Stramaski v. Lawley

United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 11, 2022
No. 20-20607 Lyle W. Cayce
Clerk
Eva Kristine Stramaski,
Plaintiff—Appellee,
versus
Mark Lawley, Individually,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:20-CV-156
Before Elrod, Southwick, and Costa, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
Eva Stramaski claims her employment was terminated in retaliation
for complaining she was going to be paid late. She filed a complaint against a
department head within the Texas A&M Engineering Station, Dr. Mark
Lawley, in his individual capacity, alleging he violated the anti-retaliation
provision of the Fair Labor Standards Act. Lawley moved to dismiss
Stramaski’s retaliation claim because the suit was barred by sovereign
immunity, and in the alternative, that he was entitled to qualified immunity.
The district court determined that neither immunity applied. We agree as to
No. 20-20607
sovereign immunity but VACATE and REMAND as to qualified
immunity.
FACTUAL AND PROCEDURAL BACKGROUND
Eva Stramaski was employed as an Academic Advisor by Texas A&M
University through the Texas A&M Engineering Experiment Station
(“TEES”). She had recently returned from leave due to a surgical procedure
when, on January 30, 2019, a TEES employee informed Stramaski that she
would not be paid on time unless she submitted a second doctor’s note that
would release her back to work. Stramaski requested the second note but also
spoke with TEES’s Associate Director of Human Resources, Nicole
Pottberg, to ensure she would be paid on time. Pottberg told Stramaski that
she would be timely paid.
The next day, Stramaski received an e-mail from a man named Huff
(whom the record does not otherwise identify) informing her she would not
be paid in full for five or six days, even though her pay was finalized. On
February 1, Stramaski went to Huff’s office on an unrelated matter and again
addressed her payment schedule. She confirmed with him that she would
not be paid for five or six days from then. Huff also confirmed this timeline
with the Assistant Dean for Finance. After this confirmation, Stramaski
informed Huff that “she needed to be paid on time, as it was her legal right.”
Stramaski then went directly to Human Resources to speak with
someone about her potentially late pay. She spoke with an employee who
ensured her that her “check would be cut within a few hours, and that she
would be paid on time.” Stramaski was timely paid.
Soon after Stramaski received this check, Dr. Mark Lawley, head of
the Department of Industrial and Systems Engineering within TEES, entered
Stramaski’s office and told her she “was being aggressive with regard to
being paid on time” and sent her home for the day. On February 13, Lawley
2
No. 20-20607
issued Stramaski a coaching letter detailing allegations against her from
August to September 2018. Stramaski submitted a memo disputing those
allegations on February 20. Two weeks later, on March 7, 2019, Lawley
terminated Stramaski’s employment.
In January 2020, Stramaski filed suit against Lawley in the United
States District Court, Southern District of Texas. Lawley was sued only in
his individual capacity for an alleged violation of the Fair Labor Standards
Act (“FLSA”). See 29 U.S.C. § 215(a)(3). Stramaski claimed she was
wrongfully terminated in retaliation for complaining that she would not be
timely paid for a particular pay period. She sought injunctive and declaratory
relief as well as damages.
Lawley moved to dismiss Stramaski’s claims under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6). He argued her suit was barred under
the Eleventh Amendment and, in the alternative, that he was entitled to
qualified immunity. The magistrate judge issued a report and
recommendation on the motion. The district court adopted the magistrate
judge’s recommendation and granted Lawley’s motion to dismiss the claims
for injunctive and declaratory relief due to a lack of standing. The district
court refused to dismiss the claims for damages, finding neither the Eleventh
Amendment nor qualified immunity applied. Lawley timely appealed.
DISCUSSION
Denials of sovereign immunity and qualified immunity are both
reviewed de novo. Corn v. Miss. Dep’t of Pub. Safety, 954 F.3d 268, 273 (5th
Cir. 2020); Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011). Absent
waiver, the immunity of a state from suit as signified by, but not fully
expressed in, the Eleventh Amendment is a jurisdictional barrier. Corn, 954
F.3d at 274, 276. We therefore start by considering the Eleventh
Amendment. After concluding that there is jurisdiction, we evaluate the
applicability of qualified immunity to Stramaski’s FLSA claim.
3
No. 20-20607
I. Eleventh Amendment
Lawley argues this suit is barred by the Eleventh Amendment because
the state is the “real party in interest.” See Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 101 (1984). He contends Stramaski’s suit is only
nominally against him in his individual capacity but in fact is against the state
because all the relief Stramaski seeks will ultimately come from TEES, her
state employer.
Generally, the Eleventh Amendment does not bar suits against
governmental officials in their individual capacities, but “where the state is
the real and substantial party in interest, the Eleventh Amendment may bar
the suit.” Modica v. Taylor, 465 F.3d 174, 183 (5th Cir. 2006). Whether the
state is the real party in interest depends on the circumstances of the case.
Id. We begin our analysis of the relevant circumstances by discussing one of
our precedents involving a different but related statute — the Family and
Medical Leave Act (“FMLA”).
In Modica, we held that the definition of covered employers in the
FMLA and the FLSA are “very similar.” Id. at 186. We are one of several
courts to hold that the term “employer” should be interpreted the same in
both statutes. Id. at 186–87. Thus, because Congress “chose to make the
definition of employer materially identical” in these two acts, the FMLA
offers “the best guidance” to inform our analysis of the same terms in the
FLSA. See id. at 196 (quotation marks and citation omitted).
Our Modica decision relied on the statutory definition of employer in
the FMLA to conclude that the “plain language of the FMLA permits public
employees to be held individually liable.” Id. at 187. FMLA-covered
employers include “any person who acts, directly or indirectly, in the interest
of an employer to any of the employees of such employer.” 29
U.S.C. § 2611(4)(A)(ii)(I). We explained that this language is
straightforwardly read to allow public employees to be held individually liable
4
No. 20-20607
so long as they “act[], directly or indirectly, in the interest of an employer.”
Modica, 465 F.3d at 184–86. Our conclusion necessarily followed that the
state-employed supervisor who allegedly retaliated against Modica could be
liable in her individual capacity under the FMLA. Id. at 187.
The FLSA’s “employer” definition is nearly identical. It covers
any person acting directly or indirectly in the interest of an
employer in relation to an employee and includes a public
agency, but does not include any labor organization (other than
when acting as an employer) or anyone acting in the capacity of
officer or agent of such labor organization.
29 U.S.C. § 203(d). We thus interpret the FLSA as we have the FMLA.
When a defendant employee was “acting directly or indirectly in the interest
of an employer in relation to an employee,” that defendant may be subject to
liability in an individual capacity. See Modica, 465 F.3d at 186.
Before proceeding too far in addressing individual capacity suits under
the FLSA, we need to inject some cautionary principles. The portion of the
Modica opinion addressing FMLA liability dealt with a claim by an employee
of a Texas state agency. See id. at 177–78. Among Modica’s claims was one
against agency Executive Director Humphrey for terminating her in alleged
retaliation for seeking FMLA leave. Id. at 178. When considering defendant
Humphrey’s argument that the claim was actually against the state, we first
cited one of our precedents in which we held that the FMLA claims in that
suit brought by an employee of a Louisiana state agency were clearly against
the state. Id. at 183 (citing Kazmier v. Widmann, 225 F.3d 519, 533 n.65 (5th
Cir. 2000), abrogated on other grounds by Nevada Dep’t of Hum. Res. v. Hibbs,
538 U.S. 721 (2003)). The entire analysis of why the suit was actually against
the state was in a footnote, where we cited a Supreme Court decision in which
a suit “nominally against an officer” was held actually to be against the state.
Kazmier, 225 F.3d at 533 n.65 (quoting Pennhurst, 465 U.S. at 101). The
5
No. 20-20607
Modica opinion did not distinguish Kazmier in any meaningful way, but we
suggested two reasons not to apply it. See Modica, 465 F.3d at 183–87.
The first reason was that when deciding whether the Eleventh
Amendment bars a suit because it is actually against a state, the
circumstances of the case are determinative. Id. at 183. We discussed in a
parenthetical the circumstances of another circuit’s decision that led it to
conclude that an FLSA suit, though brought against a state employee
individually, was actually against the state. Id. (citing Luder v. Endicott, 253
F.3d 1020, 1024–25 (7th Cir. 2001)). We summarized the other circuit’s
holding this way:
the state would be required to pay damages to the 145 plaintiffs
and concluding that casting the suit, brought under the Fair
Labor Standards Act, as one against the officers in their
individual capacities was a “transparent[ ] effort at an end run
around the Eleventh Amendment.”
Id. (quoting Luder, 253 F.3d at 1024–25). The facts in Luder were nothing
like those of Modica, which involved a single employee’s claim against her
supervisor. See id. at 177–78. Rather, it was the way the Modica opinion
emphasized that the facts matter that is important. To be clear, Kazmier did
not mention Luder, nor were the facts of Kazmier similar to Luder.
The second reason the Modica court used to avoid applying Kazmier
is that it could be inconsistent with earlier, and thus controlling, Fifth Circuit
precedents that the Eleventh Amendment does not bar suits against state
officials in their individual capacities. Id. at 183 (citing Hudson v. City of New
Orleans, 174 F.3d 677, 687 n.7 (5th Cir. 1999); Martin v. Thomas, 973 F.2d
449, 458 (5th Cir. 1992)). Yet, we read neither of the cited precedents as
establishing an absolute rule relevant here.
The first case, Hudson, is neither an FLSA nor an FMLA case, as it
was brought under Section 1983. Hudson, 174 F.3d at 679. Hudson is one of
6
No. 20-20607
our foundational decisions on the Eleventh Amendment, in which we
restated — and for the first time enumerated — six factors for when suit
against a governmental defendant was prohibited by the Eleventh
Amendment. Id. (applying factors from Clark v. Tarrant Cnty., 798 F.2d 736,
744–45 (5th Cir. 1986)). Relevant here is that Hudson made this observation:
“The Eleventh Amendment does not come into play in personal capacity
suits, . . . and the existence of an indemnification statute promising to pay
judgments when an officer is sued in his individual capacity does not extend
the Eleventh Amendment’s protections around the officer.” Id. at 687 n.7
(internal citations omitted). The Hudson court stated that indemnification is
“only an agreement between the state and these individuals and cannot
thereby be converted into an extension of Eleventh Amendment immunity
by the state.” Id. (quoting Downing v. Williams, 624 F.2d 612, 626 (5th Cir.
1980), vacated on panel reh’g on other grounds, 645 F.2d 1226 (5th Cir. 1981)).
Indemnification, statutory or otherwise, is not involved in the case before us.
The second case the Modica court cited as raising doubts about
Kazmier made a general statement that “[t]he Eleventh Amendment does
not bar suits against officials in their individual capacities.” Martin, 973 F.2d
at 458. There was no consideration in Martin of the effect of a situation such
as in Luder, in which any liability imposed on the named individual defendant
would be shifted to the state itself. See id. What Luder held and Kazmier
embraced is that cases brought against an individual state employee may
actually be against the state. We see no unavoidable conflict between
Kazmier and the older precedents of Hudson and Martin. Nonetheless, the
facts of Kazmier are hardly Luder-ite — in Kazmier, a Louisiana
governmental department fired a single employee for reasons that allegedly
violated the FMLA. Kazmier, 225 F.3d at 522–23. Regardless, what is
important in our analysis is that Kazmier properly held that the fact a plaintiff
brings a suit against a state employee solely in that employee’s individual
7
No. 20-20607
capacity does not eliminate the Eleventh Amendment as a possible defense.
Id. at 523, 533 n.65. The facts matter.
Our conclusion that there is a place in our jurisprudence for holding
that a suit nominally against an individual state employee is actually against
the state was also the opinion of another panel of this court after Modica. See
Henley v. Simpson, 527 F. App’x 303, 304, 308 (5th Cir. 2013). Though
unpublished and not a precedent, the opinion’s analysis is worthy of our
review. Of some note, perhaps, the same judge who authored both Modica
and Hudson was on the Henley panel, suggesting a fair potential for
consistency in the three opinions. In Henley, five former Mississippi
Highway Patrol officers whose duties included using and caring for police
canines, initially brought suit under the FLSA against the state agency in
charge of the Highway Patrol. Id. at 304. The commissioner of the state
department overseeing the Highway Patrol and the director of the Highway
Patrol were added to the suit in their individual and official capacities after
the agency itself sought dismissal based on the Eleventh Amendment. Id.The district court dismissed the state agency and the official capacity
claim against the commissioner and the director because the claims were
barred under the Eleventh Amendment. Id. The district court cited Modica’s
holding that suits against state employees in their individual capacities are
not barred by the Eleventh Amendment; the court also stated, though, that
the Luder analysis was “somewhat appealing.” Henley v. Simpson, No. 3:10-
CV-590, 2012 WL 3017812, at *3 (S.D. Miss. July 23, 2012). What was
“appealing” was that suits which were “transparently an effort at an end run
around the Eleventh Amendment” by suing a state employee and not the
state should also be dismissed. Id. (quoting Luder, 253 F.3d at 1025). The
district court left it for this court to decide whether to add that consideration
to our Eleventh Amendment caselaw. That is just what the panel did on
appeal.
8
No. 20-20607
Our Henley panel identified the controlling issue as whether
Mississippi was “the real party in interest.” 527 F. App’x at 305. On the
one hand, if the individual state employees will be personally liable for the
judgment — even if indemnified by the state — then the Eleventh
Amendment is inapplicable. Id. at 305–06. The panel then, as did Kazmier,
discussed situations in which the individual was simply a nominal defendant
and the “judgment sought would expend itself on the public treasury . . . or
[] compel [the State] to act.” Id. at 306 (alteration in original) (quoting
Pennhurst, 465 U.S. at 101 n.11). In those situations, the Eleventh
Amendment was a bar. Id.The Henley panel then made a distinction that is key for us. The claim
there concerned “the State’s compensation policy and whether [the state
employees’] caring for, and training, service canines resulted in an accrual of
overtime hours.” Id. at 307. The individual defendants “nether signed nor
promulgated” the policy manual, but they were obligated to enforce it. Id.
Thus, the individual defendants did not act wrongfully under state law. Id.
at 307–08. At most, the policy promulgated by the state itself violated federal
wage and hour laws. Id. A successful suit against the commissioner and the
director, therefore, would evade the Eleventh Amendment for what was in
fact a complaint about what the state had done. Id. at 305.
Quite differently, in the current case, Stramaski is claiming that the
defendant retaliated specifically against her for complaints she was making
about a possible delay in being paid. At least in the usual case, a claim of
retaliation is not going to be a challenge to a state policy simply being
implemented by a supervisor employee.
The Henley panel did go further than this distinction, though, by
concluding that “payment of any wages owed Plaintiffs must ultimately come
from the State treasury (indeed, Defendants may not have the ability to
pay).” Id. at 307. That might be a categorical recasting of FLSA claims for
9
No. 20-20607
lost wages as claims against the state. At least in the context of a retaliation
case on facts such as in the case before us, we conclude that the FLSA does
provide a remedy against an individual employer for lost wages.
We also acknowledge that the Seventh Circuit Luder opinion does not
mirror Henley. The Luder case did not clearly involve an official state policy
that caused the possible FLSA violations. That court’s factual account was
that a prison warden forced defendant prison employees to work before and
after their shifts without pay in order to perform such tasks as checking
equipment and briefing the next shift of workers. Luder, 253 F.3d at 1022.
There is no discussion in the opinion of whether that was official state policy,
as in Henley. The 145 plaintiffs in Luder sought minimum wage for those
hours, beginning three years before suit was filed. Id. at 1024. The court
remarked on the likely impossibility that the warden and the three other
defendants would be able to pay such a judgment, with the potential for
bankruptcy. Id. The Seventh Circuit concluded that the effect of the suit
was the same as a suit against the state, because the practical effect would be
that the state would have to pay the judgment or else the state could not
attract individuals to the supervisory positions such as being a warden at a
prison. Id. In effect, the Seventh Circuit concluded that the real, substantial
party in interest will be the state when the claims are too large for an
individual to be able to pay. Id. at 1024.
The current suit does not present such a doomsday scenario for
potential state individual “employers.” This is a single-plaintiff, retaliation
case in which the defendant is said to have terminated her for complaining
about a delay in receiving her pay.
We return, now, to where we started with Modica’s uncertainty about
the validity of Kazmier as an across-the-board holding that a suit against a
state employee individually should be converted into one against the state.
We conclude that Kazmier went beyond controlling precedent if that is what
10
No. 20-20607
it meant. At least in the retaliation context of this case, we will not recast the
claims as being against the state as the real, substantial party in interest. We
also interpret Modica and Kazmier as properly recognizing, though, that
sometimes a suit against an individual state employee under the FLSA or
FMLA will actually be against the state. The potential financial liability
arising from the Seventh Circuit Luder facts was extreme, but we are not
called on in this case to address individual liability arising on similar facts.
Holding public officials individually liable for retaliation under the
FLSA also is consistent with our prior holdings regarding individual liability
in other FLSA contexts. Some of those opinions did not make the
distinctions we have here, but we need not sort through all such issues in
order to resolve the present appeal. We have held, for example, that
governmental employees can be sued in their individual capacity for FLSA
violations generally, such as for failure to pay overtime wages. Lee v.
Coahoma Cnty., 937 F.2d 220, 226 (5th Cir. 1991). We explained that
“individual[s] with managerial responsibilities” could be held jointly and
severally liable for damages if the individual failed to comply with the FLSA
because that kind of employee fit within the FLSA’s definition of
“employer.” Id. In Lee, we recognized that a sheriff “clearly f[ell] within”
that definition and therefore could be individually liable. Id.Lawley, as a department head within TEES, is someone who at least
at times acts “directly or indirectly in the interest of an employer” regarding
employees. Further, the actions Stramaski identifies as retaliation are those
Lawley committed. Stramaski does not challenge a TEES policy or other
state-initiated action. Instead, she complains of the actions Lawley took
specifically against her. The circumstances of the suit therefore show Lawley
is the true party in interest. Accordingly, Stramaski’s suit is not barred by
sovereign immunity, and she can bring her retaliation claim against Lawley in
his individual capacity.
11
No. 20-20607
II. Qualified Immunity
The parties have assumed that the doctrine of qualified immunity
applies to claims brought under the FLSA. Starting from that premise, their
differing arguments address the doctrine. Our starting point is a conviction
that substantial analysis is necessary before deciding if qualified immunity
ever applies to the FLSA. Nonetheless, because neither party has disputed
the relevance of that doctrine, perhaps any contrary notion has been waived.
Whether waiver applies in this court due to the absence of argument
by either party depends on the nature of the issue. If the issue of whether a
qualified immunity defense is implied by or otherwise exists under a federal
statute is a question of statutory interpretation, then this court is required to
discern statutory meaning regardless of party argument. See Young v. United
Parcel Serv., Inc., 575 U.S. 206, 227–28 (2015). Further, regardless of the
category in which to place the unasked question of whether the doctrine even
applies, we may use our “independent power to identify and apply the proper
construction of governing law” to any “issue or claim [that] is properly
before the court, . . . not limited to the particular legal theories advanced by
the parties.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991). We
conclude that regardless of whether the applicability of qualified immunity to
the FLSA is a statutory-construction issue or whether it is simply too critical
to ignore in this case, we will address it. See Texas Off. of Pub. Util. Couns. v.
FCC, 183 F.3d 393, 440 n.86 (5th Cir. 1999) (explaining the court’s decision
to analyze a constitutional issue not raised by any party on the appeal).
We discover no Fifth Circuit opinion that holds qualified immunity is
a defense under the FLSA. We also find very little discussion in opinions
12
No. 20-20607
from other circuits and none from the Supreme Court. 1 See, e.g., Lang v. Pa.
Higher Educ. Assistance Agency, 610 F. App’x 158, 160, 162–63 (3d Cir. 2015)
(remanding for district court to reevaluate qualified immunity defense to
FLSA claim). We have, though, determined that qualified immunity applies
to FMLA claims. See, e.g., Bryant v. Tex. Dep’t of Aging & Disability Servs.,
781 F.3d 764, 770–71 (5th Cir. 2015) (applying qualified immunity to FMLA
interference claim); Rutland v. Pepper, 404 F.3d 921, 924 (5th Cir. 2005)
(holding the district court “should have granted [defendant] summary
judgment based on qualified immunity” because plaintiff failed to allege
FMLA violation); see also Darby v. Bratch, 287 F.3d 673, 681–82 & n.13 (8th
Cir. 2002) (rejecting qualified immunity defense because FMLA creates
clearly established rights but stating defendant did not raise argument
regarding application of qualified immunity because of uncertainty in its
application to public officials).
In light of the absence of any briefing on this foundational point, and
because the analysis we set out indicates there are complexities involved for
which briefing is needed prior to any decision, we will only identify some of
the analysis that is necessary without reaching a conclusion. Because of our
subsequent determination that qualified immunity would be available on
these facts if it is available for this statute, we remand so the parties and the
district court can make the initial resolution of whether the defense applies
to the FLSA.
We set out the principles for the availability of qualified immunity
under a statute. It is applicable to a congressional enactment when two
1
The Supreme Court made clear more than two decades ago that sovereign
immunity applied to claims brought against states under the FLSA. See Alden v. Maine, 527
U.S. 706, 712 (1999). No issue of qualified immunity as a defense by an individual
defendant was involved in the case. It is Alden that makes a claimant’s only option under
the FLSA to sue another state employee in an individual capacity.
13
No. 20-20607
conditions exist: (1) “the tradition of immunity was so firmly rooted in the
common law” and (2) is “supported by such strong policy reasons that
Congress would have specifically so provided had it wished to abolish the
doctrine.” Wyatt v. Cole, 504 U.S. 158, 163–64 (1992) (quotation marks and
citation omitted) (holding that qualified immunity applies to claims under
Section 1983)). The Wyatt Court held it necessary to analyze “whether there
was an immunity at common law that Congress intended to incorporate”
implicitly into the statute in question; in making the determination, “we look
to the most closely analogous torts” in the common law compared to the
conduct covered by the statute. Id. at 164.
Were there analogous torts in the common law? Did Congress
“intend” to incorporate concepts of qualified immunity when it explicitly
created a more limited defense of good faith in the FLSA? For example, a
good faith following of administrative rulings on the meaning of the FLSA
will bar an action for a violation of the Act. 29 U.S.C. § 259. Further, any
employer who can show that the violation of the FLSA was committed “in
good faith and that he had reasonable grounds for believing that his act or
omission was not a violation” will not be liable for liquidated damages in
addition to actual damages. Id. § 260. We will not go further with setting out
the difficulties, which may not be insurmountable, of applying qualified
immunity to the FLSA. Certainly, though, there are difficulties. The initial
resolution of the issue is for the district court.
When qualified immunity applies, it “shields officials from civil
liability so long as their conduct ‘does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.’”
Mullenix v. Luna, 577 U.S. 7, 11 (2015) (quoting Pearson v. Callahan, 555 U.S.
223, 231 (2009)). A plaintiff can overcome the defense by showing (1) “that
the official violated a statutory or constitutional right” and (2) that “the right
was clearly established at the time of the challenged conduct.” Voss v. Goode,
14
No. 20-20607
954 F.3d 234, 238 (5th Cir. 2020). A clearly established right is a right that
is “sufficiently clear that every reasonable official would [have understood]
that what he is doing violates that right.” Reichle v. Howards, 566 U.S. 658,
664 (2012) (alterations in original) (quotation marks and citation omitted).
In assessing whether the defendant violated a clearly established right, we
must ask “not only whether courts have recognized the existence of a
particular constitutional right, but also . . . whether that right has been defined
with sufficient clarity to enable a reasonable official to assess the lawfulness
of his conduct.” Morgan, 659 F.3d at 372 (alteration in original) (citation
omitted).
We now examine the facts as to whether, if available under the FLSA,
qualified immunity would apply. The district court accepted the magistrate
judge’s conclusion that Stramaski’s claim is that she was terminated for
insisting that she be timely paid. We have held that a violation of a much
earlier version of the FLSA occurs when “an employer on any regular
payment date fails to pay the full amount of the minimum wages and overtime
compensation due an employee.” Atlantic Co. v. Broughton, 146 F.2d 480,
482 (5th Cir. 1944). For purposes of our analysis in this case, we accept that
as a fair reading of the obligation.
For Stramaski’s retaliation claims, she must have plausibly alleged
that her discharge was because she “filed any complaint or instituted or
caused to be instituted any proceeding under or related to this chapter.” 29
U.S.C. § 215(a)(3). No complaint was filed in the sense of a formal, written
statement. We have held that some informal complaints about FLSA
violations may suffice, but they have to be more than “abstract grumblings or
vague expressions of discontent.” See Hagan v. Echostar Satellite, L.L.C., 529
F.3d 617, 626 (5th Cir. 2008) (quotation marks and citation omitted). Among
other requirements, there must be assertions that the challenged conduct is
or would be unlawful. Id. Here, Stramaski insisted that she has a “legal
15
No. 20-20607
right” to be paid on time. Thus, much of what is required by our caselaw is
satisfied here.
There is a question, though, arising from the fact that Stramaski never
complained about not being timely paid. In fact, she received her wages for
the relevant time period on the proper date. Instead, her claim is that she
suffered retaliation because she complained about being told that her next
paycheck would be late. Whether her complaints made the difference or not,
the prospect of late wages did not materialize. Thus, the issue under qualified
immunity is whether discharging an employee when the employee insists that
a violation of law not occur in the future, and the violation did not in fact
occur, can constitute retaliation under the FLSA. It is that factual
permutation that causes us to conclude that there is no clearly established
law, with a sufficient degree of specificity, that Stramaski’s termination was
a violation of the FLSA.
We will mention the defendant’s separate argument that the law also
was not clearly established that an individual supervisory state employee like
Lawley could be held personally liable under the FLSA. Even if that was
uncertain, and we do not conclude it was, any uncertainty about the liability
that would arise for violating someone’s certain rights is not the proper focus.
Whether a lawsuit can follow, i.e., whether liability can be imposed, from
someone’s actions is an entirely separate question from whether it is clearly
established that someone’s actions were objectively reasonable at the time
they occurred. In other words, the concern is whether, at the time that the
relevant acts occurred, the future defendant’s actions violated a clear right of
a future plaintiff. See Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).
We have been shown no caselaw that supports that the prospective defendant
needs to know all the repercussions of a knowing violation of someone’s
right. It is enough that the right being violated is clear.
16
No. 20-20607
Based on this analysis, Stramaski’s claim would be barred by qualified
immunity because she does not allege that Lawley violated a clearly
established law. However, the antecedent question is whether qualified
immunity applies to the FLSA to begin with. We therefore remand for the
district court to decide this question in the first instance. Montano v. Texas,
867 F.3d 540, 546 (5th Cir. 2017) (“[A] court of appeals sits as a court of
review, not of first view.’” (citation omitted)). 2
In summary, we affirm the rejection of sovereign immunity as a
defense. We AFFIRM the denial of the defense of sovereign immunity. We
VACATE the judgment denying the defense of qualified immunity and
REMAND for further proceedings consistent with this opinion.
2
If qualified immunity does not apply to the FLSA, and Lawley is found liable,
Stramaski may recover lost wages and damages from him, but not relief that can be provided
only by the state, like employee benefits and continued employment with TEES. A suit for
lost benefits, even if brought against Lawley, would actually be a suit against the state, see
Modica, 465 F.3d at 183, which we have held is barred here by sovereign immunity.
17
No. 20-20607
Gregg Costa, Circuit Judge, concurring:
It says something about how much qualified immunity dominates
section 1983 litigation that everyone in the district court—the experienced
lawyers and judges alike—assumed the immunity exists whenever a public
official is sued. But qualified immunity is not some “brooding omnipresence
in the sky” that automatically attaches in any suit. See S. Pac. Co. v. Jensen,
244 U.S. 205, 222 (1917) (Holmes, J., dissenting). Rather, it is a defense that
must be found in the governing statute. See Wyatt v. Cole, 504 U.S. 158, 163
(1992). So whether the FLSA contains an immunity defense is a question of
statutory interpretation.
And in a textualist world, recognizing an immunity defense when the
words of the statute do not provide one is an extraordinary act of
interpretation. Courts should read an immunity defense into a statute only
“if the ‘tradition of immunity was so firmly rooted in the common law and
was supported by such strong policy reasons that ‘Congress would have
specifically so provided had it wished to abolish the doctrine.” Wyatt, 504
U.S. at 163–64 (quoting Owen v. City of Independence, 445 U.S. 622, 637
(1980)). 1 Given this stringent inquiry, it is no surprise that qualified
immunity is “typically invoked” in constitutional tort cases under section
1983 and Bivens, causes of action “largely ‘devised by the Supreme Court
without any legislative . . . guidance.’” Berry v. Funk, 146 F.3d 1003, 1013
1
Justice Kennedy’s concurring opinion in Wyatt, seemingly the controlling opinion
as only four justices signed on to Justice O’Connor’s opinion, casts doubt on the role of
“policy reasons” in determining if an immunity defense exists. See 504 U.S. at 170–72
(Kennedy, concurring). It is not clear, however, that his opinion overrules the policy
considerations relied on in earlier cases. See id. at 171 (“We need not decide whether or
not it was appropriate for the Court in Harlow to depart from history in the name of public
policy, reshaping immunity doctrines in light of those policy considerations.”). What
Justice Kennedy’s opinion makes certain, however, is that common-law immunities for
analogous claims must have existed when Congress enacted a statute because implicitly
recognizing an immunity defense is “devising limitations to a remedial statute, enacted by
the Congress, which ‘on its face does not provide for any immunities.” Id. (quoting Malley
v. Briggs, 475 U.S. 335, 342 (1986)).
18
No. 20-20607
(D.C. Cir. 1998) (quoting Crawford-El v. Britton, 93 F.3d 813, 832 (D.C. Cir.
1996) (en banc) (Siberman, J., concurring)). After all, when Congress creates
specific statutory defenses—which it did not do when enacting section 1983
in the Civil Rights Act of 1871—it likely does not intend to incorporate
general common law defenses as well. See id.While the Supreme Court has found a sufficient common law
immunity to read in qualified immunity case a defense to constitutional torts,
lower courts have found no similar tradition for rights created by some
statutes. For example, we found no qualified immunity for retaliation suits
under the False Claims Act. See Samuel v. Holmes, 138 F.3d 173, 178 (5th Cir.
1998) (Reavley, J.). Other courts have rejected immunity defenses under the
antifraud provisions of the False Claims Act, United States ex rel. Citynet,
LLC v. Gianato, 962 F.3d 154, 159–60 (4th Cir. 2020); United States ex rel.
Parikh v. Citizens Med. Ctr., 977 F. Supp. 2d 654, 678–86 (S.D. Tex. 2013),
and under statutes as varied as the Wiretap Act, see Berry, 146 F.3d at 1013–
14, the Civil Rights Act, see Carl v. Angelone, 883 F. Supp. 1433, 1436–37 (D.
Nev. 1995); and the Stored Communications Act, see Hepting v. AT&T Corp.,
439 F. Supp. 2d 974, 1006–09 (N.D. Cal. 2006).
That said, courts have found immunity defenses to some statutory
claims. See, e.g., Tapley v. Collins, 211 F.3d 1210, 1214–17 (11th Cir. 2000)
(finding immunity defense under Wiretap Act); Blake v. Wright, 179 F.3d
1003, 1011–13 (6th Cir. 1999) (same); Lue v. Moore, 43 F.3d 1203, 1205 (8th
Cir. 1994) (same for Rehabilitation Act); Gonzalez v. Lee Cnty. Hous. Auth.,
161 F.3d 1290, 1299–1300 & n.31 (11th Cir. 1998) (same for Fair Housing
Act). Those cases, however, wrongly assume that immunity is the default
and exists unless Congress states otherwise. See, e.g., Tapley, 211 F.3d at 1214
(“[T]he defense of qualified immunity is so well established, that if Congress
wishes to abrogate it, Congress should specifically say so.”). The same
reasoning characterizes our decision recognizing an immunity defense under
the Family and Medical Leave Act. See Bryant v. Tex. Dep’t of Aging &
Disability Servs., 781 F.3d 764, 770–71 (5th Cir. 2015)
19
No. 20-20607
But the Supreme Court’s instruction on how to evaluate the
availability of qualified immunity is different. To find an atextual immunity
defense, the court must conduct a statute-specific analysis to determine if
common-law immunity from suit was “firmly rooted” as a protection against
a closely analogous tort. Wyatt, 504 U.S. at 164–65; id. at 171 (Kennedy, J.,
concurring). For this case, then, the proper inquiry is whether, when
Congress enacted the Fair Labor Standards Act’s antiretaliation provision,
there was a tradition of immunity for a claim alleging intentional retaliation
in the workplace. 2
With these additional observations, I fully join the majority opinion
and leave it to the district court to decide the existence of an immunity
defense under the FLSA after full briefing from the parties.
2
There are two potential dates to focus on. The original FLSA, enacted in 1938,
only allowed the Secretary of Labor to bring retaliation claims. A 1977 Amendment to the
law created a private cause of action for such claims. See Pineda v. JTCH Apartments,
L.L.C., 843 F.3d 1062, 1064 (5th Cir. 2016).
20