Claudio-Gotay v. Becton Dickinson Caribe, Ltd

• Decision Date: 13 July 2004
• Docket Number: No. 03-1752.,03-1752.
• Citation: 375 F.3d 99
• Parties: Efraín CLAUDIO-GOTAY, Efraín Claudio-Cruz, and Elia M. Gotay-Cruz, Plaintiffs, Appellants, v. BECTON DICKINSON CARIBE, LTD.; Víctor Pagán, Personally and as General Manager of Becton Dickinson Caribe, Ltd.; Hiram Ocasio, Personally and as Manager of Becton Dickinson Caribe, Ltd.; John Doe; Jane Doe; Insurance Company X & Y, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

375 F.3d 99

Efraín CLAUDIO-GOTAY, Efraín Claudio-Cruz, and Elia M. Gotay-Cruz, Plaintiffs, Appellants, v. BECTON DICKINSON CARIBE, LTD.; Víctor Pagán, Personally and as General Manager of Becton Dickinson Caribe, Ltd.; Hiram Ocasio, Personally and as Manager of Becton Dickinson Caribe, Ltd.; John Doe; Jane Doe; Insurance Company X & Y, Defendants, Appellees.

No. 03-1752.

United States Court of Appeals, First Circuit.

Heard March 1, 2004.

Decided July 13, 2004.

COPYRIGHT MATERIAL OMITTED

Jorge L.M. Cintrón-Pabón, with whom Edgardo R. Jiménez-Calderín and Jiménez Calderín Law Offices, were on brief, for appellants.

Manuel A. Núñez-Aragunde, with whom Manuel A. Núñez Law Offices, Martha L. Martínez-Rodríguez, Gloria M. De Corral-Hernández, and De Corral & De Mier, were on brief, for appellees.

Before TORRUELLA, Circuit Judge, COFFIN, Senior Circuit Judge, and SELYA, Circuit Judge.

TORRUELLA, Circuit Judge.

Plaintiffs-appellants, Efraín Claudio-Gotay and his parents (hereinafter jointly referred to as "Claudio"), filed suit under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219, the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001-1461, and Puerto Rico Public Law 80, 29 P.R. Laws Ann. § 185(a), alleging that Claudio was wrongfully terminated from his employment by defendant-appellee Becton Dickinson Caribe, Ltd. ("Becton") and that Becton failed to give Claudio notice of his right to continued medical coverage. The district court granted summary judgment in favor of Becton. Claudio appeals. For the reasons stated below, we affirm in part and reverse in part.

I. Background

Claudio was hired by Becton as a Safety/Environmental & Process Engineer on September 28, 1998. After a month on the job, Claudio was informed that his responsibilities included monitoring the security guards at Becton's Juncos, Puerto Rico plant. This task included "see[ing] to it that the guards are there, that the [guards] render the service, and they give the service the contract specifies." In addition, Claudio was responsible for "approving the [guards'] invoices for payment."

The security guards at the Juncos plant were hired through CM Express Service Corp. ("CM Express"), a contractor. Upon examining the invoices submitted by CM Express, Claudio concluded that the security guards were not being properly compensated for overtime hours worked. Claudio spoke with his superiors about this potential labor violation and wrote a letter to Becton explaining the potential violation.

In response to Claudio's letter, Becton held a meeting, with Becton's lawyer in attendance, and determined that the security guards were not employees of Becton and, therefore, Becton was not responsible for ensuring that the guards received overtime pay. Becton decided that it would inform CM Express of the potential FLSA violations Claudio had identified. At the conclusion of the meeting, Claudio's supervisors told him that, in the meantime, he should approve the invoices. Claudio refused to do so and was terminated from employment.

II. Standard of review

"We review summary judgment decisions de novo, viewing the facts in the light most favorable to the nonmoving party." GTE Wireless, Inc. v. Cellexis Int'l, Inc., 341 F.3d 1, 4 (1st Cir.2003) (citation omitted). A summary judgment motion should be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We may affirm a grant of summary judgment on any ground supported by the record. Geffon v. Micrion Corp., 249 F.3d 29, 35 (1st Cir.2001).

III. Analysis

A. FLSA anti-retaliation provision

Claudio argues that he was wrongfully terminated because the FLSA makes it "unlawful for any person to discharge or in any other manner discriminate against any employee because such employee has filed any complaint" related to the Act. 29 U.S.C. § 215(a)(3). The elements of a retaliation claim under the FLSA require, at a minimum, a showing that (1) the plaintiff engaged in a statutorily protected activity, and (2) his employer thereafter subjected him to an adverse employment action (3) as a reprisal for having engaged in protected activity. Blackie v. Maine, 75 F.3d 716, 722 (1st Cir.1996). The central issue on appeal is whether Claudio engaged in a statutorily protected activity that triggers the protection of 29 U.S.C. § 215(a)(3).

There are two incidents that Claudio contends fall within the ambit of filing a complaint. The first incident occurred when Claudio informed Becton, both orally and in writing, that the guards were not being paid overtime. The second incident occurred when Claudio refused to sign the invoices even after being told that Becton was not the employer of the guards.

As to the first incident, other circuits have held, and we agree, that "it is the assertion of statutory rights ... by taking some action adverse to the company ... that is the hallmark of protected activity under § 215(a)(3)." McKenzie v. Renberg's Inc., 94 F.3d 1478, 1486 (10th Cir. 1996); see also EEOC v. HBE Corp., 135 F.3d 543, 554 (8th Cir.1998) (requiring action adverse to the company in a Title VII retaliation case). To engage in protected activity, "the employee must step outside his or her role of representing the company and ... file ... an action adverse to the employer, actively assist other employees in asserting FLSA rights, or otherwise engage in activities that reasonably could be perceived as directed towards the assertion of rights protected by the FLSA." McKenzie, 94 F.3d at 1486. "A requirement of `stepping outside' a normal role is satisfied by a showing that the employee took some action against a ... policy ... and that the action was based on a reasonable belief that the employer engaged in ... conduct" contrary to the FLSA. HBE Corp., 135 F.3d at 554.

In McKenzie, the Tenth Circuit held that a personnel director did not engage in a protected activity by reporting overtime violations because her job responsibilities included "wage and hour issues." McKenzie, 94 F.3d at 1487. In contrast, the Tenth Circuit held in Conner that a food clerk engaged in a protected activity by reporting overtime violations because the employee had "no management responsibilities regarding the calculation of overtime wages." Conner, 121 F.3d at 1394. In HBE Corp., the Eighth Circuit held that a personnel director engaged in a protected activity when he stepped outside his employment role by refusing to fire a black employee because the firing was ordered for patently discriminatory reasons. HBE Corp., 135 F.3d at 554.

When Claudio first informed Becton of the potential overtime violations, he did so in furtherance of his job responsibilities. Claudio's job responsibilities included approving invoices documenting the guards' hours worked and their corresponding pay. As Claudio's letter to Becton indicates, Claudio was concerned with protecting Becton, not asserting rights adverse to Becton. Compare id. The letter stated:

Acceptance of inappropriate conditions of salary payment by an outside contractor to their employees is an inappropriate practice of Becton Dickinson Juncos. Becton Dickinson Juncos and their representative officers can [sic] be responsible for this....

....

It is my intention by bringing out this important issue, [sic] avoid potential liability of Becton Dickinson Juncos before any future reclamation related with it.

As in McKenzie, Claudio "never crossed the line from being an employee merely performing h[is] job ... to an employee lodging a personal complaint." McKenzie, 94 F.3d at 1486. When Claudio first alerted Becton about a potential violation, therefore, he did not engage in a protected activity for purposes of 29 U.S.C. § 215(a)(3).

As to the second incident, we must determine whether Claudio's refusal to sign the invoices triggers the protection of 29 U.S.C. § 215(a)(3). There is a conflict among the circuits regarding what actions constitute the filing of a complaint. See Valerio v. Putnam Assoc., Inc., 173 F.3d 35, 41 (1st Cir.1999) (explaining the circuit split). This circuit, although not requiring an employee to file a formal complaint with a court or agency to receive FLSA protection, does require an employee to take action beyond mere "abstract grumblings." Id. at 44. Proceeding on a case-by-case basis, we analyze the facts to inquire whether the communications to the employer were sufficient to amount to a "filing of a complaint" as required by the FLSA. Id. at 45.

Before Claudio refused to sign the invoices, he attended a meeting with Becton's management discussing the guards' overtime pay. At the meeting, Becton's lawyer concluded that the guards were not employees of Becton and therefore that Becton was not responsible for paying the guards' overtime. As a preventive measure, however, Becton's management decided to send a letter informing CM Express that it might be violating the FLSA. Claudio, who was present during this meeting, heard the recommendation of the lawyer, was informed that Becton was not responsible for paying the guards overtime, and knew that Becton was taking action nonetheless. Claudio was also specifically directed to approve the invoices.

We do not believe Claudio's refusal to sign the invoices constituted the filing of a complaint. The FLSA anti-retaliation provision protects an employee's lawful efforts to secure rights afforded by the FLSA. The FLSA does not, however, provide a "shield against legitimate employer actions." Blackie, 75 F.3d at 724. Claudio's refusal to sign the invoices occurred after the whistle had been blown and after corrective actions were being taken to remedy any FLSA violations. The FLSA was created to protect an employee who "lodge[s] complaints or suppl[ies] information to...