Natalie Dellinger v. Science Applications International ( 2011 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NATALIE R. DELLINGER, 
Plaintiff-Appellant,
v.
SCIENCE APPLICATIONS
INTERNATIONAL CORPORATION,
Defendant-Appellee.  No. 10-1499
SECRETARY OF LABOR; EQUAL
EMPLOYMENT OPPORTUNITY
COMMISSION,
Amici Supporting Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(1:10-cv-00025-JCC-JFA)
Argued: May 10, 2011
Decided: August 12, 2011
Before NIEMEYER, KING, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Judge Keenan joined. Judge King wrote a
dissenting opinion.
2 DELLINGER v. SCIENCE APPLICATIONS INTERNATIONAL
COUNSEL
ARGUED: Zachary Alan Kitts, COOK, KITTS & FRANCU-
ZENKO, PLLC, Fairfax, Virginia, for Appellant. Dean Rom-
hilt, UNITED STATES DEPARTMENT OF LABOR,
Washington, D.C., for Amici Supporting Appellant. Robert
Sparks, Jr., SPARKS & CRAIG, LLP, McLean, Virginia, for
Appellee. ON BRIEF: John J. Rigby, MCINROY & RIGBY,
LLP, Arlington, Virginia, for Appellant. Robert L. Levin,
SCIENCE APPLICATIONS INTERNATIONAL CORPO-
RATION, San Diego, California, for Appellee. P. David
Lopez, General Counsel, Vincent J. Blackwood, Acting Asso-
ciate General Counsel, Paul D. Ramshaw, EQUAL
EMPLOYMENT OPPORTUNITY COMMISSION, Wash-
ington, D.C.; M. Patricia Smith, Solicitor of Labor, William
C. Lesser, Acting Associate Solicitor, Paul L. Frieden, Coun-
sel for Appellate Litigation, Melissa Murphy, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Amici Supporting Appellant.
OPINION
NIEMEYER, Circuit Judge:
Natalie Dellinger commenced this action under the Fair
Labor Standards Act of 1938 ("FLSA") against Science
Applications International Corporation which, she alleges,
retaliated against her, in violation of the FLSA’s anti-
retaliation provision, 29 U.S.C. § 215(a)(3), by refusing to
hire her after learning that she had sued her former employer
under the FLSA.
The district court granted Science Applications’ motion to
dismiss, concluding that Dellinger was not an "employee" of
Science Applications, as defined in the FLSA, and that the
FLSA’s anti-retaliation provision does not cover prospective
employees.
DELLINGER v. SCIENCE APPLICATIONS INTERNATIONAL 3
On appeal, Dellinger contends that the FLSA’s anti-
retaliation provision protects any employee that has been the
victim of FLSA retaliation by "any person," including future
employers.
Based on the statutory text, we conclude that the FLSA
gives an employee the right to sue only his or her current or
former employer and that a prospective employee cannot sue
a prospective employer for retaliation. We therefore affirm.
I
According to Dellinger’s complaint, Dellinger sued her for-
mer employer, CACI, Inc., in July 2009 for alleged violations
of the FLSA’s minimum wage and overtime provisions.
Around the same time, she applied for a job with Science
Applications International Corporation. In late August 2009,
Science Applications offered Dellinger a job, contingent on
her passing a drug test, completing specified forms, and veri-
fying and transferring her security clearance. Dellinger
accepted the offer and began the process of satisfying the con-
tingencies.
On the form required for her security clearance, Dellinger
was required to list any pending noncriminal court actions to
which she was a party, and she listed her FLSA lawsuit
against CACI, Inc. Several days after Dellinger submitted her
completed form to Science Applications, Science Applica-
tions withdrew its offer of employment.
Dellinger commenced this action against Science Applica-
tions, alleging that Science Applications’ motive for with-
drawing its offer was "retaliation and unlawful discrimination
based on Ms. Dellinger’s exercise of her protected right to file
an FLSA lawsuit," in violation of 29 U.S.C. § 215(a)(3). Sci-
ence Applications filed a motion to dismiss the complaint
under Federal Rule of Civil Procedure 12(b)(6), contending
that Dellinger’s complaint did not state a claim for which
4 DELLINGER v. SCIENCE APPLICATIONS INTERNATIONAL
relief could be granted under the FLSA because the FLSA’s
anti-retaliation provision protects only employees, not pro-
spective employees. The district court agreed with Science
Applications and granted its motion, dismissing Dellinger’s
complaint.
This appeal followed.
II
The Fair Labor Standards Act of 1938 regulates the rela-
tionship between employers and their employees to "correct
and as rapidly practicable to eliminate" "the existence, in
industries engaged in commerce or in the production of goods
for commerce, of labor conditions detrimental to the mainte-
nance of the minimum standard of living necessary for health,
efficiency, and general well-being of workers." 29 U.S.C.
§ 202. To this end, the Act establishes a minimum wage that
"[e]very employer shall pay to each of his employees," 29
U.S.C. § 206(a), and maximum hours, providing that "no
employer shall employ any of his employees . . . for a work-
week longer than forty hours" unless the employee receives
overtime pay at one and one-half times the regular rate, 29
U.S.C. § 207(a). These duties are imposed on employers and
the beneficiaries are the employers’ employees. In addition,
the FLSA protects these substantive rights by prohibiting
retaliation, which it defines in relevant part as discrimination
"against any employee because such employee has filed any
complaint or instituted or caused to be instituted any proceed-
ing under or related to this chapter." Id. § 215(a)(3).
The Act is enforced through criminal prosecutions, 29
U.S.C. § 216(a); private civil actions by employees, id.
§ 216(b); and civil enforcement actions by the Secretary of
Labor, id. §§ 216(c), 217. See also Castillo v. Givens, 704
F.2d 181, 186 n.11 (5th Cir. 1983) (describing causes of
action under the FLSA), overruled on other grounds by
McLaughlin v. Richland Shoe Co., 486 U.S. 128 (1988). To
DELLINGER v. SCIENCE APPLICATIONS INTERNATIONAL 5
protect their right to a minimum wage and maximum hours,
employees are authorized to sue not only for violations of the
Act’s wage and hours provisions, but also for retaliation. The
authorization for employee enforcement, which is included in
§ 216(b), provides:
Any employer who violates the provisions of section
206 [providing for minimum wages] or section 207
[providing for maximum hours] of this title shall be
liable to the employee or employees affected in the
amount of their unpaid minimum wages, or their
unpaid overtime compensation, as the case may be,
and in an additional equal amount as liquidated dam-
ages. Any employer who violates the provisions of
section 215(a)(3) [prohibiting retaliation] of this title
shall be liable for such legal or equitable relief as
may be appropriate to effectuate the purposes of sec-
tion 215(a)(3) [prohibiting retaliation] of this title,
including without limitation employment, reinstate-
ment, promotion, and the payment of wages lost and
an additional equal amount as liquidated damages.
An action to recover the liability prescribed in either
of the preceding sentences may be maintained
against any employer . . . in any Federal or State
court of competent jurisdiction by any one or more
employees for and in behalf of himself or themselves
and other employees similarly situated.
Id. § 216(b) (emphasis added).
In this case, Dellinger has not sued her employer, but rather
a prospective employer, for retaliation. She alleges that Sci-
ence Applications, her prospective employer, retaliated
against her because she had sued a former employer under the
FLSA. This presents the question of whether an applicant for
employment is an "employee" authorized to sue and obtain
relief for retaliation under § 216(b). Consistent with the
FLSA’s purpose to regulate the employer-employee relation-
6 DELLINGER v. SCIENCE APPLICATIONS INTERNATIONAL
ship and the relevant text of the Act, we conclude that only
employees can sue their current or former employers for retal-
iation under the FLSA and that an applicant is not an
employee.
Section 215(a)(3) prohibits retaliation "against any
employee" because the employee sued the employer to
enforce the Act’s substantive rights. An "employee" does not,
in the Act, exist in a vacuum; rather it is defined in relation-
ship to an employer. Section 203(e)(1) provides that an
employee is "any individual employed by an employer."
Thus, by using the term "employee" in the anti-retaliation pro-
vision, Congress was referring to the employer-employee
relationship, the regulation of which underlies the Act as a
whole, and was therefore providing protection to those in an
employment relationship with their employer.
Consistent with this context in which § 215(a)(3) protects
only employees, § 216(b) provides that such employees may
sue only their employer for retaliation (as well as for viola-
tions of the Act’s substantive wage and hour protections).
Section 216(b) begins with a sentence stating that any
employer who violates § 206 (the minimum wage protection)
and § 207 (the maximum hours protection) is liable to the
"employees affected" by the violations. Section 216(b) then
continues with a sentence stating that any "employer" who
violates § 215(a)(3) (the anti-retaliation provision) is also lia-
ble for legal and equitable remedies.1 Those two sentences are
followed by the provision authorizing employees to file suit
under the Act: "An action to recover the liability prescribed
in either of the preceding sentences may be maintained
1
The dissent notes that § 216(b) includes remedies of both "employ-
ment" and "reinstatement" and reasons that the inclusion of "employment"
as a remedy necessarily means that the FLSA protects prospective
employees. But this logic is not compelling because "employment" is not
limited to prospective employees. That remedy can also be afforded to a
former employee hired back to a different position, and its inclusion,
therefore, simply reflects Congress’ desire to cover all possibilities.
DELLINGER v. SCIENCE APPLICATIONS INTERNATIONAL 7
against any employer . . . in any Federal or State court of
competent jurisdiction by any one or more employees for and
in behalf of himself or themselves and other employees simi-
larly situated." Because an employee is given remedies for
violations of § 215(a)(3) only from an employer, Dellinger
could only sue Science Applications if she could show that
she was an employee and that Science Applications was her
employer.
Yet Dellinger cannot make that showing. Although she 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 lan-
guage of the FLSA, be an "employee."
Dellinger argues that because § 215(a), defining "prohib-
ited acts," states that "it shall be unlawful for any person" to
retaliate against any employee, she can sue any "person,"
rather than simply her employer. She argues that because Sci-
ence Applications is a "person" prohibited from retaliating,
she therefore can sue Science Applications.
While § 215(a)(3) does prohibit all "persons" from engag-
ing in certain acts, including retaliation against employees, it
does not authorize employees to sue "any person." An
employee may only sue employers for retaliation, as explicitly
provided in § 216(b). The use of the term "person" in § 215(a)
is attributable to the structure of the provision, which prohib-
its a number of separate acts in addition to retaliation, not all
of which are acts performed by employers. For instance,
§ 215(a)(1) prohibits any person from transporting "any goods
in the production of which any employee was employed in
violation of section 206 [minimum wages] or section 207
[maximum hours] of this title." Thus, Congress prohibited the
shipment of goods produced by employees who are paid in
violation of the Act, and for enforcement, it authorized the
8 DELLINGER v. SCIENCE APPLICATIONS INTERNATIONAL
criminal prosecution of any "person" violating the prohibition.
See 29 U.S.C. § 216(a). Just as there is no remedy for an
employee to sue such a shipper, there is also no remedy for
an employee to sue anyone but his employer for violations of
the anti-retaliation provision. Accordingly, if the person retal-
iating against an employee is not an employer, the person is
not subject to a private civil action by an employee under
§ 216(b).
Considering the Act more broadly, we cannot overlook the
fact that the FLSA was intended at its core to provide mini-
mum wages and maximum hours of work to ensure employees
a minimum standard of living necessary for "health, effi-
ciency, and general well-being of workers." 29 U.S.C.
§ 202(a). The anti-retaliation provision is included, not as a
free-standing protection against any societal retaliation, but
rather as an effort "to foster a climate in which compliance
with the substantive provisions of the [FLSA] would be
enhanced." Mitchell v. Robert DeMario Jewelry, Inc., 361
U.S. 288, 293 (1960). Thus, the anti-retaliation provision was
meant to ensure that employees could sue to obtain minimum
wages and maximum hours from their employers without the
employers taking adverse action against them for the exercise
of those rights. This purpose is inherent in the employment
relationship, which is the context in which the substantive
provisions operate.
We have been unable to find any case that extends FLSA
protections to applicants or prospective employees. Indeed,
prior cases have reached the conclusion that we have, apply-
ing the anti-retaliation provision only within the employer-
employee relationship. See, e.g., Glover v. City of North
Charleston, S.C., 942 F. Supp. 243, 245 (D.S.C. 1996) (noting
that the "any employee" language in the anti-retaliation provi-
sion mandates that the plaintiff have an employment relation-
ship with the defendant); Harper v. San Luis Valley Reg’l
Med. Ctr., 848 F. Supp. 911 (D. Col. 1994) (same); cf. Dar-
veau v. Detecon, Inc., 515 F.3d 334, 340 (4th Cir. 2008)
DELLINGER v. SCIENCE APPLICATIONS INTERNATIONAL 9
(requiring, as part of a prima facie FLSA retaliation case, a
showing of "adverse action by the employer"); Dunlop v. Car-
riage Carpet Co., 548 F.2d 139 (6th Cir. 1977) (holding that
an employee could sue his former employer when the former
employer retaliated against the employee by advising a pro-
spective employer that the employee had previously filed an
FLSA suit).2
We are sympathetic to Dellinger’s argument that it could be
problematic to permit future employers effectively to discrim-
inate against prospective employees for having exercised their
rights under the FLSA in the past. The notion, however, that
any person who once in the past sued an employer could then
sue any prospective employer claiming that she was denied
employment because of her past litigation would clearly
broaden the scope of the FLSA beyond its explicit purpose of
fixing minimum wages and maximum hours between employ-
ees and employers. We are, of course, not free to broaden the
scope of a statute whose scope is defined in plain terms, even
when "morally unacceptable retaliatory conduct" may be
involved. Ball v. Memphis Bar-B-Q Co., 228 F.3d 360, 364
(4th Cir. 2000).
Dellinger urges us to extend the FLSA’s definition of "em-
ployee" to protect job applicants, pointing to other statutes
under which applicants are protected. In particular, she refers
to the Energy Reorganization Act, the National Labor Rela-
tions Act ("NLRA"), the Occupational Safety and Health Act
("OSHA"), and the Pipeline Safety Improvement Act. Refer-
2
The dissent, in urging that we rely on Robinson v. Shell Oil Co., 519
U.S. 337 (1997), to extend the FLSA to applicants and prospective
employees, overlooks the fact that Robinson held that "employee" as
defined in Title VII included former employees. Indeed, we accept that
"employee" under the FLSA also affords protection from retaliation to for-
mer employees. The issue here is whether the FLSA applies to persons
who are not yet employees and who have never worked for the employer.
Because Robinson deals only with former employees, it does not speak to
the issue in this case.
10 DELLINGER v. SCIENCE APPLICATIONS INTERNATIONAL
ence to these statutes, however, does not advance her cause.
The case cited by Dellinger with respect to the Energy Reor-
ganization Act merely assumed, without deciding, that an
applicant was covered under that Act. See Doyle v. Secretary
of Labor, 285 F.3d 243, 251 n.13 (3d Cir. 2002). While the
NLRA does protect prospective employees from retaliation,
the Act itself defines "employee" more broadly than does the
FLSA, providing that the term "employee" "shall not be lim-
ited to the employees of a particular employer" unless explic-
itly stated. See 29 U.S.C. § 152(3). With respect to OSHA and
the Pipeline Safety Improvement Act, regulations implement-
ing those statutes have been promulgated to extend protec-
tions to prospective employees. See 29 C.F.R. § 1977.5(b)
(OSHA); 29 C.F.R. § 1981.101 (Pipeline Safety Improvement
Act). The Secretary of Labor has not, however, promulgated
a similar regulation for the FLSA.
Because we conclude that the text and purpose of the Fair
Labor Standards Act of 1938 link the Act’s application
closely to the employment relationship and because the text
of the applicable remedy allows for private civil actions only
by employees against their employers, we hold that the FLSA
anti-retaliation provision, 29 U.S.C. § 215(a)(3), does not
authorize prospective employees to bring retaliation claims
against prospective employers. The judgment of the district
court is accordingly
AFFIRMED.
KING, Circuit Judge, dissenting:
It has been just short of fifteen years since Justice Thomas
delivered the opinion on behalf of a unanimous Supreme
Court in Robinson v. Shell Oil Co., 519 U.S. 337 (1997), a
decision that has since stood as the definitive authority on
statutory construction. Then, as now, a plaintiff having no
active employment relationship with the defendant employer
had commenced a lawsuit alleging unlawful retaliation pursu-
DELLINGER v. SCIENCE APPLICATIONS INTERNATIONAL 11
ant to a federal remedial statute that, on its face, provides
redress solely to "employees." Prior to the Court’s reversal of
our en banc judgment in Robinson, few imagined that a for-
mer employee could successfully sue under Title VII of the
Civil Rights Act of 1964. In like fashion here, Natalie Dellin-
ger, a prospective employee of Science Applications Interna-
tional Corporation, has brought suit against the company
pursuant to the Fair Labor Standards Act of 1938 (the "FLSA"
or "Act"). Dellinger’s Complaint alleges that Science Appli-
cations agreed to hire her but wrongly refused to follow
through notwithstanding that she had fulfilled each disclosed
condition of employment.
It appears, however, that Ms. Dellinger failed to meet one
additional, undisclosed condition: that she not have demon-
strated an inclination to hold her bosses accountable under the
law. Science Applications terminated the hiring process upon
being informed that Dellinger had recently filed suit against
her previous employer pursuant to the FLSA. According to
the Complaint, the allegations and reasonable inferences of
which we are bound to take as true, Science Applications jet-
tisoned Dellinger’s paperwork in retaliation for her having
exercised her lawful rights. The district court nonetheless
ruled that Dellinger had failed to state a viable FLSA claim
against Science Applications and dismissed her case. The
majority affirms with no discussion of Robinson or its estab-
lished methodology, giving its thumbs-up to the company’s
conduct and paving the way for other employers to adopt sim-
ilar practices. Because I cannot escape the conclusion that
Robinson mandates the opposite result from that reached by
the majority today, I respectfully dissent.
I.
A.
In Robinson, the Court instructed that the "first step in
interpreting a statute is to determine whether the language at
12 DELLINGER v. SCIENCE APPLICATIONS INTERNATIONAL
issue has a plain and unambiguous meaning with regard to the
particular dispute in the case. Our inquiry must cease if the
statutory language is unambiguous and the statutory scheme
is coherent and consistent." 519 U.S. at 340 (citations and
internal quotation marks omitted). To determine whether a
statutory provision is ambiguous, a court looks "to the lan-
guage itself, the specific context in which that language is
used, and the broader context of the statute as a whole." Id.
at 341 (citations omitted).
The Robinson Court concluded that the word "employee"
in Title VII was ambiguous because (1) there was no temporal
qualifier in the statute to indicate that it applied either to cur-
rent or former employees, i.e., neither the term "current
employee" nor the term "former employee" appeared any-
where in Title VII; (2) the statute’s prescribed definition of
employee also contained no temporal qualifier, meaning that
it could include either current or former employees; and (3)
the statute referred to "reinstatement" and "hiring" of employ-
ees, both of which indicate an expansion of the definition
beyond current employees. See 519 U.S. at 341-43. The Court
continued: "Once it is established that the term ‘employees’
includes former employees in some sections, but not in others,
the term standing alone is necessarily ambiguous and each
section must be analyzed to determine whether the context
gives the term a further meaning that would resolve the issue
in dispute." Id. at 343-44 (emphasis added).
Finding it necessary, in light of Title VII’s ambiguity, to
embark on a contextual analysis, the Supreme Court observed
that "several sections of the statute plainly contemplate that
former employees will make use of the remedial mechanisms
of Title VII." 519 U.S. at 345. The Court endorsed the gov-
ernment’s position, as amicus curiae, that a restrictive inter-
pretation "would undermine the effectiveness of Title VII by
allowing the threat of postemployment retaliation to deter vic-
tims of discrimination from complaining to the EEOC, and
would provide a perverse incentive for employers to fire
DELLINGER v. SCIENCE APPLICATIONS INTERNATIONAL 13
employees who might bring Title VII claims." Id. at 346. The
Court thus ordered reinstatement of the plaintiff’s retaliation
action, "[i]t being more consistent with the broader context of
Title VII and the primary purpose of [the antiretaliation provi-
sion]." Id.
Robinson, of course, did not arise under the FLSA, but its
analytical framework readily admits of a more widely reach-
ing application, and it should therefore powerfully inform our
analysis of Dellinger’s appeal. Indeed, we have acknowledged
"the almost uniform practice of courts in considering the
authoritative body of Title VII case law when interpreting the
comparable provisions of other federal statutes." Darveau v.
Detecon, Inc., 515 F.3d 334, 342 (4th Cir. 2008) (citations
omitted). The FLSA’s designation of an "employee" as "any
individual employed by an employer," 29 U.S.C. § 203(e)(1),
is more than "comparable" to that of Title VII, which defines
the same term as "an individual employed by an employer,"
42 U.S.C. § 2000e(f). We have, in fact, called the two defini-
tions "identical." Darveau, 515 F.3d at 342.
It is hardly surprising, then, that in Darveau we determined
that the FLSA, just like Title VII as applied in Robinson, pro-
tects former employees from retaliation. In so concluding, we
discerned "no significant differences in either the language or
intent of the two statutes regarding the type of adverse action
their retaliation provisions prohibit." 515 F.3d at 342. Judge
Motz explained, somewhat prophetically, that it is necessary
to afford such protection to former employees "because they
often need references from past employers, they may face
retaliation from new employers who learn they have chal-
lenged the labor practices of previous employers, and they
sometimes must return to past employers for a variety of rea-
sons, putting them once more at risk of retaliation." Id. at 343
(emphasis added) (citation omitted).
14 DELLINGER v. SCIENCE APPLICATIONS INTERNATIONAL
B.
1.
We could not have ruled as we did in Darveau without
acknowledging, though tacitly, that the word "employee," as
used in the FLSA, is as necessarily ambiguous there as it is
in Title VII. To that extent, at least, Darveau binds the major-
ity, but it nonetheless appears to have reached the same con-
clusion on its own that this is not a "plain language" case.
Although it purports to rule "[b]ased on the statutory text,"
ante at 3, the majority also relies on its divination of the pur-
pose of the Act, together with an assessment of the statutory
context, to circumscribe who may be considered an employee
thereunder. See ante at 6-8.
As the majority correctly notes, the FLSA primarily con-
cerns itself with establishing minimum wages and maximum
hours for current employees. That notwithstanding, the Act
also prohibits the movement in commerce of goods with
respect to "the production of which any employee was
employed" in violation of the wage and hour requirements. 29
U.S.C. § 215(a)(1) (emphasis added). The word "employee"
in that sense can refer to former employees, as made clear by
the subsection following, which provides that the government
may establish a prima facie case of an employer’s violation by
showing that the overworked or underpaid employee was
employed "within ninety days prior to the removal of the
goods from" the employee’s place of employment. § 215(b).
It is, of course, scarcely remarkable that the FLSA applies
to former employees; that was, after all, our plain holding in
Darveau. The more salient point for our purposes is that the
Act’s ascription of more than one meaning to the word "em-
ployee" establishes, for Robinson purposes, that the statutory
term is "necessarily ambiguous." I therefore agree with the
majority that we must examine contextual clues to ascertain
the breadth of the FLSA’s antiretaliation provision.
DELLINGER v. SCIENCE APPLICATIONS INTERNATIONAL 15
2.
It is unlawful under the FLSA "for any person," not just
employers, "to discharge or in any other manner discriminate
against any employee because such employee has filed any
complaint or instituted . . . any proceeding under or related to
this chapter[.]" 29 U.S.C. § 215(a), -(a)(3). The Act criminal-
izes willful violations of § 215, and it also provides civil
recourse to "employees affected" by the retaliatory acts
described in subsection (a)(3). See § 216(a), -(b). Affected
employees are entitled to "legal or equitable relief as may be
appropriate to effectuate the purposes of" the antiretaliation
provision, "including without limitation employment, rein-
statement, promotion, and the payment of wages lost and an
additional equal amount as liquidated damages." § 216(b).
Liability attaches to "[a]ny employer," id., which "includes
any person acting directly or indirectly in the interest of an
employer in relation to an employee." § 203(d).
A plain reading of these several sections of the Act, taken
together, indicates that Congress was concerned enough with
retaliatory conduct to impose criminal penalties on actual
decisionmakers ("any person"), regardless of whether that
person could also be considered the employing entity or was
acting at the entity’s behest. Civil liability for retaliation, on
the other hand, is reserved for employers and their agents who
are sued by an "employee," which generally means "any indi-
vidual employed by an employer." § 203(e)(1). Science
Applications is undoubtedly an employer subject to the Act,
and Ms. Dellinger broadly qualifies as an employee, having
once sued her former employer for allegedly violating the
FLSA. It does not follow perforce, however, that "Dellinger
could only sue Science Applications if she could show . . .
that Science Applications was her employer." Ante at 7
(emphasis added).
It would hardly be a stretch to interpret the FLSA to permit
Ms. Dellinger’s action, particularly considering that other,
16 DELLINGER v. SCIENCE APPLICATIONS INTERNATIONAL
similar remedial statutes already apply to employees in her
situation. For example, the National Labor Relations Act
("NLRA") defines the term "employee" to "include any
employee, and shall not be limited to the employees of a par-
ticular employer." 29 U.S.C. § 152(3). Moreover, as the
majority sets forth, regulations implementing the Occupa-
tional Safety and Health Act ("OSHA") have construed that
statute to afford court access to prospective employees. See
ante at 10 (citing 29 C.F.R. § 1977.5(b)). This has occurred
notwithstanding that OSHA defines "employee" arguably
more narrowly than does the FLSA as "an employee of an
employer who is employed in a business of his employer
which affects commerce." 29 U.S.C. § 652(6) (emphasis
added).
The majority finds these analogs unpersuasive, observing
unremarkably that the NLRA’s particularized definition of
"employee" more readily lends itself to an expansive reading
of who may sue. See ante at 10. The majority’s point appears
to be that the absence of similarly detailed language in the
FLSA demands the conclusion that Congress intended the eli-
gibility for bringing a retaliation suit under that statute to be
more restrictive. But Robinson counsels against just that sort
of negative inference:
[T]hat other statutes have been more specific in their
coverage of "employees" and "former employees,"
see, e.g., 2 U.S.C. § 1301(4) (1994 ed., Supp. I)
(defining "employee" to include "former
employee"); 5 U.S.C. § 1212(a)(1) (including "em-
ployees, former employees, and applicants for
employment" in the operative provision), proves
only that Congress can use the unqualified term
"employees" to refer only to current employees, not
that it did so in this particular statute.
519 U.S. at 341-42 (emphasis in original). Likewise, Congress
can certainly use the word "employee" in a manner that
DELLINGER v. SCIENCE APPLICATIONS INTERNATIONAL 17
excludes prospective employees or applicants for employ-
ment, but that it declined in this case to expressly include
them is not, under Robinson, reliable evidence of legislative
intent to the contrary.
The majority sloughs off the approach taken in administer-
ing OSHA, noting simply that "[t]he Secretary of Labor has
not . . . promulgated a similar regulation for the FLSA." Ante
at 10. True enough, we have not been specifically tasked with
deciding whether the Secretary could reasonably construe the
Act in the manner that Ms. Dellinger seeks. But in dismissing
outright her arguments, even in this non-deferential context,
are we not implicitly passing upon the objective reasonable-
ness of the construction for which she advocates? I suppose
the majority would be constrained to rejoin that permitting
retaliation suits absent some sort of employment privity is
indeed unreasonable if one accords significance to the FLSA
having been fashioned in the crucible of that privity, a propo-
sition enthusiastically endorsed by the majority, ante at 8-10.
Following that logic, and mindful of OSHA’s similarly dis-
crete mandate that an employer "furnish to each of his
employees . . . a place of employment . . . free from recog-
nized hazards," 29 U.S.C. § 654(a)(1) (emphasis added), the
Secretary should be grateful that her occupational safety and
health regulations are not before us today, for they would
surely wither under the majority’s unforgiving gaze.
The majority thus ignores Robinson and resorts to its
unsanctioned "original intent" methodology, presumably
because it cannot adequately square the result it reaches with
the Act’s substantive context, that is, the literal words of
§ 216(b) affording victims of retaliation the alternative reme-
dies of "reinstatement" and "employment." Obviously, only
former employees can be reinstated, leaving the remedy of
employment to those who cannot be reinstated, i.e., those, like
Dellinger, who have yet to be employed. See Robinson, 519
U.S. at 342 (illustrating intended breadth of term "employee"
in Title VII through alternative remedies of reinstatement and
18 DELLINGER v. SCIENCE APPLICATIONS INTERNATIONAL
hiring, observing that "because one does not reinstate current
employees, that language necessarily refers to former employ-
ees") (internal brackets and quotation marks omitted); see
also Broughman v. Carver, 624 F.3d 670, 677 (4th Cir. 2010)
(reiterating "our duty to give effect, if possible, to every
clause and word of a statute") (citation omitted). Informed by
the context of § 216(b), Ms. Dellinger’s construction of the
word "employee" in § 215(a) is, in my opinion, compelled by
Robinson. At the very least, her construction seems eminently
reasonable.
I am therefore left to wonder why, in the face of a statute’s
relative silence as to a material enforcement term, we must
presume that a particular avenue is foreclosed because it is not
explicitly mentioned, rather than permitted because it is not
specifically prohibited. See Healy Tibbitts Builders, Inc. v.
Dir., Office of Workers’ Comp. Programs, 444 F.3d 1095,
1100 (9th Cir. 2006) ("[F]aced with two reasonable and con-
flicting interpretations, [an act] should be interpreted to fur-
ther its remedial purpose."). The majority’s decision today
bucks the trend begun by Robinson, which is indisputably
toward an expansive interpretation of protective statutes like
Title VII and the FLSA to thwart employer retaliation. See,
e.g., Gomez-Perez v. Potter, 553 U.S. 474, 491 (2008) (con-
cluding that, under applicable provision of ADEA, federal
employee may state claim for retaliation as form of discrimi-
nation); CBOCS West, Inc. v. Humphries, 553 U.S. 442, 457
(2008) (ruling that anti-discrimination provisions of 42 U.S.C.
§ 1981 encompass action for retaliation); Jackson v. Birming-
ham Bd. of Educ., 544 U.S. 167, 178 (2005) (same with
respect to Title IX).
Behind this impressive array of authority is the Supreme
Court’s acknowledgment of the vital role that antiretaliation
provisions play in regulating a vast range of undesirable
behaviors on the part of employers. See, e.g., Crawford v.
Metro. Gov’t of Nashville & Davidson Cnty., Tenn., 129 S.
Ct. 846, 852 (2009) (observing that fear of retaliation is pri-
DELLINGER v. SCIENCE APPLICATIONS INTERNATIONAL 19
mary motivation behind employees’ failure to voice concerns
about bias and discrimination and reversing Sixth Circuit’s
judgment in employer’s favor as inconsistent with primary
objective of Title VII to avoid harm to employees) (citations
omitted); Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 57 (2006) (explaining that liability for Title VII retal-
iation extends well beyond those actions affecting terms and
conditions of employment to include employer’s acts outside
workplace that are "materially adverse to a reasonable
employee or job applicant"). There is no reason to doubt that
similar concerns obtain in the FLSA context, as expressed in
Reyes-Fuentes v. Shannon Produce Farm, 671 F. Supp. 2d
1365, 1368 (S.D. Ga. 2009) ("Congress chose to rely upon
information and complaints from employees seeking to vindi-
cate their rights. Plainly, effective enforcement could thus
only be expected if employees felt free to approach officials
with their grievances") (citations omitted).
In Robinson itself, Justice Thomas took note of the plain-
tiff’s and the government’s arguments that the essence and
continued vitality of Title VII’s enforcement scheme
depended on a beneficent view of its scope.
These arguments carry persuasive force given their
coherence and their consistency with a primary pur-
pose of antiretaliation provisions: Maintaining unfet-
tered access to statutory remedial mechanisms. . . .
[I]t would be destructive of this purpose of the anti-
retaliation provision for an employer to be able to
retaliate with impunity against an entire class of acts
. . . . We agree with these contentions and find that
they support the inclusive interpretation of "employ-
ees" . . . that is already suggested by the broader con-
text of Title VII.
519 U.S. at 346 (citations omitted). Indeed, the conduct in
which Science Applications is alleged to have engaged in this
very case is especially troubling, vividly demonstrating
20 DELLINGER v. SCIENCE APPLICATIONS INTERNATIONAL
through Dellinger’s example of how easily it can identify "li-
tigious" applicants and resolve to exclude the entire class
from its payroll. It is beyond my comprehension that the
majority can shrug its shoulders and countenance this sort of
behavior when the Supreme Court has provided the means
and encouragement to do something about it.
II.
Finally, the majority overlooks our decision in McLaughlin
v. Ensley, 877 F.2d 1207 (4th Cir. 1989), in which we opened
the door to a less restrictive interpretation of "employee" in
the FLSA context. In Ensley, we ruled that the employer’s
unpaid trainees must be considered employees and entitled to
minimum wage payments even though the culmination of the
hiring process was made contingent upon the successful com-
pletion of the training. Id. at 1210. In so concluding, the Ens-
ley majority rejected the dissent’s view that the trainees did
not fit within § 203(e)(1)’s definition of "employee." See 877
F.2d at 1210 (Wilkins, J., dissenting) (characterizing "the true
legal issue" as being the classification of the trainees as
employees under the FTCA).
At Science Applications, Ms. Dellinger found herself in the
same position as the trainees in Ensley. There was no legiti-
mate impediment between her and the imminent assumption
of her job duties. Cf. Ensley, 877 F.2d at 1208 (reciting that
the trainees could, in theory, have demonstrated themselves
unqualified, but observing that "no person, who had com-
pleted the training, was not subsequently hired"). Ensley is, of
course, binding upon subsequent panels, and it requires us to
recognize the validity of Ms. Dellinger’s FLSA retaliation
claim, just as we recognized as valid the trainees’ claim for
wage payments under the Act.
III.
For all the foregoing reasons, I am convinced that Ms. Del-
linger, an employee within the meaning of the FLSA, has
DELLINGER v. SCIENCE APPLICATIONS INTERNATIONAL 21
pleaded a legally sufficient retaliation claim against Science
Applications. Inasmuch as the majority holds to the contrary,
I respectfully dissent.