Dellinger v. Science Applications International Corp.

649 F.3d 226, 17 Wage & Hour Cas.2d (BNA) 1833, 2011 U.S. App. LEXIS 16635, 2011 WL 3528750

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 12, 2011
• Docket: 10-1499
• Status: Published

Opinions

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, Del-linger 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 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 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 to work.” Therefore an applicant who never began or performed any work could not, by the language of the FLSA, be an “employee.”

Dellinger argues that because § 215(a), defining “prohibited acts,” states that “it shall be unlawful for any person ” to retaliate against any employee, she can sue any “person,” rather than simply her employer. She argues that because Science Applications is a “person” prohibited from retaliating, she therefore can sue Science Applications.

While § 215(a)(3) does prohibit all “persons” from engaging in certain acts, including retaliation against employees, it does not authorize employees to sue “any person.” An employee may only sue employers for retaliation, as explicitly provided in § 216(b). The use of the term “person” in § 215(a) is attributable to the structure of the provision, which prohibits a number of separate acts in addition to retaliation, not all of which are acts performed by employers. For instance, § 215(a)(1) prohibits any person from transporting “any goods in the production of which any employee was employed in violation of section 206 [minimum wages] or section 207 [maximum hours] of this title.” Thus, Congress prohibited the shipment of goods produced by employees who are paid in violation of the Act, and for enforcement, it authorized the criminal prosecution of any “person” violating the prohibition. See 29 U.S.C. § 216(a). Just as there is no remedy for an employee to sue such a shipper, there is also no remedy for an employee to sue anyone but his employer for violations of the anti-retaliation provision. Accordingly, if the person retaliating against an employee is not an employer, the person is not subject to a private civil action by an employee under § 216(b).

Considering the Act more broadly, we cannot overlook the fact that the FLSA was intended at its core to provide minimum wages and maximum hours of work to ensure employees a minimum standard of living necessary for “health, efficiency, and general well-being of workers.” 29 U.S.C. § 202(a). The anti-retaliation provision is included, not as a free-standing protection against any societal retaliation, but rather as an effort “to foster a climate in which compliance with the substantive provisions of the [FLSA] would be enhanced.” Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 293, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960). Thus, the anti-retaliation provision was meant to ensure that employees could sue to obtain minimum wages and maximum hours from their employers without the employers taking adverse action against them for the exercise of those rights. This purpose is inherent in the employment relationship, which is the context in which the substantive provisions operate.

We have been unable to find any case that extends FLSA protections to applicants or prospective employees. Indeed, prior cases have reached the conclusion that we have, applying the anti-retaliation provision only within the employer-employee relationship. See, e.g., Glover v. City of North Charleston, S.C., 942 F.Supp. 243, 245 (D.S.C.1996) (noting that the “any employee” language in the anti-retaliation provision mandates that the plaintiff have an employment relationship with the defendant); Harper v. San Luis Valley Reg'l Med. Ctr., 848 F.Supp. 911 (D.Col.1994) (same); cf. Darveau v. Detecon, Inc., 515 F.3d 334, 340 (4th Cir.2008) (requiring, as part of a prima facie FLSA retaliation case, a showing of “adverse action by the employer”); Dunlop v. Carriage Carpet Co., 548 F.2d 139 (6th Cir. 1977) (holding that an employee could sue his former employer when the former employer retaliated against the employee by advising a prospective employer that the employee had previously filed an FLSA suit).²

We are sympathetic to Dellinger’s argument that it could be problematic to permit future employers effectively to discriminate against prospective employees for having exercised their rights under the FLSA in the past. The notion, however, that any person who once in the past sued an employer could then sue any prospective employer claiming that she was denied employment because of her past litigation would clearly broaden the scope of the FLSA beyond its explicit purpose of fixing minimum wages and maximum hours between employees and employers. We are, of course, not free to broaden the scope of a statute whose scope is defined in plain terms, even when “morally unacceptable retaliatory conduct” may be involved. Ball v. Memphis Bar-B-Q Co., 228 F.3d 360, 364 (4th Cir.2000).

Dellinger urges us to extend the FLSA’s definition of “employee” to protect job applicants, pointing to other statutes under which applicants are protected. In particular, she refers to the Energy Reorganization Act, the National Labor Relations Act (“NLRA”), the Occupational Safety and Health Act (“OSHA”), and the Pipeline Safety Improvement Act. Reference to these statutes, however, does not advance her cause. The case cited by Dellinger with respect to the Energy Reorganization Act merely assumed, "without deciding, that an applicant was covered under that Act. See Doyle v. Secretary of Labor, 285 F.3d 243, 251 n. 13 (3d Cir.2002). While the NLRA does protect prospective employees from retaliation, the Act itself defines “employee” more broadly than does the FLSA, providing that the term “employee” “shall not be limited to the employees of a particular employer” unless explicitly stated. See 29 U.S.C. § 152(3). With respect to OSHA and the Pipeline Safety Improvement Act, regulations implementing those statutes have been promulgated to extend protections to prospective employees. See 29 C.F.R. § 1977.5(b) (OSHA); 29 C.F.R. § 1981.101 (Pipeline Safety Improvement Act). The Secretary of Labor has not, however, promulgated a similar regulation for the FLSA.

Because we conclude that the text and purpose of the Fair Labor Standards Act of 1938 link the Act’s application closely to the employment relationship and because the text of the applicable remedy allows for private civil actions only by employees against their employers, we hold that the FLSA anti-retaliation provision, 29 U.S.C. § 215(a)(3), does not authorize prospective employees to bring retaliation claims against prospective employers. The judgment of the district court is accordingly

AFFIRMED.

1 . The dissent notes that § 216(b) includes remedies of both "employment” and "reinstatement” and reasons that the inclusion of "employment” as a remedy necessarily means that the FLSA protects prospective employees. But this logic is not compelling because "employment" is not limited to prospective employees. That remedy can also be afforded to a former employee hired back to a different position, and its inclusion, therefore, simply reflects Congress’ desire to cover all possibilities.

2 . The dissent, in urging that we rely on Robinson v. Shell Oil Co., 519 U.S. 337, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997), to extend the FLSA to applicants and prospective employees, overlooks the fact that Robinson held that "employee” as defined in Title VII included fonner employees. Indeed, we accept that "employee” under the FLSA also affords protection from retaliation to former employees. The issue here is whether the FLSA applies to persons who are not yet employees and who have never worked for the employer. Because Robinson deals only with former employees, it does not speak to the issue in this case.