Tag Archives: Retaliation

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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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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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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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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D.Kan.: Punitive Damages Unavailable In Equal Pay Act (EPA) Retaliation Claim

Allen v. Garden City Co-op, Inc.

Plaintiff moved to compel the individual Defendant’s financial information, claiming that it was relevant to her claim for punitive damages arising under her Equal Pay Act (EPA) claim. In denying the Motion to compel, the Court addressed the issue of damages available to a Plaintiff in a retaliation claim under the EPA, FLSA and/or ADEA:

“In its most simple terms, the Equal Pay Act makes it illegal for an employer to pay members of the opposite sex different wages for the same work. The Act is codified at 29 U.S.C. § 206(d), making it part of the Fair Labor Standards Act, 29 U.S.C. § 201, et seq.

At least one court in this District has discussed the issue of punitive damages under the FLSA, noting with favor that other Circuits have “held that the FLSA’s enforcement provisions … do not permit a plaintiff to recover mental distress or punitive damages of this type.” Goico v. Boeing Co., 347 F.Supp.2d 986, 995 (citing Goldstein v. Manhattan Industries, Inc., 758 F.2d 1435, 1446 (11th Cir.1985)).

In Goico, the issue before the Court was whether punitive damages are allowable for claims of discrimination and retaliation under the Age Discrimination in Employment Act (“ADEA”). The Court observed that “[t]he enforcement provisions of the ADEA, which were patterned after the Fair Labor Standards Act (FLSA), state in part that the ADEA shall be enforced in accordance with the provisions of the FLSA …” 347 F.Supp.2d at 994. The Court continued by noting that the ADEA’s enforcement provisions state that “any violation of the ADEA shall be deemed a violation of the FLSA …”Id.Although Goico is an ADEA case, it specifically discusses whether punitive damages are allowable under the FLSA because of the ADEA’s reliance on that Act’s enforcement provisions. Thus, the Goico court’s discussion of punitive damages under the ADEA is clearly applicable to the present analysis of punitive damages under the Equal Pay Act/FLSA.

The Goico court also discussed the Seventh Circuit’s exception to this rule, which allows punitive damages in retaliation claims brought under the FLSA. Id., at 996 (discussing Travis v. Gary Comm. Mental Health Center, 921 F.2d 108 (7th Cir.1990)).  The Travis opinion discusses the effect of the 1977 amendment to the FLSA, “which added language essentially identical to the ‘appropriate legal relief’ provision of the ADEA …” Goico, 347 F.Supp.2d at 996 (citing Travis, 921 F.2d at 111-12. According to the Seventh Circuit, “[a]ppropriate legal relief includes damages,” and the 1977 Amendment to the FLSA “does away with the old limitations” under which damages are allowable “without establishing new ones.” Travis, 921 F.2d at 112. Therefore, according to Travis, punitive damages “are appropriate” under the FLSA “for intentional torts such as retaliatory discharge.”Id.

As stated previously, Plaintiff seeks punitive damages through her Equal Pay Act retaliation claim.

In Goico, Senior District Judge Wesley Brown analyzed the Travis exception and unequivocally stated that there is no support for “the view that Congress intended to single out retaliation claims under the FLSA (or ADEA) for potentially far greater recovery than it allowed with respect to virtually all other types of employment discrimination claims.” 347 D.Kan. at 997. Goico continued, holding that “that the Travis exception for retaliation claims is not well-founded, and is not a persuasive basis for abandoning the long-standing rule that damages for mental distress and punitive damages are not available on claims under the ADEA.”Id.

Because the recovery available under the ADEA is analogous to that allowed under the FLSA, the Court believes that this language from Goico is applicable to the Equal Pay Act issue currently pending before the Court.  The Court thus finds that Plaintiff has failed to establish that her punitive damage claim under Count I is not spurious. Therefore the court cannot allow discovery to proceed relating to Defendant McClelland’s financial worth at this time.  However, in the event the assigned trial judge in this case rules that Plaintiff is entitled to seek punitive damages on her FLSA retaliation claim, Plaintiff may renew her motion to compel.”

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S.D.Fla.: FLSA Retaliation Plaintiff Must Show Defendants’ Counterclaim Lacked Reasonable Basis In Fact And Law; Demonstration Of Retaliatory Motive Alone Insufficient

Munroe v. PartsBase, Inc.

6 months after Plaintiff brought her case for unpaid overtime wages, pursuant to the FLSA, the Defendants brought counterclaims against Plaintiff for Breach of Confidentiality Agreement and Conversion. The Plaintiff then filed an Amended Complaint adding a 215 Retaliation cause of action. The parties moved for Summary Judgment on several of the claims and cross claims.  The Court granted Defendants summary judgment on Plaintiff’s retaliation claim.

Addressing Plaintiff’s retaliation claim, the Court adopted the majority view that, for a Plaintiff to prevail on her retaliation claim, she must demonstrate that Defendants’ counterclaims (1) were filed for a retaliatory motive and (2) lack a reasonable basis in fact or law. See Darveau, 515 F.3d at 343-44 (reversing district court order dismissing retaliation claim where plaintiff alleged his employer filed a lawsuit against him with a retaliatory motive and without a reasonable basis in fact or law); Barnes v. Akal Sec., Inc., 2005 WL 1459112, *5 (D.Kan.2005) (agreeing with Defendants analysis of the law that “the filing of a counterclaim can not be actionable retaliation unless Plaintiffs establish (1) retaliatory motive and (2) lack of a reasonable basis for the claims”); Torres, 2008 WL 4054417, *17 (“Courts have held that baseless claims or lawsuits designed to deter claimants from seeking legal redress constitute impermissibly adverse retaliatory actions, even though they do not arise strictly in an employment context.”) (emphasis added); Ergo v. Int’l Merch. Servs., 519 F.Supp.2d 765, 781 (N.D .Ill.2007) (holding that a compulsory counterclaim is not actionable for retaliation unless it is totally baseless); Orr., 2008 WL 2605569, *17 (accord).

The Court found that there was record evidence to support the conclusion that but for the filing of Plaintiff’s FLSA claims, Defendants would not have filed their counterclaims. In six months, Defendants took no steps to sue Plaintiff for this alleged breach. Additionally, other former co-employees engaged in the very conduct which Defendants used as the basis of their counterclaims against Plaintiff. Defendants did not file an action against the other former co-employees, who, unlike Plaintiff, did not sue the Defendants for FLSA violations.

Nonetheless, the Court held, even assuming the retaliatory motive prong is met, Plaintiff’s retaliation claim must fail if she cannot prove that the counterclaims lack a reasonable basis in fact or law. See Darveau, 515 F.3d at 343-44;
Barnes v. Akal Sec., Inc., 2005 WL 1459112, *5-6. As the court held in Barnes,”the ultimate standard for determining whether a counterclaim has a ‘reasonable basis’ is whether there is a genuine issue of material fact.” 2005 WL 1459112, *6. Because the Court concluded that genuine issues of material fact existed with regard to Defendants’ counterclaims, which must be resolved at trial, the Court found that the counterclaims were not baseless. Accordingly, Plaintiff could not meet both elements required to prove that Defendants’ counterclaims constitute actionable FLSA anti-retaliation.


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