United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE
case comes before the Court on what this Court construes as
plaintiff's motion to reconsider the entry of summary
judgment under Federal Rule of Civil Procedure 59(e) (#39).
Defendant did not respond and the time to do so has passed.
Nonetheless, the issues are ripe for disposition.
filed a three-count complaint, including a Fair Labor
Standards Act (“FLSA”) violation claim and an
FLSA retaliation claim. Plaintiff's FLSA violation claim
alleges that the defendant employer did not properly pay the
plaintiff her requisite overtime as required under the FLSA.
The FLSA violation claim survived summary judgment and is set
for trial in June. However, this Court disposed of
plaintiff's FLSA retaliation claim in its entry of
summary judgment on March 13, 2017 (#38). Plaintiff claimed
that the defendant terminated her employment in retaliation
for her informal oral complaints with her employer and a
written complaint with the Department of Labor
(“DOL”). In the briefing for the motion for
summary judgment, plaintiff cited only one case in her three
and a half page response in opposition to defendant's
motion for summary judgment, and plaintiff cited no authority
at all in relation to her FLSA retaliation claim.
Court granted summary judgment in favor of the defendant as
to plaintiff's FLSA retaliation claim, holding that there
was no genuine issue of material fact and that the undisputed
facts indicated that plaintiff could not establish the
requisite element of causation. More pertinent to this motion
to reconsider, this Court held that plaintiff's informal
oral complaints to her employer did not constitute a
protected activity under the FLSA and thus could not serve as
the basis of the FLSA retaliation claim. The Court cited
Bartis v. John Bommarito Oldmosbile-Cadillac, Inc.,
626 F.Supp.2d 994 (E.D. Mo. 2009) and Gray v. City of Oak
Grove, 396 F.3d 1031 (8th Cir. 2005) as controlling
authority on this issue. Now, for the first time, plaintiff
cites Kasten v. Saint-Gobain Performance Plastics
Corp., 563 U.S. 1 (2011) for the proposition that that
case superseded the 8th Circuit precedent. Plaintiff argues
that this Court overlooked the Kasten case and
because it is controlling authority, this Court's entry
of summary judgment should be reconsidered.
FLSA makes it unlawful to discharge or to discriminate
against an employee “because such employee has filed
any complaint or instituted or caused to be instituted any
proceeding ..., or has testified or is about to testify in
any such proceeding, or has served or is about to serve on an
industry committee.” 29 U.S.C. § 215(a)(3). To
establish a prima facie case of retaliation under the FLSA,
“a plaintiff must show that [he/she] participated in
statutorily protected activity, that the defendant took an
adverse employment action against [him/her], and there was a
causal connection between the two.” Bartis v. John
Bommarito Oldsmobile-Cadillac, Inc., 626 F.Supp.2d 994,
998 (E.D. Mo. 2009) (citing Grey v. City of Oak
Grove, 396 F.3d 1031, 1034-35 (8th Cir. 2005).
“The Eighth Circuit decisions interpreting §
215(a)(3) make clear that the employee must engage in
protected activity in order to be shielded from
retaliation. See Grey, 396 F.3d at 1034-35. The
‘protected activities' are listed explicitly in the
statute: filing a complaint, instituting or testifying in a
proceeding, or serving on a committee.”
Bartis, 626 F.Supp.2d at 999. Prior to 2011,
informal workplace complaints were not considered protected
activities under the FLSA in the Eighth Circuit Court of
altered Eighth Circuit Court of Appeals' precedent and
found that the statutory term “filed any
complaint” included oral complaints as well as written
complaints, meaning that oral complaints to employers can
serve as the basis of an FLSA retaliation claim. 563 U.S. at
4. But, not any oral complaint will suffice. The standard set
out in Kasten stated that an oral 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 call for their protection” to find the
employee engaged in the statutorily protected activity of
filing a complaint. Id. at 14. In Kasten,
the employee claimed he was not compensated for time taking
off protective gear, which constituted a violation of the
FLSA, and he complained of the supposed illegality to four
different individuals who were his superiors in the company.
Id. at 5-6. Specifically, he told his superiors that
he “was thinking about starting a lawsuit” and
that if the company was sued because of its actions,
“they would lose” in court. Id. The
Supreme Court found that his highly specific oral allegations
that the defendant violated his rights under the FLSA could
constitute the filing of an action under the FLSA, remanding
the case back to the district court. Id. See Kasten v.
Saint-Gobain Performance Plastics Corp., 703 F.3d 966,
968 (7th Cir. 2012).
Kasten, courts have held that not every instance of
an employee “letting off steam” constitutes the
filing of a complaint under the FLSA and that “some
degree of formality” is required to put the employer on
fair notice that a grievance has been lodged against it.
Minor v. Bostwick Laboratories, Inc., 669 F.3d 428,
439 (4th Cir. 2012). To do so, the employee's oral
complaint does not have to reference the FLSA but should
“be framed in terms of potential illegality, ”
either by alleging a violation under the FLSA or by asserting
facts that establish a violation. Cotto v. John C.
Bonewicz, P.C., Case No. 13 C 842 TMD, 2015 WL 3609167
at *8 (N.D. Ill. June 9, 2015). Simply complaining about
wages or hours does not necessarily entitle the employee to
protection under the FLSA. Id. at 9 (citing
Kasten, 563 U.S. at 13-15). The complaint must
suggest to a reasonable employer that the employee was
asserting a legal right to overtime pay.
case, plaintiff presented evidence that she referenced her
legal right to overtime wages to her employer. She stated:
“I did inform [defendant] that I was not being paid
overtime hours.” Pl. Affidavit ¶ 12.
“I asked to be paid my overtime hours on several
occasions commencing in August/September of 2015 and
continuing.” Pl. Affidavit ¶ 23.
“I complained about not being paid appropriate overtime
wages on several occasions with [defendant.]” Pl.
Affidavit ¶ 25.
indicated that she was not being paid appropriate overtime
hours and repeated this argument on several occasions to the
defendant's management. Because this Court must review
the facts and resolve all conflicts of evidence in favor of
the party opposing a motion for summary judgment, this ...