* The complaint actually asserts that Kerr was terminated on April 11,

(continued...)

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

TIMOTHY KERR,

Plaintiff,

VS.

DIGITAL WITNESS, LLC,

Defendant.

)

)

)

) CIVIL ACTION NO.

)

) 3:05-CV-1580-G

)

) ECF

)

MEMORANDUM OPINION AND ORDER

Before the court is the motion of the defendant, Digital Witness, LLC

(“Digital” or “the defendant”), to dismiss the plaintiff’s retaliation claim and the

plaintiff’s claim for breach of the duty of good faith and fair dealing. The plaintiff,

Timothy Kerr (“Kerr” or “the plaintiff”), opposes the defendant’s motion. For the

reasons below, Digital’s motion is granted in part and denied in part.

I. BACKGROUND

Kerr started working for Digital on or about September 20, 2004. Plaintiff’s

Original Complaint (“Complaint”) ¶ 13. He continued working for Digital until he

was terminated on April 11, 2005.*

 Id. ¶ 8. The stated reason for his termination

 

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*

(...continued)

2004. Complaint ¶ 13. The court assumes, however, that Kerr was terminated after

he was hired, not before.

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was that he “complained too much about the changes in compensation and about the

service department problems affecting sales and installations; further, that his

complaining was affecting other sales representatives[’] attitudes.” Id. ¶ 25. 

Kerr commenced this action against Digital on August 10, 2005, claiming

(1) breach of contract, (2) retaliation in violation of the Fair Labor Standards Act

(“FLSA”), (3) gender discrimination in violation of Title VII of the Civil Rights Act of

1964, (4) age discrimination in violation of the Age Discrimination in Employment

Act, and (5) entitlement to exemplary or punitive damages and attorney fees. Id.

¶¶ 28-39.

II. ANALYSIS

On August 29, 2005, the defendant filed this motion, pursuant to Federal Rule

of Civil Procedure 12(b)(6), to dismiss Kerr’s claim for breach of the duty of good

faith and fair dealing and Kerr’s claim for retaliation in violation of the FLSA. 

Defendant’s Motion to Dismiss Plaintiff’s FLSA Retaliation and Good Faith Claims

(“Defendant’s Motion”).

A. Kerr’s Breach of Good Faith and Fair Dealing Claim

The plaintiff does not expressly seek recovery for breach of the duty of good

faith and fair dealing, but the defendant apparently reads the plaintiff’s original

 

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complaint as alleging such a claim. See Defendant’s Motion at 3. Paragraph 11 of

the plaintiff’s original complaint states: “Claim is made for breach of the duty of

good faith and fair dealing . . .,” Complaint ¶ 11, and the defendant moves to dismiss

this apparent claim. In the plaintiff’s response, Kerr acknowledges that he did “make

reference to a claim for the breach of the duty of good faith and fair dealing though

no recovery has been requested in regard to this claim.” Plaintiff’s Response at 1. 

Accordingly, he “withdraws the claim for breach of the duty of good faith and fair

dealing, without prejudice, and for which plaintiff will file an amended complaint not

later than October 11, 2005.” Id. To date, however, the plaintiff has not filed an

amended complaint. Therefore, the court will dismiss, without prejudice, any claim

arguably made by the plaintiff for breach of the duty of good faith and fair dealing. 

B. Kerr’s FLSA Retaliation Claim

The defendant argues that the allegations in the plaintiff’s complaint do not

state facts showing that the plaintiff engaged in statutorily protected activity under

the FLSA and thus should be dismissed for failing to state a claim on which relief can

be granted. Defendant’s Motion at 2-3.

1. Rule 12(b)(6) - The Legal Standard

Rule 12(b)(6) authorizes dismissal of a complaint for “failure to state a claim

upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). There are two primary

principles that guide the court’s determination of whether dismissal under Rule

 

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12(b)(6) should be granted. First, a motion under Rule 12(b)(6) should be granted

only if it appears beyond doubt that the nonmovant could prove no set of facts in

support of his claims that would entitle him to relief. Conley v. Gibson, 335 U.S. 41,

45-46 (1957); Leffall v. Dallas Independent School District, 28 F.3d 521, 524 (5th Cir.

1994); see also Kaiser Aluminum & Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677

F.2d 1045, 1050 (5th Cir. 1982) (citing 5B WRIGHT & MILLER § 1357 at 598

(1969), for the proposition that “the motion to dismiss for failure to state a claim is

viewed with disfavor and is rarely granted”), cert. denied, 459 U.S. 1105 (1983). 

Second, the court must accept all well-pleaded facts as true and view them in the light

most favorable to the nonmovant. See Capital Parks, Inc. v. Southeastern Advertising

and Sales System, Inc., 30 F.3d 627, 629 (5th Cir. 1994); Norman v. Apache Corporation,

19 F.3d 1017, 1021 (5th Cir. 1994); Chrissy F. by Medley v. Mississippi Department of

Public Welfare, 925 F.2d 844, 846 (5th Cir. 1991). However, conclusory allegations

and unwarranted factual deductions will not suffice to avoid a motion to dismiss. 

United States ex rel. Willard v. Humana Health Plan of Texas Inc., 336 F.3d 375, 379

(5th Cir. 2003). In addition, a court must not look beyond the pleadings when

determining whether a complaint states a claim upon which relief may be granted. 

Carpenters Local Union No. 1846 v. Pratt-Farnsworth, Inc., 690 F.2d 489, 499-500 (5th

Cir. 1982), cert. denied, 464 U.S. 932 (1983).

 

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2. Digital’s Grounds For Dismissal

The FLSA protects employees who have filed a complaint or instituted a

proceeding under or related to the FLSA. 29 U.S.C. § 215(a)(3); James v.

MedicalControl, Inc., 29 F. Supp. 2d 749, 752 (N.D. Tex. 1998). The FLSA provides,

in pertinent part, that: 

[It is] unlawful for any person . . . to discharge or in any

other manner discriminate against any employee because

such employee has filed any complaint or instituted or

caused to be instituted any proceeding under or related to

this chapter, or has testified or is about to testify in any

such proceeding, or has served or is about to serve on an

industry committee. 

29 U.S.C. § 215(a)(3). This conduct is activity statutorily protected by the FLSA. 

See Kanida v. Gulf Coast Medical Personnel LP, 363 F.3d 568, 580-81 (5th Cir. 2004). 

The defendant argues that the plaintiff has not alleged that he engaged in any

activity statutorily protected by the FLSA. Defendant’s Motion at 2. Specifically,

there is no allegation that the plaintiff filed any type of FLSA complaint prior to his

termination. Id. Instead, the plaintiff states that he complained to his sales manager

about changes in his compensation. Id. As a result, the defendant asserts, the

plaintiff fails to allege facts sufficient to support a claim that he engaged in activity

protected by the FLSA, and therefore, the plaintiff’s claim for retaliation should be

dismissed.

 

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The plaintiff opposes the defendant’s motion. See Plaintiff’s Response in

Opposition to Defendant’s Motion to Dismiss for Failure to State a Claim

(“Plaintiff’s Response”). He alleges that the defendant’s sales manager terminated

him and that the stated reason, in part, was that Kerr complained too much. Id. at 2. 

The plaintiff argues that an informal complaint regarding violations of the FLSA can

meet the “complaint” requirement of the FLSA. Id. at 3.

Neither the Supreme Court nor the Fifth Circuit Court of Appeals has decided

whether an informal complaint to an employee’s manager is sufficient to satisfy the

complaint requirement of the FLSA. See Dearmon v. Texas Migrant Council, Inc., 252

F. Supp. 2d 367, 367-68 (S.D. Tex. 2003). To date, the First, Sixth, Eighth, Ninth,

Tenth, and Eleventh Circuits have held that an internal complaint to the employer

may satisfy the complaint requirement of the FLSA. See Lambert v. Ackerley, 180 F.3d

997, 1002-08 (9th Cir. 1999) (holding that, as a matter of first impression, the FLSA

retaliation provision protects employees who complain to their employers about

alleged FLSA violations), cert. denied, 528 U.S. 1116 (2000); Valerio v. Putnam

Associates Incorporated, 173 F.3d 35, 41-42 (1st Cir. 1999) (concluding that, as a

matter of first impression, FSLA’s retaliation provision protects an employee who has

lodged a written internal complaint with her employer); Equal Employment Opportunity

Commission v. Romeo Community Schools, 976 F.2d 985, 989-90 (6th Cir. 1992)

(finding that the triggering mechanism for a retaliation claim is the assertion of

 

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statutory rights and not the filing of a formal complaint); Equal Employment

Opportunity Commission v. White and Son Enterprises, 881 F.2d 1006, 1011 (11th Cir.

1989) (finding that discharge of female employees in response to their complaints

about unequal pay constituted retaliatory discharge, even though employees had not

yet filed formal charges of discrimination with the Equal Employment Opportunity

Commission); Love v. Re/Max of America, Inc., 738 F.2d 383, 387 (10th Cir. 1984)

(“The [FLSA] applies to the unofficial assertion of rights through complaints at

work.”); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir. 1975) (finding

discharge violates the FLSA where the immediate cause or motivating factor of a

discharge is the employee’s assertion of statutory rights). Only the 2nd Circuit

requires a formal complaint to the government agency or a court to established an

unlawful retaliation claim. Lambert v. Genesee Hospital, 10 F.3d 46, 55 (2d Cir. 1993),

cert. denied, 511 U.S. 1052 (1994).

This court will follow the majority of circuits and apply the rule that internal

complaints to the employer may satisfy the complaint requirement of the FLSA. 

However, within those circuits, not all “abstract grumblings”will suffice to constitute

the filing of a complaint with one’s employer. Valerio, 173 F.3d at 44. There is a

point at which an employee’s concerns and comments are too generalized and

informal to constitute “complaints” that are “filed” with an employer within the

meaning of the FLSA. Id.

 

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In this case, the plaintiff has alleged that the stated reason for his termination

was that he “complained too much about the changes in compensation and about the

service department problems affecting sales and installations; further, that his

complaining was affecting other sales representatives[’] attitudes.” Complaint ¶ 25. 

Although these complaints may amount to “abstract grumblings,” or they may be too

generalized, this court must view the plaintiff’s allegations in the light most favorable

to him. Viewed in this light, the court cannot say with certainty that Kerr could not

prove any set of facts that would entitle him to relief. Accordingly, the defendant’s

motion to dismiss the plaintiff’s retaliation claim is denied.

III. CONCLUSION

For the reasons discussed above, the defendant’s motion to dismiss is granted

in part and denied in part. 

It is ORDERED that the defendant’s motion to dismiss the plaintiff’s claim for

breach of the duty of good faith and fair dealing is GRANTED. 

It is further ORDERED that the defendant’s motion to dismiss the plaintiff’s

claim for retaliation in violation of the FLSA is DENIED. 

December 1, 2005.

 

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