Category Archives: Retaliation

U.S.S.C.: Oral Complaints Are Sufficient to Trigger the Anti-Retaliation Provisions of the Fair Labor Standards Act

Kasten v. Saint-Gobain Performance Plastics Corp.

Kasten brought an anti-retaliation suit against his former employer, respondent (Saint-Gobain), under the Fair Labor Standards Act of 1938 (Act), which forbids employers “to discharge . . . any employee because such employee has filed any complaint” alleging a violation of the Act, 29 U. S. C. §215(a)(3). In a related suit, the District Court found that Saint-Gobain violated the Act by placing timeclocks in a location that prevented workers from receiving credit for the time they spent donning and doffing work related protective gear. In this case Kasten claimed that he was discharged because he orally complained to company officials about the timeclocks. Holding that such oral complaints were not protected activity, the trial court granted the respondent summary judgment. Subsequently, the Seventh Circuit affirmed. Reversing, the Supreme Court held that the scope of statutory term “filed any complaint” includes oral, as well as written, complaints.

Click Kasten v. Saint-Gobain Performance Plastics Corp. to read the entire decision.

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8th Cir.: Recording Overtime Over Defendant-Employer’s Objections Not Protected Activity Under 29 U.S.C. § 215

Ritchie v. St. Louis Jewish Light

Plaintiff brought this case under 29 U.S.C. § 215.  Holding that informal complaints are not protected activity under the FLSA’s anti-retaliation provisions, the lower court dismissed and Plaintiff appealed, arguing that such informal complaints are protected activity.  The Eight Circuit did not reach that issue however, because it held that Plaintiff had not even made such informal complaints, because it held continuing to record overtime worked, despite Defendants’ instructions not to does not constitute a “complaint.”  As such, the Eighth Circuit affirmed the lower court’s decision.

Reasoning that Plaintiff had not engaged in activity that would be protected under § 215, even if § 215 protected informal complaints, the court explained:

“We need not decide today whether informal complaints are protected activity under the FLSA because there is nothing in Ritchie’s verified federal court complaint that alleged that Ritchie made any sort of complaint to either Levin or St. Louis Jewish Light. The verified complaint alleged that:

7. Starting on or about May or June 2009, Levin asked Ritchie to perform work (“Work”) [formerly] performed by two employees by herself which Ritchie commenced to do.

8. Levin asked Ritchie to perform the Work without recording overtime.

9. The Work required that Ritchie perform overtime hours (more than 40 hours in a week) (“Overtime”) which Ritchie recorded.

10. Levin complained to Ritchie about her recording the Overtime and again requested that she perform the Work without recording overtime.

11. When Ritchie continued to record the Overtime, she was terminated by Levin and [St. Louis Jewish Light].

(Appellant’s App. at 1-2.)

Even assuming that informal complaints are sufficient to trigger the anti-retaliation provision of the FLSA, a legal conclusion we do not make, Ritchie failed to allege sufficient facts to indicate that she made even an informal complaint to either Levin or St. Louis Jewish Light. The only complaining asserted in her pleading goes the other way-Levin complaining to Ritchie. Ritchie asserts that she complained pursuant to the FLSA when she gave “Levin notice that she believed Levin’s instructions were a violation of the law because she, in fact, recorded the overtime hours in writing despite his orders not to record them.” (Appellant’s Reply Br. at 4.) In fact, rather than constituting an affirmative complaint that would trigger the anti-retaliation provision of the FLSA, her recording of her overtime could be nothing more than mere insubordination, she having been instructed to the contrary. Insubordination is not protected under the FLSA, and insubordination is not sufficient to trigger the anti-retaliation provision in 29 U.S.C. § 215(a)(3). As appellees’ counsel noted at oral argument, if merely recording one’s overtime is a “complaint” that triggers the anti-retaliation provision of the FLSA, an employer would not be able to discipline an employee for working unauthorized overtime so long as the employee recorded the overtime.

As the Supreme Court has recently said, the plausibility standard, which requires a federal court complaint “to state a claim to relief that is plausible on its face, … asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S.Ct. at 1949 (internal quotation marks omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]-‘that the pleader is entitled to relief.’ “ Id. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)).

To establish a prima facie case of retaliation under the FLSA, Ritchie would have to show that she participated in statutorily protected activity, that the appellees took an adverse employment action against her, and that there was a causal connection between Ritchie’s statutorily protected activity and the adverse employment action. See Grey v. City of Oak Grove, 396 F.3d 1031, 1034-35 (8th Cir.2005). The facts pleaded in Ritchie’s complaint do not permit us to infer more than the mere possibility of misconduct. Thus, Ritchie’s complaint merely alleged, but did not show, that Ritchie is entitled to relief.

Thus, the district court did not err in granting the appellees’ motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). See Carton, 611 F.3d at 454.”

Click Ritchie v. St. Louis Jewish Light to read the entire decision.

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W.D.Tex.: Emotional Distress and Punitive Damages Unavailable In FLSA Retaliation Claim

Douglas v. Mission Chevrolet

In addition to seeking unpaid overtime wages and liquidated damages under the FLSA, the Plaintiff alleged that he was entitled to emotional distress and/or punitive damages as a result of claimed retaliation in violation of the anti-retaliation provisions of the FLSA, 29 U.S.C. § 215(a)(3).  Defendant moved to dismiss plaintiff’s claim for retaliation, asserting that neither emotional distress damages nor punitive damages are available under the FLSA.  Construing comparable Fifth Circuit law pertaining to ADEA claims, the court agreed and dismissed the plaintiff’s retaliation claim.

The court addressed each type of damages separately:

“1. Emotional distress damages

The damages provision of the anti-retaliation section of the FLSA states, in relevant 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. 29 U.S.C. § 216(b).

Circuit courts that have addressed the issue have held that “legal or equitable relief” includes emotional distress damages. See Moore v. Freeman, 355 F.3d 558, 563-64 (6th Cir.2004) (emotional distress damages are recoverable under the anti-retaliation provision of the FLSA); Broadus v. O.K. Indus., Inc., 238 F.3d 990, 992 (8th Cir.2001) (emotional distress damages are recoverable in Equal Pay Act retaliation case); Lambert v. Ackerley, 180 F.3d 997, 1017 (9th Cir.1999) (reversing and remanding emotional distress award of $75,000 under anti-retaliation provision of FLSA for determination of appropriate amount of emotional distress damages); Avitia v. Metro. Club of Chi., Inc., 49 F.3d 1219, 1228-29 (7th Cir.1995) (citing Travis v. Gary Cmty. Mental Health Ctr., Inc., 921 F.2d 108, 111-12 (7th Cir.1990)) (emotional distress damages are recoverable under the anti-retaliation provision of the FLSA). The Fifth Circuit has yet to address whether emotional distress damages are available in an FLSA anti-retaliation claim.

However, the Fifth Circuit has held that the remedies provisions of the FLSA and the Age Discrimination in Employment Act (“ADEA”) must be interpreted consistently. See Lubke v. City of Arlington, 455 F.3d 489, 499 (5th Cir.2006) (“Because the remedies available under the ADEA and the FMLA [Family and Medical Leave Act] both track the FLSA, cases interpreting remedies under the statutes should be consistent.”); see also Johnson v. Martin, 473 F.3d 220, 222 (5th Cir.2006) (applying ADEA precedent to the FLSA to determine whether wages earned after termination offset lost wage damages because “[t]he FLSA and ADEA have the same remedies provisions”).

The Fifth Circuit has addressed whether emotional distress damages are available under the ADEA, which has similar remedies provisions as the FLSA. See Dean v. Am. Sec. Ins. Co., 559 F.2d 1036 (5th Cir.1977). In Dean, the Fifth Circuit rejected the argument that the statutory language “legal or equitable relief” in the ADEA includes emotional distress damages. Id. at 1038. In so holding, the Fifth Circuit emphasized the notably absent phrase “general damages,” “punitive damages,” or any type of damages based on emotional distress from the ADEA’s damages provisions. Id. at 1038-39. In the FLSA damages provision cited above, the same phrases are absent.

Since the Fifth Circuit has expressed its desire for the FLSA’s remedies provision to be interpreted consistently with the ADEA’s remedies provision, and since emotional distress damages are not available in claims brought under the ADEA, see Dean, 559 F.2d at 1038, this Court must hold that emotional distress damages are also unavailable under the FLSA. It is for this reason that another judge on this Court has already reached the same conclusion in another case. See Rumbo v. Southwest Convenience Stores, LLC, No. EP-10-CA-184-FM (W.D.Tex. July 19, 2010) (order granting motion to dismiss) (employing similar reasoning in granting the defendant’s motion to dismiss plaintiff’s claims for emotional distress damages and punitive damages in an FLSA anti-retaliation claim). Therefore, Plaintiff may not recover damages based on emotional distress in his anti-retaliation claim brought under the FLSA.

2. Punitive damages

Similarly, Defendant contends punitive damages are not available in an anti-retaliation claim based on the FLSA, Mot. 2, while Plaintiff claims punitive damages are recoverable. Resp. 3. Federal appellate courts that have considered the issue are split on whether a plaintiff can recover punitive damages in an FLSA anti-retaliation claim. Compare Travis, 921 F.2d at 111-12 (punitive damages are available in an FLSA anti-retaliation claim), with Snapp v. Unlimited Concepts, Inc., 208 F.3d 928, 933-35 (11th Cir.2000) (punitive damages are not available in an FLSA anti-retaliation claim). The Fifth Circuit, however, has yet to address whether punitive damages are available under an anti-retaliation claim brought pursuant to the FLSA.

Just as it held with respect to emotional distress damages, the Fifth Circuit in Dean held that punitive damages are unavailable under the ADEA. 559 F.2d at 1038. As discussed above, because the ADEA and FLSA must be interpreted consistently with respect to remedies, see Lubke, 455 F.3d at 499; Johnson, 473 F.3d at 222, this Court must hold that punitive damages are not recoverable in an anti-retaliation claim brought under the FLSA.”

Click Douglas v. Mission Chevrolet to read the entire opinion.

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11th Cir.: Res Judicata Did Not Bar Claims Of FLSA Retaliation; Such Claims Arose After The Original Pleading Was Filed In The Earlier Litigation, So Not Previously Litigated

Moore v. Sei Pak

This case was before the Eleventh Circuit on Plaintiffs’ appeal of summary judgment in favor of their employer (“Pak”), in their suit against Pak for retaliation under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 215(a)(3).  The Plaintiffs sued Pak for retaliation because Pak denied them positions as independent contractors after they initiated an earlier FLSA suit against Pak for unpaid overtime compensation.  The Plaintiffs filed the separate retaliation suit while the overtime compensation suit, which the parties ultimately settled, was still pending. The magistrate judge granted Pak’s summary judgment motion on res judicata grounds after it concluded that the Plaintiffs had raised their retaliation claim in the prior suit. On appeal, Plaintiffs argued that their prior FLSA overtime compensation lawsuit does not preclude their current retaliation suit, because the facts underlying the retaliation suit occurred subsequent to the filing of the original case.  The Eleventh Circuit agreed and reversed the lower court reasoning:

“We review de novo a district court’s order on a motion for summary judgment and construe the facts in the light most favorable to the non-moving party.   Van Voorhis v. Hillsborough Cnty. Bd. of Cnty. Comm’rs, 512 F.3d 1296, 1299 (11th Cir.2008). We also review de novo a district court’s application of res judicata. EEOC v. Pemco Aeroplex, Inc., 383 F.3d 1280, 1285 (11th Cir.2004). We apply federal law “because federal preclusion principles apply to prior federal decisions.” Id. (quotation marks omitted).

“Under res judicata … a final judgment on the merits bars the parties to a prior action from re-litigating a cause of action that was or could have been raised in that action.” In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir.2001). “Res judicata applies not only to the precise legal theory presented in the previous litigation, but to all legal theories and claims arising out of the same operative nucleus of fact.” Manning v. City of Auburn, 953 F.2d 1355, 1358-59 (11th Cir.1992) (quotation marks omitted).

[A] party seeking to invoke the doctrine must establish … four initial elements: (1) the prior decision must have been rendered by a court of competent jurisdiction; (2) there must have been a final judgment on the merits; (3) both cases must involve the same parties or their privies; and (4) both cases must involve the same causes of action.  In re Piper Aircraft Corp., 244 F.3d at 1296. If these requirements are met, the court must determine whether the new claim could have been raised in the prior suit. Id. The preclusion of claims that “could have been brought” in earlier litigation does not include claims that arose after the original complaint was filed in the prior action, unless the plaintiff actually asserted the claim in “supplemental pleadings or otherwise.Pleming v. Universal-Rundle Corp., 142 F.3d 1354, 1357 (11th Cir.1998).

We conclude that even if this case satisfies the res judicata elements, the Plaintiffs’ retaliation claim is one “which ar[o]se after the original pleading [wa]s filed in the earlier litigation” and is not barred unless Plaintiffs asserted the claim in the prior litigation. Id. at 1357. The Plaintiffs filed their overtime compensation suit against Pak on March 4, 2008. Construing the facts in the Plaintiffs’ favor, the retaliation claim did not arise until November 21, 2008, when Pak excluded Plaintiffs from an opportunity to apply for independent contractor positions. Therefore, the Plaintiffs’ retaliation claim arose eight months after they filed their original complaint.

The Plaintiffs could not have asserted the retaliation claim in their initial complaint in the overtime compensation suit and were free to decline to do so through supplemental pleadings. We observed in Manning “that Federal Rule of Civil Procedure 15(d), which governs supplemental pleadings, makes such a pleading optional and held that the doctrine of res judicata does not punish a plaintiff for exercising the option not to supplement the pleadings with an after-acquired claim.” Pleming, 142 F.3d at 1357 (citing Manning, 953 F.2d at 1360).

We also conclude that the Plaintiffs never asserted their retaliation claim in their overtime compensation suit “through supplemental pleadings or otherwise.” Pleming, 142 F.3d at 1357 (emphasis omitted). In the overtime compensation suit, the Plaintiffs’ only reference to retaliation occurred in the status report they filed with the court immediately before the case settled. In this report, the Plaintiffs indicated that mediation had failed, and asked the court to try the case “as soon as possible” based on several unresolved concerns, including Pak’s failure “to … offer Plaintiffs the opportunity to become subcontractors for Defendant, an opportunity previously not granted to Plaintiffs because Plaintiffs were named on a lawsuit against Defendant.” This Court has held that while “a litigant may ‘otherwise’ assert a claim, without filing a supplemental pleading … these other means must conform with the rules of procedure.” Pleming, 142 F.3d at 1358. We have identified specific examples of other means of asserting a claim that trigger res judicata, such as “an amendment pursuant to Rule 15(b) or the assertion of a claim through a pretrial order pursuant to Rule 16(e).” Id. Neither of these options was pursued here. Pak concedes that, in light of Pleming, the magistrate judge’s reliance on the status report as the basis for concluding that the Plaintiffs asserted a retaliation claim in the prior litigation “may have been incorrect.”

The Plaintiffs’ reference to Pak’s retaliation is similar to the references we have held insufficient to assert a claim before a district court. In Coon v. Georgia Pacific Corp., 829 F.2d 1563, 1568-71 (11th Cir.1987), we affirmed the district court’s refusal to consider the plaintiff’s claims of specific acts of discrimination, which she included in her briefs, discovery requests, and motions, but never added to her complaint. We explained that “[t]hese claims were not somehow ‘present’ within her complaint, despite her failure to allege them.” Id. at 1570. We also rejected the notion that the claims were before the district court because they were part of a “continuing violation.” Id.; see also Pleming, 142 F.3d at 1358 (collecting cases). We conclude that the Plaintiffs’ reference to retaliation in the status report was insufficient to put their retaliation claim properly before the district court pursuant to the Federal Rules of Civil Procedure.

For these reasons, we hold that res judicata does not bar the Plaintiffs’ retaliation claim against Pak. We VACATE and REMAND this case to the district court for further proceedings consistent with this opinion.”

Click Moore v. Sei Pak to read the entire decision.

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E.D.Va.: Applicant For A Job May Not Assert An Action For FLSA Retaliation, Because Not A Covered “Employee” Of The Potential Employer

Dellinger v. Science Applications Intern. Corp.

This case was before the Court on a Motion to Dismiss filed by Defendant.  Plaintiff alleged that Defendant violated the anti-retaliation provision of the Fair Labor Standards Act (“FLSA”) codified at 29 U.S.C. § 215(a)(3), by refusing to hire her after they received notice that she had filed a separate FLSA action against a former employer.  Defendant moved to dismiss on the basis that Plaintiff was never an “employee” of Defendant, and the Court granted Defendant’s Motion on this basis.

The Court reasoned:

“In a statutory construction case, the beginning point must be the language of the statute, and when a statute speaks with clarity to an issue [,] judicial inquiry into the statute’s meaning, in all but the most extraordinary circumstance, is finished.” Ramey v. Director, office of Workers’ Compensation Program, 326 F.3d 474, 476 (4th Cir.2003)(citing Estate of Cowart v. Nicklos Drilling Co. ., 505 U.S. 469, 475, 112 S.Ct. 2589, 120 L.Ed.2d 379 (1992)). The statute at issue here, 29 U.S.C. § 215 states, in pertinent part:

(a) [I]t shall be unlawful for any person …

(3) 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 this chapter …

29 U.S.C. § 215 (emphasis added). Congress chose to define “employee” as “any individual employed by an employer.” 29 U.S.C. § 203(e)(1). For an individual to be “employed” by an “employer” they must be “suffer[ed] or permitt[ed] to work.” 29 U.S.C. § 203(g). Here, Plaintiff was never “permitted” to work for SAIC, in fact, her main allegation is that the offer of employment was withdrawn. (See Compl. ¶ 34.).

The two district courts that have addressed this issue have found that a job applicant should not be considered an “employee” for purposes of the anti-retaliation provision of the FLSA. In Harper v. San Luis Valley Regional Medical Center, an applicant for a nursing position at defendant hospital was involved in an unrelated federal wage claim suit against several municipalities. Harper, 848 F.Supp. 911 (D.Colo.1994). The hospital hired several allegedly less qualified individuals over plaintiff Harper and Harper filed suit alleging FLSA retaliation. In reaching its decision the Court specifically relied on the plain language of the statute, noting that “where a statute names parties who come within its provisions, other unnamed parties are excluded.” Id. at 913-914 (D.Colo.1994) (citing Foxgord v. Hischemoeller, 820 F.2d 1030, 1035, cert. denied, 484 U.S. 986, 108 S.Ct. 503, 98 L.Ed.2d 502, (9th Cir.1987); See Contract Courier Services, Inc. v. Research and Special Programs Admin. of U.S. Depart. of Transp., 924 F.2d 112, 114 (7th Cir.1991)(holding “statutory words mean nothing unless they distinguish one situation from another; line-drawing is the business of language”). The Court in Harper held that § 215(a)(3) “specifically identifies those individuals who come within its provisions i.e. employees. Therefore, other unnamed parties such as non-employee job applicants are excluded from its protection.” Harper, 848 F.Supp. at 914.

In the similar case of Glover v. City of North Charleston, plaintiff was also the lead plaintiff in a separate FLSA wage and hour suit against the North Charleston (Fire Dept.) District. Glover, 42 F.Supp. 243 (D.S.C.1996). After Glover brought suit against the District, the District Fire Department was disbanded and the City of North Charleston Fire Department was formed; however, the City had discretion to determine which of the District Department’s employees would be hired. Id. at 245. In his suit against the City, Glover alleged a violation of § 215(a)(3) claiming the City’s decision not to hire Glover was retaliation for his earlier FLSA claims. In dismissing the case, the Glover court found that plaintiffs were job applicants and thus not yet “employees” within the meaning of the Act. Id. at 246.

In so doing, the Court drew a careful distinction between § 215‘s initial language holding that it “shall be unlawful for any person ” to commit certain acts (§ 215(a)), and more limited language of the provision at issue here, protecting “any employee ” from the person’s misconduct (§ 215(a)(3)). Id. at 245-246 (emphasis added). The court found that the statute’s application to “any person” did not bar suit against the “non-employer” City, however, the plain language of the statue restricting its protections to “any employee” did mean that a mere job “applicant” did not have standing to bring a § 215 action. Id. As the Glover court found, the first sentence of the statute applies to “any person,” if “Congress wanted to cover non-employees, it could have written § 215(a)(3) to prevent discrimination [or retaliation] against “any person” instead of “any employee.” Id. at 246-247. Based on the plain language of the statute, the courts that have considered the issue have found that § 215(a)(3) does not cover job applicants.

Plaintiff attempts to distinguish these cases as outliers and non-binding on this Court. As decisions from other Districts they are clearly not binding precedent, however, their reasoning is, contrary to Plaintiff’s argument, applicable here. Both opinions rest on the plain language of the statute and both were unwilling to read the term “employee” to mean an individual who was never employed the Defendant.

Defendant points to the leading Fourth case regarding the sufficiency of an anti-retaliation claim under FLSA, Darveau v. Detecon, Inc., 515 F.3d 334 (4th Cir.2008.) In the Fourth Circuit, to assert a prima facie claim of retaliation under the FLSA a plaintiff must show: “that (1) he engaged in an activity protected by the FLSA; (2) he suffered adverse action by the employer subsequent to or contemporaneous with such protected activity; and (3) a causal connection exists between the employee’s activity and the employer’s adverse action.” Darveau v. Detecon, Inc., 515 F.3d 334, 340 (4th Cir.2008) (citing Wolf v. Coca-Cola Co., 200 F.3d 1337, 1342-43 (11th Cir.2000); Conner v. Schnuck Mkts., Inc., 121 F.3d 1390, 1394 (10th Cir.1997)). Similarly, Defendant argues that as the Fourth Circuit standard requires a “casual connection” between the “employee’s activity” and the “employer’s” action, Plaintiff has no standing to bring suit as she was never an “employee.” (Mem. in Supp. Mot. to Dismiss at 4.) Without reading beyond the plain language of the statute, a job applicant cannot be considered an ’employee.’ ”

Although not highlighted here, the Court also rejected several alternative arguments put forth by Plaintiff, that the Court should look beyond the FLSA, to statutory definitions and construction of Title VII and the NLRA statutes.

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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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