In the

United States Court of Appeals

For the Seventh Circuit

No. 11-3291

VICTOR GEORGE,

Plaintiff-Appellant,

v.

JUNIOR ACHIEVEMENT OF CENTRAL INDIANA, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:10-cv-0220-JMS-MJD—Jane E. Magnus-Stinson, Judge.

ARGUED APRIL 4, 2012—DECIDED SEPTEMBER 4, 2012

Before EASTERBROOK, Chief Judge, and FLAUM and

MANION, Circuit Judges.

EASTERBROOK, Chief Judge. In the summer of 2009

Victor George, a vice president of Junior Achievement

of Central Indiana, Inc., discovered that money withheld from his pay was not being deposited into his retirement account and health savings account. Over the

next few months he lodged complaints with Junior

Achievement’s accountants and some executives, in-
2 No. 11-3291

cluding Jennifer Burk, its President and Chief Executive

Officer. He contacted the United States Department of

Labor but declined to file a written complaint. In

October George raised the issue with two members of

Junior Achievement’s board. That month he received

checks for about $2,600 to make up for the missed

deposits plus interest.

George was contemplating retirement. His employment agreement ran until June 30, 2010, but in late 2009

he had discussions with Burk and others about retiring

in April 2010. On January 4, 2010, Burk told George not

to come to work the next day. Burk later discovered

that George had drawn down the account containing

his deferred compensation. She believed that George

had acted prematurely. Junior Achievement’s attorney

wrote a letter stating that George’s termination was

effective as of December 31, 2009, and demanding that

he restore the money to the deferred-compensation account. In response George told Burk that an amendment to his employment agreement had changed the

vesting date for his deferred-compensation account to

December 1, 2009. Junior Achievement now concedes

that George was entitled to withdraw the funds when

he did, but it did not rescind his discharge.

An employer’s failure to deposit money withheld

from an employee’s paycheck into that employee’s retirement account is a breach of the employer’s duties as

a fiduciary under the Employee Retirement Income

Security Act of 1974 (ERISA). See 29 U.S.C. §1104(a).

George protested his employer’s violation of that duty
No. 11-3291 3

and maintains that the protests led to his firing. Section 510

of ERISA prohibits retaliation “against any person

because he has given information or has testified or is

about to testify in any inquiry or proceeding relating to

this [Act]”. 29 U.S.C. §1140. Junior Achievement argues

that the language does not cover George’s complaints,

and the district court agreed. It granted Junior Achievement’s motion for summary judgment on the ERISA

claim and dismissed George’s state-law claims without

prejudice. 2011 U.S. Dist. LEXIS 111846 (S.D. Ind. Sept. 28,

2011).

The district judge observed that courts of appeals

have disagreed about the scope of §510: Some circuits

have observed that “testify” and “proceeding” denote

formal actions (although these circuits disagree about

the level of formality required) and concluded that

“inquiry” therefore also should be understood as a

formal proceeding. See Edwards v. A.H. Cornell & Son,

Inc., 610 F.3d 217, 222–24 (3d Cir. 2010); Nicolaou v.

Horizon Media, Inc., 402 F.3d 325, 330 (2d Cir. 2005); King

v. Marriott International, Inc., 337 F.3d 421, 427–28 (4th

Cir. 2003). Two other circuits have held that §510 applies

to unsolicited informal complaints. Anderson v. Electric

Data Systems Corp., 11 F.3d 1311, 1313, 1315 (5th Cir.

1994); Hashimoto v. Bank of Hawaii, 999 F.2d 408, 411

(9th Cir. 1993). The ninth circuit stated that reporting

misconduct is a necessary step in the commencement

of any formal inquiry and that, unless informal beginnings are covered, employers would be induced to

dismiss employees as soon as they complained or asked

a barbed question. The district court thought the
4 No. 11-3291

holdings of Anderson and Hashimoto to be atextual and

followed Edwards: §510’s language does not protect employees who make “unsolicited complaints that are not

made in the context of an inquiry or a formal proceeding.”

2011 U.S. Dist. LEXIS 111846 at *17–22.

The district court was right to rely on the text. Kasten

v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325,

1331 (2011). This text’s interpretation, however, is not

straightforward. The provision is a mess of unpunctuated

conjunctions and prepositions. Although the district

court concluded that the language is unambiguous, 2011

U.S. Dist. LEXIS 111846 at *22, it is anything but. See also

Edwards, 610 F.3d at 224. When dealing with ambiguous

anti-retaliation provisions, we are supposed to resolve

the ambiguity in favor of protecting employees. See

Kasten, 131 S. Ct. at 1333–35; Crawford v. Metropolitan

Government of Nashville, 555 U.S. 271, 278–79 (2009).

Junior Achievement does not quarrel with George’s

contention that he has satisfied the first part of §510

by “giv[ing] information” to executives such as Burk.

It denies, however, that any “inquiry” occurred. The

phrase “has given information or has testified or is

about to testify” provides context that helps us understand “inquiry.” The clause “has given information”

covers every kind of communication, while “has testified

or is about to testify” denotes a type of communication

in a more formal setting, such as a trial or administrative hearing. The latter language implies a level of formality—but not necessarily formality in “giv[ing] information”. A natural inference from the fact that the statute
No. 11-3291 5

refers to “giv[ing] information” in addition to testifying is that “giv[ing] information” covers informal communications—and, if informal communications are covered, “inquiry” cannot be limited to formal proceedings.

The parties’ disagreement centers on “inquiry” in

the prepositional phrase “in any inquiry or proceeding”. “Inquiry” could mean something official, such as

the investigation that the Department of Labor conducts

before deciding whether to file suit under ERISA,

but sometimes an inquiry means nothing more than a

question. Dictionaries include both formal and informal

understandings of “inquiry.” Junior Achievement favors

the formal understandings, but Kasten warns against

discarding definitions that would make sense in the

statutory context. Kasten held that retaliation because

an “employee has filed any complaint” (29 U.S.C.

§215(a)(3)) is not limited to written filings. 131 S. Ct.

at 1336. The Court found it significant that the word

“filed” sometimes refers to oral statements. Id. at 1331–33.

Similarly, one common usage of “inquiry” is as a

synonym for “question.” Unless the structure of §510

makes equating “inquiry” and “question” incongruous,

Kasten tells us, we should allow the informal sense of

“inquiry” as well as the formal one.

Both the initial clauses in §510 and the prepositional

phrase that modifies them employ the disjunctive,

which implies that informal and formal approaches

are separate tracks, both of which are covered. Section 510

can be parsed this way: 

((has given information) or (has testified or is about

to testify))
6 No. 11-3291

in (any ((inquiry) or (proceeding))).

Likewise we can group the actions and settings based

on formality:

((has given information) in (any inquiry))

or ((has testified or is about to testify) in (any proceeding)).

This understanding about which words go with which

other words is not compelled by rules of grammar—the

language is ambiguous—but clues including the similar

ordering of the informal and formal options lend

support to splitting the provision into two parallel tracks.

Junior Achievement contends that, if “question” is one

meaning of “inquiry”, then that sense must apply to

questions asked of the employee but not questions asked

by an employee. Edwards, 610 F.3d at 223, came to this

conclusion. We do not see it this way, however. The

statute does not specify who asks the question or, more

generally, initiates the inquiry. There is no linguistic

reason why “inquiry” cannot refer to the employee’s

questions as well as the employer’s. Most questions (or

observations) will lead to questions in return; after

George complained, managers at Junior Achievement

asked questions of him. Treating §510 as covering only

half of the dialogue would not make sense.

Because §510 refers to inquiries without specifying

who is doing the inquiring, it logically covers employees’ inquiries. Crawford provides some support for this

understanding. Title VII’s anti-retaliation provision

makes it “unlawful . . . for any employer to discrim-
No. 11-3291 7

inate against any of his employees . . . because he has

opposed any practice made an unlawful employment practice by [Title VII]”. 42 U.S.C. §2000e–3(a). In

Crawford the employer proposed appending “actively”

and “consistently” to “opposed,” but the Court concluded that such elaborations are unwarranted and held

that employees are protected whether they “oppose”

unlawful practices spontaneously or in response to questions received from others. 555 U.S. at 276–79. Junior

Achievement proposes to add modifiers such as “formal”

or “solicited” to the word “inquiry” in §510. Just as

in Crawford, we must enforce the text as enacted, without

the additions. See also Kasten, 131 S. Ct. at 1330. The

grammatical structure and functions of §510 do not

support reading the statute as if it read: “for giving information . . . in response to any inquiry” (adding

the italicized words to the enacted text). Crawford admonishes us to resist the urge to read words into statutes.

The preposition “in”—in the phrase “in any inquiry

or proceeding” (emphasis added)—offers some support

for Junior Achievement’s position. Substitute “question”

for “inquiry” in this phrase, and it is not grammatical.

Still, we think the prepositional phrase to be primarily

concerned with a setting—the “in” tells us that the

information has to be part of, rather than extraneous to,

the inquiry or proceeding. It supplies a location, a

“where.” Giving information in a question means that

the information is imparted in the form of a question;

that is a how rather than a where.

Context tells us that all possible definitions of the

word “inquiry” cannot be plugged in directly; it cannot
8 No. 11-3291

include all possible questions. For the purpose of this

provision the apt informal usage of “inquiry” might be

“[t]he action of asking or questioning”. 7 The Oxford

English Dictionary 1010 (2d ed. 1989). That phrase could

be substituted for “inquiry” in §510. The setting for

this action would be the where in which the giving of

information occurs and could range from a full-fledged

corporate inquiry to a brief informal inquiry where

the employee gives information in the same breath as

asking a question. This construction would not restrict

the scope of the covered conduct because, any time there

is a question, there must also be someone asking it,

but it does ease concerns of imperfect parallel construction. This provision could never be mistaken for

beautiful prose but still, given Kasten and Crawford, accepting some awkwardness is better than treating

§510 as a whole as limited to formal proceedings or

employer-initiated inquiries.

The Secretary of Labor filed an amicus curiae brief supporting George. She filed briefs in Edwards and Nicolaou

as well and believes that her briefs collectively provide

an understanding of §510 to which the courts must

defer under Auer v. Robbins, 519 U.S. 452, 462 (1997). Some

Justices have questioned the propriety of giving Chevron

deference (see Chevron U.S.A. Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984)) to positions

taken in briefs, and the Court as a whole has flagged

the subject for further attention. See Christopher v.

SmithKline Beecham Corp., 132 S. Ct. 2156, 2165–69 (2012).

The Court left the subject open in Christopher, and we

can do so here as well, because Chevron applies only
No. 11-3291 9

when an agency has the authority to issue regulations

or enforce the rules in administrative proceedings.

Where “Congress has expressly established the Judiciary

and not the Department of Labor as the adjudicator of . . .

rights of action arising under the statute”, Chevron does

not apply—for the premise of Chevron is delegation to

an agency. Adams Fruit Co. v. Barrett, 494 U.S. 638,

649–50 (1990). The Secretary has no delegated rulemaking

or adjudicative authority concerning §510; instead the

Secretary acts as a prosecutor, bringing suits asking

for judicial enforcement. See 29 U.S.C. §1132(a)(5), (e)(1).

So although we give the Secretary’s arguments respectful consideration, we do not “defer” to the Department’s position. See United States v. Mead Corp., 533

U.S. 218 (2001); Skidmore v. Swift & Co., 323 U.S. 134 (1944).

Most of the Secretary’s arguments have been

addressed already, but she offers one contention that

neither George nor any other court of appeals embraces.

It is that, even if “inquiry” means formal inquests, the

initial grievance by the employee could be considered

the first part of that process just as a complaint is the

first step in civil litigation. See Hashimoto, 999 F.2d at

411; see also Neal v. Honeywell Inc., 33 F.3d 860, 863–64

(7th Cir. 1994) (the False Claims Act’s anti-retaliation

provision covers initial investigations as the first step

in an “action filed or to be filed”). This contention has

force. Consider: a complaint standing alone is not

“civil litigation,” but it is still the first part of the formal

litigation process. Unsolicited complaints often require

investigation by the government or employer, making

further action—that is, a formal “inquiry”—inevitable.
10 No. 11-3291

See Central States, Southeast and Southwest Areas Pension

Fund v. Central Transport, Inc., 472 U.S. 559, 572–73 (1985)

(discussing an ERISA fiduciary’s duties to ensure that

the plan’s funds are not misused). If at the end of an

investigation the initial complaint would be considered

part of the “inquiry,” should that complaint be excluded just because the investigation halts early (here,

because the employer made good the injury)?

We conclude that the best reading of §510 is one that

divides the world into the informal sphere of giving

information in or in response to inquiries and the

formal sphere of testifying in proceedings. This means

that an employee’s grievance is within §510’s scope

whether or not the employer solicited information.

It does not mean that §510 covers trivial bellyaches—the statute requires the retaliation to be “because”

of a protected activity. See Kasten, 131 S. Ct. at 1334–35.

Someone must ask a question, and the adverse action

must be caused by the question or the response. What’s

more, the grievance must be a plausible one, though

not necessarily one on which the employee is correct.

We have held that the anti-retaliation provision of

Title VII does not protect employees who make insubstantial complaints. See, e.g., Mattson v. Caterpillar, Inc.,

359 F.3d 885, 890–92 (7th Cir. 2004). That’s equally true

for §510.

George notified Junior Achievement of the potential

breach of its fiduciary duties and asked (repeatedly)

what would be done to remedy the situation. Those

conversations involved an “inquiry,” as we understand
No. 11-3291 11

that word, because Junior Achievement responded to

them rather than ignoring them. (If it had ignored

them, they could not have caused the discharge.) The

district court must decide whether there is some other

ground on which this case may be resolved short of trial,

or whether a trial on causation is necessary. The

judgment of the district court is vacated, and the case

is remanded for proceedings consistent with this opinion.

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