What's A Protected 'Complaint' Under The FLSA's Anti-Retaliation Provision?

On December 26, 2012, the Eleventh Circuit issued a ruling that strengthens defenses to "protected activity" in FLSA retaliation actions. Miller v. Roche Surety & Casualty Co., Inc., No. 12-cv-10259 (11th Cir. Dec. 26, 2012) (unpublished). In particular, this decision shields employers in situations where employees make vague, unclear and/or ambiguous statements that they later attempt to characterize as protected activity in litigation.

Background

Danielle Miller sued her former employer, Roche Surety & Casualty Co., Inc. (the Company), alleging she was discharged in violation of the FLSA anti-retaliation provision (29 U.S.C. § 215(a)(3)) for her purported complaint that she was not provided a time and place to express breast milk (29 U.S.C. § 215(a)(3) requires employers to provide breaks in private areas, other than bathrooms, for employees to express breast milk). More specifically, during trial before the U.S. District Court for the Middle District of Florida, Miller testified that she engaged in protected activity by: e-mailing her supervisor requesting a time and place to express breast milk; and e-mailing her friends and family about her need to express breast milk, asserting that the Company monitored her e-mails.

Yet, Miller admitted at trial that: she was free to take breaks to express breast milk as needed; she never was criticized for taking such a break; and she had access to a private place to express breast milk (nearby vacant offices were available to her as a private location), although she preferred to use her office. Moreover, Miller did not inform any supervisor that she would be expressing breast milk in her office, nor did she request a different location to do so. And she never showed the e-mails that she sent to her friends and family to anyone at the Company. Accordingly, the district court granted the Company judgment as a matter of law.

Eleventh Circuit's Ruling

The Eleventh Circuit began its review by reiterating that "filing ... a complaint" under the FLSA is statutorily protected activity, citing Kasten v. St. Gobain Performance Plastics Corp., ___ U.S. ___, 131 S.Ct. 1325, 1330-31 (2011). It then analyzed Miller's argument that she filed a complaint within the meaning of Section 215(a)(3) when she e-mailed her supervisor requesting a time and place to express breast milk, as well as the Company's response that her e-mail does not amount to the filing of a complaint under the FLSA. The Eleventh Circuit...