Kathy Minor v. Bostwick Laboratories, Incorporated

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
KATHY P. MINOR, 
Plaintiff-Appellant,
v.
BOSTWICK LABORATORIES,
INCORPORATED,
Defendant-Appellee.  No. 10-1258
SECRETARY OF LABOR; EQUAL
EMPLOYMENT OPPORTUNITY
COMMISSION,
Amici Supporting Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Henry E. Hudson, District Judge.
(3:09-cv-00343-HEH)
Argued: December 6, 2011
Decided: January 27, 2012
Before TRAXLER, Chief Judge, and DUNCAN and AGEE,
Circuit Judges.
Reversed and remanded by published opinion. Judge Duncan
wrote the opinion, in which Chief Judge Traxler and Judge
Agee joined.
2 MINOR v. BOSTWICK LABORATORIES
COUNSEL
ARGUED: James B. Thorsen, MARCHANT, THORSEN,
HONEY, BALDWIN & MEYER, LLP, Richmond, Virginia,
for Appellant. Nickole Carrieanna Winnett, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C.,
for Amici Supporting Appellant. King Fitchett Tower, SPIL-
MAN, THOMAS & BATTLE, PLLC, Roanoke, Virginia, for
Appellee. ON BRIEF: P. David Lopez, General Counsel,
Lorraine C. Davis, Acting Associate General Counsel, Vin-
cent J. Blackwood, Assistant General Counsel, Barbara L.
Sloan, EQUAL EMPLOYMENT OPPORTUNITY COM-
MISSION, Washington, D.C.; M. Patricia Smith, Solicitor of
Labor, Jennifer S. Brand, Associate Solicitor, Paul L. Frieden,
Counsel for Appellate Litigation, UNITED STATES
DEPARTMENT OF LABOR, Washington, D.C., for Amici
Supporting Appellant. Carrie M. Harris, SPILMAN,
THOMAS & BATTLE, PLLC, Roanoke, Virginia, for Appel-
lee.
OPINION
DUNCAN, Circuit Judge:
Appellant Kathy Minor appeals from the Rule 12(b)(6) dis-
missal of her claim under the Fair Labor Standards Act’s
("FLSA") antiretaliation provision, 29 U.S.C. § 215(a)(3).
The district court held that complaints made within a com-
pany are unprotected by the antiretaliation provision, and that
because Minor alleged only that her termination was in retali-
ation for reporting alleged FLSA violations internally to her
employer, her complaint failed to state a claim. Because we
find that intracompany complaints may constitute protected
activity within the meaning of § 215(a)(3), we reverse and
remand for further proceedings.
MINOR v. BOSTWICK LABORATORIES 3
I.
A.
Minor was hired by appellee Bostwick Laboratories, Inc.
("Bostwick") as a medical technologist on December 24, 2007.1
She remained an employee of Bostwick until May 12, 2008.
During this time, she claims to have consistently met or
exceeded her job requirements. To wit, Minor reports receiv-
ing only satisfactory or above average ratings at her final per-
formance review on April 30, 2008—12 days before her
firing.
On May 6, 2008, Minor and several other members of her
department met with Bostwick’s chief operating officer, Bill
Miller. The purpose of the meeting was to call to Miller’s
attention the fact that Minor believed her supervisor, Dawn
Webber, had willfully violated the FLSA. Specifically, Minor
informed Miller that Webber routinely altered employees’
time sheets to reflect that they had not worked overtime when
they had. At the conclusion of the meeting, Miller told the
group that he would look into the allegations.
The following Monday, May 12, 2008, Bostwick termi-
nated Minor’s employment. Miller and human resources man-
ager Lori Esposito explained that the reason for Minor’s firing
was that there was "too much conflict with [her] supervisors
and the relationship just [was not] working." J.A. 6. When
Minor further questioned the rationale behind her termination,
Miller and Esposito explained they had met with her co-
workers and "had determined that she was the problem." J.A.
7. Minor asserts that she never had any conflict with her
supervisors, that she had never been reprimanded or written
1
Because this case comes before us as a dismissal under Rule 12(b)(6),
"we accept the allegations of the plaintiff’s complaint as true." Novell, Inc.
v. Microsoft Corp., 505 F.3d 302, 307 (4th Cir. 2007). This section there-
fore recounts the facts as alleged in Minor’s complaint.
4 MINOR v. BOSTWICK LABORATORIES
up, and that the alleged conversation between Miller, Espo-
sito, and her co-workers never took place.
B.
On June 1, 2009, Minor filed a complaint against Bostwick
in the United States District Court for the Eastern District of
Virginia. Relevant to this appeal, Minor alleged that Bostwick
had terminated her employment in retaliation for engaging in
protected activity as defined by the FLSA’s antiretaliation
provision, 29 U.S.C. § 215(a)(3).2 The alleged protected activ-
ity consisted of Minor’s report to Miller concerning the alter-
ation of the time sheets and the resulting lack of overtime pay
during the aforementioned May 6 meeting. Minor sought
compensatory damages, punitive damages, and attorney’s
fees.
On July 6, 2009, Bostwick filed a motion to dismiss the
retaliation cause of action under Rule 12(b)(6) for failure to
state a claim. The district court framed the issue as whether
"an employee’s informal, intra-company complaint regarding
possible FLSA violations by her employer qualif[ies] as a
protected activity under . . . the FLSA’s anti-retaliation provi-
sion." Minor v. Bostwick Labs., Inc., 654 F. Supp. 2d 433, 434
(E.D. Va. 2009). It answered the question in the negative, rea-
soning that although our prior precedent did not firmly estab-
lish whether intracompany complaints were protected under
the FLSA’s antiretaliation provision, the plain language of the
statute indicated that a formal, official proceeding was
required to invoke the clause’s protection. Because Minor
alleged only that she was discharged in retaliation for report-
ing alleged FLSA violations internally to Bostwick manage-
ment, the district court granted Bostwick’s motion to dismiss
on August 10, 2009. Minor timely appealed.
2
Minor also alleged that Bostwick had failed to adequately compensate
her and other similarly situated employees for overtime work in violation
of 29 U.S.C. § 207(a). She voluntarily dismissed this cause of action after
reaching a settlement with Bostwick.
MINOR v. BOSTWICK LABORATORIES 5
II.
The sole question presented by this appeal is whether an
employee’s complaint lodged within her company—as
opposed to a complaint filed with a court or government agen-
cy—may trigger the protection of the FLSA’s antiretaliation
provision. This is an issue of first impression in this circuit.
Section 215(a)(3) of the FLSA makes it unlawful for a cov-
ered employer to "discharge or in any manner discriminate
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, or has testified or is about
to testify in any such proceeding." Minor contends that an
employee who complains of FLSA violations to her employer
is protected from retaliatory firing because she has "filed any
complaint" within the meaning of the antiretaliation provi-
sion.
In support of her position, Minor argues that the Supreme
Court’s recent decision in Kasten v. Saint-Gobain Perfor-
mance Plastics Corp., 131 S. Ct. 1325 (2011), requires us to
hold that intracompany complaints are protected activity
within the meaning of § 215(a)(3). Bostwick, in turn, con-
tends that Kasten has no effect on this appeal and that our
prior precedent—specifically Ball v. Memphis Bar-B-Q Co.,
228 F.3d 360 (4th Cir. 2000)—compels the conclusion that
intracompany complaints are unprotected. In the alternative,
both parties argue that the plain language of the statute sup-
ports each of their respective positions. Without the benefit of
Kasten, the district court found Bostwick’s plain-language
argument persuasive, dismissing Minor’s complaint because
of its conclusion that the plain meaning of § 215(a)(3) is that
intracompany complaints are not protected activity.
We review the district court’s Rule 12(b)(6) dismissal of
Minor’s complaint de novo. Robinson v. Am. Honda Motor
Co., 551 F.3d 218, 222 (4th Cir. 2009). Upon review, we dis-
6 MINOR v. BOSTWICK LABORATORIES
agree with the district court that the plain meaning of
§ 215(a)(3) dictates that intracompany complaints are not pro-
tected activity. Instead—although we do not believe Kasten is
directly controlling—we find the Supreme Court’s reasoning
in that case to be persuasive here. Following it, we hold that
although the language of § 215(a)(3) is ambiguous, the reme-
dial purpose of the statute requires that it protect from retalia-
tion employees who file intracompany complaints.3
A.
We begin by examining the Supreme Court’s decision in
Kasten and its effect on the question presented here. In Kas-
ten, the Supreme Court considered whether the petitioner’s
oral complaints to his employer qualified as protected activity
under the FLSA’s antiretaliation provision. 131 S. Ct. at 1330.
In doing so, it began with the text of the statute. Id. at 1331.
Focusing on the word "filed," the Supreme Court took into
consideration dictionary definitions of the word; its use in
state statutes, administrative regulations, and judicial opin-
ions; and other appearances of the word in the FLSA. Id. at
1331-32. It concluded upon review that the word "filed" does
not unambiguously require a writing. Id. at 1333. It also found
that a comparison of the language in § 215(a)(3) to broader
language in other statutes’ antiretaliation provisions did not
answer the question of whether Congress intended to limit the
protection of the FLSA’s antiretaliation provision to written
complaints. Id. at 1333. It concluded that "the text, taken
alone, cannot provide a conclusive answer to [the] interpretive
question." Id.
After determining that the text of § 215(a)(3) was ambigu-
ous, the Supreme Court went on to conclude that Congress
intended the antiretaliation provision to cover oral complaints.
3
We make plain, however, that we conclude only that Minor’s com-
plaint states a claim sufficient to survive a motion to dismiss. We express
no view regarding the merits.
MINOR v. BOSTWICK LABORATORIES 7
Id. First, it found that the FLSA’s remedial purpose required
a broad interpretation to achieve its basic objectives. Id. at
1333-34. Second, it gave a "degree of weight" to the consis-
tent position of both the Secretary of Labor and the EEOC
that oral complaints are protected activity within the meaning
of § 215(a)(3). Id. at 1335. These two points buttressed its
decision that oral complaints could qualify as protected activ-
ity under the statute. Id. at 1336.
The Supreme Court did, however, stress that an employer
needed fair notice as to when a complaint had been filed. Id.
at 1334. Thus, it held that "[t]o fall within the scope of the
antiretaliation provision, a complaint must be sufficiently
clear and detailed for a reasonable employer to understand it,
in light of both content and context, as an assertion of rights
protected by the statute and a call for their protection." Id. at
1335. Because the district court had not considered whether
the petitioner’s oral complaint to his employer met this notice
standard, the Supreme Court remanded with instructions to
apply the standard. Id. at 1336.
Significantly for our purposes, Kasten expressly declined to
address the question of whether an intracompany complaint
could qualify as protected activity under the FLSA.4 Id. It did,
however, state that "insofar as the antiretaliation provision
covers complaints made to employers," limiting the scope of
protected activity to written complaints would "discourage the
use of desirable informal workplace grievance procedures to
secure compliance with the [FLSA]." Id. at 1334. It also
framed the need for fair notice in terms of whether a "reason-
able employer" would understand a particular complaint to be
an assertion of rights under the FLSA. Id. at 1335. The dissent
asserted that in doing so, the majority actually decided the
question we confront here. Id. at 1341 (Scalia, J., dissenting).
4
It did so because Saint-Gobain failed to raise the issue of whether intra-
company complaints are protected in response to Kasten’s petition for cer-
tiorari. Kasten, 131 S. Ct. at 1336.
8 MINOR v. BOSTWICK LABORATORIES
It pointed out that because "[f]iling a complaint with a judicial
or administrative body is quite obviously an unambiguous
assertion of one’s rights," fair notice would only be a concern
if intracompany complaints were covered. Id. Minor relies
primarily upon this observation to argue that the only logical
interpretation of Kasten is that its holding dictates that intra-
company complaints are protected activity under § 215(a)(3).5
Notwithstanding the dissent’s argument, we take the Kasten
majority at its word. Therefore, although we find much of its
reasoning applicable to our analysis, Kasten did not settle the
question of whether intracompany complaints are protected
activity within the meaning of § 215(a)(3), and consequently
does not directly control the outcome of this case.
B.
We next consider Bostwick’s contention that our precedent
dictates that intracompany complaints are insufficient to state
a claim under the antiretaliation provision of the FLSA. In so
arguing, Bostwick relies primarily upon our decision in Ball.6
Ball, however, is distinguishable on its own terms.
5
Minor also argues that, because the petitioner in Kasten alleged orally
complaining to his employer about FLSA violations, the Supreme Court
necessarily found that intracompany complaints were protected by the
antiretaliation provision when it vacated the holding that his complaints
were unprotected. This contention is incorrect. Specifically, it overlooks
the fact that the Supreme Court did not decide whether the petitioner’s
activity was protected under the FLSA; the Court merely held that the
Seventh Circuit was wrong to conclude that oral complaints were categori-
cally unprotected under § 215(a)(3). The Supreme Court remanded for
application of the new standard announced in Kasten, and we therefore do
not have definitive guidance as to whether the petitioner’s intracompany
complaint in that case would have been protected had the district court
analyzed it using the correct test.
6
Bostwick also seeks to rely on our unpublished per curiam decision in
Whitten v. City of Easley, 62 F. App’x 477 (4th Cir. 2003). "Citation of
this Court’s unpublished dispositions issued prior to January 1, 2007 . . .
is disfavored." 4th Cir. R. 32.1. Unpublished decisions are also not bind-
ing upon us. Therefore, we decline to address the arguments Bostwick
bases upon Whitten.
MINOR v. BOSTWICK LABORATORIES 9
As a preliminary observation, we note that § 215(a)(3) pro-
tects an employee who has engaged in any one of three sepa-
rate activities: "[1] fil[ing] any complaint or [2] institut[ing]
or caus[ing] to be instituted any proceeding . . . or [3] . . . tes-
tif[ying] or [being] about to testify in any such proceeding."
The case before us requires that we decide whether an
employee engaged in protected activity by "fil[ing] any com-
plaint." In Ball, we considered what constituted "testify[ing]
in any such proceeding." 228 F.3d at 363. We specifically
noted in Ball that our opinion did not purport to construe the
"complaint clause." Id. at 363 n.*.
The issue in Ball was whether an employee’s "anticipated
refusal to testify in a threatened lawsuit as his employer
wished" was protected activity under the "testimony clause"
of the antiretaliation provision. Id. at 363. Appellant Peter
Ball discussed with his employer the possibility that a differ-
ent employee would file suit against the company under the
FLSA. Ball alleged he was fired because, when his employer
asked Ball to testify in a certain manner if the lawsuit were
to proceed, Ball declined. He claimed this activity was pro-
tected under § 215(a)(3).
In this context, we held that the plain meaning of "about to
testify in any such proceeding" was not broad enough to apply
to the facts alleged in Ball’s complaint. We stated that "the
‘proceeding’ necessary for liability under the FLSA refers to
procedures conducted in judicial or administrative tribunals."
Id. at 364. We explained that this was the case because "[a]s
used in the [FLSA], ‘proceeding’ is modified by attributes of
administrative or court proceedings; it must be ‘instituted,’
and it must provide for ‘testimony.’" Id. We determined that
"institut[ing]" a proceeding "connote[d] a formality that does
not attend an employee’s oral complaint to his supervisor." Id.
Similarly, we found the fact that testimony could be given at
the "proceeding" referenced in the statute reinforced the con-
clusion that the proceeding was necessarily a formal one. Id.
With all of this analysis as background, we concluded:
10 MINOR v. BOSTWICK LABORATORIES
By referring to a proceeding that has been "insti-
tuted" and in which "testimony" can be given, Con-
gress signaled its intent to proscribe retaliatory
employment actions taken after formal proceedings
have begun, but not in the context of a complaint
made by an employee to a supervisor about a viola-
tion of the FLSA.
Id. Although this final sentence, read in isolation, could be
misconstrued as applying to the entirety of § 215(a)(3), the
context makes it clear that the Ball court was referring to
Congress’s intent to limit the reach of the testimony clause,
signaled by its use of the words "instituted" and "testimony."
Thus, the outcome in Ball does not dictate the result in the
case before us. Although Ball clearly requires a proceeding
before a judicial or administrative body to be instituted before
an employee’s activity of "testify[ing] . . . in any such pro-
ceeding" qualifies for protection under the antiretaliation pro-
vision, this holding does not apply to an employee’s
allegation that he was retaliated against for "fil[ing] any com-
plaint." Indeed, Ball supports this conclusion. As noted above,
the opinion specifically stated that Ball did "not invoke the
complaint clause of 29 U.S.C. § 215(a)(3), relying instead on
the testimony clause." Ball, 228 F.3d at 363 n.*. It also recog-
nized that we had "construed the scope of similar complaint-
clause language in another context" to include intracompany
complaints. Id. As such, it is plain that Ball left open the ques-
tion of whether intracompany complaints may constitute pro-
tected activity under the FLSA’s complaint clause.
C.
As neither Kasten nor Ball is directly controlling, we turn
to an independent review of the language of § 215(a)(3).
When interpreting a statute, we "first and foremost strive to
implement congressional intent by examining the plain lan-
guage." Barbour v. Int’l Union, 640 F.3d 599, 610 (4th Cir.
MINOR v. BOSTWICK LABORATORIES 11
2011). "The plainness or ambiguity of statutory language is
determined by reference to the language itself, the specific
context in which the language is used, and the broader context
of the statute as a whole." Id. (quoting Robinson v. Shell Oil
Co., 519 U.S. 337, 341 (1997)). "In interpreting the plain lan-
guage of a statute, we give the terms their ‘ordinary, contem-
porary, common meaning.’" Crespo v. Holder, 631 F.3d 130,
133 (4th Cir. 2011) (quoting North Carolina ex rel. Cooper
v. Tenn. Valley Auth., 515 F.3d 344, 351 (4th Cir. 2008)).
The United States Secretary of Labor and the Equal
Employment Opportunity Commission ("EEOC") (collec-
tively "amici"), arguing as amici curiae in support of Minor,
contend that the plain meaning of § 215(a)(3) is that an
employee’s intracompany complaint regarding violations of
the FLSA is protected activity. Bostwick counters that the
plain meaning of the statute requires that an employee under-
take a more formal action than an intracompany complaint to
trigger protection of the antiretaliation provision.
Unlike the district court, we have the benefit of the
Supreme Court’s recent consideration of the plain meaning of
"filed any complaint" from Kasten. Kasten focused the major-
ity of its plain-language analysis on the meaning of the word
"filed"—most important to deciding whether an oral com-
plaint could trigger protection of the antiretaliation provi-
sion—rather than the "any complaint" language more relevant
to our inquiry. It did observe, however, that "even if the word
‘filed’ . . . might suggest a narrow interpretation limited to
writings, the phrase ‘any complaint’ suggests a broad inter-
pretation that would include an oral complaint." 131 S. Ct. at
1332. Nevertheless, it concluded that "the three-word phrase,
taken by itself, cannot answer the interpretive question." Id.Amici argue that because of its broad scope, the phrase
"any complaint" requires, by its plain meaning, that intracom-
pany complaints fall within the protection of the antiretalia-
tion provision. They seek to distinguish the Supreme Court’s
12 MINOR v. BOSTWICK LABORATORIES
finding that the language is ambiguous by pointing out that
Kasten’s analysis focused primarily on the word "filed" and
dealt with oral complaints, not intracompany complaints.
We do not find these arguments persuasive. Although amici
are correct that the language "any complaint" is broad, it is
this very broadness that precludes their plain-language argu-
ment. The ordinary meaning of the phrase "any complaint"
does not include a limiting factor, and plainly, not every com-
plaint can trigger the protection of the antiretaliation provi-
sion. The Supreme Court expressly recognized the need for
such a limiting principle in Kasten, holding that "a complaint
must be sufficiently clear and detailed for a reasonable
employer to understand it, in light of both content and con-
text, as an assertion of rights protected by the statute and a
call for their protection." Id. at 1335. Amici do not argue that
the plain meaning of "complaint" includes such a limit.
Including the word "filed" in our consideration does not pro-
vide us with further guidance as to whether the plain meaning
of the provision covers intracompany complaints, given that
the ordinary meaning of "filed" has no connection to where or
with whom the act of filing is done. Therefore, as the
Supreme Court in Kasten did with regard to whether oral
complaints are covered by § 215(a)(3), we conclude that the
language "filed any complaint" is ambiguous with regard to
whether intracompany complaints are protected activity under
§ 215(a)(3).
As such, we also disagree with Bostwick’s contention that
the plain meaning of the FLSA’s antiretaliation provision is
that it does not cover intracompany complaints. The district
court held as much, reading the text of § 215(a)(3) as a whole
and concluding that because instituting a proceeding "seems
to require that an employee’s complaint result in or relate to
some formal, official procedure or investigation," Minor’s
verbal complaint to her employer was not a protected activity
within the meaning of the antiretaliation provision.7 Minor,
7The district court also stated that the plain meaning of "filed" indicated
that "an informal, internal, verbal accusation cannot possibly be construed
MINOR v. BOSTWICK LABORATORIES 13
654 F. Supp. 2d at 439 (internal quotation marks omitted).
Because we believe that the phrase "filed any complaint" is
correctly considered separately from the remainder of
§ 215(a)(3), we disagree with the district court’s analysis.
In deciding to analyze the complaint clause separately, we
follow the canon of construction "that terms connected by a
disjunctive be given separate meanings." Reiter v. Sonotone
Corp., 442 U.S. 330, 339 (1979). As previously noted, the
FLSA’s antiretaliation provision protects an employee who
has "filed any complaint or instituted or caused to be insti-
tuted any proceeding . . . or has testified or is about to testify
in any such proceeding." 29 U.S.C. § 215(a)(3) (emphasis
added). By phrasing the provision in this fashion, Congress
has indicated its intent that we consider each of these catego-
ries of protected activity independently. The Supreme Court
followed this interpretive directive in Kasten, focusing solely
on the language "filed any complaint." See 131 S. Ct. at 1331-
33. For this reason, we find the district court’s plain-meaning
conclusion incorrect.
Finally, we consider Bostwick’s argument that a compari-
son of the statutory language in the FLSA’s antiretaliation
provision to the more broadly written antiretaliation provision
contained in Title VII, 29 U.S.C. § 2000e-3a, requires that we
narrowly interpret § 215(a)(3). We discussed this comparison
in the context of the testimony clause in Ball, concluding that
the "cause of action for retaliation under the FLSA is much
more circumscribed." 228 F.3d at 364. The Supreme Court
also considered this argument in Kasten, however, in the con-
text of whether "filed any complaint" includes oral complaints
and determined that "the use of broader language elsewhere
may mean (1) that Congress wanted to limit the scope of the
phrase before us to writings, or (2) that Congress did not
as the filing of a complaint." Minor, F. Supp. 2d at 439. In light of Kasten,
we disagree.
14 MINOR v. BOSTWICK LABORATORIES
believe the different phraseology made a significant differ-
ence in this respect." 131 S. Ct. at 1332-33. Moreover, we
recognize that the FLSA was enacted well before Title VII.
To the extent that Bostwick’s argument rests on the premise
that Congress would have modified the language of the FLSA
had it wished that statute’s antiretaliation provision to be read
as broadly as the antiretaliation provision in Title VII, we
observe that "[i]naction . . . is a notoriously poor indication
of congressional intent." Schweiker v. Chilicky, 487 U.S. 412,
440 (1988). At best, the implications of the difference in the
language of the FLSA and the language in Title VII are
unclear, and the comparison does not solve the interpretive
problem before us.
Because we find that "filed any complaint" is ambiguous as
to whether intracompany complaints are protected activity
under the FLSA, we must move to other interpretive tools.
D.
The Supreme Court in Kasten determined that oral com-
plaints could constitute protected activity within the meaning
of § 215(a)(3) based upon "functional considerations." 131 S.
Ct. at 1333. In light of the ambiguous nature of § 215(a)(3)’s
"filed any complaint" language, we find that these same func-
tional considerations dictate that intracompany complaints
qualify as protected activity within the meaning of the
FLSA’s antiretaliation provision.
1.
We first consider the basic goals of the FLSA. Consistent
with other authority, we conclude that, because of the stat-
ute’s remedial purpose, § 215(a)(3) must be interpreted to
include intracompany complaints.
The FLSA was enacted to combat "labor conditions detri-
mental to the maintenance of the minimum standard of living
MINOR v. BOSTWICK LABORATORIES 15
necessary for health, efficiency, and general well-being of
workers." 29 U.S.C. § 202(a). "The central aim of the Act was
to achieve . . . certain minimum labor standards." Mitchell v.
Robert DeMario Jewelry, Inc., 361 U.S. 288, 292 (1960). To
ensure compliance with the provisions enacted to serve this
purpose, Congress "chose to rely on information and com-
plaints from employees seeking to vindicate rights claimed to
have been denied." Id. It included the antiretaliation provision
in recognition of the fact that "fear of economic retaliation
might often operate to induce aggrieved employees quietly to
accept substandard conditions." Id. In light of these objec-
tives, the Supreme Court has consistently held that the FLSA
"must not be interpreted or applied in a narrow, grudging
manner." Tenn. Coal, Iron & R.R. Co. v. Muscoda Local No.
123, 321 U.S. 590, 597 (1944). We likewise recognized in
Ball that where the statutory language permits, "we are
instructed to read the FLSA to effect its remedial purposes."
228 F.3d at 363-64.
With the statute’s purpose in mind, Kasten stated that "an
interpretation [of § 215(a)(3)] that limited the provision’s cov-
erage to written complaints would undermine the [FLSA’s]
basic objectives." 131 S. Ct. at 1333. The Supreme Court fur-
ther observed that such a limitation on the scope of the anti-
retaliation provision would circumscribe flexibility in
enforcing the FLSA. Id. at 1334. As a supporting point, the
Supreme Court stated that "insofar as the antiretaliation provi-
sion covers complaints made to employers . . . , [limiting the
scope of § 215(a)(3)] would discourage the use of desirable
informal workplace grievance procedures to secure compli-
ance with the Act." Id. Following this reasoning, we conclude
that an interpretation that limits § 215(a)(3)’s coverage to
complaints made before an administrative or judicial body
would overly circumscribe the reach of the antiretaliation pro-
vision in contravention of the FLSA’s remedial purpose.
Allowing intracompany complaints to constitute protected
activity within the meaning of § 215(a)(3), on the other hand,
comports with the statute’s objectives as described by Con-
16 MINOR v. BOSTWICK LABORATORIES
gress’s findings and the Supreme Court’s interpretation of
those findings.
Amici offer several persuasive policy arguments in support
of this conclusion. They point out that protection of internal
complaints encourages resolution of FLSA violations without
resort to drawn-out litigation—and that failure to protect
internal complaints may have the perverse result of encourag-
ing employers to fire employees who believe they have been
treated illegally before they file a formal complaint. Our sister
circuits have voiced the same concerns in concluding that
§ 215(a)(3) protects intracompany complaints. See Valerio v.
Putnam Assocs., Inc., 173 F.3d 35, 43 (1st Cir. 1999) ("By
protecting only those employees who kept secret their belief
that they were being illegally treated until they filed a legal
proceeding, the Act would discourage prior discussion of the
matter between employee and employer, and would have the
bizarre effect both of discouraging early settlement and creat-
ing an incentive for the employer to fire an employee as soon
as possible after learning the employee believed he was being
treated illegally.").
Indeed, the majority of circuits to consider the question of
whether intracompany complaints are protected activity
within the meaning of "filed any complaint" have answered in
the affirmative, basing their decisions on the FLSA’s remedial
purpose.8 See, e.g., Hagan v. Echostar Satellite, LLC, 529
F.3d 617, 626 (5th Cir. 2008) ("We adopt the majority rule,
which allows an informal, internal complaint to constitute
protected activity under Section 215(a)(3), because it better
8
For the reasons stated above, we choose to align ourselves with the cir-
cuits that have based the conclusion that intracompany complaints are pro-
tected activity under § 215(a)(3) on the statute’s remedial purpose, rather
than with the Seventh Circuit, which reached the same conclusion based
upon the plain language of the statute. See Kasten v. Saint-Gobain Perfor-
mance Plastics Corp., 570 F.3d 834, 838 (7th Cir. 2009), rev’d on other
grounds, 131 S. Ct. 1325 (2011) ("[T]he plain language of [§ 215(a)(3)]
indicates that internal, intracompany complaints are protected.").
MINOR v. BOSTWICK LABORATORIES 17
captures the anti-retaliation goals of that section."); Lambert
v. Ackerley, 180 F.3d 997, 1004 (9th Cir. 1999) (en banc)
(finding that § 215(a)(3) covered internal complaints based on
its remedial purpose); Valerio, 173 at 42 (same); ; EEOC v.
White & Son Enters., 881 F.2d 1006, 1011 (11th Cir. 1989)
(same); Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th
Cir. 1984) (same); Brennan v. Maxey’s Yamaha, Inc., 513
F.2d 179, 181 (8th Cir. 1975) (same); see also EEOC v.
Romeo Cmty. Sch., 976 F.2d 985, 989 (6th Cir. 1992) (holding
that an employee’s complaints to her employer were sufficient
to trigger protection of the FLSA’s antiretaliation provision
without explaining its rationale). Cf. Brock v. Richardson, 812
F.2d 121, 124-25 (3d Cir. 1987) (holding that, because of the
FLSA’s remedial purpose, a retaliatory firing based on an
employer’s belief that an employee had filed a com-
plaint—even when he had not—was prohibited by
§ 215(a)(3)). Thus, we adopt the majority view by holding
that the remedial purpose of the FLSA requires intracompany
complaints to be considered protected activity within the
meaning of its antiretaliation provision.
2.
Supporting our conclusion is the Secretary of Labor and the
EEOC’s consistent position that intracompany complaints are
included within the meaning of "filed any complaint." We
afford agency interpretations that do not have the force of
law, like agency manuals and litigation documents, respect to
the extent that they possess the "power to persuade." Chris-
tensen v. Harris Cnty., 529 U.S. 576, 587 (2000) (quoting
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). Factors
we consider when determining whether an agency interpreta-
tion has the power to persuade include "the thoroughness evi-
dent in its consideration, the validity of its reasoning, [and] its
consistency with earlier and later pronouncements." Skid-
more, 323 U.S. at 140; see also Cunningham v. Scibana, 259
F.3d 303, 306-07 (4th Cir. 2001).
18 MINOR v. BOSTWICK LABORATORIES
Here, the EEOC has set forth the position that intracom-
pany complaints constitute "fil[ing] any complaint" within the
meaning of § 215(a)(3) in the compliance manual it issues to
field offices. 2 EEOC Compliance Manual § 8-II(B) & 8-
II(B) n. 12 (2006). In addition, both the Secretary and the
EEOC have argued in litigation that intracompany complaints
are covered by the FLSA’s antiretaliation provision. See, e.g.,
Br. for the Sec. of Labor and the EEOC as Amici Curiae at
26-30; Br. for the Sec. of Labor as Amicus Curiae, Kasten v.
Saint-Gobain Performance Plastics Corp., 570 F.3d 834 (7th
Cir. 2009) (No. 08-2820). Thus, although it is not determina-
tive, because the Secretary and the EEOC have consistently
advanced this reasonable and thoroughly considered position,
it "add[s] force to our conclusion." Kasten, 131 S. Ct. at 1335.
E.
We conclude by emphasizing that our holding that intra-
company complaints may constitute "fil[ing] any complaint"
under § 215(a)(3) does not mean that every instance of an
employee "letting off steam" to his employer constitutes pro-
tected activity. Kasten, 131 S. Ct. at 1334. To the contrary,
"the statute requires fair notice" to employers. Id. To protect
employers from unnecessary uncertainty, "some degree of
formality" is required for an employee complaint to constitute
protected activity, "certainly to the point where the recipient
has been given fair notice that a grievance has been lodged
and does, or should, reasonably understand that matter as part
of its business concerns." Id. Therefore, the proper standard
for the district court to apply is the aforementioned test articu-
lated in Kasten: whether Minor’s complaint to her employer
was "sufficiently clear and detailed for a reasonable employer
to understand it, in light of both content and context, as an
assertion of rights protected by the statute and a call for their
protection." Id. at 1335.
Minor’s allegations here meet the standard we have articu-
lated to the extent required to survive a motion to dismiss.
MINOR v. BOSTWICK LABORATORIES 19
The facts as alleged in her complaint indicate that Minor
expressed her concerns regarding FLSA violations to the chief
operating officer of her company in a meeting specifically
called for that purpose. Minor also alleges that this executive-
level employee agreed to investigate her claims. At this stage,
these allegations are sufficient. We note again that we express
no view as to whether Minor should ultimately prevail under
the standard we have articulated. We simply hold that, on the
facts alleged, her complaint survives a motion to dismiss.
III.
For the foregoing reasons, the judgment of the district court
is
REVERSED AND REMANDED.