The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
On October 7, 2003, plaintiff Kimberly Reed filed a two-count
Complaint against her former employer, Monahan's Landscape Company, Inc.
(the "company"), alleging that she was constructively discharged on May
6, 2002 and again on August 27, 2002, as a result of the discriminatory
treatment she allegedly received from the company's president, Aidan
Monahan, during the course of her employment as an accounts payable clerk
and bookkeeper. Count II alleges that the company constructively
discharged Reed in violation of the Fair Labor Standards Act ("FLSA"),
29 U.S.C. § 201, et seq., because she allegedly protested and
complained to Monahan about the company's failure to pay its hourly
landscape employees overtime compensation.
The company moves to dismiss this claim, pursuant to Federal Rule of
Civil Procedure 12(b)(6), on the grounds that Reed did not engage in
protected activity under the FLSA when she protested on behalf of other
employees. The purpose of a Rule 12(b)(6) motion is to test the
sufficiency of a complaint Gibson v. City of Chicago,
910 F.2d 1510, 1520 (7th Cir. 1990). In considering such a
motion, I review the facts alleged in the complaint and draw reasonable
inferences therefrom. Marshall-Mosby v. Corporate Receivables, Inc.,
205 F.3d 323, 326 (7th Cir. 2000). Dismissal is warranted if Reed cannot prove any set of
facts in support of Count II that would entitle her to relief. Conley
v. Gibson, 355 U.S. 41, 45-46 (1957).
Section 215(a)(3) of the FLSA
prohibits an employer from discriminating against any employee in
retaliation for asserting an FLSA claim. 29 U.S.C. § 215(a)(3);
Scott v. Sunrise Healthcare Corp.,
195 F.3d 938, 940 (7th Cir.
1999). Specifically, the statute provides that:
it shall be unlawful for any person . . . to
discharge or in any other manner discriminate
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, or has testified or is about to testify
in any such proceeding, or has served or is about
to serve on an industry committee.
29 U.S.C. § 215(a)(3). To establish a prima facie case of
retaliation, Reed must show that: (1) she engaged in protected
expression; (2) she suffered an adverse action; and (3) a causal link
existed between the protected expression and the adverse action.
Scott, 195 F.3d at 940. Section 215(a)(3) has two clauses
setting out protected expression under the statute the complaint
clause and the testimonial clause. Reed alleges that she engaged in
protected expression under the complaint clause when she complained to
Monahan that the company was not paying its other hourly employees
overtime compensation in violation of the FLSA.
The company argues that this claim should be dismissed because no
protection is afforded under § 215(a)(3) for a plaintiff making a
complaint on behalf of other employees as opposed to herself, citing
Ball v. Memphis Bar-B-Q Co., 228 F.3d 360 (4th Cir. 2000), and
Hinsdale v. City of Liberal, 19 Fed. Appx. 749, 2001 U.S. App.
LEXIS 19349 (10th Cir. 2001). However, neither Ball nor
Hinsdale supports this proposition. Neither the plaintiff in
Ball nor the plaintiff in Hinsdale claimed to have
engaged in a statutorily-protected complaint against the defendant, as
Reed has alleged here. Rather, the dispute in each case involved the
plaintiff's actual or intended testimony against the defendant, and thus each case involved the
testimonial clause of § 215(a)(3). Ball, 228 F.3d at 363;
Hinsdale, 2001 U.S. App, LEXIS 19349, at *14. Both cases held
that the testimonial clause requires that an FLSA proceeding or lawsuit
be "instituted," Ball, 228 F.3d at 363; Hinsdale, 2001
U.S. App. LEXIS 19349, at *14. Accordingly, neither case is on point for
the present issue,
Indeed, the only case I found that addresses whether § 215(a)(3)
affords protection to a plaintiff making a complaint on behalf of other
employees is McKenzie v. Renberg's Inc., 94 F.3d 1478 (10th Cir.
1996).*fn1 In McKenzie, the plaintiff was employed as a
personnel director, and was responsible for monitoring her employer's
compliance with state and federal equal employment opportunity laws, wage
and hour laws, and other laws regulating the workplace. Id. at
1481. As part of her job, the plaintiff informed her employer's attorney
and president that certain employees of the company were not receiving
proper compensation for working overtime. Id. Sixteen days
later, the plaintiff was terminated, and she subsequently brought suit
against the company alleging, inter alia, retaliatory discharge
under § 215(a)(3). Id.
On appeal, the Tenth Circuit affirmed the district court's entry of
judgment as a matter of law on the plaintiff's claim because the court
found that the plaintiff failed to engage in statutorily protected
activity. The court noted:
in order to be protected under § 215(a)(3), an
employee need only make a good faith assertion of
[one's] statutory rights. Thus, it is the
assertion of statutory rights (i.e., the advocacy
of rights) by taking some action adverse to the
company whether via formal complaint, providing testimony in an FLSA
proceeding, complaining to superiors about
inadequate pay, or otherwise that is the
hallmark of protected activity under §
215(a)(3).
McKenzie, 94 F.3d at 1486 (quotations and citations
omitted).
As for the plaintiff in McKenzie, however, she "never crossed
the line from being an employee merely performing her job as personnel
director to an employee lodging a personal complaint about the wage and
hour practices of her employer and asserting a right adverse to the
company." Id. Accordingly, because she did not:
step outside . . . her role of representing the
company and either file (or threaten to 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 toward the
assertion of rights protected by the FLSA. . . .
McKenzie did not engage in activity in activity
protected under § 215(a)(3).
Id. at 1486-87. In observing the plaintiff's failure to
"actively assist other employees in asserting FLSA rights," the court
remarked in a footnote that "[t]he Tenth Circuit has not addressed
whether § 215(a)(3) protects actions taken by an employee on behalf
of other employees." Id. at 1486 n. 8. But although not faced
with the issue, the court noted that it "assume[d], without deciding,
that the language of § 215(a)(3) is sufficiently broad to encompass
conduct taken on behalf of others," Id. The court further noted
that § 215(a)(3)"does not explicitly require that the employee's
protected conduct relate to the assertion of his or her own statutory
rights." Id.
As the defendant here correctly notes, I should give respectful
consideration to the decisions of other circuit courts and follow the
other circuit courts whenever possible. Colby v. J.C Penny
Co., Inc., 811 F.2d 1119, 1123 (7th Cir. 1987). This maxim requires
my respectful consideration of the Tenth Circuit's remarks in
McKenzie that § 215(a)(3) affords protection to a plaintiff
making a complaint on behalf of other employees. Even in the absence of
the Tenth Circuit's opinion, the issue here has not been the subject of any
holding. In this situation, it is my view that the Court of Appeals for
this Circuit ought to address this issue on a fully developed ...