about whether to participate.” Id. at 170.

We do not suggest that there is anything misleading in the contents of Veracity’s proposed memorandum. Rather, we have concern that the memorandum, which will only be sent to Veracity’s current employees who opt-into the collective action, will unnecessarily highlight Veracity’s close attention to that employee’s election to participate in this proceeding. Perhaps, in and of itself, such a highlighting could prove to be innocent, we find no logical nexus between joining this collective action, and any derivative motivation to impermissibly share Veracity’s confidential information, or trade secrets. Instead, we are left with the distinct impression that the transmission of the memorandum-only to opt-ins-is intended to not-so-subtly influence the opt-in, as to his choice to engage in this lawsuit, by assuring him or her that Veracity’s management will be more closely scrutinizing that employee’s demeanor and conduct, than other similarly-situated employees who have not joined the suit.

The opt-ins do no wrong in joining this collective action; they are simply exercising their rights under a statute that Congress enacted to assure that they were fairly compensated for the hours that they worked for Veracity, or for any other employer. If that joinder warrants a cautionary, that the opt-in should not seek to steal Veracity’s property, whether tangible or electronic, the connection escapes us. Nor are we able to clearly understand Veracity’s asserted business purpose for the advisory. While we certainly accept that Veracity is engaged in a sensitive business, and could be exposed to penalties if the information its investigators gather is improperly disclosed in such a way as to violate State or Federal statutes, or Veracity’s contracts with third-parties, we are unable to perceive why joining this lawsuit potentiates toward any such violations. Veracity, and the Plaintiffs, have entered a Protective Order that preserves the confidentiality of information that has been so labeled by one party or the other. Counsel for the Plaintiffs need not request, even if they were so unprofessionally motivated to do so, information from the opt-ins which is otherwise available from Veracity.

Nor is it clear what Veracity characterizes as confidential, or as a trade secret. Surely that characterization could not encompass evidence, if any there be, that Veracity’s policies and practices violate the provisions of the FLSA, and yet, that inference may not be fully understood by the opt-ins who are warned not to communicate some undefined information to persons outside of Veracity. The Confidentiality Agreements between Veracity, and its investigators, have not been presented for our review, but we have grave difficulty in conceiving why “information about other employees” could be considered confidential. See, Veracity’s Memo., supra at p. 5 of 6 (“[Veracity's] employees have access to confidential information and trade secrets, including clients lists and information about other employees.”). While the confidences of Veracity’s client lists would surely be proprietary, we are unable to fathom why that information would be a subject of inquiry, by the Plaintiffs’ counsel, in an FLSA action.

In our considered view, Veracity’s memorandum unfairly chills the opt-ins’ Sixth Amendment right of access to the Courts, as well as their entitlement to consult with legal counsel, concerning their FLSA claims, without fear of retribution arising from some notion that the information that they are disclosing will subject them to discipline, or other legal action, predicated upon a breach of a Confidentiality Agreement. Moreover, we are unable to perceive any reason for the opt-ins to be disclosing information that would compromise a confidence, or a trade secret. As we have noted, the issues raised in this action pertain to wages, and hours worked; they do not involve matters of confidence or trade secret, and Veracity has failed to explain why it should fear such disclosures, much less why it believes that counsel for the Plaintiffs would be interested in any such information.

Given these considerations, and the entirety of the Record that the parties have presented for our consideration, we find that Veracity should be allowed to exercise its free speech right to communicate with its employees on matters as significant as the preservation of confidential information, and trade secrets. In order to preserve that right, without trammeling upon the opt-in’s right of access to the Courts, any communication from Veracity, on this subject, should be transmitted to all of its employees, who signed a Confidentiality Agreement, and not just to the opt-ins. In this fashion, the rights of both sides are appropriately weighed and protected. While our ruling will require that the memorandum be modestly reworded, if Veracity truly has a concern that its employees, or some subclass of them, will improperly disclose its trade secrets, or confidential information, then a cautionary advisory to its workforce will further its interest in preserving the integrity of such information, without sacrificing the opt-ins’ rights under the FLSA. As we did at the Hearing, we suggest that the memorandum be generic in form and content, and not be connected to this litigation. If a suitable memorandum evades the parties, they may jointly contact this Court for assistance.”

Thus, the Court denied the Defendant’s Motion for an Order Approving the Distribution of a Memorandum to Opt-ins.

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E.D.Ark: Punitive Damage Awards Permissible For FLSA Retaliation Claims

Wolfe v. Clear Title, LLC

This case was before the Court on Defendant’s Motion for Summary Judgment.  In resolving the Motion in favor of the Plaintiff, the Court also held that punitive damages are permissible to a Plaintiff in an FLSA retaliation case brought pursuant to 29 U.S.C. 215(a), after acknowledging a split of authority on the issue between Circuit courts and trial level courts within the Eighth Circuit as well.

“The prohibition on retaliation is stated in 29 U.S.C. § 215(a)(3), which makes it unlawful to discharge or in any other manner discriminate against any employee because the employee has filed a complaint or instituted or caused to be instituted a proceeding under the FLSA. The majority of circuits have held that this provision protects an employee who makes an internal complaint to the employer. Kasten v. Saint-Gobain Performance Plastics Corp. ., 570 F.3d 834, 838 (7th Cir.2009). The Eighth Circuit has interpreted the statute to prohibit discrimination against an employee who asserts or threatens to assert FLSA rights. Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 183 (8th Cir.1975). That interpretation has been criticized as contrary to the plain language of subsection 215(a)(3). See Kasten, 570 F.3d at 840 (holding that the phrase “file any complaint” requires a plaintiff employee to submit some sort of writing). Needless to say, the holding of the Eighth Circuit in Brennan v. Maxey’s Yamaha, Inc., is binding on this Court. Here, the conduct of which Wolfe complains falls within the prohibition of subsection 215(a)(3) as broadly interpreted by the Eighth Circuit.

The courts are divided on the issue of whether the FLSA provides for punitive damages for employees who are subject to retaliation for claiming their rights under that statutory scheme. The Seventh Circuit has held that punitive damages are available in FLSA retaliation cases. Travis v. Gary Community Mental Health Ctr., 921 F.2d 108, 112 (7th Cir.1990). The only other circuit to address the issue thus far is the Eleventh Circuit, which held that punitive damages are not available in FLSA retaliation cases. Snapp v. Unlimited Concepts, Inc., 208 F.3d 928 (11th Cir.2000), cert. denied, 532 U.S. 975, 121 S.Ct. 1609, 149 L.Ed.2d 474 (2001).FN1 The only district courts in the Eighth Circuit to address the issue are the Eastern and Western Districts of Missouri, and they, too, have reached opposite conclusions. The Eastern District of Missouri has followed the Eleventh Circuit in two cases. Huang v. Gateway Hotel Holdings, 520 F.Supp.2d 1137, 1143 (E.D.Mo.2007); Tucker v. Monsanto Co., 2007 WL 1686957 (E.D.Mo. June 8, 2007). Even before the Eleventh Circuit decided Snapp, the Eastern District of Missouri had held, without discussion, that the FLSA does not provide for punitive damages in retaliation cases. Waldermeyer v. ITT Consumer Fin. Corp., 782 F.Supp. 86, 88 (E.D.Mo.1991). On the other hand, the Western District of Missouri followed the Seventh Circuit in one case decided before Snapp, O’Brien v. Dekalb-Clinton Counties Ambulance Dist., 1996 WL 565817, at *6 (W.D.Mo. June 24, 1996) (“In the absence of conflicting interpretation of the amended section 16(b) by another circuit, the court is persuaded to follow the Seventh Circuit’s reasoning and hold that compensatory and punitive damages are available for violation of the FLSA’s anti-retaliation provision.”). See also Johnston v. Davis Security, Inc., 217 F.Supp.2d 1224, 1230-31 (D.Utah 2002) (holding that punitive damages are not recoverable under subsection 216(b)); Lanza v. Sugarland Run Homeowners Ass’n, Inc., 97 F.Supp.2d 737, 739-42 (E.D.Va.2000) (same). But see Marrow v. Allstate Sec. & Investigative Services, 167 F.Supp.2d 838, 842-46 (E.D.Pa.2001) (holding that punitive damages are recoverable in a claim for retaliation under the FLSA).

The remedies for violating the FLSA are set out in 29 U.S.C. § 216. Subsection 216(a) provides:

Any person who willfully violates any of the provisions of section 215 of this title shall upon conviction thereof be subject to a fine of not more than $10,000, or to imprisonment for not more than six months, or both. No person shall be imprisoned under this subsection except for an offense committed after the conviction of such person for a prior offense under this subsection.

Subsection 216(b) provides, in pertinent part:

Any employer who violates the provisions of section 215(a)(3) of this title shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3) of this title, including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages.

In Travis, the Seventh Circuit held that this provision authorizes legal relief, “a term commonly understood to include compensatory and punitive damages.” Travis, 921 F.2d at 111. Otherwise, the analysis in Travis was fairly cursory.

In Snapp, the Eleventh Circuit engaged in a lengthy, detailed analysis of the statutory scheme and arrived at a conclusion opposite from that reached in Travis. The court held in Snapp that the term “legal relief” ordinarily would include punitive damages, but interpreting the statute in the light of the principle of ejusdem generis, the court said that the term “legal relief” in subsection 216(b) should be construed to include only compensatory relief, not punitive damages, because the specific items listed in that subsection as “legal or equitable relief” were all designed to make plaintiffs whole.   Snapp, 208 F.3d at 934. The court also said that the statute was structured so that punitive sanctions were covered in subsection 216(a), while subsection 216(b) provided remedies for making aggrieved employees whole. Id. at 935.

The most thorough critique of the Eleventh Circuit’s reasoning in Snapp appears to be the critique of the Eastern District of Pennsylvania in Marrow. There, the court said that application of the maxim of ejusdem generis to subsection 216(b) was inappropriate because the subsection prefaces its list of various forms of relief with the phrase “including without limitation.Marrow, 167 F.Supp.2d at 844 (emphasis by the Marrow court). “The most sensible reading of that phrase leads to the conclusion that by listing several potential forms of relief, Congress did not mean to exclude others.” Id. Moreover, Marrow reasoned, the purpose of subsection 215(a)(3) is not purely compensatory but is intended to deter employers from engaging in retaliation, so that limiting subsection 216(b) to remedies designed to make the plaintiff whole would not fully implement the intent of Congress. Id. The court in Marrow also found unpersuasive the argument that because Congress provided criminal sanctions in subsection 216(a) it could not have meant to include punitive damages in subsection 216(b). Id.

Although the issue is obviously not free from doubt, the undersigned is persuaded by the reasoning Marrow. Subsection 216(b) was drafted broadly to authorize “such legal or equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3) of this title, including without limitation….” As Snapp noted:

“Legal relief” is certainly a broad formulation. It would have almost no boundary were it not for the commonly understood decision between the “legal” and “equitable” powers of a court. Where such an expansive term is used, we look for clues within the statute to help us understand the exact nature of the “legal relief” that Congress intended; and we are not disappointed when we look to section 216(b).Snapp, 208 F.3d at 934. The only limitation on the term “legal relief” stated in subsection 216(b) is that it be “appropriate to effectuate the purposes of section 215(a)(3)….” The ordinary meaning of “legal relief” as including punitive damages is consistent with that limitation because punitive damages may be appropriate in some cases to effectuate the purposes of subsection 215(a)(3). It is contrary to the legislative intent, as expressed in this broadly worded provision, to exclude punitive damages from the relief authorized by subsection 216(b). The maxim of ejusdem generis is an aid to ascertaining legislative intent and should not be employed to defeat legislative intent, to make general words meaningless, or to reach a conclusion inconsistent with other rules of construction. Donovan v. Anheuser-Busch, Inc., 666 F.2d 315, 326 (8th Cir.1981); United States v. Clark, 646 F.2d 1259, 1265 (8th Cir.1981).

Nor is the undersigned persuaded by the argument in Snapp that punitive sanctions are covered in subsection 216(a), while subsection 216(b) is designed to make plaintiffs whole. In Snapp, the court said, “Congress has already covered punitive damages in section 216(a); and there is simply no reason to carry the punitive element over from section 216(a) to section 216(b), a provision intended to compensate not punish.” Snapp, 208 F.3d at 935. Section 216 has five subsections: subsection 216(a) provides for criminal sanctions; subsection 216(b) provides for civil actions by aggrieved employees; subsection 216(c) provides for civil actions by the Secretary of Labor to recover unpaid minimum wages or overtime compensation on behalf of employees to which those wages are owed; subsection 216(d) states certain narrow exceptions to “liability or punishment” under the FLSA; and subsection 216(e) authorizes civil penalties for child labor violations. Section 216 is not structured so as to have a punishment section and a compensation section; instead, the structure includes a section providing for criminal prosecution by the government prosecuting attorneys, a section providing for civil actions by aggrieved employees, a section providing for civil actions by the Secretary of Labor to recover minimum wages and overtime on behalf of employees, and a section providing for civil penalties for child labor violations. The fact that in subsection 216(a) Congress provided criminal sanctions for willful violations of section 215 supports rather than undercuts the notion that the remedies available under subsection 216(b) include punitive damages, for it shows that Congress regarded willful violations as serious enough to warrant punishment and as a form of misconduct that stands in need of deterrence-which is to say that Congress determined that in some cases punishment would be “appropriate to effectuate the purposes of section 215(a)(3).” Moreover, that subsection 216(e) provides for penalties shows that subsection 216(a) was not intended as an exhaustive statement of the punishment available for violations of the FLSA.

In summary, subsection 216(b) was intended to authorize civil actions by aggrieved employees in which the employees could recover any form of legal or equitable relief that might be appropriate to effectuate the purposes of subsection 215(a)(3). In some cases, punitive damages might be appropriate to effectuate the purposes of that subsection. Therefore, punitive damages may in the proper case be recoverable under subsection 216(b).”

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N.D.Ga.: FLSA Plaintiffs’ Motion For Temporary Restraining Order (TRO) and Preliminary Injunction Granted; Plaintiffs Reinstated To Jobs And Statute Of Limitations Tolled Due To Retaliatory Discharge

Clincy v. Galardi South Enterprises, Inc.

This matter comes was before the Court on Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction. Plaintiffs were employed as entertainers at Club Onyx (“Onyx”), an adult entertainment night club allegedly owned and operated by Defendants.

On July 31, 2009, Plaintiffs filed a putative collective action against their employer for violating the Fair Labor Standards Act (“FLSA”). The alleged violations of the FLSA include misclassifying the Plaintiffs as independent contractors instead of employees, failing to pay minimum wage and overtime, and retaliation for filing suit under the statute. On August 11, 2009, some Plaintiffs appear to have been terminated, from their employment with Onyx as a result of filing this action. Plaintiffs Jordan, on August 12, and Clincy, on August 13, were also informed that they could no longer work at Onyx due to their involvement in this suit. On August 20, 2009, Plaintiffs filed a Motion for Temporary Restraining Order and Preliminary Injunction [14]. Among the relief sought in the motion, Plaintiffs requested that they be reinstated to their positions at Onyx and that they and other similarly situated individuals not be adversely affected by participation in this suit. Plaintiffs also requested the tolling of the statute of limitations for the FLSA claims of similarly situated individuals.

The Court first defined the applicable legal standard. “It is settled law in this Circuit that a preliminary injunction is an “extraordinary and drastic remedy[.]” Zardui-Quintana v. Richard, 768 F.2d 1213, 1216 (11th Cir.1985). To obtain such relief, a movant must demonstrate: (1) a substantial likelihood of success on the merits of the underlying case, (2) the movant will suffer irreparable harm in the absence of an injunction, (3) the harm suffered by the movant in the absence of an injunction would exceed the harm suffered by the opposing party if the injunction issued, and (4) an injunction would not disserve the public interest. Johnson & Johnson Vision Care, Inc. v. 1-800 Contacts, Inc., 299 F.3d 1242, 1246-47 (11th Cir.2002). Based on the arguments made at the hearing, a review of the record, and the parties’ briefs, the Court concludes that Plaintiffs have succeeded in making such a showing here, and a preliminary injunction will accordingly be issued.”

Finding that Plaintiffs met their burden, the Court stated, “Plaintiffs have demonstrated a substantial likelihood of success on the merits of the underlying case. While the FLSA establishes requirements for minimum wage and overtime pay, it also makes it illegal to “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to” the FLSA. 29 U.S.C. § 215(a)(3). While the Plaintiffs may well succeed on the claim that they are employees of Onyx and not independent contractors and thus entitled to a minimum wage and overtime pay, they are substantially likely to prevail on the claim of retaliation. All of the Plaintiffs, with the exception of Hammond, were fired after instituting this suit. At the August 11 meeting at which Parker, Pough, Wells, Leaphart, Sales, and Appling were ostensibly terminated, it was made clear that the reason for their termination was the filing of this suit. Plaintiffs Jordan and Clincy were similarly told that they would not be able to work at Onyx as a result of their participation in the FLSA action. (See Complaint, at 17). This type of action represents a flagrant violation of the FLSA’s anti-retaliation provision and therefore Plaintiffs have satisfied the first requirement by demonstrating a substantial likelihood of success.

Plaintiffs have also satisfied the second requirement by demonstrating that irreparable harm will be suffered absent the injunction. In Gresham v. Windrush Partners, LTD, the Court found that “irreparable injury may be presumed from the fact of discrimination and violation of fair housing statutes.” 730 F.2d 1417, 1423 (11th Cir.1984). The Court went on to state that, “when a plaintiff who has standing to bring suit shows a substantial likelihood that a defendant has violated specific fair housing statutes and regulations, that alone, if unrebutted, is sufficient to support an injunction remedying these violations.” Id. In the case at hand, Plaintiffs have demonstrated that a substantial likelihood exists that Defendants have violated the FLSA, specifically its anti-retaliation provision. The FLSA provides that actions may be brought by any employee on behalf of himself and others similarly situated and specifically contemplates “equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3) of this title, including without limitation … reinstatement.” 29 U.S.C. § 216(b).

The anti-retaliation provision of the FLSA is intended to allow employees to seek vindication of their statutory rights without the fear of reprisal. Retaliatory termination also carries with it the risk that other similarly situated employees will be deterred from protecting their own rights. See Holt v. Continental Group, Inc., 708 F.2d 87, 91 (2d Cir.1983) (stating retaliatory discharge carries risk of deterring employees from protecting statutory rights). Furthermore, in order to be a party to an FLSA action, an employee must actively join the suit by providing consent in writing. 29 U.S.C. § 216(b). Irreparable injury may not occur every time a retaliatory discharge takes place, but under the present facts it appears likely that other similarly situated employees of Onyx will be deterred from joining the action as a result of the action taken against Plaintiffs by Onyx. Defendants not only fired Plaintiffs for their participation in this suit, but also informed other entertainers at Onyx that Plaintiffs had been fired because of their participation. (See Memorandum of Law in Support of Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction, at 9 [14-2] ). Forcing individuals with claims under the FLSA to choose between pursuing their claims or maintaining employment results in irreparable harm. See Allen v. Suntrust Banks, Inc., 549 F.Supp.2d 1379 (N.D.Ga.2008) (finding irreparable harm where employees were put in a position of either obtaining a severance package or pursuing their FLSA claims).”

Thus, the Court found that “the harm to Plaintiffs in the absence of an injunction will exceed any harm suffered by Defendants as a result of granting a preliminary injunction. The Court also finds that an injunction in this case will not disserve the public interest. Such equitable relief is specifically contemplated by the FLSA in order to protect the rights of employees. Plaintiffs have therefore satisfied the requirements necessary for the granting of a preliminary injunction. Because Plaintiffs seek the tolling of the statute of limitations as part of the preliminary injunction, this Court will also examine the propriety of this request.”

Granting Plaintiffs’ request to equitably toll the statute of limitations, the Court said, ‘Time requirements in lawsuits between private litigants are customarily subject to ‘equitable tolling.’ ‘ Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). However, it is a remedy which should be used sparingly. Justice v. United States, 6 F.3d 1474, 1479 (11th Cir.1993). Equitable tolling is permitted ‘upon finding an inequitable event that prevented plaintiff’s timely action.’ Id. It is permitted where the plaintiff ‘has been induced … by his adversary’s misconduct into allowing the filing deadline to pass.’ Irwin, 498 U.S. at 96.

In the underlying case, individuals similarly situated to Plaintiffs have likely been induced to refrain from pursuing claims under the FLSA as a result of the discharge of Plaintiffs and by being informed by management of Onyx that the discharge resulted from participation in this suit. Therefore, proper grounds exist to toll the statute of limitations for a limited period until similarly situated individuals may be made aware that they may pursue FLSA claims without the fear of retaliation or reprisal.

For the foregoing reasons, Plaintiffs Motion for Temporary Restraining Order and Preliminary Injunction [14] is hereby GRANTED and the following relief is ORDERED:

1. Defendants are to immediately reinstate Plaintiffs Parker, Pough, Wells, Leaphart, Sales, Jordan, Clincy, and Appling;

2. Defendants are prohibited from retaliating or discriminating in any way against Plaintiffs or similarly situated individuals for involvement with or participation in this action or any other pursuit of claims under the FLSA; and

3. the statute of limitations for potential opt-in plaintiffs is tolled until this Court has ruled on Plaintiffs’ Motion for Conditional Class Certification [12].”

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Filed under Equitable Tolling, Independent Contractor vs Employee, Retaliation

N.D.Cal.: Internal Complaint Regarding Sick Leave Not Protected From Retaliation Under 29 U.S.C. § 215(a)(3), Because Sick Leave Not Covered By The FLSA

Byrd v. California Superior Court, County of Marin

Among the issues before the Court, was whether a request for sick leave, and alleged retaliation resulting therefrom is protected under section 215 of the FLSA, the anti-retaliation provision.  Finding that it is not, the Court explained,

Defendant argues that section 215 of the FLSA is inapplicable to this case because plaintiff’s internal complaint concerned sick leave, for which there is no provision in the FLSA. Section 215(a)(3) provides that it is unlawful “[t]o discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this act.”29 U.S.C. § 215(a)(3).

The FLSA covers wage and hour violations and is intended as a “remedial statute.” Lambert v. Ackerley, 180 F.3d 997,1007 (9th Cir.1990). FLSA must “not be interpreted or applied in a narrow, grudging manner.” Id. at 1003,citing Tenn. Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 597 (1944).Section 215 was enacted to ensure that employees who lodge complaints could do so free of fear of economic retaliation. Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292-93 (1960).

The internal complaint at issue concerned allegations of harassment and discrimination in response to plaintiff’s taking sick leave. Sick leave is not explicitly covered under the FLSA. FLSA cases concern, by and large, monetary compensation, or other compensation only insofar as it can be translated into monetary compensation. See, e.g., Lambert, 180 F.3d at 1010 (concerning overtime compensation); Acton v. City of Columbia, 436 F.3d 969 (8th Cir.2006) (holding that sick leave “buy back” monies should be included in employee’s regular rate of pay under FLSA) reh’g denied; cf. Featsent v. City of Youngstown, 70 F.2d 1456 (6th Cir.1995) (holding that sick leave “buy back” monies should not be included in an employee’s regular rate of pay under FLSA). From the available cases, interference with the sick leave claim alleged here does not “relate to” the FLSA. Accordingly, harassment and discrimination as a result of taking sick leave would also not be “related to” the FLSA.

Based on the complaint as filed, the court does not believe that plaintiff can allege any facts that would bring her internal complaint concerning harassment and discrimination in response to her taking sick leave within the purview of section 215. Even if plaintiff’s internal complaint could be construed to be a complaint about “interference with” sick leave, which was not alleged until after she filed her instant complaint (see Compl. ¶ 38), such allegations are still not under or related to the FLSA. Accordingly, the Superior Court’s motion to dismiss plaintiff’s thirteenth cause of action is GRANTED without leave to amend.”

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7th Cir.: Although Internal Complaint OK To Trigger Anti-Retaliation Protections of 29 U.S.C. § 215(a)(3), Verbal Complaints Insufficient; Must Be Written

Kasten v. Saint-Gobain Performance Plastics Corp.

Plaintiff Kevin Kasten appeals the district court’s grant of summary judgment to defendant Saint-Gobain Performance Plastics Corporation (“Saint-Gobain”). Kasten claims that the district court erred in its interpretation of the Fair Labor Standards Act when it determined that Kasten had not suffered retaliation within the meaning of the statute. For the reasons explained below, we affirm the judgment of the district court.

The relevant testimony pertaining to Plaintiff’s claims were detailed as follows, “Plaintiff alleges (though defendant disputes) that from October through December, 2006, he verbally complained to his supervisors about the legality of the location of Saint-Gobain’s time clocks. Specifically, Kasten claims that he told his supervisors that the location of the Kronos clocks prevented employees from being paid for time spent donning and doffing their required protective gear. Regarding his complaints, plaintiff alleges (1) that he told Dennis Woolverton (his shift supervisor) that he believed the location of defendant’s time clocks was illegal; (2) that he told Lani Williams (a Human Resources generalist) that the location of the time clocks was illegal; (3) that he told April Luther (a “Lead Operator” and apparently another of Kasten’s supervisors) that the location of the time clocks was illegal; and (4) that he told Luther that he was thinking of commencing a lawsuit regarding the location of defendant’s time clocks. Saint-Gobain denies that Kasten ever told any of his supervisors or any human resources personnel that he believed that the clock locations were illegal.”

Throughout the period when Plaintiff claims he complained, he received several write-ups, and was ultimately terminated. He claimed that this retaliatory behavior resulted from his oral internal complaints (which the Defendant denied). Kasten filed suit under the FLSA, claiming that he had been terminated in retaliation for his verbal complaints regarding the location of the time clocks. The district court granted summary judgment to defendant, finding that Kasten had not engaged in protected activity because he had not “filed any complaint” about the allegedly illegal location of the time clocks. Kasten appeals.

First, tackling the issue of internal complaints as a trigger for 215 protection, the Court determined they were, explaining, “The Seventh Circuit has not directly addressed whether internal complaints are protected activity under the FLSA’s retaliation provision, though we have reviewed two cases involving internal complaints without commenting on the matter. See Scott v. Sunrise Health Care Corp., 195 F.3d 938, 940-41 (7th Cir.1999) (affirming dismissal of FLSA retaliation case because plaintiff had not shown a causal connection between her complaints and her later discharge); see also Shea v. Galaxie Lumber Constr. Co., 152 F.3d 729, 731, 734-36 (7th Cir.1998) (reversing a denial of punitive damages in a case where an employee had been discharged after complaining to the company president).

Statutory interpretation begins with “the language of the statute itself [and] [a]bsent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Sapperstein v. Hager, 188 F.3d 852, 857 (7th Cir.1999) (internal quotation marks and citation omitted) (interpreting retaliation provision of FLSA but not discussing whether internal complaints were protected conduct); see also Consumer Prod. Safety Comm’n v. GTE Sylvania, 447 U.S. 102, 107 (1980). Here, the plain language of the statute indicates that internal, intracompany complaints are protected. The retaliation provision states that it is “unlawful for any person to discharge … any employee because such employee has filed any complaint…. “29 U.S.C. § 215(a)(3) (emphasis added). As Kasten points out, the statute does not limit the types of complaints which will suffice, and in fact modifies the word “complaint” with the word “any.” Thus, the language of the statute would seem to include internal, intra-company complaints as protected activity.

The majority of circuit courts considering the question have also found that “any complaint” includes internal complaints. See Hagan v. Echostar Satellite, LLC, 529 F.3d 617, 625 (5th Cir.2008) (internal complaint constitutes protected activity); Moore v. Freeman, 355 F.3d 558 (6th Cir.2004) (informal complaints are protected activity); Lambert v. Ackerly, 180 F.3d 1004, 1004 (9th Cir.1999) (section 15(a)(3) protects “employees who complain about violations to their employers”); Valerio v. Putnam Associates, Inc., 173 F.3d 35, 41 (1st Cir.1999) (“By failing to specify that the filing of any complaint need be with a court or an agency, and by using the word ‘any,’ Congress left open the possibility that it intended ‘complaint’ to relate to less formal expressions of protest … conveyed to an employer.”);   EEOC v.. White & Son Enterprises, 881 F.2d 1006, 1011 (11th Cir.1989) (employees’ internal complaints to supervisor about unequal pay were assertions of rights under the Equal Pay Act, part of the FLSA); Love v. RE/MAX of America, Inc., 738 F.2d 383, 387 (10th Cir.1984) (same); but see Ball v. Memphis Bar-B-Q Co., 228 F.3d 360, 363-365 (4th Cir.2000) (holding that 29 U.S.C. § 215(a)(3) does not protect internal complaints).

Because we conclude, in line with the vast majority of circuit courts to consider this issue, that the plain language of 29 U.S.C. § 215(a)(3) includes internal complaints as protected activity, we affirm the judgment of the district court in this regard.

The Court then turned to the sufficiency of unwritten/verbal complaints. “The next question pertinent to this appeal is whether unwritten, purely verbal complaints are protected activity under the statute.

Again, we start with the language of the statute. Sapperstein, 188 F.3d at 857. The FLSA’s retaliation provision prohibits “discharg[ing] … any employee because such employee has filed any complaint….”29 U.S.C. § 215(a)(3) (emphasis added). The district court reasoned:

Expressing an oral complaint is not the same as filing a complaint. By definition, the word “file” refers to “a collection of papers, records, etc., arranged in a convenient order,” Random House Webster’s College Dictionary 489 (2d ed.1999), or, when used in verb form as it is in the statute, “[t]o deliver (a paper or instrument) to the proper officer so that it is received by him to kept on file, or among the records of his office,” Webster’s New International Dictionary of the English Language 945 (2d ed.1958). One cannot “file” an oral complaint; there is no document, such as a paper or record, to deliver to someone who can put it in its proper place.

Plaintiff disagrees with this interpretation. He argues that “to file” is a broad term that has several meanings, including, generally, “to submit.”

Looking only at the language of the statute, we believe that the district court correctly concluded that unwritten, purely verbal complaints are not protected activity. The use of the verb “to file” connotes the use of a writing. Webster’s Ninth New Collegiate Dictionary defines the verb “to file” as

1. to arrange in order for preservation and reference <”file letters”> 2. a: to place among official records as prescribed by law <”file a mortgage”> b: to perform the first act of (as a lawsuit) <”threatened to file charges against him”>

This definition accords with what we believe to be the common understanding of the verb “to file.” Although Kasten and the Secretary of Labor claim that “to file” can mean, generally, “to submit,” this seems to us overbroad. If an individual told a friend that she “filed a complaint with her employer,” we doubt the friend would understand her to possibly mean that she merely voiced displeasure to a supervisor. Rather, the natural understanding of the phrase “file any complaint” requires the submission of some writing to an employer, court, or administrative body. See United States v. Bank of Farmington, 166 F.3d 853, 860 (7th Cir.1999) (“Words in a statute are to be given their plain and ordinary meaning.”) (citing United States v. James, 478 U.S. 597, 604 (1986)).

Other circuit courts that have tackled this issue are split. The Fourth Circuit found that verbal complaints were not protected activity in Ball v. Memphis Bar-B-Q Co., Inc., 228 F.3d 360, 364 (4th Cir.2000). The court recognized that the FLSA’s “statutory language clearly places limits on the range of retaliation proscribed by the act.”Specifically, in interpreting the “testimony” clause of the FLSA’s retaliation provision, the Fourth Circuit held that the FLSA “prohibits retaliation for testimony given or about to be given but not for an employee’s voicing of a position on working conditions in opposition to an employer.”Id. (emphasis added). Although the Fourth Circuit acknowledged that the retaliation in that case-which followed an employee’s statement to the company president that, if he were deposed in a lawsuit, he would not testify to the president’s suggested version of events-was “morally unacceptable,” the court concluded that a faithful interpretation of the statute did not recognize mere statements to a supervisor as a protected activity. Id.; see also Lambert v. Genesee Hospital, 10 F.3d 46, 55 (2d Cir.1993) (“The plain language of this provision limits the cause of action to retaliation for filing formal complaints, instituting a proceeding, or testifying, but does not encompass complaints made to a supervisor.”) (citations omitted).

Other courts have found oral complaints to be protected activity, but it is difficult to draw guidance from these decisions because many of them do not specifically state whether the complaint in question was written or purely verbal, and none discusses the statute’s use of the verb “to file” and whether it requires a writing. See EEOC v. Romeo Community Schools, 976 F.2d 985, 989-90 (6th Cir.1992) (holding, without discussion of the verbal/written distinction, that plaintiff’s apparently oral complaints to supervisors were protected activity); EEOC v. White & Son Enters., 881 F.2d 1006, 1011 (11th Cir.1989) (holding, without discussion of the verbal/written distinction, that plaintiffs’ oral complaints were protected activity); Brock v. Richardson, 812 F.2d 121, 125 (8th Cir.1987) (holding, without discussion of the verbal/written distinction, that defendant’s mistaken belief that plaintiff had made apparently oral complaints to supervisors was grounds for suit); Brennan v. Maxey’s Yamaha, 513 F.2d 179, 183 (8th Cir.1975) (holding, without discussion of the verbal/written distinction, that employee’s “voicing” of concern was protected activity).

Despite these contrary findings by some other circuits, our interpretation of the phrase “file any complaint” is confirmed by the fact that Congress could have, but did not, use broader language in the FLSA’s retaliation provision. For example, analogous provisions in other statutes, including Title VII and the Age Discrimination in Employment Act, forbid employers from retaliating against any employee who “has opposed any practice” that is unlawful under the statutes. See42 U.S.C. § 2000e-3(a); 29 U.S .C. § 623(d). This broader phrase, “opposed any practice,” does not require a “fil[ing],” and has been interpreted to protect verbal complaints. See, e.g., Kotcher v. Rosa and Sullivan Appliance Ctr., Inc., 957 F.2d 59, 65 (2d Cir.1992). Congress’s selection of the narrower “file any complaint” language in the FLSA thus appears to be significant. See Ball, 228 F.3d at 364 (noting that “Congress has crafted … broader anti-retaliation provisions elsewhere” but “the cause of action for retaliation under the FLSA is much more circumscribed”); Genesee Hospital, 10 F.3d at 55 (noting that the FLSA uses narrower language in its retaliation provision than Title VII).

Finally, we are aware that ” ‘the remedial nature of the [FLSA] … warrants an expansive interpretation of its provisions….’ ” Sapperstein, 188 F.3d at 857 (quoting Herman v. RSR Security Services, 172 F.3d 132, 139 (2d Cir.1999)). But expansive interpretation is one thing; reading words out of a statute is quite another. Because we believe that the FLSA’s use of the phrase “file any complaint” requires a plaintiff employee to submit some sort of writing, we agree with the district court’s conclusion that Kasten’s alleged complaints were not protected activity under the statute.”

Thus, the Court affirmed the lower Court’s ruling, finding that Plaintiff’s internal, but verbal complaints were insufficient and therefore unprotected.

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Filed under Retaliation

E.D.Mo.: Informal Workplace Complaints Are Not “Protected Activity” Under § 215(a)(3)

Bartis v. John Bommarito Oldsmobile-Cadillac, Inc.

Plaintiff worked for Defendant as a car salesman. Plaintiff alleged that he was fired after he complained about and refused to comply with what he believed to be unlawful employment practices. Plaintiff asserted claims for retaliatory discharge under the Fair Labor Standards Act and under state law. Defendant moved to dismiss, arguing that, by simply complaining to his supervisor, Plaintiff did not engage in any protected activity that would shield him from retaliatory discharge. The Court agreed and concluded the FLSA and Missouri state law do not prohibit an employer from terminating an employee merely because the employee raised workplace complaints. Therefore, the Court granted defendant’s motion to dismiss.

The Court explained, “In the Eighth Circuit, district courts are guided by the decision in Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179 (8th Cir.1975). In Brennan, the government brought suit against an employer after the employer withheld overtime compensation from its employees. The employer had agreed to pay the overtime after a Department of Labor investigation found violations of the FLSA. But then the employer required the employees to endorse their back-wage checks over to the employer. One employee was terminated after she refused to do so. Id. at 180. The court held that the employee’s discharge was unlawful retaliation in violation of § 215(a)(3). According to the court, “her discharge was a direct result of her insistence upon receiving retroactive benefits required under the [FLSA].” Id. at 181. Thus, “the immediate cause or motivation” of the discharge was the employee’s assertion of statutory rights, thereby violating § 215(a)(3). Id. That the employee did not “file” a complaint or “initiate” a proceeding was irrelevant.

The decision in Brennan provides some support for the plaintiff here, but it is not dispositive. In Brennan, unlike this case, there was already an agreement in place between the Department of Labor and the employer regarding the payment of back wages. This agreement was necessarily a “proceeding” covered by § 215(a)(3). The FLSA protected the employee seeking to vindicate her FLSA rights where the formal proceeding was already in place when the employee complained and was terminated.

The Eighth Circuit decisions interpreting § 215(a)(3) make clear that the employee must engage in protected activity in order to be shielded from retaliation. See Grey, 396 F.3d at 1034-35. The “protected activities” are listed explicitly in the statute: filing a complaint, instituting or testifying in a proceeding, or serving on a committee. Workplace complaints are not included. Raising informal objections with one’s supervisor is not included. Bartis is correct to point out that within the protected activities enumerated in the FLSA, there is room for broad interpretation. See Saffels v. Rice, 40 F.3d 1546, 1549-50 (8th Cir.1995) (holding that the anti-retaliation provision protects an employee who was fired because the employer had a mistaken belief that the employee filed a complaint with the Department of Labor). But the statute cannot be construed so broadly as to depart from its plain and clear language. See Brown v. L & P Indus., No. 5:04CV379JLH, 2005 WL 3503637 (E.D.Ark. Dec. 21, 2005) (employee who merely contemplated filing a complaint with the Department of Labor and threatened to do so was not covered by anti-retaliation provision). See also Haug v. Bank of America, N.A., 317 F.3d 832, 835 (8th Cir.2003) (“Where the language of a statute is unambiguous, the statute should be enforced as written unless there is clear legislative intent to the contrary.”).

Moreover, the FLSA anti-retaliation language stands in stark contrast to the anti-retaliation provision found in another labor statute, Title VII of the Civil Rights Act of 1964. That statute prohibits employer retaliation against any employee who has ” opposed any practice made an unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a) (emphasis added). Protection for anyone who “opposes a practice” is far broader than the protection found in the narrow limitations of the FLSA. Congress knows how to afford broad protection against retaliation when it wants to. Unlike Title VII, the FLSA anti-retaliation provision is limited in its scope and does not extend to activities that fall outside its clear text. For these reasons, Bartis’s claim for unlawful retaliation under the FLSA must be dismissed.”

The decision demonstrates the continuing interpretation throughout the country as to what constitutes “protected activity” thereby giving rise to the protections of 215(a)(3), the FLSA’s anti-retaliation provision.

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D.Me.: Oral Complaint To Employer Is “Protected Activity” Sufficient To Trigger The Anti-Retaliation Provisions of 29 U.S.C. § 215(a)

Gosselin v. Boralex Livermore Falls, LP

This case was before the Court on Defendants’ Motion for Summary Judgment with respect to Plaintiff’s 2 count complaint. The second count of Plaintiff’s complaint sought damages as a result of Defendants’ alleged violation of the anti-retaliation provisions of the FLSA, commonly referred to as Section 215. Following 1st Circuit law, the Court held that Plaintiff’s informal oral complaints to a supervisor constituted sufficient “statutorily protected activity” to withstand Defendants’ Motion.

The Court addressed each element of a retaliation claim, stating, “[i]n order to establish a retaliation claim under the FLSA, the plaintiff must show that (1) he engaged in statutorily protected activity and (2) his employer thereafter subjected him to an adverse employment action, (3) as a reprisal for having engaged in the protected activity. Blackie v. State of Maine, 75 F.3d 716, 722 (1st Cir.1996). Here, the defendants contend that the plaintiff did not ‘file[ ] any complaint.’

The evidence in the summary judgment record about the plaintiff’s statement to Ettinger on July 31, 2006, is as follows: On July 31, 2006, the plaintiff left the control room to look for Wranosky to complain about what Morrell had told the plaintiff that Wranosky had said about how employees should record their working time. When the plaintiff instead saw Ettinger, he told Ettinger that he had heard that Wranosky had decided to restrict the amount of time that employees could put on their timesheets for shift turnover. He told Ettinger that he thought that the Department of Labor had previously found that Boralex had “violated employees’ rights when it prevented them from reporting all of the time they worked during shift turnover on their timesheets,” and that he planned to call the Department of Labor if this practice continued.

The defendants focus on the facts that the plaintiff was complaining about ‘a hearsay statement made by another person for which he had no first-hand knowledge and that he [had] never attempted to confirm,’ that the plaintiff “has admitted that Mr. Wranosky has never told [the plaintiff] that he was not to record all time worked, that the plaintiff ‘admitted that Mr. Wranosky has never instructed him to underreport his time,’ and that the plaintiff never pursued this issue between July 31, 2006, and his promotion to shift supervisor in 2007.

But, none of these facts negates the possibility that the plaintiff filed a complaint within the terms of the FLSA when he spoke to Ettinger on July 31, 2006. The First Circuit has held that an internal complaint, made only to the employer, is sufficient to constitute the filing of a complaint under the FLSA. Valerio v. Putnam Assoc., Inc., 173 F.3d 35, 41 (1st Cir.1999). In that case, the First Circuit expressly reserved ruling on the question whether a “wholly oral” complaint would qualify, id. at 42 n. 4, but I find persuasive the reasoning of the court in Skelton v. American Intercontinental University Online, 382 F.Supp.2d 1068, 1076 (N.D.Ill.2005), and cases cited therein, that conclude that an oral complaint is sufficient based upon the broad, remedial purposes of the FLSA.

Therefore, the Court concluded that “[t]he plaintiff has offered evidence that he told a supervisor that his employer was violating the FLSA and that, if the violation continued, he would report it to the Department of Labor. This is sufficient to demonstrate that he engaged in protected activity under the FLSA.”

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