649 F.3d 226 (4th Cir. 2011), 10-1499, Dellinger v. Science Applications Intern. Corp.

Docket Nº:10-1499.
Citation:649 F.3d 226
Opinion Judge:NIEMEYER, Circuit Judge:
Party Name:Natalie R. DELLINGER, Plaintiff-Appellant, v. SCIENCE APPLICATIONS INTERNATIONAL CORPORATION, Defendant-Appellee. Secretary of Labor; Equal Employment Opportunity Commission, Amici Supporting Appellant.
Attorney:Zachary Alan Kitts, Cook, Kitts & Francuzenko, PLLC, Fairfax, Virginia, for Appellant. Dean Romhilt, United States Department of Labor, Washington, D.C., for Amici Supporting Appellant. Robert Sparks, Jr., Sparks & Craig, LLP, McLean, Virginia, for Appellee. John J. Rigby, McInroy & Rigby, LLP, A...
Judge Panel:Before NIEMEYER, KING, and KEENAN, Circuit Judges. Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge KEENAN joined. Judge KING wrote a dissenting opinion. KING, Circuit Judge, dissenting:
Case Date:August 12, 2011
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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649 F.3d 226 (4th Cir. 2011)

Natalie R. DELLINGER, Plaintiff-Appellant,

v.

SCIENCE APPLICATIONS INTERNATIONAL CORPORATION, Defendant-Appellee.

Secretary of Labor; Equal Employment Opportunity Commission, Amici Supporting Appellant.

No. 10-1499.

United States Court of Appeals, Fourth Circuit.

August 12, 2011

Argued: May 10, 2011.

ARGUED:

Zachary Alan Kitts, Cook, Kitts & Francuzenko, PLLC, Fairfax, Virginia, for Appellant.

Dean Romhilt, United States Department of Labor, Washington, D.C., for Amici Supporting Appellant. Robert Sparks, Jr., Sparks & Craig, LLP, McLean, Virginia, for Appellee.

ON BRIEF:

John J. Rigby, McInroy & Rigby, LLP, Arlington, Virginia, for Appellant.

Robert L. Levin, Science Applications International Corporation, San Diego, California, for Appellee.

P. David Lopez, General Counsel, Vincent J. Blackwood, Acting Associate General Counsel, Paul D. Ramshaw, Equal Employment Opportunity Commission, Washington, D.C.; M. Patricia Smith, Solicitor of Labor, William C. Lesser, Acting Associate Solicitor, Paul L. Frieden, Counsel

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for Appellate Litigation, Melissa Murphy, United States Department of Labor, Washington, D.C., for Amici Supporting Appellant.

Before NIEMEYER, KING, and KEENAN, Circuit Judges.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge KEENAN joined. Judge KING wrote a dissenting opinion.

OPINION

NIEMEYER, Circuit Judge:

Natalie Dellinger commenced this action under the Fair Labor Standards Act of 1938 (" FLSA" ) against Science Applications International Corporation which, she alleges, retaliated against her, in violation of the FLSA's anti-retaliation provision, 29 U.S.C. § 215(a)(3), by refusing to hire her after learning that she had sued her former employer under the FLSA.

The district court granted Science Applications' motion to dismiss, concluding that Dellinger was not an " employee" of Science Applications, as defined in the FLSA, and that the FLSA's anti-retaliation provision does not cover prospective employees.

On appeal, Dellinger contends that the FLSA's anti-retaliation provision protects any employee that has been the victim of FLSA retaliation by " any person," including future employers.

Based on the statutory text, we conclude that the FLSA gives an employee the right to sue only his or her current or former employer and that a prospective employee cannot sue a prospective employer for retaliation. We therefore affirm.

I

According to Dellinger's complaint, Dellinger sued her former employer, CACI, Inc., in July 2009 for alleged violations of the FLSA's minimum wage and overtime provisions. Around the same time, she applied for a job with Science Applications International Corporation. In late August 2009, Science Applications offered Dellinger a job, contingent on her passing a drug test, completing specified forms, and verifying and transferring her security clearance. Dellinger accepted the offer and began the process of satisfying the contingencies.

On the form required for her security clearance, Dellinger was required to list any pending noncriminal court actions to which she was a party, and she listed her FLSA lawsuit against CACI, Inc. Several days after Dellinger submitted her completed form to Science Applications, Science Applications withdrew its offer of employment.

Dellinger commenced this action against Science Applications, alleging that Science Applications' motive for withdrawing its offer was " retaliation and unlawful discrimination based on Ms. Dellinger's exercise of her protected right to file an FLSA lawsuit," in violation of 29 U.S.C. § 215(a)(3). Science Applications filed a motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6), contending that Dellinger's complaint did not state a claim for which relief could be granted under the FLSA because the FLSA's anti-retaliation provision protects only employees, not prospective employees. The district court agreed with Science Applications and granted its motion, dismissing Dellinger's complaint.

This appeal followed.

II

The Fair Labor Standards Act of 1938 regulates the relationship between employers and their employees to " correct and as

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rapidly practicable to eliminate" " the existence, in industries engaged in commerce or in the production of goods for commerce, of labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers." 29 U.S.C. § 202. To this end, the Act establishes a minimum wage that " [e]very employer shall pay to each of his employees," 29 U.S.C. § 206(a), and maximum hours, providing that " no employer shall employ any of his employees ... for a workweek longer than forty hours" unless the employee receives overtime pay at one and one-half times the regular rate, 29 U.S.C. § 207(a). These duties are imposed on employers and the beneficiaries are the employers' employees. In addition, the FLSA protects these substantive rights by prohibiting retaliation, which it defines in relevant part as discrimination " 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." Id. § 215(a)(3).

The Act is enforced through criminal prosecutions, 29 U.S.C. § 216(a); private civil actions by employees, id. § 216(b); and civil enforcement actions by the Secretary of Labor, id. §§ 216(c), 217. See also Castillo v. Givens, 704 F.2d 181, 186 n. 11 (5th Cir.1983) (describing causes of action under the FLSA), overruled on other grounds by McLaughlin v. Richland Shoe Co., 486 U.S. 128, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988). To protect their right to a minimum wage and maximum hours, employees are authorized to sue not only for violations of the Act's wage and hours provisions, but also for retaliation. The authorization for employee enforcement, which is included in § 216(b), provides:

Any employer who violates the provisions of section 206 [providing for minimum wages] or section 207 [providing for maximum hours] of this title shall be liable to the employee or employees affected in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as the case may be, and in an additional equal amount as liquidated damages. Any employer who violates the provisions of section 215(a)(3) [prohibiting retaliation] of this title shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3) [prohibiting retaliation] of this title, including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages. An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer ... in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.

Id. § 216(b) (emphasis added).

In this case, Dellinger has not sued her employer, but rather a prospective employer, for retaliation. She alleges that Science Applications, her prospective employer, retaliated against her because she had sued a former employer under the FLSA. This presents the question of whether an applicant for employment is an " employee" authorized to sue and obtain relief for retaliation under § 216(b). Consistent with the FLSA's purpose to regulate the employer-employee relationship and the relevant text of the Act, we conclude that only employees can sue their current or former employers for retaliation under the FLSA and that an applicant is not an employee.

Section 215(a)(3) prohibits retaliation " against any employee " because the employee sued the employer to enforce the

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Act's substantive rights. An " employee" does not, in the Act, exist in a vacuum; rather it is defined in relationship to an employer. Section 203(e)(1) provides that an employee is " any individual employed by an employer." Thus, by using the term " employee" in the anti-retaliation provision, Congress was referring to the employer-employee relationship, the regulation of which underlies the Act as a whole, and was therefore providing protection to those in an employment relationship with their employer.

Consistent with this context in which § 215(a)(3) protects only employees, § 216(b) provides that such employees may sue only their employer for retaliation (as well as for violations of the Act's substantive wage and hour protections). Section 216(b) begins with a sentence stating that any employer who violates § 206 (the minimum wage protection) and § 207 (the maximum hours protection) is liable to the " employees affected" by the violations. Section 216(b) then continues with a sentence stating that any " employer" who violates § 215(a)(3) (the anti-retaliation provision) is also liable for legal and equitable remedies.1 Those two sentences are followed by the provision authorizing employees to file suit under the Act: " An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer ... in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated." Because an employee is given remedies for violations of § 215(a)(3) only from an employer, Dellinger could only sue Science Applications if she could show that she was an employee and that Science Applications was her employer.

Yet Dellinger cannot make that showing. Although she was an applicant for employment with Science Applications and her application had been approved on a contingent basis, she never began work. Section 203(g) provides that " employ" means " suffer or permit...

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