# Lambert v. Ackerly/Concurrence-dissent Rymer

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurrence/Dissent Rymer
RYMER, Circuit Judge, with whom FERNANDEZ, Circuit Judge, joins, dissenting in part and concurring in the judgment in part:
While the majority's view that 29 U.S.C. § 215(a)(3) protects employees who complain to an employer about over-time may well modernize the FLSA, I believe this is for Congress - not the courts - to do. And I continue to agree with the panel opinion, and the Second Circuit, that this interpretation is an option the plain language of § 215(a)(3) makes unavailable. Section 215(a)(3) says that it is unlawful to discharge an employee because he or she "has filed any com-plaint." It does not say "has complained to the employer" or "has made any complaint to the employer."
Washington law does say that. It prohibits an employer from discharging an employee who "has made any com-plaint to his employer." Wash. Rev. Code § 49.46.100(2).
If the federal statute and the state statute mean the same thing, as the court has now held, then words mean anything we say they do. I therefore dissent for the reasons set forth in Parts II, III and IV of the panel opinion, authored by Judge Brunetti, which I adopt:

## II. Liability

The plaintiffs alleged that they were retaliated against in violation of both the federal FLSA and the public policy of the state of Washington. We [would] now hold that the plaintiffs failed to state a valid claim under federal law, but were properly allowed to proceed with their claims under Washington law.

### A. Retaliation for Informal Complaints Is Not Covered Under the FLSA

The FLSA's anti-retaliation provision makes it unlawful "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). Defendants urge us to strictly construe this provision, so as to exclude the present plaintiffs' informal complaints from its coverage.
"As in all cases of statutory interpretation, our starting point in determining [p1014] Congress's intent must be the language of the statute itself." Fernandez v. Brock, 840 F.2d 622, 632 (9th Cir. 1988); Dunn v. CFTC, 519 U.S. 465, 117 S.C.t. 913, 916, 137 L. Ed. 2d 93 (1997) ("Absent any 'indication that doing so would frustrate Congress's clear intention or yield patent absurdity, our obligation is to apply the statute as Congress wrote it'"); see also West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83, 100-01, 113 L. Ed. 2d 68, 111 S.C.t. 1138 (1991); Union Bank v. Wolas, 502 U.S. 151, 158, 162, 116 L. Ed. 2d 514, 112 S.C.t. 527 (1991).
At trial, the district court instructed the jury that "an employee has participated in protected activity if the employee has either complained to superiors regarding any issues related to the Fair Labor Standards Act or requested information from the government about minimum wages or overtime compensation." We [would] hold that this instruction was incorrect under federal law.
The question of whether § 215(a)(3) covers informal complaints has never before been addressed by this court. See Knickerbocker v. City of Stockton, 81 F.3d 907, 912 n.3 (9th Cir. 1996) (declining to decide whether internal complaints are protected conduct under the FLSA). However, this issue was recently considered by the Second Circuit, which held that "the plain language of [section 215(a)(3)] limits the cause of action to retaliation for filing formal complaints, instituting a proceeding, or testifying, but does not encompass complaints made to a supervisor." See Lambert v. Genesee Hospital, 10 F.3d 46, 50, 55 (2d Cir. 1993), cert. denied, 511 U.S. 1052, 128 L. Ed. 2d 339, 114 S.C.t. 1612 (1994). Because we agree with the Genesee court that the language of the FLSA's anti-retaliation provision is plain and unambiguous, we [would] now adopt the Second Circuit's analysis.
In Genesee, certain female employees alleged that they were retaliated against in violation of the Equal Pay Act (EPA). Specifically, the female employees claimed that the promotion of a male employee to manager was in retaliation for the female employees' complaints to their supervisors about the denial of equal pay and for other complaints of discrimination. 10 F.3d at 51. Because the Genesee plaintiffs' retaliation claims all arose out of informal, oral complaints to a supervisor, the Second Circuit held that the plaintiffs failed to state a cause of action under § 215(a)(3). Genesee, 10 F.3d at 54-56.
In reaching this conclusion, the court contrasted Title VII's broad anti-retaliation provision with the FLSA's narrower coverage. Under Title VII, it is an unlawful employment practice for an employer to discriminate against an employee "because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a) (emphasis added). The "opposition" language in Title VII's anti-retaliation provision clearly encompasses an employee's complaint to supervisors, regardless of whether the employee also files a formal charge with the Equal Employment Opportunity Commission. Genesee, 10 F.3d at 55 (citation omitted). No such broad language is found in the FLSA's anti-retaliation provision.
The Second Circuit also distinguished its earlier case of Brock v. Casey Truck Sales, Inc., 839 F.2d 872 (2d Cir. 1988). In Casey, a DOL investigator, acting on a worker's overtime complaint, found that the employer had not properly paid overtime and had falsified its records in an attempt to hide its wrongdoing. Id. at 874-75. After the employer eventually [p1015] admitted the violations and agreed to pay overtime wages, the employer nonetheless asked the employees to return the back overtime wages. Those who refused were fired. Noting the connection between the earlier formal proceedings and the retaliatory conduct, the court stated that the protection against retaliation under the FLSA "would be worthless if an employee could be fired for declining to give up the benefits he is due under the Act." Id. at 879. Thus, it was clear in Casey that there had been a formal complaint made to the DOL by an employee, a formal investigation, and a finding of overtime violations.
Similarly, in Brennan v. Maxey's Yamaha, Inc., 513 F.2d 179 (8th Cir. 1975), a company was ordered to pay back wages after a DOL investigation disclosed minimum wage and maximum hour violations. The company later insisted that employees endorse back the back wage checks. An employee protested this as unlawful conduct on the company's part and was fired. The court held that the employee's protest was an act protected from reprisals, finding that "her discharge was a direct result of her insistence upon receiving retroactive benefits required under the Act." Id. at 181.
In contrast, in Genesee, the acts for which the employer allegedly retaliated did not in any way grow out of the formal filing of a complaint. Genesee, 10 F.3d at 55-56. Rather, there were "simply oral complaints to a supervisor that an employee was being paid less than the complainants thought she should have been." Id. at 56.
The present case is much more closely analogous to Genesee than to Casey. Here, neither Lambert nor any of the other plaintiffs actually "filed" a formal complaint or instituted or testified in an FLSA proceeding. Rather, Lambert merely complained about overtime to her supervisor and to other Full House employees; called the DOL for informa-tion, and informed her superiors that she had done so; had her lawyers send a letter to Barry Ackerly regarding the overtime issue; and had a complaint delivered to the Sonics. Because such conduct is not encompassed by the plain and unambiguous language of § 215(a)(3), the plaintiffs have failed to state a retaliation claim under the FLSA.
We recognize that several other circuits have come to the conclusion that informal complaints and requests for information from the DOL do constitute protected activities under § 215(a)(3). See E.E.O.C. v. Romeo Community Schools, 976 F.2d 985, 989 (6th Cir. 1992) (holding that complaining to a school district of unlawful sex discrimination and expressing the belief that the law is being broken are sufficient to state a retaliation claim); E.E.O.C. v. White & Son Enterprises, 881 F.2d 1006, 1011 (11th Cir. 1989) (holding that unofficial complaints to an employer about unequal pay constitute an assertion of rights protected under the statute); Brock v. Richardson, 812 F.2d 121, 124-25 (3d Cir. 1987) (holding that retaliation based on employer's mere belief that an employee filed a formal complaint is sufficient to bring employer's conduct under the FLSA); Love v. RE/MAX of America, Inc., 738 F.2d 383, 387 (10th Cir. 1984) (holding that it is the assertion of statutory rights, not the filing of a formal complaint, which triggers a retaliation claim); Crowley v. Pace Suburban Business Div., 938 F.2d 797, 798 (7th Cir. 1991) (broadly construing the statute to protect against retaliation for an employee's assertion of rights under the FLSA); Brennan, 513 F.2d at 181. These circuits have reached this conclusion by extending the language of § 215(a)(3) beyond its plain meaning so as to "effectuate the broad remedial purposes of the FLSA." We [should], however, reject this approach in light of the clear language of the statute.

### B. Washington Law Covers Informal Overtime Complaints

[p1016] Regardless of their failure to state a valid retaliation claim under federal law, the plaintiffs have asserted in their complaint state law claims for violation of public policy. Washington law prohibits retaliation against an em-ployee who "has made any complaint to [her] employer" or who "has caused to be instituted or is about to cause to be instituted any proceeding under or related to the [Washington wage and overtime laws]." Wash. Rev. Code § 49.46.100(2) (emphasis added). Since there is no dispute that Lambert complained to her superiors about the lack of overtime pay, and threatened on several occasions to file suit, Lambert has stated a valid retaliation claim under Washington law.

### C. All of the Plaintiffs Have Stated a Valid Cause of Action Under Washington Law

Defendants argue that because all of the plaintiffs other than Lambert predicate their retaliation claims on Lambert's overtime complaints, they are covered by neither § 215(a)(3) nor Washington law, both of which impose liability for the discharge of "such employee" as engaged in protected conduct. According to defendants, if the court is to give the words "such employee" any meaning, those words must be held to confine liability to the discharge of the employee who herself was engaged in the protected conduct. We [would] hold, however, that sufficient evidence was presented in this case to support a retaliation claim on behalf of all of the plaintiffs. The AEs have clearly shown that they complained as a group about overtime violations, and that Lambert pursued her claim for the benefit of the entire group. For instance, in their original letter to the Sonics, Lambert's attorneys referenced both Lambert's overtime complaints and those of the other employees. Thus, the defendants were on notice, specifically and directly, that Lambert and the other employees were making demands for overtime compensation. Moreover, Lambert, as well as Sonics officials, testified at trial that Lambert and Viltz were acting as spokespersons for the whole group of AEs in negotiations over their compensation.
Because the evidence supports a finding that Lambert and Viltz were acting as representatives for the AEs in com-plaining about overtime compensation, all of the present plaintiffs were entitled to protection against retaliation under Washington law.
This case was tried under federal law with the assumption that Washington law also governed the plaintiffs' claims. Because the district court only considered the plaintiffs' claims under the FLSA when considering defendants' motion for judgment as a matter of law, we [would] now remand to the trial court to reconsider the defendants' motion for judgment as a matter of law by reassessing the jury's finding of liability, taking into account only Washington law. Spe-cifically, the district court must decide under Washington law whether the plaintiffs met their burden of proof as to causation and retaliatory intent, and whether or not the Ackerlys can be considered "employers" subject to personal liabili-ty.

## III. Damages

[p1017] In light of the failure of plaintiffs' retaliation claims under § 215(a)(3), the parties' arguments as to the availability of punitive damages under the FLSA are moot.
There is no dispute that Washington law does not allow for punitive damages in wrongful termination cases, see Dailey v. North Coast Life Ins. Co., 129 Wash. 2d 572, 919 P.2d 589 (Wash. 1996); therefore, the punitive damages award [should be] reversed.
Turning to the emotional distress damages, each plaintiff was awarded $ 75,000 by the jury for emotional distress. Defendants argue that this must have been the product of speculation because the different plaintiffs manifested different symptoms, some physical and some purely mental, and none of the plaintiffs provided any corroborating evidence. See Brady v. Gebbie, 859 F.2d 1543, 1558 (9th Cir. 1988), cert. denied, 489 U.S. 1100, 103 L. Ed. 2d 943, 109 S.C.t. 1577 (1989) (plaintiff presented psychiatric testimony of emotional distress and permanent psychological damage). Plaintiffs respond that the defendants mistreated all of the AEs in the same way, thereby justifying identical awards. The district court agreed with the plaintiffs, finding that "the jury must have concluded that the emotional harm to each plaintiff was roughly equal given their similar treatment by defendants."
A reviewing court must uphold the jury's finding of the amount of damages unless the amount is "'grossly excessive or monstrous,' clearly not supported by the evidence, or 'only based on speculation or guesswork.'" Los Angeles Memorial Coliseum Comm'n v. NFL, 791 F.2d 1356, 1360 (9th Cir. 1986) (citations omitted).
We agree with defendants that $ 75,000 for emotional distress is grossly excessive given that the symptoms manifested by the plaintiffs were not particularly severe. See Avitia v. Metropolitan Club of Chicago, Inc., 49 F.3d 1219, 1230 (7th Cir. 1995) (finding unreasonable a $ 21,000 award for emotional distress in an FLSA retaliation case); see also Hetzel v. County of Prince William, 89 F.3d 169, 171 (4th Cir. 1996), cert. denied, 519 U.S. 1028, 117 S.C.t. 584, 136 L. Ed. 2d 514 (reversing a $ 500,000 award for emotional distress arising out of retaliation in violation of the First Amendment). Moreover, that plaintiffs were all awarded the same amount, despite the fact that their distress levels varied widely, suggests that the awards were the product of guesswork.
We therefore [would] reverse with respect to the emotional distress damages and remand for determination of a reasonable amount should the district court find the defendants liable on remand.

## IV. Attorneys' Fees

Because the district court [should] be required on remand to redetermine the appropriate attorneys' fee awards in light of its decision as to liability, we express no opinion at this time on the attorneys' fee issues raised by the parties.

## Footnotes

* ↑ Nor does it matter whether or not Congress meant to include grievances "filed" with the employer, as the majority suggests, for no such thing happened in this case. More importantly, the jury was instructed (and so could have returned its verdict based on finding) that complaining to an employer or requesting information from the government suffices.
* ↑ See infra note 6 for full statutory text.
* ↑ See Lewis Carroll, Through the Looking Glass. As Humpty Dumpty responded to Alice's question "whether you can make words mean so many different things," "The question is ... which is to be master - that's all."
* ↑ Judge Kleinfeld and I joined the opinion, Parts II, III and IV of which I reproduce in full here because the opinion was automatically withdrawn pursuant to our rules when the court voted to rehear the case en banc. I concur in the judgment to the extent that it affirms on liability and wages, but I would do so only under Wash-ington law.
* ↑ The EPA is an amendment to the FLSA and is codified under the same chapter. Therefore, retaliation for filing EPA complaints, like retaliation for filing overtime complaints, is analyzed under § 215(a)(3). See Genesee, 10 F.3d at 55.
* ↑ Wash. Rev. Code § 49.46.100(2) provides in full that Any employer who discharges or in any manner discriminates against any employee because such employee has made any complaint to his employer, to the director, or his authorized representative that he has not been paid wages in accordance with the provisions of this chapter, or that the employer has violated any provision of this chapter, or because such employee has caused to be instituted or is about to cause to be instituted any proceeding under or related to this chapter, or because such employee has testified or is about to testify in any such proceeding shall be deemed in violation of this chapter and shall, upon conviction therefor, be guilty of a gross misdemeanor.