1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 14a0095p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

B RIAN S EXTON , Plaintiff-Appellant ,

v.

P ANEL P ROCESSING , I NC . and P ANEL P ROCESSING OF C OLDWATER , I NC ., Defendants-Appellees

. ┐ │ │ │ │ │ │ │ │ ┘ No. 13-1604

Appeal from the United St ates District Court for the Eastern District of Michigan at Bay City. No. 1:12-cv-10946—Thomas L. Ludington, District Judge. Argued: January 28, 2014 Decided and Filed: May 9, 2014
BEFORE: SUTTON, McKEAGUE a nd WHITE, Circuit Judges.

_________________ COUNSEL

ARGUED: William A. Pfeifer, ISACKSON, WALLACE & PFEIFER, P.C., Alpena, Michigan, for Appellant. Donald H. Scharg, BODMAN PLC, Troy, Michigan, for Appellees. Stephen A. Silverman, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Amicus Curiae. ON BRIEF: William A. Pfeifer, ISACKSON, WALLACE & PFEIFER, P.C., Alpena, Michigan, for Appellant. D onald H. Scharg, St even J. Fishman, David A. Malinowski, BODMAN PLC, Troy, Michigan, for Appellees. Stephen A. Silverman, UNITED STATES DEPARTMENT OF LABOR, Washi ngton, D.C., for Amicus Curiae.
SUTTON, J., delivered the opinion of the c ourt, in which McKEAGUE, J., concurred. WHITE, J. (pp. 16

B 29), delivered a separate dissenting opinion. 

### >No. 13-1604 Sexton v. Panel Processing, Inc. et al. Page 2

_________________ OPINION

_________________ SUTTON, Circuit Judge. The Employee Retire ment Income Security Act prohibits an employer from retaliating against an employee “becau se he has given information or has testified or is about to testify in any inquiry or procee ding relating to [the Act].” 29 U.S.C. § 1140. When Brian Sexton made a one-time unsolicite d complaint to his em ployer about alleged violations of the Act, did that amount to “giv[ing] information . . . in any inquiry?” We think not
and hence affirm.

I.
Panel Processing makes floor panels. Brian Sexton worked as a ge neral manager in its facility in Coldwater, Michigan, and served as a trustee for the company’s employee retirement plan. In 2011, Sexton and another trustee, Robert Karsten, campai gned on behalf of two employees running for the company’s board of di rectors. The employees won the election, but the board refused to seat them on the ground that it would violate the company’s bylaws, which limited the number of inside directors. At th e same time, the board removed Sexton and Karsten as trustees of the retirement plan.
Two days later, Sexton emailed the chairman of the board:
I believe that your actions . . . in refusing to seat [the employees] as directors of the company and removing Rob Karsten and me as Trustees of the [retirement plan] are violations of ERISA and the Mi chigan Corporations Business Act and other state and federal laws. I plan to bri ng these violati ons to the attention of the U.S. Department of Labor and Michigan Department of Licensing and Regulatory Affairs unless they ar e immediately remedied. R. 9-13 at 2. Neither the chairman nor anyone else responded to the em ail, and Sexton took no further action. About six months later, the co mpany fired Sexton from his job as a general
manager.No. 13-1604 Sexton v. Panel Processing, Inc. et al. Page 3

Sexton sued the company in Michigan state co urt for violating the State’s Whistleblower Protection Act and for breaching his employment contract. One might think that, when a Michigan plaintiff sues a Michigan defendant unde r Michigan law in a Mich igan court, the case would stay there. But the company invoked comp lete preemption, a doctrin e that converts state law claims “within the scope of [ERISA’s] civil enforcement provisions” into federal claims.
Metro. Life Ins. Co. v. Taylor , 481 U.S. 58, 66 (1987). Under this banner, the company recharacterized Sexton’s state whistleb lower claim as an ERISA claim. See 29 U.S.C. § 1140. It then removed the transfigured lawsuit to federal court.
Once in federal court, Sexton did not challenge the company’s removal of the case or its use of complete preemption. Sexton and Panel Pr ocessing instead litigated the case as though Sexton had raised a claim under ERISA. The dist rict court granted summary judgment to the company on this ERISA claim, and it declinedsupplemental jurisdiction over Sexton’s breachof-contract claim.

II.
On appeal, Sexton does not contest the dist rict court’s application of complete preemption to Sexton’s claim or otherwise attempt to resurre ct his claim under Michigan’s Whistleblower Protection Act. Under our cas e law, true enough, the doctrine of complete preemption goes to the subject matte r jurisdiction of the court. Mikulski v. Centerior Energy Corp. , 501 F.3d 555, 565 (6th Cir. 2007) (en banc). Bu t we are satisfied, just as the parties and
the district court were satis fied, that the company properl y invoked the doctrine here.

III.

Sexton instead takes aim at the district court’s rejection of his claim under ERISA. The relevant law says in relevant part: “It shal l be unlawful for any pers on to discharge, fine, suspend, expel, or discriminate against any pe rson because he has given information or has testified or is about to testify in any inquiry or proceeding relating to [the Act].” 29 U.S.C. § 1140. Both parties take as a given (for now) that the compa ny fired Sexton because of his
email to the chairman of the board.No. 13-1604 Sexton v. Panel Processing, Inc. et al. Page 4

All matters of interpretation begin with text; some end there. The te xt of this provision takes us well down the way of ending this dispute. No one claims that Sexton sent the email in the context of a “proceeding.” And no one claims that the email amounted to testimony—that he
“testified” or was “about to tes tify” in an “inquiry” or “proceeding” by sending the email. That leaves the possibility that the em ail amounted to “giv[ing] information . . . in any inquiry.” We have no problem with the idea that, by sending the email, Sext on was “giv[ing] information.” But, as Sexton and the Secretary concede, the statute demands not just the limitless “giv[ing]” of
“information.” It requires that the information be given in an “inquiry”—“a ny” inquiry, to be sure, but an inquiry all the same. “Inquiry” might mean an o fficial investigation, as in “Earl Warren led an inquiry into the assassination of President Kennedy.” Or it might mean a question or a request for information, as in “The advocate answered the judge’s inquiry.” See Bryan A. Garner, A Dictionary of Modern Legal Usage 317 (2d ed. 1995). We need not decide whether § 1140 uses “inquiry” in the former sense, in the latter sense, or in both senses. Under either definition, no inquiry occurred. Sexton did not send th e email in connection with an official investigation. And he did not send the email in response to a questi on or request for information. Even what we might call a nunc pro tunc theory of “giv[ing] information . . . in any inquiry” would not aid Sexton. For even after he sent the email, no one asked him any questions about the subject of the email, and no investigation in volving him ever occurred. As the text of the email confirms, this was nothing more than a complaint accompanied by a threat: Sexton demanded that the company change course and thre atened action if it did not. The email neither asks nor answers a question. That is not “g iv[ing] information . . . in any inquiry.”
This interpretation not only respects th e meaning—indeed accounts for the broadest possible meaning—of these terms, but it also resp ects the different ways Congress has dealt with retaliation in the work place. Congress has enacted roughly forty anti-retaliation laws, see Jon O. Shimabukuro et al., Cong. Research Serv., R43045, Survey of Federal Whistleblower and AntiRetaliation Laws (2013), and they tend to include two dist inct types of prohibitions. The first protects employees who oppose, report or complain about unlawful practices. See, e.g. , 29 U.S.C. § 218c(a) (Consumer Financial Protection Act) (“provided . . . information relating to any violation”); id . § 215(a) (Fair Labor Standards Act) (“filed any complaint”); 42 U.S.C. § 2000e-3(a) (Title VII) (“opposed any . . . unl awful employment practice”). The secondNo. 13-1604 Sexton v. Panel Processing, Inc. et al. Page 5

protects employees who participate, testify or give information in inquiries, investigations, proceedings or hearings. See, e.g. , 29 U.S.C. § 218c(a) (Patient Protection and Affordable Care Act) (“assisted or participated . . . in . . . a proceeding”); id. § 2615(b) (Family and Medical Leave Act) (“given . . . any information in co nnection with any inquiry or proceeding”); 42 U.S.C. § 12203(a) (Americans with Disabilities Act) (“participated in any manner in an investigation, proceeding, or hearing”).

Most anti-retaliation laws incl ude both types of clauses. See, e.g. , 6 U.S.C. § 1142(a) (National Transit Systems Security Act); 7 U.S. C. § 26 (Commodity Exchange Act); 15 U.S.C. § 78-u6(h)(1)(A) (Securiti es Exchange Act); id. § 2087(a) (Consumer Product Safety Act); 29 U.S.C. § 215(a) (Fair Labor Standards Act); id. § 218c(a) (Patient Prot ection and Affordable Care Act); id. § 623(d) (Age Discrimina tion in Employment Act); id. § 660(c)(1) (Occupational Safety and Health Act); id. § 2615(b) (Family and Medical Leave Act); 30 U.S.C. § 815(c) (Federal Mine Safety and Health Act); 42 U.S. C. § 12203(a) (Americans with Disabilities Act); 42 U.S.C. § 2000e-3(a) (Title VII); 49 U.S.C. § 31105(a) (Commercial Motor Vehicle Safety Act); id. § 60129(a) (Pipeline Safety Improvement Act) . Many of these laws were in existence before 1974, when Congress enacted ERISA. See the Age Discrimination in Employment Act, the Fair Labor Standards Act, the Occupational Safety and Health Act, and Title VII.
By contrast, a few laws include only the firs t type of clause, the sort that protects employees who report unlawful practices. See, e.g. , 15 U.S.C. § 2651 (Asbestos Hazard Emergency Response Act); 46 U.S.C. § 80507(a) (Int ernational Safe Container Act). And a few laws include only the second type of clause, the sort that protects employ ees who participate in inquiries, proceedings or hearings. See, e.g. , 33 U.S.C. § 948a (Longshore and Harbor Workers’ Compensation Act); 42 U.S.C. § 7622(a) (Clean Air Act).
In enacting this provision of ERISA, Congress included only a clause protecting people who give information or testify ininquiries or proceedings. Unlik e most of the other laws just cited, ERISA thus does not contain a clause prot ecting people who oppose, report or complain about unlawful practices. “[W]here words differ as they differ here, Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Burlington N. & Santa Fe Ry. Co. v.
White , 548 U.S. 53, 63 (2006). A contrary interpre tation would parody the presumption againstNo. 13-1604 Sexton v. Panel Processing, Inc. et al. Page 6

redundancy. See Maracich v. Spears , 133 S. Ct. 2191, 2205 (2013). If clauses protecting involvement in investigations automatically protect even comp laints outside investigations, dozens of opposing/reporting/complaining clauses across the United States Code would serve no
purpose.
Sexton, the Secretary and the di ssent insist that § 1140 covers an employee’s complaints to his employer about violations of the Act, no matter whether the employee speaks during an investigation or in response to an inquiry. Yet this argument spurns both plausible meanings of “inquiry,” whether the narrow one (an investigati on) or the broader one (a question). This interpretation instead reads “in any inquiry or proceeding relati ng to [the Act]” out of the statute. Only then will the law protect every complaint a bout a violation of the Act, regardless of when and where the employee makes it. Accepting Sexton’s invitation thus means rejecting a foundational principle of interpretati on: “It cannot be presumed that any clause in [a legal text] is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it.” Marbury v. Madison , 1 Cranch 137, 174 (1803).
Subtracting words from the law is bad enough, but Sexton’s theory also requires us to add words in their place. As written, § 1140 does not distinguish reports of unlawful practices from other statements. The law covers any information or testimony, so long as it is given in an inquiry or proceeding relating to the Act. The law protects not onl y the witness who testifies in a criminal prosecution that corporate executives defr auded employees of their pensions, but it also protects the witness who testifies at a benefits hearing that an employee has a disability. By proposing a special rule for ER ISA-related complaints, Sext on and the Secretary draw a
distinction between information about violations of the Act and other information—a distinction
found nowhere in the statute.
Sexton and the Secretary propose a textual detour around these problems: Because “complaining” sometimes means “challenging,” “challenging” sometimes means “questioning,” and “questioning” sometimes mean s “inquiring,” it follows that a co mplaint is an inquiry. But
this line of reasoning could transform all manner of things in to inquiries—everything from the Peloponnesian War (the Spartans challenged, he nce questioned, Athenian supremacy) to the Boston Tea Party (the pr otesters challenged, hence questi oned, British taxes). And it couldNo. 13-1604 Sexton v. Panel Processing, Inc. et al. Page 7

transform complaints into all manner of things —everything from a whisper (complaining means grumbling, grumbling means murmuring, murmuring means whispering) to a shout (complaining means bewailing, bewailing mean s crying, crying means shouting) . Not unlike the children’s game of telephone, this approach risks converti ng the ultimate message into something quite different from the original message—indeed some times into the opposite message. An approach to interpretation that ex ponentially blurs meaning is not apt to help in the fair interpretation of statutes. In the end, the overlap between “comp lain” and one meaning of “question” and the overlap between a different meaning of “question” and “inquiry” do not transform “complain” into “inquiry.”
Sexton persists that it would be strange for the law to protect an employee who reports a violation when asked a question in the context of an inquiry or proceeding but not an employee who reports a violation on his own initiative. Ye t this result looks strange only if one assumes that Congress passed § 1140 in order to protect peopl e who disclosed violations of the Act. If one instead starts with the pr emise that Congress passed § 1140 to prevent inte rference with inquiries and proceedings, the distinction between statements made in an inquiry and statements made outside an inquiry makes sense. As s hown, Congress opted to protect employees in many ways in the context of inves tigations and unprompted compla ints, some that may appear underinclusive and some that may appear overincl usive. When Congress picks one approach or the other in a given statute, th at does not give a court licen se to rewrite the law—here by crossing “in any inquiry or pro ceeding” out of § 1140. Denying this point means condemning as
absurd dozens of federal anti-retaliation clauses th at limit their attention to inquiries, proceedings or investigations.
The Secretary offers a variation on this theme. Section 1140, he says, at least protects an employee whose complaint prompts an investigati on, because giving information that leads to an inquiry counts as giving informa tion “in” that inquiry. And it w ould be odd, he adds, for the law to deny an employee protection from retaliation merely because the employer later chooses not to conduct an investigation—meaning that § 1140 must cover all complaints, whether prompted by an inquiry or not. The first pr oblem with this argument is that a disclosure that prompts an inquiry does not occur “in” that later inquiry. Deep Throat’s di sclosures led to a congressionalNo. 13-1604 Sexton v. Panel Processing, Inc. et al. Page 8

investigation of Watergate, but one would not say that Deep Throat gave information in Senator Ervin’s inquiry. Otherwise, all disclosures or complaints would occur “in” an inquiry or proceeding, so long as the employee subsequentlyfiled a lawsuit—the later “proceeding” or “inquiry” in which the disclosure would occur. The second problem with this argument is that,

even if we could bend the statute this far, we c ould bend it no farther. Saying that § 1140 covers complaints that lead to an inquiry at least l eaves some role for the phrase “in any inquiry or proceeding.” Saying that it covers all complain ts whatsoever—even when no inquiry results, as
in this case—erases words from the statute.
The risk of unusual results, moreover, would not disappear even if we adopted the theory offered by Sexton and the Secretary. The law as written contains a sensible limitation on the information that enjoys federal protection: The information must be conv eyed “in any inquiry or proceeding relating to [the Act].” Erasing that limit leaves a law that protects anyone who has “given information”—a boundless phrase that cove rs everything from giving tax advice to giving score updates on a World Cup soccer match. We could try to overcome this problem by limiting our reconfigured statute’s coverage to information th at relates to the Act. But that does not help much, because a law protecting anyone who has “g iven information relating to the Act” would still protect the professo r denied tenure because all of his la w review articles concern ERISA. We could try to sidestep this problem too by limiting our doubly reconfi gured statute’s coverage
to disclosures about violations of the Act. Bu t this takes us too far in the opposite direction, because now we have taken away federal protecti on from the witness who te stifies at a benefits hearing about an employee’s disability. All of these problems disappear if we honor the
boundaries that the statut e already contains.
Sexton and the Secretary argue that their interpretation advances § 1140’s purpose of protecting whistleblowers from retaliation. One might quibble with Sexton’ s self-portrait as a
whistleblower: He did not disclose violations of the law to the public or to the authorities but threatened to sue his employer unless it did as he demanded. But even on its own terms, this argument falls short. A court must discern the purpose of a law “chiefly from its words,” Sturges
v. Crowinshield , 4 Wheat. 122, 202 (1819), and the words of this law—particularly when
examined in the context of ot her federal anti-retaliation laws—do not show that Congress meantNo. 13-1604 Sexton v. Panel Processing, Inc. et al. Page 9

to protect whistleblowers in the abstract. Section 1140 does not single out information about violations of the law; it covers information of any genre. The claim that Congress passed § 1140 to protect people who complain about violations of the law rests on nothing more than Sexton and the Secretary’s say-so.
Keep in mind, moreover, that Congress may ha ve enacted this provis ion not so much to protect the jobs of whistleblow ers as to protect the integrityof inquiries. Section 1140’s reference to “inquir[ies] or pr oceeding[s]” suggests that Congre ss had the latter objective in mind. We have attributed a sim ilar purpose to a similar clause in another anti-retaliation law.
See Booker v. Brown & Williamson Tobacco Co. , 879 F.2d 1304, 1313 (6th Cir. 1989) (discussing Title VII’s participation clau se). A sense of how ERISA works shows why Congress would pursue that objective here. The Act requires reti rement plans to provi de for administrative review of employees’ claims. See 29 U.S.C. § 1133. Employees must usually exhaust internal remedies before heading to federal court, see Miller v. Metro. Life Ins. Co. , 925 F.2d 979, 986 (6th Cir. 1991), and courts often must defer to decisions made duri ng the internal re view process,
see Firestone Tire & Rubber Co. v. Bruch , 489 U.S. 101, 111 (1989). Given the centrality of hearings to the administration of retirement plans, one would expect Congress to protect these and other inquiries and proceedings. Instead of supporting Sexton’s claim, this understanding of congressional purpose defeats it.
Turning to the Congressional Record, the Secr etary unearths a snippet of Senate debate that (he claims) analogizes ERISA’s prohibition ag ainst retaliation to Title VII’s prohibition. The relevant statement explains that § 1140 “wou ld provide a remedy for any person fired such as is provided for a person discriminated agai nst because of race or sex.” 119 Cong. Rec. 30044 (1973). The Secretary infers that, because Title VII protects complaints, so too does § 1140. But he overlooks the reality that Title VII includes both an opposition clause and a participation clause. Read alongside the text of § 1140, the legislative history at most shows that the drafter modeled § 1140’s language about inquiries on the pa rticipation clause, not the opposition clause. That does nothing to advance Sexton’s claim, because Title VII’s participation clause does not protect unsolicited complaints. Abstract appeals to purpose and legislativ e history at any rate have little value in interpreting a “precise and reticulated” statute, Carter v. Welles-BowenNo. 13-1604 Sexton v. Panel Processing, Inc. et al. Page 10

Realty, Inc. , 736 F.3d 722, 729 (6th Cir. 2013), a description that fits ERISA to a tee. In ERISA, of all statutes, we should hesi tate to add a provision the stat ute does not cont ain (a clause protecting any employee who opposes allegedly unlawful practices) and to eliminate a limitation that the statute does contain (“in any inquiry or proceeding”).
Shifting from purpose to policy, Sexton and the Secr etary claim that their interpretation encourages employees to report violations to their employers, and that enforcement of the Act depends on such reports. This last claim is de batable. The Act alread y requires an employer to keep records and file reports about re tirement plans, 29 U.S.C. § 1059, and backs up these requirements with criminal penalties, id. § 1131(a). Also debatable is whether the benefits of a broader anti-retaliation rule (more reporting) ou tweigh the costs (more lit igation and a greater likelihood that employers will refrai n from even legitimate discharges for fear of getting sued). The prospect of improved enforcement at any rate does not by itself allow us to add new
liabilities to a statute. Cf. Alexander v. Sandoval , 532 U.S. 275 (2001); Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A. , 511 U.S. 164 (1994).
Moving on to precedent, Sexton and the Secretary argue that case law requires an expansive interpretation of federa l anti-retaliation laws and underc uts our focus on the text. Not so. When faced with “clear language,” the Supreme Court recently explained—in a retaliation case no less—a court may not “conclude that what Congress omitted from the statute is nevertheless within its scope.” Univ. of Texas Sw. Med. Ctr. v. Nassar , 133 S. Ct. 2517, 2528 (2013). That is this case.

Nor does Kasten v. Saint-Gobain Performance Plastics Corp. change things. 131 S. Ct. 1325 (2011). The Fair Labor Standards Act prohib its discharging an employee because he has “filed any complaint” alleging a violation of the Act, 29 U.S.C. § 215(a)(3), and the Court had to decide whether this provision covered oral as well as written complaints. The Court examined dictionaries, then legislation, re gulations and judicial opinions us ing the word “file,” then other appearances of “file” in the Fair Labor Standards Act, then the texts of other anti-retaliation provisions. 131 S. Ct. at 1331–33. Only because th ese indicators of meaning failed to yield a “conclusive answer” did the Court turn to “functional considerations ,” such as the importance ofNo. 13-1604 Sexton v. Panel Processing, Inc. et al. Page 11

oral complaints to the law’s administration. Id. at 1333–34. Far from licensing free-form interpretation of anti-retaliation laws, Kasten confirms the primacy of the statutory text.
Crawford v. Metropolitan Government of Nashville is of a piece. 555 U.S. 271 (2009). It held that Title VII’s opposition clause protects employees who oppose unlawful practices, regardless of whether they speak on their own initiative or in response to employer questions. The result does not help Sexton, because (unlik e the law invoked in this case) Title VII’s opposition clause does not distinguish inquiries a nd proceedings from other settings. Nor does the reasoning help him, because Crawford turned on the “ordinary meaning” of the opposition clause, id. at 276, not on any special interp retive rule for anti-retaliati on statutes. The dissent for its part takes up Crawford ’s observation that “nothing in [Title VII’s opposition clause] requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the words when her boss asks a question.” Id. at 277–78. The dissent reasons that it makes no sens e to distinguish complaints made during questioning from complaints made without ques tioning, prompting the conclusion that § 1140 protects all complaints whatsoever. But the co nclusion does not follow from the premise. The dissent overlooks another possibility, one that both avoids odd results and stays within the words of the text: Interp ret “inquiry” to mean “forma l investigation” rather than “question.” That indeed is what the Fourth Circuit does. See King v. Marriott Int’l, Inc. , 337 F.3d 421, 427 (4th Cir. 2003).
Sexton, the Secretary and the dissent also cast about for suppor t in our circuit’s precedents. The decisions they reel in, see, e.g. , EEOC v. Ohio Edison Co. , 7 F.3d 541 (6th Cir. 1993); EEOC v. Romeo Cmty. Sch. , 976 F.2d 985 (6th Cir. 1992), do not help them. Each case interprets a statute that already contains an opposition clause to protect a form of opposition.
None authorizes a court to create an opposition clause out of nothing.

The same is true of out-of-circ uit decisions. Every relevant holding hurts Sexton’s position. The Third and Fourth Circuits have both held that § 1140 does not cover complaints like Sexton’s. See Edwards v. A.H. Cornell & Son , 610 F.3d 217, 225–26 (3d Cir. 2010) (concluding that “unsolicited internal compla ints are not protected under [§ 1140] based on a plain reading of that provision’s terms”); King v. Marriot Int’l, Inc. , 337 F.3d 421, 428 (4th Cir.No. 13-1604 Sexton v. Panel Processing, Inc. et al. Page 12

2003) (concluding that “the most compelling interpretation of th e statutory language” excludes workplace complaints). The Second Circuit has reasoned the same way. Nicolaou v. Horizon Media, Inc. , 402 F.3d 325, 329 (2d Cir. 2005) (per cu riam) (reasoning that § 1140 covers a complaint only if the employee made it in response to a “request for information”).

As for Sexton’s citation of cases from the Fifth, Seventh and Ninth Circuits, they offer less than advertised. In the case from the Fift h Circuit, an employee sued his employer under state law for wrongful discharge, alleging that it fired him for refusing to carry out orders violating ERISA. Anderson v. Elec. Data Sys. Corp. , 11 F.3d 1311 (5th Cir. 1994). The Fifth Circuit held that federal law pr eempts this state claim—a holding th at has nothing to do with the present debate. The court observed along the way, to be sure, that § 1140 “addresses . . . discharges for providing in formation or testimony relating to ERISA.” Id. at 1314. But the court immediately adde d a footnote that quot ed § 1140 in full. Id. at 1314 n.2. The Fifth Circuit’s passing remark amounts to a shorthand description of § 1140, not a holding (or for that matter even a considered dictum ) that § 1140 covers every complaint about a violation, even complaints delinke d from an inquiry or proceeding.

The Ninth Circuit’s decision follows a similar pattern. Hashimoto v. Bank of Hawaii , 999 F.2d 408, 411 (9th Cir. 1993). An employee sued her employer under a state whistleblower law, alleging that it fired her fo r complaining about viol ations of ERISA. The Ninth Circuit held that the doctrine of complete preemption converted the state clai m into a federal ERISA claim.
Id. at 409. This holding does not co ver the issue at hand, which con cerns the validity of a claim under federal law, not the propriety of recharacterizing a state clai m as a federal one. Sexton and the Secretary persist that, acco rding to the Ninth Circuit’s opinion, § 1140 “may be fairly construed to protect a person . . . fired becau se she was protesting a violation of law in connection with an ERISA plan.” Id. at 411. But this statement wa s likely dictum. Even if it were a holding, this drive-by construction of th e law—hinged on the self-f ulfilling prophecy that “[t]his statute is clearly mean t to protect whistle blowers,” id. at 411, and unhinged from the text of the provision—is not convincing.

That leaves the Seventh Circuit. It held that § 1140 covers a ny complaint about the Act that either asks or answers a question. George v. Junior Achievement of Cent. Ind., Inc. ,No. 13-1604 Sexton v. Panel Processing, Inc. et al. Page 13

694 F.3d 812, 817 (7th Cir. 2012). But that decisi on does not help Sexton because his email did
neither.
According to the dissent, the Fifth, Seventh and Ninth Circuit decisions prove at least that § 1140 contains an ambiguity sufficient to trigger Chevron deference and sufficient to require a liberal interpretation in favor of the employee. But as shown below and as the Secretary concedes, this case does not involve Chevron . And as just shown, the Ninth Circuit did not hold that § 1140 protects people like Sexton, and the Fi fth and Seventh Circuits did not even suggest it. None of these circuits, moreover, evaluated § 1140 against the backdrop of other federal antiretaliation laws. Not one of them acknowledge s the distinction thes e laws make between opposition and participation clauses, and not one of them explains why § 1140 should protect all opposition to unlawful practices even though its text mentions only some participation in inquiries and proceedings. No less importantly , disagreements between judges at most suggest ambiguity. They do not prove it. If they did, the agency would win every circuit split about
whether a federal law au thorizes its regulation, but see, e.g. , Ragsdale v. Wolverine World Wide,
Inc. , 535 U.S. 81 (2002) (agency loses); the State w ould win every circuit split about whether a federal law preempts its statute, but see, e.g. , Northwest, Inc. v. Ginsberg , 134 S. Ct. 1422 (2014) (State loses); and the criminal defendant would win every circuit split about whether a federal law punishes his conduct, but see, e.g. , United States v. Castleman , 134 S. Ct. 1405 (2014) (criminal defendant loses).
The Secretary urges us to defer to his interpretation of the st atute. He (correctly) does not
claim deference under Chevron v. Natural Resources Defense Council , which requires courts to accept an agency’s reasonable interpretation of a statute that the agency administers. 467 U.S. 837 (1984). The Act does not give the Secretar y any authority to administer § 1140, instead contemplating enforcement through private causes of action. Chevron has no place where Congress entrusts enforcement of a statute to the courts rather than to an agency. Adams Fruit
Co. v. Barrett , 494 U.S. 638, 649–50 (1990). The Secretary’ s interpretation, moreover, appears not in a regulation but in a friend-of -the-court brief filed in this case and in similar briefs filed in
other circuits. Briefs do not receive Chevron deference. United States v. Mead Corp. , 533 U.S. 218, 238 n.19 (2001). All of th is explains why the Secr etary appeals instead to Skidmore v. SwiftNo. 13-1604 Sexton v. Panel Processing, Inc. et al. Page 14

& Co. , which entitles an agency’s views to respect proportionate to its persuasive power. 323 U.S. 134, 140 (1944). As shown, we find the Secretary’s arguments unpersuasive.
For what it is worth, our decision has few if any consequences beyond this Act. Most federal statutes that prohibit retaliation, like Title VII and the Fair Labor Standards Act, do include separate clauses protecting employees w ho complain about or oppose unlawful practices. 29 U.S.C. § 215(a); 42 U.S.C. § 2000e-3(a). Congr ess chose not to include a similar clause in ERISA, and we should re spect that choice.
For these reasons, we affirm.No. 13-1604 Sexton v. Panel Processing, Inc. et al. Page 15

APPENDIX 29 U.S.C. § 1140. Interference with protected rights
It shall be unlawful for any person to disc harge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan, th is subchapter, section 1201 of this title, or the Welfare and Pension Plans Disclosure Act, or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan, this subchapter, or the Welfare and Pens ion Plans Disclosure Act. It shall be unlawful for any person to discharge, fine, suspend, expel, or discri minate against any person because he has given
information or has testified or is about to test ify in any inquiry or pr oceeding relating to this chapter or the Welfare and Pension Plans Disclosure Act. In the case of a multiemployer plan, it shall be unlawful for the plan sponsor or any other person to discriminate against any contributing employer for exercising rights unde r this chapter or for giving information or testifying in any inquiry or proceeding relating to this chapter before Congress. The provisions
of section 1132 of this title shall be applicable in the en forcement of this section.No. 13-1604 Sexton v. Panel Processing, Inc. et al. Page 16

_________________ DISSENT

_________________ HELENE N. WHITE, Circuit Judge (dissenting). I re spectfully dissent.
The question whether section 510 protects uns olicited employee compla ints has split the circuits. The Fifth, Seventh, and Ninth Circuits have interpreted § 510 to protect an employee’s “unsolicited internal complaint. ” In contrast, the Second, Th ird, and Fourth Circuits have interpreted § 510 as only protecting employ ees when the employer asks the first question/initiates the inquiry.
I do not agree that § 510’s “plain meaning” is easily ascertained; nor do I agree that the Supreme Court’s most recent guidance in interpreting anti-retaliation provisions, Kasten v. SaintGobain Performance Plastics Corp ., 131 S. Ct. 1325 (2011), is inapposite here. I would follow the most recent circuit court opinion on point, George v. Junior Achievement of Central Indiana,
Inc ., 694 F.3d 812 (7th Cir. 2012). There, the Sevent h Circuit observed that § 510 “is a mess of unpunctuated conjunctions and pre positions. Although the district court concluded that the language is unambiguous, it is anything but.” Id. at 814 (internal citations omitted). George , the only post- Kasten circuit court decision, applied Kasten ’s interpretive guidance, observing that that the term “inquiry” “sometimes means nothing more than a question,” and that § 510 protects unsolicited internal employee grievances regard less whether the employer or employee initiated the “inquiry.” Id. at 815, 817.

I. Supreme Court Guidance on the Interpretat ion of Anti-Retaliation Provisions

C Kasten (2011) and Crawford (2009) Two relatively recent Supreme Court deci sions construed anti-retaliation provisions,
Kasten , and Crawford v. Metropolitan Government of Nashville & Davidson County, Tennessee , 555 U.S. 271 (2009) (reversing th e Sixth Circuit). Neither i nvolved § 510 of ERISA, but both demonstrate the trend of the Court to interpret anti-retaliation provisions to afford broad protection of employees.No. 13-1604 Sexton v. Panel Processing, Inc. et al. Page 17

A. Crawford ’s Interpretation of Title VII

The Crawford Court interpreted Title VII  s opposition clause, 42 U.S.C. § 2000e-3(a), which makes it “unlawful . . . for an employer to discriminate against a ny . . . employe[e] . . . because he has opposed any practice made . . . unlawful . . . by this subchapter.”). Crawford , 555 U.S. at 276. The issue was whether protection should be extended to an employee who “speaks out about discrimination not on her own init iative, but in answeri ng questions during” an investigation. Id. at 273. The Court held that the prot ection afforded by Title VII’s opposition clause extends to an employee who answer s questions during an employer’s internal investigation. Id. In holding that the employee’s actions were protected, the court rejected the Sixth Circuit’s view that the opposition clause required an employee to actively instigate or initiate a complaint to be protected. Id. at 277. Although the Sixth Circ uit’s interpretation of the word “opposition” “obviously exemplified” the word “as commonly understood,” the Supreme Court nevertheless determined that this court’s in terpretation did not represent “the limits of [the word]” and that “nothing in the statute requir es a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.” Id. at 277

B 78.

B. Kasten ’s Interpretation of the FLSA

In Kasten , 131 S. Ct. 1325 (2011), the Supreme C ourt considered the anti-retaliation provision of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq ., which forbids employers from retaliating “against any employee because such employee has filed any complaint . . . ” 29 U.S.C. § 215(a)(3). The issue in Kasten was whether the phrase “filed any complaint” includes oral as well as written complaints. 131 S. Ct. at 1329.

Kasten worked for Saint-Gobain Pe rformance Plastics Corporation. Id. Saint-Gobain had placed employee timeclocks between the area where employees put on and took off their work-related protective clothing and the area where the employees actually worked. The location of the clocks prevented workers from getting credit for the time they spent changing their clothes. Kasten claimed Saint-Gobain di scharged him because he orally complained to company officials that the location of the timeclocks violated the FLSA. Id.No. 13-1604 Sexton v. Panel Processing, Inc. et al. Page 18

The district court granted su mmary judgment in favor of Sa int-Gobain, concluding that the FLSA’s anti-retaliation provision did not protect oral complaints. Id. The Seventh Circuit
affirmed. Id. The Supreme Court granted certiorari to resolve a circuit split on the question whether oral complaints are protected under the FLSA § 215(a)(3) and re versed, holding that “the statutory term ‘filed any complaint’ includes oral as well as written complaints.” Id. at 1329. Interpreting the phr ase “filed any complain t,” the Court noted th at the interpretation “depends upon reading the whol e statutory text, considering the purpose and c ontext of the statute, and consulting any precedents or authorities that inform the analysis

. ” Id. at 1330 (citing Dolan v. Postal Service , 546 U.S. 481, 486 (2006) (em phasis added)). The Court observed that while “the language of the provi sion, considered in isolation, may be open to competing interpretations. . . considering th e provision in conjunctio n with the purpose and
context leads us to concl ude that only one interpretation is permissible.” Id. at 1330

B 31.

The Kasten Court first considered the text of the st atute, noting that “t he word ‘filed’ has different relevant meaning in different contexts.” Id. at 1331

. In considering other possible interpretations of the word “filed,” the Court ex amined dictionaries, re gulations promulgated by other federal agencies, caselaw, other appear ances of the word “filed” in the FLSA, and other statutes’ anti-retaliation provisions

. Id. at 1331

B 33. In looking beyond the FLSA to other statutes containing antiretaliati on provisions, the court noted:
Those statutes, however, use somewhat different language. See, e.g. , § 158(a)(4) (protecting an employee who has “filed charges or given testimony”); § 623(d) (protecting those who “ opposed any [unlawful] practic e” (emphasis added)); 42 U.S.C. §§ 2000e-3(a), 12203(a) (same); 29 U.S.C. § 2615(a)(2) (similar). See also, e.g., 15 U.S.C. § 2087(a)(1) (2006 ed., Supp. III) (“ provided . . . to the employer . . . information relating to any violation” (emphasis added)); § 2651(a) (similar); 30 U.S.C. § 815(c)(1) (“filed or made a complaint” (emphasis added)); 42 U.S.C. § 5851(a)(1)(A) (“ notified his employer” (emphasis added)); 49 U.S.C. § 42121(a)(1) (“ provided

. . . information ” (emphasis added )); § 60129(a)(1) (same).

Kasten , 131 S. Ct. at 1332

B 33. Given the use of broader lang uage in other anti-retaliation
statutes and the fact that the us e of the word “filed” in § 215(a)(3) “lends itself linguistically to [a] broader, ‘oral’ interpretation,” the Court c oncluded that the use of the broader language in
other anti-retaliation statutes coul d mean 1) that Congress wanted to limit the scope of “filed” inNo. 13-1604 Sexton v. Panel Processing, Inc. et al. Page 19

§ 215(a)(3) of the FLSA to writings , or 2) that Congress did not believe a diffe rent use of “filed” in anti-retaliation provisions outsi de of the FLSA made a signifi cant interpretive difference. Id. The Court noted that “[t]he bottom line is that the text, taken alone, cannot provide a conclusive answer to our interpretive question.” Id.

The Kasten Court looked further into “functional considerations” and decided that limiting § 215(a)(3) to written co mplaints would undermine the ba sic objectives of the FLSA.
Kasten , 131 S. Ct. at 1333

. Limiting the scope of § 215(a)(3) to the filing of written complaints would “prevent Government agencies from using hotlines, interviews, and other oral methods of receiving complaints.” Id. at 1334. Such a limitation would also “discourage the use of desirable informal workplace grievance procedur es to secure compliance with the Act.” Id.

The need for effective enforcement of the FLSA led the Court to compare it to the National Labor Relations Act (N LRA), 29 U.S.C. § 158(a)(4). Kasten , 131 S. Ct. at 1334

. The Court noted that it had “broad ly interpreted the language of the NLRA’s antiretaliation provision” because of the need for effective enforcement of the NLRA. 1 Id. The similar enforcement needs of the NLRA and FLSA require an interpretation that provides “broad rather than narrow protection to the employee.” Id. (citing NLRB v. Scrivener , 405 U.S. 117, 122 (1972)). 2 Based on these functional considerations, the Court determined that oral complaints are within the scope of FLSA  215(a)(3) so long as the compla int is “sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protec ted by the statute and a ca ll for their protection.” Id. at 1335. The Court further observed that “[g]iven Congress’ delegation of en forcement powers to federal administrative agencies, we also give a degree of weight to their views about the meaning of this enforcement language.” Id.

1 The Court “broadly interpreted the language of the NLRA’s antiretaliation provision

C ‘filed charges or given testimony,’ 29 U.S.C. § 158(a)(4)Cas protecting workers who neither filed charges nor were ‘called formally to testify’ but simply ‘participate[d] in a Na tional Labor Relations Board investigation.’” Kasten, 131 S. Ct. at 1334 (emphasis added by the Court). 2 In addition, the Scrivener Court declined to read strictly the NL RA’s reference to an employee who “has filed charges or given testimony,” or confine “in its reach to formal charges and formal testimony.” Scrivener , 405 U.S. at 122.No. 13-1604 Sexton v. Panel Processing, Inc. et al. Page 20

II. Sixth-Circuit Interpretation of Anti-Retaliation Provisions Sixth Circuit precedent analyzi ng anti-retaliation provisions ha s not taken as restrictive a view as the majority does here. In EEOC v. Ohio Edison Co ., 7 F.3d 541, 545 (6th Cir. 1993), this court broadly construed the opposition provision of Title VII. See 42 U.S.C. § 2000e-3(a) (prohibiting retaliation agai nst any employee or applicant for employment “because he has opposed any practice made an unlawful employment practi ce by this subchapter, or because he has made a charge, testified, a ssisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”) (emphasis added). This court read the phrase “he has opposed any practice” to mean “he or his representative has oppos ed any practice.” Id. A broad reading of the provision was necessary, this c ourt stated, because it was consistent with the purpose of the Act, which was to prohibit retaliation against protected activity. Id. This court also noted that other courts have “routinely adop ted interpretations of retaliation provisions in employment statutes that might be viewed as outside the literal te rms of the statute in order to effectuate Congress’s clear purpose in proscribing retaliatory activity.” Id.
This court has also liberally interpreted anti-retaliation provisions in other statutes similar
to ERISA. In EEOC v. Romeo Community Schools , 976 F.2d 985, 989

B 90 (6th Cir. 1992), this court held that the FLSA’s anti-retaliation provision, the precise provision at issue in Kasten , can be triggered by unsolicited internal complaints. See 29 U.S.C. § 215(a)(3) (prohibiting employers from retaliating “against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act.”). The plaintiff, a female teacher, informally compla ined to the school district that she believed it was “breaking some sort of law” by providing hi gher wages to her male counterparts. 976 F.2d at 990. This court held the employee’s inform al complaint was protected under the Act, rejecting the defendant’s argument that the FLSA § 215(a)(3) protects employee complaints only where the employer’s retaliatory action takes place after the employee files an official complaint. Romeo Cmty. Schools , 976 F.2d at 990; see also Dunlop v. Carriage Carpet Co., 548 F.2d 139, 142, 147 (6th Cir. 1977) (broadly in terpreting the FLSA § 203(e) to include former employees, despite the FLSA amendment by C ongress of the phrase “employee includes ” to “employee

means ”); NLRB v. Retail Store Emps. Union , 570 F.2d 586, 590 (6th Ci r. 1978) (broadly interpreting NLRB § 8(a)(4), which states that it is an unfair labor prac tice for an employer “toNo. 13-1604 Sexton v. Panel Processing, Inc. et al. Page 21

discharge or otherwise discrimina te against an employee because he has filed charges or given testimony,” to protect employees w ho refuse to participate in an NLRB investigation). As the Secretary of Labor’s amicus brief points out, Si xth Circuit precedent favors interpretations that grant broad protections to employees.
III. The Circuit Split: Circuits That Pr otect “Unsolicited In ternal Complaints” A. Post- Kasten Interpretation of § 510

In George v. Junior Achievement of Central Indiana, Inc ., 694 F.3d 812, 815 (7th Cir. 2012), the Seventh Circuit explicitly held that § 510 protects an employee’s unsolicited internal complaint. The plaintiff in George noticed that his employer had failed to deposit money withheld from his paycheck into his retirement account. Id . at 813. George protested about this ERISA violation to various high-le vel executives of the company. Id. Eventually, he received checks that made up the missed deposits plus inte rest, but he was discharged within several
months. Id . Like the Fifth and Ninth Circuits, the Se venth Circuit held that George’s unsolicited internal complaints were protected “inquiries.”
Two other circuits have held that § 510 applies to unsolicited informal complaints. Anderson v. Electronic Data Systems Corp. , 11 F.3d 1311, 1313, 1315 (5 th Cir. 1994); Hashimoto v. Bank of Hawaii , 999 F.2d 408, 411 (9th Cir. 1993). The ninth circuit stat ed that reporting misconduct is a necessary step in the commencement of any formal inquiry a nd that, unless informal beginnings are covered, employers would be induced to dismiss employees as soon as they complained or asked a barbed question.

. . . . The statute does not specify who asks the question or, more gene rally, initiates the inquiry. There is no linguistic r eason why “inquiry” cannot refer to the employee’s questions as well as the empl oyer’s. Most questions (or observations) will lead to questions in return; after George complained, managers at Junior Achievement asked questions of him. Tr eating § 510 as covering only half of the dialogue would not make sense.

Id. at 814, 815. The George court rejected the Third Circuit’s contention that § 510’s language is unambiguous:
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. Secti on 510 can be parsed this way: ((has given information) or (has te stified or is about to testify))No. 13-1604 Sexton v. Panel Processing, Inc. et al. Page 22

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.

. . . . Because § 510 refers to inquiries without specifying who is doing the inquiring, it logically covers employees' inquiries. Crawford provides some support for this understandi ng. .. Junior Achievement pr oposes to add modifiers such as “formal” or “so licited” to the wo rd “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 statut e as if it read: “for gi ving information . . . in response to any inquiry” (adding the ita licized words to the enacted text). Crawford admonishes us to resist the ur ge to read words into statutes.
George , 694 F.3d at 814

B 16 (rejecting Edwards v. A.H. Cornell & Son, Inc ., 610 F.3d 217, 224 (3rd Cir. 2010) (empha sis in original). George followed Kasten in deciding that “[w]hen dealing with ambiguous anti-retaliation pr ovisions,” a court must “resol ve the ambiguity in favor of protecting employees.” 694 F.3d at 814 (citing Kasten , 131 S. Ct. at 1333

B 35).

B. Pre- Kasten Interpretation of § 510 Before the Supreme Court decided Kasten , the Ninth Circuit cons idered a case involving an employee’s unsolicited internal complaint in Hashimoto v. Bank of Hawaii , 999 F.2d 408 (9th Cir. 1993). Hashimoto was instructed by her co-w orkers to commit various ERISA violations.
Id . at 409. After Hashimoto complained to othe r employees about “potential and/or actual violations by the Bank of the reporting and disclo sure requirements and fiduciary standards of ERISA,” she was discharged. Id. Although the controlling issue was whether Hashimoto’s state claims were preempted, the Ninth Circuit noted that § 510 was “clearly meant to protect whistle blowers” in Hashimoto’s position. Id. at 411. The court stated that the “normal first step in giving information or testifying” was “to present the problem first to the responsible managers of the ERISA plan.” Id. If an employee “is then discharged fo r raising the problem, the process ofNo. 13-1604 Sexton v. Panel Processing, Inc. et al. Page 23

giving information or testifying is interrupted at its start: the anticipatory discharge discourages
the whistle blower before the whistle is blown.” Id

. The Fifth Circuit interpreted § 510 as prot ecting unsolicited internal complaints in Anderson v. Electronic Data Systems Corp ., 11 F.3d 1311 (5th Cir. 1994). Anderson was asked by a specific employee to comm it various ERISA violations. Id . at 1312. After Anderson refused and reported the allege d ERISA violations to mana gement, he was demoted and discharged. Id. Similar to the Ninth Circuit in Hashimoto , the Fifth Circuit in Anderson focused on the ERISA preemption issue, but noted that § 510 protects employees, like Anderson, who “provid[e] information or te stimony relating to ERISA.” Id. at 1315.

IV. Circuits That Do Not Protect Unsolicited Internal Complaints Every circuit court case that interprets § 510 protection as not protecting an employee’s unsolicited internal complaint was decided pre- Kasten . But After Kasten , the Fourth Circuit in a FLSA retaliation case followed the Supreme Court’s guidance on statutory interpretation.

A. Pre- Kasten Interpretation of § 510
The Fourth Circuit in King v. Marriott Int’l, Inc ., 337 F.3d 421 (4th Cir. 2003)
, held that unsolicited internal complaints are not protected under § 510. Ki ng had learned of potential ERISA violations and reported them to her i mmediate supervisor. Instead of remedying the violations, the supervisor promoted King and gave her increased res ponsibilities regarding benefit plan finances. When the supervisor re vived his potentially viola tive plan, King objected again and shared her objections with two in-hou se attorneys in addition to her supervisor. Id. When the supervisor revived his plan a third tim e, King objected again, orally and in writing, and was fired, purportedly for feuding with other employees. Id. The Fourth Circuit concluded that King’s complaints were not protected under § 510:
In interpreting a very similar provision of the Fair Labor Standards Act . . . 3 we concluded that the term “proceeding” re ferred only to administrative or legal proceedings, and not to the making of an intra-company complaint. See Ballv. Memphis Bar-B-Q Co. , 228 F.3d 360, 364 (4th Cir. 2000). In Ball , we said that

3 The provision forbids employers from retaliating “against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act.” 29 U.S.C. § 215(a)(3).No. 13-1604 Sexton v. Panel Processing, Inc. et al. Page 24

“the ‘proceeding’ necessary for liability . . . refers to procedures conducted in judicial or administrative tribunals,” noting that “pro ceeding,” in the Act, was “modified by attributes of administrative or court proceedings.” In particular, we explained, “testify” and “institute” both connote “a formality that does not attend an employee's oral complaint to his supervisor.”
King , 337 F.3d at 427. The King court determined that § 510 of ERISA, lik e the FLSA provision interpreted in Ball , was “much narrower” than other anti-r etaliation provisions , such as found in Title VII, and required a stricter interpretation. King , 337 F.3d at 427 (citing Ball, 228 F.3d at 364, and Ball ’s reference to Title VII’s anti-retalia tions provision, 42 U.S.C. § 2000e-3(a) (making it unlawful for an employer to discriminate against an employee because he has opposed any practice made unlawful by the Act.)) The cour t interpreted § 510 protections to be limited to the legal or administrative proceedings, “or at least to something more formal than written or oral complaints made to a supervisor.” Id. at 427.

In Edwards v. A.H. Cornell & Son, Inc ., the Third Circuit followed King and held that § 510 of ERISA does not protect an employee’s uns olicited internal complaint. 610 F.3d 217 (3rd Cir. 2010). Edwards discovered ERISA viol ations, “objected to and/or complained” about them to her company’s “management,” and was later fired. Id. at 219. In holding that Edwards’ complaints were not protected, the Third Circuit determined that § 510 only protects employerinitiated inquiries. Id. at 223. The Third Circuit held § 510 “plain and unambiguous,” and not “reasonably susceptible of di fferent interpretations.” Id. at 222 (internal cita tions omitted). The
Edwards court interpreted § 510 as gran ting protection only where ther e is an employer-initiated request for information. Id. at 223.
The Second Circuit also denied § 510 protection to unsolicited internal complaints in Nicolaou v. Horizon Media, Inc ., 402 F.3d 325 (2d Cir. 2005). Nicolaou discovered a “serious payroll discrepancy” that she believed put her company in violation of ERISA. Id . at 326. She brought the discrepancy to the attention of th e Chief Financial Officer and Controller, and eventually felt compelled to inform “outside counsel” for the company, who conducted his own investigation and agreed with Nicolaou. Id. Nicolaou and the attorney then met with the President of the company, who reassigned Nicolaou, after which her employment was
terminated. Because the district court record did not reflect whether the President of the company arranged the meeting, the Second Circuit remanded to the distri ct court to decide whetherNo. 13-1604 Sexton v. Panel Processing, Inc. et al. Page 25

Nicolaou could “demonstrate that she was contacted to meet with [the President] in order to give information about the alleged underfunding of the Plan.” Id . at 330 (emphasis added). The Court decided that the “informa l gathering of information falls within the plain meaning of ‘inquiry,’” and was protected by § 510. Id . at 329. Thus, if Nicolaou could demonstrate that she

was contacted by her employer “to give information about the alleged underfunding of the Plan, her actions would fall within the protection of Section 510.” Id. at 330. The Court limited § 510 protection to employees who give informa tion in employer-initiated inquiries. The Nicolaou court did not consider Nicolaou’s actions before her meeting with the President as relevant under § 510.

The Second Circuit based its conclusions on the “plain language” of § 510. Nicolaou , 402 F.3d at 328. The court refused to recognize any similarities to the FLSA, 29 U.S.C. § 215(a)(3), 4 as ERISA § 510 was “unambi guously broader in scope.” Nicolaou , 402 F.3d at
328

. The Nicolaou court noted that its holding did not conflict with the Fourth Circuit’s King decision. Id. at 421

. The court recognized King ’s interpretation that “S ection 510’s use of the phrase ‘inquiry or proceeding’” reached only “the legal or administrative, or at least . . . something more formal than written or oral complaints made to a supervisor.” Nicolaou , 402 F.3d at 330 (citing King , 337 F.3d at 427). The Nicolaou court, however, stated “the proper focus is not on the formality or informality of the circumstances under which an individual gives information, but rather on whether the circumstan ces can fairly be deemed to constitute an ‘inquiry,’” and focused on whether th e employer initiated the inquiry. Id.

B. Post- Kasten Statutory Interpretation in the Fourth Circuit No circuit court interpreting § 510 of ER ISA as failing to protect an employee’s unsolicited internal complaints has returned to the question post- Kasten . In Minor v. Bostwick Laboratories, Inc. , 669 F.3d 428 (4th Cir. 2012), however, the Fourth Circuit (post- Kasten ) broadly interpreted § 215(a)(3) of the FLSA to protect an employee’s unsolicited internal complaint.

The issue in Minor was whether an employee’s intern al complaint could trigger the protection of § 215(a)(3). Minor , 669 F.3d at 431. Minor argued that Kasten requires a holding

4 That is the same provision of the FLSA the Court later interpreted in Kasten.No. 13-1604 Sexton v. Panel Processing, Inc. et al. Page 26

that protects “intracompany complaints” under § 215(a)(3). Id. Her employer argued that Ball, 228 F.3d 360 (4th Cir. 2000), wa s controlling, rather than Kasten , and that Ball “compell[ed] the conclusion that intracompany co mplaints are unprotected.” Minor , 669 F.3d at 431. In the alternative, both parties argued th at the plain language of § 215( a)(3) supported th eir respective positions. Id.

The Fourth Circuit held th at “although the language of § 215(a)(3) is ambiguous, the remedial purpose of the statut e requires that it protect from re taliation employees who file intracompany complaints.” Id. at 432. It explained that Kasten ’s reasoning was “persuasive” but not “directly controlling,” as the Supreme Court had “expressly declined to address the question of whether an intracompany complaint could qua lify as protected activity under the FLSA.” Id. (citing Kasten , 131 S. Ct. at 1336). The F ourth Circuit distinguished Kasten from Ball by breaking down the FLSA’s anti-retaliation provision into three clauses, interpreting the phrase “filing any complaint” in § 215(a)(3 ) as the “complaint clause.” Minor , 669 F.3d at 433. The court stated that § 215(a)(3) prot ects three distinct type s of activities; (1) filing any complaint, (2) instituting or causing to be instituted any proceeding, and (3) testifying or being about to testify in any such proceeding. Id. at 433. The Minor court stated it had “specifically noted in
Ball that our opinion did not purport to construe the ‘complaint clause.’” Id. (citing Ball , 228 F.3d at n.*).
Determining that neither Kasten nor Ball were “directly controlling,” the Fourth Circuit turned “to an independent review of the language of § 215(a)(3).” Minor , 669 F.3d at 434. The court noted that, unlike the district court, it now had “the benef it of the Supreme Court’s recent consideration of the plain meani ng of ‘filed any complaint’ from Kasten .” Id. at 435. Using
Kasten as a guide, the court concluded “that the language ‘filed any complaint’ is ambiguous with regard to whether intracompany complain ts are protected activ ity under § 215(a)(3).” Id. The court declined to overrule its statement in Ball that the term “proceeding” in § 215(a)(3) referred only to administrative or legal proceedi ngs and not to the making of an intra-company complaint, on the ground that Ball did not involve the complaint clau se of § 215(a)(3) and that it was Congress’ intent to c onsider each category of prot ected activity separately. Id. at 436.No. 13-1604 Sexton v. Panel Processing, Inc. et al. Page 27

Because the term “filed any complaint” in § 215(a)(3) is ambiguous, the Fourth Circuit
turned to the “functional cons iderations” considered in Kasten , 131 S. Ct. at 1333, and found that those considerations “dictate that intracompany complaints qualify as protected activity within the meaning of the FLSA’s an tiretaliation provision.” Id. at 437. The Minor court considered the FLSA’s basic goals, including that it was enacted to combat labor conditions detrimental to the well-being of workers, that Congress had included the anti-retalia tion provision so that employees would not have to fear economic reta liation for reporting violations, and that limiting the provision’s coverage to complaints made only to an administrative or adjudicative body would undermine the purpose of the FLSA. Id. An interpretation of § 215(3)(a) that protected intracompany complaints, “on the other hand, comports with the statute’s objectives as described by Congress’s findings and the Supreme Cour t’s interpretation of those findings.” Id. at 437.
V. Analysis The threshold question is whether § 510 is reasonably susceptible of different interpretations. Kasten , 131 S. Ct. at 1330

B 31 (observing that an anti -retaliation provision is ambiguous if “the language of the provision, consid ered in isolation, may be open to competing interpretations.”); see also Edwards , 610 F.3d 217 at 222. If § 510 is ambiguous regarding whether it protects unsolicited internal complaints, Kasten counsels that its interpretation “depends upon reading the whole statutory text , considering the purpose and context of the statute, and consulting any pr ecedents or authorities thatinform the analysis.” Kasten , 131 S. Ct. 1325, 1330 (citing Dolan, 546 U.S. at 486).
The circuit split and divergent opinions rega rding whether § 510 protects an employee’s unsolicited internal complaints suggest an ambiguity. See Smiley v. Citibank (South Dakota),
N.A ., 517 U.S. 735, 739 (1996) (in light of different interpretations in state supreme courts and federal circuit courts, the court found it difficult “to contend that the word ‘interest’ in the National Bank Act is unambiguous . . .”); North Fork Coal Corp. v. Fed. Mine Safety & Health
Review Comm’n , 691 F.3d 735, 740 (6th Cir. 2012) (the fact that the phrase “pending final order on the complaint” of 30 U.S.C. § 815(c)(3) “does not have a plai n meaning” and “is subject to more than one reasonable interpretation” was demonstrated by the competing interpretationsNo. 13-1604 Sexton v. Panel Processing, Inc. et al. Page 28

offered by the parties, and noting that “the exis tence of divergent court opinions also suggests ambiguity.”).

Kasten has important implications for interpreting § 510. In both King and Edwards , which relies on King ’s reasoning, § 510 protection was limited to employees who give information in “something more formal than written or oral complaints made to a supervisor.” King , 337 F.3d at 427; Edwards , 610 F.3d at 223 (“even beyond the plain meaning of ‘inquiry’ and ‘proceeding,’ the phrase ‘testif ied or is about to testify’ im plies that the phrase ‘inquiry or proceeding’ is limited to more form al actions.”) Relying on another pre- Kasten case, Ball , 5 the King court determined that § 510 of ERISA, like the anti-retaliation pr ovision of the FLSA interpreted in Ball , was “much narrower” than other anti -retaliations provisi ons, requiring a stricter interpretation of § 510. Id. King interpreted § 215(a)(3) of the FLSA--the same whistleblower provision the Supreme Court interpreted a decade later in Kasten. But Kasten interpreted the provision to protect employees w ho make informal oral or written complaints.
131 S. Ct. at 1335.

The Second Circuit in Nicoloau focused less on the formality of the inquiry and more on the importance of the inquiry being “employer-i nitiated.” 402 F.3d at 330. In fact, the Nicoloau court observed that ERISA’s § 510 is “unamb iguosly broader in scope” than the FLSA’s § 215(a)(3). Id. at 328. However, none of these statemen ts take away from the fact that the
court did not believe it s holding conflicted with King ’s reasoning, or that it based its conclusions on the “plain language” of § 510. Id. In fact, Nicoloau ’s holding calls for a broader interpretation of § 510 than King and Edwards , with its statement that the “plain language of ERISA Section 510” is “unambiguously broader in scope” than the FLSA’s § 215(a)(3). Id. at 328. Following the court’s own reasoning, if Nicoloau had been decided post- Kasten the Second Circuit would interpret § 510 of ER ISA to protect an employee’s un solicited internal complaint,
since Kasten interpreted § 215(a)(3 ) of the FLSA to afford broad protections for employees.
After the Supreme Court decided Kasten , the Fourth Circuit held that § 215(a)(3) of the FLSA protects an employee’s unsolicited internal complaints in Minor , 669 F.3d. at 439. The Fourth Circuit noted that it had adopted the majo rity view, which included the Sixth Circuit, on

5 Ball, 228 F.3d 360, 364 (4th Cir. 2000).No. 13-1604 Sexton v. Panel Processing, Inc. et al. Page 29

the same issue. Id. at 438 (citing Romeo Cmty. Schools , 976 F.2d at 989). However, after
Kasten the Fourth Circuit’s Minor and King decisions cannot be reconciled. Compare King , 337 F.3d at 427 (relying on Ball in its determination that § 510 of ERISA and § 215(a)(3) of the FLSA require a strict, narrow interpretation), with Minor , 669 F.3d at 435

B 37 (distinguishing
Ball from Kasten and using Kasten as a guide in determining that § 215(a)(3) of the FLSA was ambiguous and that functional considerations dict ated “that intracompany complaints qualify as protected activity.”). Minor is noteworthy because the only two other circuits to interpret ERISA’s § 510 as not protecting an employee’s uns olicited internal complaint relied on the Fourth Circuit’s reasoning in King

.
VI. The district court decided this case primarily on the basis that Sexton’s email was not an inquiry. The majority makes this point as well. Initially, Sexton inquired of the Human Resources manager as to the re sults of the election. After c onfirming that the employees had received the most votes, he sent the email to th e board chairman. The majority concedes that Sexton gave information in the email, but conclude s that it was not given in an inquiry. I agree with the Secretary that a complaint may, in cont ext, be an inquiry, and that Sexton was clearly asserting that Panel Processing had violated ER ISA and inquiring whether the board would take action or Sexton would be requir ed to do so. Sexton argues that Panel Processing responded to that inquiry by firing him.

VII.
Section 510 is susceptible of several interpretations, only on e of which is that employee information must be given 1) at the employer’s initial request and/or 2) in “something more formal than written or oral compla ints,” in order to be protected. See, e.g., King , 337 F.3d at
427. I would follow George , the only circuit court decision issued after Kasten . 694 F.3d at 814 (“When dealing with ambiguous anti-retaliation provisions, we are s upposed to resolve the ambiguity in favor of protecting employees.” (citing Kasten , 131 S. Ct. at 1333

B 35)); see also Crawford , 555 U.S. at 277

B 78 (“nothing in the statute require s a freakish rule protecting an employee who reports discrimination on her own in itiative but not one who reports the same discrimination in the same words when her boss asks a question.”)