On December 26, 2012, the Eleventh Circuit issued a ruling that strengthens defenses to “protected activity” in FLSA retaliation actions.  Miller v. Roche Surety & Casualty Co., Inc.,  No. 12-cv-10259 (11th Cir. Dec. 26, 2012) (unpublished).  In particular, this decision shields employers in situations where employees make vague, unclear and/or ambiguous statements that they later attempt to characterize as protected activity in litigation.

 

Background

Danielle Miller sued her former employer, Roche Surety & Casualty Co., Inc. (the Company), alleging she was discharged in violation of the FLSA anti-retaliation provision (29 U.S.C. § 215(a)(3)) for her purported complaint that she was not provided a time and place to express breast milk (29 U.S.C. § 215(a)(3) requires employers to provide breaks in private areas, other than bathrooms, for employees to express breast milk).  More specifically, during trial before the U.S. District Court for the Middle District of Florida, Miller testified that she engaged in protected activity by:  e-mailing her supervisor requesting a time and place to express breast milk; and e-mailing her friends and family about her need to express breast milk, asserting that the Company monitored her e-mails.

Yet, Miller admitted at trial that:  she was free to take breaks to express breast milk as needed; she never was criticized for taking such a break; and she had access to a private place to express breast milk (nearby vacant offices were available to her as a private location), although she preferred to use her office.  Moreover, Miller did not inform any supervisor that she would be expressing breast milk in her office, nor did she request a different location to do so.  And she never showed the e-mails that she sent to her friends and family to anyone at the Company.  Accordingly, the district court granted the Company judgment as a matter of law.

Eleventh Circuit’s Ruling

The Eleventh Circuit began its review by reiterating that “filing … a complaint” under the FLSA is statutorily protected activity, citing Kasten v. St. Gobain Performance Plastics Corp., ___ U.S. ___, 131 S.Ct. 1325, 1330-31 (2011).  It then analyzed Miller’s argument that she filed a complaint within the meaning of Section 215(a)(3) when she e-mailed her supervisor requesting a time and place to express breast milk, as well as the Company’s response that her e-mail does not amount to the filing of a complaint under the FLSA.  The Eleventh Circuit explained that:

Although the filing of a complaint under § 215(a)(3) need not be in the form of an official complaint … or even be in writing, some degree of formality is required in order that the employer has fair notice that an employee is lodging a grievance. …  This notice requirement is essential because an employer who does not (or should not) know an employee has made a complaint could not discriminate because of that complaint.  In keeping with this idea, the complaint must be sufficiently clear and detailed so that a reasonable employer, considering the context and content, can understand that an employee is asserting rights provided by the FLSA and calling for the protection of those rights.

(citations omitted; emphasis in original).

Applying this rationale to the evidentiary record, the Eleventh Circuit concluded that “neither the context nor content of Miller’s e-mail put [the Company] on notice that she was lodging a grievance.”  It stressed that, before sending her e-mail to her supervisor, Miller had never requested or been denied a time or place to express breast milk, she was given breaks without question or criticism, she decided to express breast milk in her office without notifying any supervisors, and she did not complain or request a different location.  In addition, the Eleventh Circuit rejected Miller’s argument that her e-mails to her friends and family were tantamount to filing a complaint under § 215(a)(3), as she asserted that the Company monitored her e-mails.  In this regard, it noted that she never showed the e-mails to anyone at the Company or told anyone at the Company that she believed the FLSA was violated.  Likewise, it found that the content of her e-mails would not have alerted the Company to any alleged violation of the law.  In sum, the Eleventh Circuit concluded that Miller’s e-mails “would not have appraised a reasonable employer that a complaint had been filed” and thus do “not rise to the level of a complaint under § 215(a)(3).”  Accordingly, the Eleventh Circuit affirmed the district court’s judgment.

Implications

This decision is useful to employers saddled with retaliation litigation where the communication the employee points to as his or her protected activity is vague, ambiguous or indefinite, or where (as in this case) the communications simply cannot be construed as a “complaint.”  When this decision is reviewed in connection with the Seventh Circuit’s November 30, 2012 decision in Kasten v. Saint-Gobain Performance Plastics Corp., No. 12-cv-1671, 2012 U.S. App. LEXIS 24624 (7th Cir. Nov. 30, 2012) (which was the subject of our recent post), employers now have some helpful guidance as to how to strategically analyze whether an employee engaged in protected activity under the FLSA.

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Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular…

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular focus on defending companies against claims of employment discrimination, retaliation and harassment; whistleblower retaliation; restrictive covenant violations; theft of trade secrets; and wage-and-hour violations. He has successfully tried cases in multiple jurisdictions, and defended one of the largest Illinois-only class actions in the history of the U.S. District Court for the Northern District of Illinois. He also secured one of only a few ex parte seizures orders that have been issued under the Defend Trade Secrets Act, and obtained a world-wide injunction in federal litigation against a high-level executive who jumped ship to a competitor.

Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has testified in federal court. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Steven was recognized as Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He is a Fellow of the College of Labor and Employment Lawyers.  Chambers describes Steven as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field.” Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a “Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a Burton Award Winner (U.S. Library of Congress) for “Distinguished Legal Writing.”

Steven has served on Law360’s Employment Editorial Advisory Board and is a Contributor to Forbes.com. He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is regularly quoted in leading publications such as The Wall Street Journal.

The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal. He was appointed to serve as a Special Assistant Attorney General for the State of Illinois in employment litigation matters. He has presented with the Solicitor of the DOL, the Acting Chair of the EEOC, an EEOC Commissioner, Legal Counsel to the EEOC and heads of the SEC, CFTC and OSHA whistleblower programs. He is also a member of the Sedona Conference, focusing on trade secret matters.

Photo of Rachel Fischer Rachel Fischer

Rachel S. Fischer is a senior counsel in the Labor & Employment Law Department.

Rachel represents employers in all types of employment-related disputes, including defending clients against claims of discrimination, harassment, retaliation, wrongful discharge, whistleblowing, breach of contract, and in wage and hour…

Rachel S. Fischer is a senior counsel in the Labor & Employment Law Department.

Rachel represents employers in all types of employment-related disputes, including defending clients against claims of discrimination, harassment, retaliation, wrongful discharge, whistleblowing, breach of contract, and in wage and hour matters. She represents employers in federal and state courts, arbitration tribunals, and before administrative agencies, and has litigated both single plaintiff and class action lawsuits. As an experienced trial lawyer, Rachel has successfully litigated numerous cases from complaint through jury verdict or arbitral award.

Rachel represents employers across a wide variety of industries, including banking and finance, law firms, media and entertainment, sports, and higher education.

Rachel also counsels clients on a broad range of employment law matters, including investigations, employee terminations and discipline, and employment policies and procedures.