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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.”