Natalie Dellinger sued Science Applications International Corporation for retaliation under the FLSA.  She alleged that the company refused to hire her after it learned that she had sued her former employer, CACI, Inc., under the FLSA’s wage and overtime provisions.  Dellinger charged that Science Applications’s motive for withdrawing its previous job offer was retaliation for her exercising her protected right to file an FLSA lawsuit. 

The district court dismissed Dellinger’s suit, finding that the FLSA’s anti-retaliation provision protects only employees and not prospective employees.  The Fourth Circuit agreed, stating the following:

Although [Dellinger] was an applicant for employment with Science Applications, and her application had been approved on a contingent basis, she never began work.  Section 203(g) provides that “employ” means “suffer or permit to work.”  Therefore an applicant who never began or performed any work could not, by the language of the FLSA, be an “employee.” 

To bolster her case, Dellinger argued that the FLSA makes it unlawful for “any person” to retaliate against any employee, and that because Science Applications is a “person,” it is prohibited from retaliating.  The Fourth Circuit disagreed – an employee may only sue employers for retaliation as explicitly defined in Section 216(b) of the FLSA.  The provision addressing “persons” in the FLSA prohibits other acts separate from retaliation – transporting goods, for example, produced by employees who are paid in violation of the Act. 

The Court also noted that the FLSA was intended primarily as a minimum wage and maximum hour law, with the anti-retaliation provision as a subpart of that broad paradigm – not as a free-standing protection.  The employment relationship is inherent to the purpose of the entire law and its substantive provisions. 

Dellinger finally urged the Court to extend the FLSA’s definition of employee to protect job applicants, relying on other statutes that protect potential employees – the Energy Reorganization Act, the National Labor Relations Act, the Occupational Safety and Health Act, and the Pipeline Safety Improvement Act.  The Court differentiated the terms and definitions in the FLSA from the named statutes, and it concluded that the text and purpose of the FLSA tie closely to the employment relationship, not authorizing prospective employees to bring civil action against prospective employers.   The dissent, however, would have adopted Dellinger’s position.

A complete copy of the opinion can be found here.  Dellinger’s attorney has indicated that a petition for rehearing en banc will be filed with the 4th Circuit.

Plaintiff, a Trinidadian man, was hired and later promoted to Associate Controller of the Contracts and Grants Department at FIU.   In this position, plaintiff was responsible for overseeing compliance with federal accounting regulations for federal grants awarded to FIU faculty.  In 2003, FIU was fined $11.5 million for violations of federal accounting regulations that were discovered in an audit of research grants awarded to FIU faculty members.  As a consequence of the federal audit and resulting fine, FIU reorganized its research grant structure, eliminated plaintiff’s department and position, and created a new department.  Upon learning that his position was being eliminated, plaintiff complained of race discrimination to his supervisor and FIU’s Assistant Vice President of Human Resources.   Plaintiff applied for a position with the newly-formed department and, after an interview, the search committee did not recommend plaintiff for the new position.  Plaintiff’s supervisor and FIU’s Assistant Vice President of Human Resources did not participate in plaintiff’s interview and had no involvement in any decision regarding hiring plaintiff for the new position.  Plaintiff located other employment outside of FIU and resigned before his termination date.  The new position remained vacant for 19 months. Plaintiff filed suit against FIU, alleging racial discrimination for eliminating his position and retaliation for complaining about racial discrimination by not being recommended for the new position.  At trial, a jury returned a verdict in plaintiff’s favor, awarding him $72,241 in lost wages and $2.5 million in compensatory damages. 

The Florida Court of Appeal held that plaintiff was unable to establish a prima facie case of race discrimination under the Florida Civil Rights Act of 1992 (FCRA) pursuant to the framework set forth in McDonnell Douglas Corp v. Green.  The Court of Appeal held that plaintiff failed to present evidence that similarly situated employees outside of his protected class were treated more favorably.  Plaintiff argued that another employee, while her official title was different, her job responsibilities were equivalent to the new position and she was treated more favorably than plaintiff.  The Court of Appeal rejected this argument and stated that evidence of FIU hiring an employee outside of plaintiff’s protected class for the same position approximately 19 months after plaintiff applied for the position does not, without more, create an inference of discriminatory intent.  Similarly, the Court of Appeal held that plaintiff failed to establish a prima facie case of retaliation under the FCRA as he was unable to demonstrate any evidence that the search committee knew of his complaint of discrimination, and therefore, had cause to retaliate.       

To read the entire Court of Appeal decision, click here. 

29 U.S.C. §215(a)(3), the FLSA’s anti-retaliation statute, prohibits employers from discharging “any employee because such employee has filed any complaint” alleging violation of the FLSA.  In reversing the decision of the Seventh Circuit Court of Appeals which concluded that the anti-retaliation provision did protect employees who made only oral complaints, the Supreme Court held that the scope of statutory term “filed any complaint” includes oral and written complaints.  The Supreme Court reasoned that even if the term “filed” was interpreted to indicate that only written complaints should be included within the statute’s purview, the provision’s use of the terms “any complaint” suggested a broad interpretation that includes oral complaints.  Additionally, the Supreme Court concluded that a narrow interpretation of the provision would undermine the FLSA’s basic objectives and enforcement needs.   Moreover, the Supreme Court noted that the Secretary of Labor and the Equal Employment Opportunity Commission have consistently held the view that “filed any complaint” covers both oral and written complaints.

To read the United State Supreme Court’s entire opinion, click here.

Additional blog posts and articles regarding the holding in Kasten can be found here, here, here, here, here and here.  Several commentators point out that this marks a run of seven consecutive decisions in favor of retaliation plaintiffs by the Supreme Court since 2005.

Discrimination complaints on the rise in Virginia.  The story can be found here.

USCIS reaches FY 2011 H1-B cap.  Their press release can be found here.

Updating 20th Century laws for the 21st Century.  The Ohio Employer’s Law Blog has some comments here (and cross-links to the Connecticut Employment Law Blog).

4th Circuit to hear oral argument on scope of FLSA anti-retaliation provision.  Virginia Qui Tam Law.com has the story here.

Facebook case settles at NLRB.  Workplace Prof Blog has the story here.  Connecticut Employment Law Blog has commentary here.  Ohio Employer’s Law Blog has commentary here.

More unemployment taxes on the table.  The Wall Street Journal has the story here.

Youssef Bouamama worked for Go Daddy Software, Inc. (“Go Daddy”).  Bouamama was a Moroccan-born Muslim who began his employment with Go Daddy shortly after the 9/11 terrorist attacks.  Between December 2001 and February 2002, Bouamama’s supervisor questioned him about his background and religion after overhearing Bouamama speaking French.  Bouamama was promoted in July 2002, and at that time complained to a human resources representative about the questions he had been asked several months prior.  At some point, Bouamama also heard this supervisor make derogatory comments about Muslims, but did not report these comments to anyone at Go Daddy, citing a culture where you could be fired for complaining.

In April 2003, a new manager re-organized Bouamama’s department.  He was informed that his position was to be eliminated, but that he could apply for a position in the newly-structured department.  Several days after receiving this notice, the new manager asked where he was from, and whether he was Muslim.  Bouamama testified that the manager responded, “You know, you’re lucky that I like you.”  He reported this exchange to the HR rep. that same afternoon.  On April 9, Bouamama interviewed for a new position, but was not hired.

According to the Court, Bouamama’s complaints were enough to allow a reasonable person to conclude that the statements went beyond “isolated incidents.”  To constitute protected activity, a court must find that the employee “reasonably believes” he is reporting conduct that violates Title VII.  Supervisor comments that Bouamama overheard, but did not report, could be considered as part of the context in which the reported comments were made, and were relevant to the reasonableness of Bouamama’s belief.  The jury awarded Bouamama $5,000 for mental and emotional pain and suffering and $135,000 for lost earnings. The jury also awarded $250,000 in punitive damages.

The dissenting justice called the trial’s result a miscarriage of justice, writing that “[n]o rational person could have thought that two conversations with two different men in different contexts and at widely separated times constituted a pattern of discriminatory conduct by Go Daddy.”

Bridget Wright, a former employee of Southwest Airlines (“Southwest”), alleged that she had been retaliated against for requesting leave under the Family and Medical Leave Act (“FMLA”).  The district court granted summary judgment for Southwest, and the Fourth Circuit affirmed.

On appeal, Wright argued that the district court erred in finding that her supervisors were unaware of her request for FMLA leave at the time they decided to terminate her.  The court stated that to establish a claim for retaliation, a plaintiff must prove that:  1) she engaged in a protected activity; 2) an adverse employment action was taken against her; and 3) a causal link exists between the protected activity and the adverse employment action.  The burden then shifts to the employer to advance a legitimate, non-discriminatory reason for the employment action.  Upon this showing, the burden shifts back to the plaintiff to show that the employer’s reasons were mere pretext.

The Fourth Circuit acknowledged that Wright had engaged in a protected activity and that an adverse employment action had been taken against her.  The court found, however, that Wright had not established a causal connection between the protected activity and the employment action.  The court stated that to prove a causal link under the third element for retaliation, a plaintiff must show that the employer had knowledge of the protected activity.  The court found that because Wright had failed to prove that the supervisors responsible for her termination were aware of her protected activity, she had failed to establish a prima facie case of retaliation.

Contributed by Claudia L. Guzman

Here is the blogroll of commentary on the decision:

The Word on Employment Law

Pennsylvania Labor & Employment Blog

Ohio Employer’s Law Blog

Jottings By An Employer’s Lawyer

Connecticut Employment Law Blog

SCOTUS Blog

Workplace Prof Blog

Supreme Court Expands Scope of Retaliation: Significantly?  More after the break.

The U.S. Supreme Court issued two decisions expanding the scope of retaliation under federal employment discrimination statutes.   In CBOCS West, Inc. v. Humphries, the Supreme Court ruled that 42 U.S.C. 1981 permits a claim for retaliation.  In Gomez-Perez v. Potter, the Court ruled that the ADEA prohibits federal employees from retaliating against employees who file age discrimination complaints. 

Neither 42 U.S.C. §1981, nor the ADEA amendment imposing federal sector liability include the words “retaliate” or “retaliation.”  The Court, nevertheless, read retaliation into the meaning of both statutes finding that the federal discrimination statutes “necessarily encompass[ ] retaliation.”  The CBOCS decision clarifies that an employee may bring a race retaliation claim without first filing an EEOC charge.  Claims under § 1981 have a four-year statute of limitations.

In 2008, the Supreme Court has also heard oral arguments in Crawford v. Metropolitan Gov’t of Nashville, and a decision can be expected by the Court during this term.  The case involves a claim by a Tennessee woman, Vicky Crawford, who asserted that Title VII’s anti-retaliation provision protects workers, like her, who voluntarily provide information during an internal investigation of suspected unlawful sexual harassment.  Title VII’s anti-retaliation provision prohibits employers from (1) retaliating against employees who oppose unlawful practices (the “opposition clause”), or (2) participate in various types of Title VII proceedings (the “participation clause”).

In 2002, Crawford participated in an internal investigation into sexual harassment complaints made by some of her female co-workers.  Crawford’s co-workers asserted that they had been sexually harassed by Gene Hughes, the employee relations director for the Metro School District.  As the employee relations director, Hughes was responsible for investigating all claims of discrimination and harassment. As a result, the investigation was conducted by the assistant director of human resources, Veronica Frazier. Frazier interviewed several employees in the administrative department who worked with Hughes, including Crawford.  Crawford was employed for 30 years at the Metropolitan School District (“Metro”). Her employment was terminated in January 2003.

Crawford sued Metro claiming that it violated Title VII by firing her because her act of providing information regarding Hughes’ unlawful conduct constituted protected activity under the statute. The trial court held that Crawford’s conduct was not protected under Title VII’s anti-retaliation provision and dismissed her case.   The Sixth Circuit agreed with the trial court. The court held that Crawford’s actions of relating unfavorable information during the course of an internal investigation did not qualify as overt opposition because Crawford did not allege that she initiated any complaint prior to her participation in the investigation or after the investigation, but prior to her termination. Therefore, Crawford could not bring a retaliation claim under the opposition clause.

The Court has proven to be somewhat sensitive to employees alleging retaliation in employment in such decisions as CBOCS, Gomez-Perez and Burlington Northern v. White.  It  remains to be seen how far the scope of “protective activity” might be extended by the Supreme Court, and what type of “retaliation” protections might be available to employees/plaintiffs as a result.  What is certain, however, is that employers should treat retaliation claims as a real risk in response to every harassment/discrimination complaint – regardless of either the perceived merit or formality of the employee’s complaint.

This case involved a retaliation claim brought under Title VII of the Civil Rights Act of 1964.  Ordinarily, in order to establish a prima facie case of retaliation, a plaintiff must establish (1) that the plaintiff engaged in protected activity, (2) that an adverse employment action was taken against the plaintiff, and (3) that there was a causal link between the protective activity and the adverse employment action.  There are two different categories of protected activity:  opposition activity and participation activity.

Opposition activity includes “utilizing informal grievance procedures as well as staging informal protests and voicing one’s opinions in order to bring attention to an employer’s discriminatory activities.”  Participation activities include making a charge, testifying, assisting, or participating in any manner in investigation, proceeding, or hearing under Title VII.  The opposition activity prong includes a requirement that the plaintiff engaged reasonably in activities opposing discrimination.  The court pointed out, however, that participation activities are protected regardless of whether that activity is reasonable.

Section 219 of the Act is a whistleblower protection provision.  The text of Section 219 can be found here.

(a) No manufacturer, private labeler, distributor, or retailer, may discharge an employee or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment because the employee, whether at the employee’s initiative or in the ordinary course of the employee’s duties (or any person acting pursuant to a request of the employee)-

‘‘(1) provided, caused to be provided, or is about to provide or cause to be provided to the employer, the Federal Government, or the attorney general of a State information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of any provision of this Act or any other Act enforced by the Commission, or any order, rule, regulation, standard, or ban under any such Acts;

‘‘(2) testified or is about to testify in a proceeding concerning such violation;

 “(3) assisted or participated or is about to assist or participate in such a proceeding; or

‘‘(4) objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of this Act or any other Act enforced by the Commission, or any order, rule, regulation, standard, or ban under any such Acts.

The Act creates an administrative process for complaints by individuals who believe they have been discriminated against in violation of the statute, and provides for de novo review by a U.S. district court after the conclusion of the administrative investigation or the expiration of 210 days after the filing of the administrative complaint with the Department of Labor.  Unlike many other employment laws, the Act contains a penalty for frivolous or bad faith complaints:  “the Secretary may award to the prevailing employer a reasonable attorneys’ fee, not exceeding $1,000, to be paid by the complainant.”  Not exactly a high stakes penalty, but it is an attempt to level the playing field.

Hat tip to Jottings By An Employer’s Lawyer, which has a post on the new law here.

The majority relied on prior decisions under 42 U.S.C. section 1982 in reaching its decision, invoking the principle of stare decisis.  Justice Thomas, writing in dissent, referred to the majority’s invocation of stare decisis as “hiding behind the fig leaf.”  He concluded his dissent as follows:

“As in Jackson, “[t]he question before us is only whether [s 1981] prohibits retaliation, not whether prohibiting it is good policy.” . . . “By crafting its own additional enforcement mechanism, the majority returns this Court to the days in which it created remedies out of whole cloth to effectuate its vision of congressional purpose.”  That the Court does so under the guise of stare decisis does not make its decision any more justifiable.”

It is difficult to see how a law that prohibits race discrimination can be read to imply a prohibition against retaliation.  But in both the CBOCS case and the Gomez-Perez v. Potter case (a federal-sector employment case reaching the same conclusion under the Age Discrimination in Employment Act, also decided today), the Court reached the conclusion that a statute prohibiting discrimination necessarily implies a cause of action for retaliation.

Various employment law blogs are already commenting on the decision today:  Ohio Employer’s Law Blog; Connecticut Employment Law Blog; Jottings By An Employer’s Lawyer.

The article quotes Debra S. Katz, an employment plaintiffs lawyer in Washington, D.C., as saying that “pre-emptive suits never made sense because they were ‘clearly retaliatory acts’ in the context of harassment and discrimination claims.”  Our prior post referenced above noted the risk that a suit against a former employee in this context may be found to be unlawful retaliation.  Anyone seriously considering a “pre-emptive” lawsuit must evaluate the potential liability for retaliation.  If the threatened lawsuit is truly frivolous, bringing a “pre-emptive” lawsuit may just succeed in giving the claimant a viable claim.

“Katz also said such ‘thuggish’ tactics, aimed at getting someone to back off a claim, usually had the opposite effect, inspiring claimants to fight harder.”  These kinds of lawsuits may also have a negative effect on employee morale, particularly if the claimant is well thought of in the workplace.

Does the recent increase in such cases signal a larger underlying discontent with the way the legal system works in these cases?  Do those wrongfully accused of sexual harassment, for example, have any viable way to recover for the injury to their reputation other than a lawsuit against the accuser?  The civil rights laws do not currently allow for prevailing defendants to recover attorneys’ fees, other than in the most eggregious frivolous cases.  Perhaps these cases are an indication that the system is out of balance.  Nevertheless, the jury remains out on “pre-emptive” lawsuits.

After his separation from employment, Darveau entered into a separation agreement with his former employer, Detecon, Inc.  The release did not cover FLSA claims.  Darveau filed a federal court lawsuit against Detecon alleging that he was not exempt from overtime under the FLSA.  Shortly thereafter, Detecon filed a state court lawsuit against Darveau alleging fraud in connection with a pre-termination transaction.  Darveau amended his federal court complaint to add a claim of retaliation under the FLSA.  The district court dismissed all of Darveau’s claims on summary judgment.

On appeal, the Fourth Circuit affirmed the dismissed of Darveau’s overtime claim, but reversed the dismissal of the retaliation claim.  The Court found that the filing of the overtime complaint was objectively reasonable at the time it was filed and therefore Darveau had engaged in protected activity.  Relying on recent Supreme Court precedent in Title VII retaliation cases, the Court then found that the filing of the lawsuit constituted “adverse action” against Darveau.  Accordingly, the Court remanded the case to the district court.

This case is a logical consequence of the Supreme Court’s decisions in Robinson v. Shell Oil Co., 519 U.S. 337 (1997), and Burlington N. & Santa Fe Ry. Co. v. White, 126 S.Ct. 2405 (2006), where it extended the anti-retaliation provisions of Title VII beyond workplace-related or employment-related retaliatory acts and harm.  As with employment-related “retaliatory acts,” the mere filing of a charge of discrimination or lawsuit does not automatically cloak the employee with immunity from legitimate action by the employer.  Nevertheless, employers should pay close attention to how its decisions to take action against such an employee might be viewed by a jury.