Greathouse v. JHS Security Inc.

In this appeal, we consider the effect of the Supreme Court’s decision in Kasten v. Saint-Gobain Performance Plastics Corp., — U.S. —, 131 S.Ct. 1325, 179 L.Ed.2d 379 (2011), on our 1993 decision in Lambert v. Genesee Hospital, 10 F.3d 46 (2d Cir.1993), concerning what constitutes “fil[ing a] complaint” under the anti-retaliation provision of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 215(a)(3).

Section 215(a)(3) makes it unlawful “to discharge or in any other manner , discriminate against any employee because such employee has filed any complaint ... related to” FLSA’s provisions. In Lambert, we read section 215(a)(3) to require that an employee pursuing a claim for unlawful retaliation have done more than voice an equal pay complaint to a supervisor. 10 F.3d at 55-56. To serve as a predicate for an FLSA retaliation claim, we held, a complaint must be “formally]” filed, see id. — a condition that we have subsequently interpreted to require (1) a written complaint, that is (2) filed with a government agency.1

In its 2011 decision in Kasten, however, the Supreme Court held that the section’s pivotal phrase — “filed any complaint” — encompasses oral as well as written corn-*107plaints, so long as the complaint is “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.” 131 S.Ct. at 1335. To the extent, then, that Lambert turned on the oral nature of the complaint made by the employee, Kasten rejected Lambert’s analysis. The Kasten Court refrained, however, from addressing the second factor on which the Lambert analysis hinged: that the complaint must be directed to a government agency, not merely to a supervisor in the ranks of the defendant employer. Kasten, 131 S.Ct. at 1336. Although Kasten itself arose in the context of an oral complaint made to an employer, not a government agency, the Kasten Court declined to address specifically whether retaliation for a complaint made to an employer is actionable. See id. at 1336.

Kasten overrules Lambert’s requirement that an employee seeking section 215(a)(3)’s protections file a written complaint. As we discuss below, Kasten also casts doubt on Lambert’s second requirement: that, for an employee’s complaint to fall within the protections of section 215(a)(3), it be made to a government agency. Indeed, we not long ago characterized Kasten (albeit in a footnote) as effecting an “abrogation of our precedent in this area.” Kuebel v. Black & Decker Inc., 643 F.3d 352, 358 n.3 (2d Cir.2011). Lambert’s holding in this respect is at odds, moreover, with the weight of authority in our sister circuits, and with the consistently held position of the two authorities charged with section 215(a)(3)’s enforcement: the Secretary of Labor and the Equal Employment Opportunity Commission (“EEOC”).

Therefore, today, we overrule Lambert to the extent it holds that section 215(a)(3) requires an employee to have filed a complaint with a government agency as a predicate for an FLSA retaliation claim.2 We conclude that an employee may premise a section 215(a)(3) retaliation action on an oral complaint made to an employer, so long as — pursuant to Kasten — the complaint is “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.” 131 S.Ct. at 1335. Accordingly, because the District Court denied Greathouse damages on his claim for retaliatory discharge based entirely on Lambert’s rule, we vacate the judgment insofar as it relied on Lambert and remand the cause for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

We recite the facts as found by the Magistrate Judge in a report and recommendation that was adopted by the District Court. See Greathouse v. JHS Sec., Inc., No. 11 Civ. 7845(PAE)(GWG), 2012 WL 3871523 (S.D.N.Y. Sept. 7, 2012), adopted by 2012 WL 5185591 (S.D.N.Y. Oct. 19, 2012). Because both defendants defaulted, the Magistrate Judge properly accepted as true the well-pleaded factual allegations of Greathouse’s complaint regarding liability, and provided for further proceedings to determine the appropriate damage award. See SEC v. Razmilovic, 738 F.3d 14, 19 (2d Cir.2013).

*108From September 2006 through October 14, 2011, plaintiff Darnell Greathouse worked as a security guard for defendant JHS Security Inc. (“JHS”). Greathouse considered defendant Melvin Wilcox, the president and part-owner of JHS, to be his “boss.” Greathouse, 2012 WL 3871523, at *2. During the course of his employment with JHS, Greathouse was the victim of a number of improper employment practices, including non-payment and late payment of wages, and improper payroll deductions. Although Wilcox repeatedly told Great-house that he would receive his outstanding paychecks, those checks never arrived.

On October 14, 2011, Greathouse complained to Wilcox that he had not been paid in several months. Wilcox responded, “I’ll pay you when I feel like it,” and, without warning, drew a gun and pointed it at Greathouse. Greathouse, 2012 WL 3871523, at *2. Greathouse understood that response as ending his employment with JHS.

About two weeks later, Greathouse filed his complaint in the United States District Court for the Southern District of New York. In addition to various FLSA and New York Labor Law (“NYLL”) claims related to his missing and improperly reduced wages,3 he alleged that Wilcox and JHS (through Wilcox) had effectively discharged him in retaliation for his October 14th complaint, thereby violating section 215(a)(3) and the NYLL.

Several months later, after neither defendant appeared or filed an answer, the clerk of court entered defaults against both. The District Court then referred the matter to a magistrate judge to evaluate Greathouse’s claims for damages. The Magistrate Judge issued a Report and Recommendation in September 2012, recommending that the District Court enter a damages award in the total amount of $30,658.50, plus prejudgment interest, for Greathouse’s claims for unpaid overtime, unpaid wages, improper deductions, and liquidated damages under the NYLL. Greathouse, 2012 WL 3871523, at *12.

As to the retaliation claim, however, the Magistrate Judge concluded that Lambert barred an award because Greathouse had not filed a complaint with any government agency or other prosecutorial authority, but had merely confronted his employer in person to demand his missing wages. The Magistrate Judge recognized that, under the Supreme Court’s holding in Kasten, an oral complaint may serve as a predicate for an FLSA retaliation claim. The Magistrate Judge correctly acknowledged, however, that Kasten did not overturn Lambert insofar as we held there that a complaint made to a supervisor is not a complaint “filed” under section 215(a)(3).

Greathouse filed objections to the Magistrate Judge’s report in the District Court, contesting, inter alia, the Magistrate Judge’s finding that Greathouse was not entitled to damages for his FLSA retaliation claim. The District Court rejected Greathouse’s objection on this issue, agreeing with the Magistrate Judge about the continued import of Lambert. The District Court subsequently adopted the Magistrate Judge’s conclusions, subject only to two minor exceptions not relevant here, and the District Court entered default judgment.4

*109On appeal, Greathouse argues primarily that, in light of Kasten, we should overrule what remains of Lambert and squarely hold that FLSA prohibits retaliation against employees who complain orally to their employers about perceived FLSA violations. Because defendants defaulted in the District Court and never filed an appearance in this Court, we appointed pro bono counsel to argue, as amicus curiae in support of defendants, that the Supreme Court’s decision in Kasten did not abrogate our holding in Lambert and that the Lambert rule with respect to intra-company complaints should survive. The two administrative authorities charged with administering FLSA — the EEOC and the Secretary of Labor — filed amicus briefs in support of Greathouse’s position.5

DISCUSSION

Section 215(a)(3) forbids “any person” from “discharg[ing] or in any other manner diseriminat[ing] against any employee because such employee has 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) (emphasis added). As described above, the Supreme Court held in Kasten that FLSA’s anti-retaliation provision “includes oral as well as written complaints.” 131 S.Ct. at 1329. The Court overruled Lambert and our precedent following Lambert to the extent that Lambert required an employee to have filed a written complaint to claim FLSA’s protections. Id. at 1330 (citing Lambert as a contrary decision). But the Kasten Court expressly declined to address the question whether an employer’s retaliation for an intra-company complaint is actionable under FLSA.6 Id. at 1336.

It is difficult to ignore, however, that the complaint at issue in Kasten was lodged not with a government agency, but with an employer. See id. at 1340-41 (Scalia, J., dissenting). Although slightly different concerns animated the Court’s discussion in Kasten, an interpretation that excludes clearly stated complaints from protection because they were made to the employer instead of a government agency would run counter to the broadly remedial purpose that the Kasten Court instructed FLSA serves. See id. at 1334. So, although we recognize that the Court has not yet ruled on this precise question, we conclude that its ruling in Kasten must be read as casting serious doubt on the second component of our ruling in Lambert.

A. Our Holding in Lambert

In Lambert, three female employees alleged that their employer, Genesee Hospital (the “Hospital”), retaliated against them in violation of the Equal Pay Act'of 1963 (“EPA”), 29 U.S.C. § 206(d), a statute that amended FLSA. 10 F.3d at 50. Two of the plaintiffs, Janine Lambert and Eva Baker, alleged that they complained to their departmental supervisor and to a member of the Hospital’s employee-affairs department about Baker’s salary, which in their view was unfairly lower than that of a male employee in the department (Francis Dupre), whose responsibilities were substantially equivalent to Baker’s. Id. at 51.

About one year after Lambert and Baker complained, the supervisor selected Dupre to manage the department. Id. Citing that incident and others, Lambert, *110Baker, and one of their female colleagues sued the Hospital, their supervisor, and Dupre, alleging that Dupre’s promotion over Baker was made in retaliation for Lambert and Baker’s complaints to their supervisor about Baker’s unequal pay. Id. This, they contended, violated the EPA and section 215(a)(3).7

The district court assumed that plaintiffs’ allegations stated a retaliation claim under section 215(a)(3), Lambert, 10 F.3d at 56, and the case proceeded to trial, where a jury found for plaintiffs on them retaliation claim as well as on their equal pay claim, id. at 51-52. After trial, however, the district court granted defendants’ motion for judgment notwithstanding the verdict. Id. at 52. Plaintiffs appealed the resulting dismissal.

On appeal, we held that the district court erred in granting judgment to defendants on plaintiffs’ retaliation claim because defendants had waived their legal argument. Id. at 54. Nonetheless, we dismissed plaintiffs’ section 215(a)(3) claim, on our own accord, for failure to state a claim. Id. at 56. We determined that the plain language of section 215(a)(3) — to “file[ ] any complaint” — “limits the cause of action to retaliation for filing formal complaints, instituting a proceeding, or testifying, but does not encompass complaints made to a supervisor.” Id. at 55. Because plaintiffs premised their claim on “simply oral complaints to a supervisor,” they had not stated a claim for retaliation under section 215(a)(3). Id. at 55-56.

The Lambert court’s conclusion — that an employee pursuing a claim for unlawful retaliation must do more than voice an equal pay complaint to a supervisor to invoke section 215(a)(3)’s protections — is contrary to the weight of authority in our sister circuits, even more so now than when Lambert was decided. Indeed, the First, Fourth, Fifth, Seventh, Eighth, Ninth, Tenth, and Eleventh Circuits have all held that section 215(a)(3) protects employees from retaliation for their complaints made to employers, and the Sixth Circuit has assumed, without significant discussion, that complaints to an employer are covered by section 215(a)(3).8 The *111EEOC has long maintained the position that the Act protects employees who make such intra-company complaints.

B. The Supreme Court’s Holding in Kasten

Nearly two decades after Lambert was decided, after these developments in other circuits and application of Lambert within our own, the Supreme Court granted certiorari in Kasten to resolve a “conflict among the Circuits as to whether an oral complaint is protected” by section 215(a)(3). 131 S.Ct. at 1330. The question there arose from an employee’s oral complaints to his shift supervisor and to other employees that their employer was violating FLSA by failing to compensate them for time spent donning and doffing their work-related protective g,ear. .Id. at 1329-30. The Seventh - Circuit had affirmed summary judgment for the employer, ruling that FLSA does not protect oral complaints. Id. at 1330.

Deciding that the statutory phrase “filed any complaint,” read in isolation, is “open to competing interpretations,” id. at 1330-31, the Supreme Court looked to FLSA’s basic objectives for interpretive guidance. It also examined the range of meanings that the words “filed” and “complaint” and the phrase “filed any complaint” could bear and gave “a degree of weight” to the views of the agencies charged with enforcing FLSA — the Department of Labor and the EEOC, which argued for a broad reading of the section, one protective of employees. Id. at 1335.

The Court concluded that “only one interpretation is permissible”: an oral complaint is protected by FLSA’s anti-retaliation provision if the complaint is “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 1331, 1335. Despite framing the inquiry by reference to what a “reasonable employer” would understand, id. at 1335 (emphasis added), the Court nevertheless expressly declined to address the logically prior question whether FLSA applies, in the first instance, to complaints made directly to employers, rather than to government agencies. Id. at 1336. It is to that question that we now turn.

C. Looking Anew at the Statutory Language: “Filed Any Complaint”

Both impelled and guided by Kasten, we now look anew at the statutory interpretation question that we addressed of our own accord in Lambert, but that the Kasten Court did not resolve: does section 215(a)(3) prohibit retaliation against employees for oral complaints made to employers?

1. The phrase “filed any complaint” admits of more than one meaning

A statute generally “should be enforced according to its plain and unambiguous meaning.” United States v. Livecchi, 711 F.3d 345, 351 (2d Cir.2013). The “plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). If we determine that a statutory provision is ambiguous, we then turn to canons of statutory construction for assistance in interpreting the statute. See Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 423 (2d Cir.2005).

In Lambert, we determined that the plain language of section 215(a)(3) prohib*112ited only “retaliation for filing formal complaints, instituting a proceeding, or testifying.” Lambert, 10 F.3d at 55 (emphasis added). But when we look again at section 215(a)(3), with the benefit of Kasten and the readings of our sister circuits, we now conclude that the statutory language is not as plain and unambiguous as it seemed when Lambert was decided. See Kasten, 131 S.Ct. at 1330-31 (stating that section 215(a)(3) “may be open to competing interpretations”). As the Supreme Court explained, “even if the word ‘filed,’ considered alone, might suggest a narrow interpretation limited to writings, the phrase ‘any complaint’ suggests a broad interpretation that would include an oral complaint.” Id. at 1332.

Guided by this discussion, we must reevaluate the distinction drawn in Lambert and its progeny between “formal” complaints to government agencies and “informal” complaints to supervisors. First, we observe that the text of the statute does not provide that a complaint must be filed “formally,” or exclude from its protections those complaints that are filed “informally.” In short: it does not use either word. Nór does it expressly direct that, to be protected, a complaint must be filed with a government agency or any particular entity.9 Second, even if the word “filed,” considered alone, might seem to contemplate lodging a complaint with a governmental body, the word’s context counsels against a narrow reading: as the Supreme Court reasoned, the phrase “any complaint” suggests an expansive reading, one that could include complaints filed with or expressed to an employer.

Citing Justice Scalia’s dissent in Kasten, 131 S.Ct. at 1337 (Scalia, J., dissenting), amicus curiae in support of defendants argues that, the phrase “filed any complaint” clearly and unambiguously refers only to complaints made to government agencies, because every other use of the word “complaint” in FLSA refers to a governmental filing. See 29 U.S.C. § 216(b) (explaining that the right to bring certain actions “shall terminate upon the filing of a complaint by the Secretary of Labor”); id. § 216(c) (explaining that the statute of limitations for an action for unpaid wages commences “on the date when the complaint is filed”); id. § 218c(b) (setting forth the “Complaint procedure” by which one may “seek relief’ by filing a complaint with the Department of Labor). Amicus also contends that the phrase “filling a] complaint” is not commonly used to describe the act of complaining to an employer.

But, as our sister circuits have recognized, the phrase “filed any complaint” may also plausibly be interpreted to include intrá-company complaints. The accepted definition of “to file,” as the First Circuit has noted, may include an employee’s submission of a written letter of complaint to an employer: the concept is “sufficiently elastic to encompass an internal complaint made to a private employer with the expectation the employer will place it on file among the employer’s official records.” Valerio v. Putnam Assocs. Inc., 173 F.3d 35, 41-42 (1st Cir.1999) (Campbell, J.).10 And, filing work-related griev*113anees with employers is a common practice in many workplaces. See, e.g., Lambert v. Ackerley, 180 F.3d 997, 1004 (9th Cir.1999) (en banc) (noting that “any complaint” is clearly broad enough to encompass complaints made to employers, and highlighting the widespread practice of “filing” grievances and complaints with unions and employers before commencing other internal or external proceedings). In addition, “filed any complaint” must be examined in context, contrasting it with the neighboring phrase, “instituted any proceeding”: to avoid rendering one or the other surplus-age, we may construe the first to contemplate a communication (such as an intracompany complaint seeking a change in company practice) that does not ordinarily trigger a “proceeding” (such as an adjudicatory process).11

In light of these competing interpretations, we conclude that the statutory phrase “filed any complaint” is variable in meaning and does not unambiguously denote submission of complaints to government agencies alone. To interpret the language of the statute, then, we must apply traditional tools of statutory interpretation. These include looking to the purpose of FLSA, and affording some degree of weight to the interpretations of the agencies charged with enforcing it. See Minor v. Bostwick Labs., Inc., 669 F.3d 428, 436 (4th Cir.2012) (concluding that “ ‘filed any complaint’ is ambiguous as to whether intracompany complaints are protected activity under the FLSA,” and “mov[ing] to other interpretive tools”).

2. Statutory purpose

Congress declared its intention in FLSA “to correct and as rapidly as practicable to eliminate” labor conditions “detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers,” without substantially reducing employment or earning power. 29 U.S.C. § 202. To achieve this goal, FLSA sets forth minimum wage standards, id. § 206, and establishes certain payroll practice requirements, id. §§ 207, 211(c), among other mandates. Because the government cannot directly monitor every employer’s payroll, FLSA also creates an enforcement mechanism that relies in significant part on employees’ complaints. See Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960). Congress enacted section 215(a)(3) to “prevent[ ] fear of economic retaliation from inducing workers quietly to accept substandard conditions,” Kasten, 131 S.Ct. at 1333 (internal quotation marks omitted), and to foster an atmosphere protective of employees who lodge such complaints.

We have repeatedly affirmed that “the remedial nature of the FLSA warrants an expansive interpretation of its provisions so that they will have the widest *114possible impact in the national economy.” Irizarry v. Catsimatidis, 722 F.3d 99, 110 (2d Cir.2013) (internal quotation marks and alterations omitted); Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d Cir.1984) (same); see also Zheng v. Liberty Apparel Co., 355 F.3d 61, 66 (2d Cir.2003) (recognizing the “remedial purpose” of FLSA). FLSA’s remedial goals counsel in favor of construing the phrase “filed any complaint” in section 215(a)(3) broadly, to include intra-company complaints to employers as well as complaints to government agencies. See, e.g., Valerio, 173 F.3d at 43 (concluding that the “remedial and humanitarian purposes of [FLSA] ... would hardly be furthered by a narrow reading of § 215(a)(3)” (internal quotation marks and citations omitted)).

Prohibiting retaliation against employees who make internal complaints furthers the purposes of FLSA by encouraging speedier and more efficient resolution of employee grievances, and resolving FLSÁrelated issues before employees have lost significant wages or other benefits. As the Supreme Court cautioned in Kasten, limiting the protections of section 215(a)(3) to employees who make complaints to government agencies “would discourage the use of desirable informal workplace grievance procedures to secure compliance with the Act.” 131 S.Ct. at 1334. Even before Kasten, the First Circuit opined that “[b]y protecting only those employees who kept secret their belief that they were being illegally treated until they filed a legal proceeding,” a narrow interpretation of FLSA “would discourage prior discussion of the matter between employee and employer, and'Would have the bizarre effect both of discouraging early settlement attempts and creating an incentive for the employer to fire an employee as soon as possible after learning the employee believed he was being treated illegally.” Valerio, 173 F.3d at 43.

The protective purpose of FLSA, recognized and acted on by the Kasten Court, counsels unmistakably in favor of adopting a reading of the statutory phrase “filed any complaint” that includes lodging an internal complaint with an employer.

3. Administrative interpretations

We next examine another factor relevant to our analysis: the views of the EEOC and the Secretary of Labor, as the authorities charged with enforcing FLSA.12 “The well-reasoned views of the agencies implementing a statute constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.... ” United States v. Mead Corp., 533 U.S. 218, 227, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001) (internal quotation marks and brackets omitted). The weight appropriately afforded an agency interpretation that lacks the force of law— such as an agency manual or litigation document — depends upon “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Skidmore v. Swift & Co., 323 U.S. 134, 140,