complaint, providing testimony in an FLSA proceeding, complaining to superiors about
inadequate pay, or otherwise — that is the hallmark of protected activity under § 215(a)(3).

McKenzie, 94 F.3d at 1486 (quotations and citations omitted). As for the plaintiff in McKenzie,
however, she “never crossed the line from being an employee merely performing her job as
personnel director to an employee lodging a personal complaint about the wage and hour
practices of her employer and asserting a right adverse to the company.” Id. Accordingly,
because she did not:
step outside . . . her role of representing the company and either file (or threaten to file) an
action adverse to the employer, actively assist other employees in asserting FLSA rights
or otherwise engage in activities that reasonably could be perceived as directed toward the
assertion of rights protected by the FLSA, .. . McKenzie did not engage in activity in
activity protected under § 215(a)(3).
Id. at 1486-87. In observing the plaintiff's failure to“actively assist other employees in asserting
FLSA rights,” the court remarked in a footnote that “[t]he Tenth Circuit has not addressed
whether § 215(a)(3) protects actions taken by an employee on behalf of other employees.” Jd. at
1486 n. 8. But although not faced with the issue, the court noted that it “assume[d], without
deciding, that the language of § 215(a)(3) is sufficiently broad to encompass conduct taken on
behalf of others.” Jd. The court further noted that § 215(a)(3) “does not explicitly require that
the employee’s protected conduct relate to the assertion of his or her own statutory rights.” Id.
As the defendant here correctly notes, I should give respectful consideration to the
decisions of other circuit courts and follow the other circuit courts whenever possible. Colby v.
J.C. Penny Co., Inc., 811 F.2d 1119, 1123 (7th Cir, 1987). This maxim requires my respectful

consideration of the Tenth Circuit’s remarks in McKenzie that § 215(a)(3) affords protection to a

plaintiff making a complaint on behalf of other employees. Even in the absence of the Tenth



testimony against the defendant, and thus each case involved the testimonial clause of

§ 215(a)(3). Ball, 228 F.3d at 363; Hinsdale, 2001 U.S. App. LEXIS 19349, at *14. Both cases
held that the testimonial clause requires that an FLSA proceeding or lawsuit be “instituted.”
Ball, 228 F.3d at 363; Hinsdale, 2001 U.S. App. LEXIS 19349, at *14. Accordingly, neither
case is on point for the present issue.

Indeed, the only case I found that addresses whether § 215(a)(3) affords protection to a
plaintiff making a complaint on behalf of other employees is McKenzie v. Renberg’s Inc., 94
F.3d 1478 (10th Cir. 1996).' In McKenzie, the plaintiff was employed as a personnel director,
and was responsible for monitoring her employer’s compliance with state and federal equal
employment opportunity laws, wage and hour laws, and other laws regulating the workplace. Jd.
at 1481. As part of her job, the plaintiff informed her employer’s attorney and president that
certain employees of the company were not receiving proper compensation for working overtime.
Id. Sixteen days later, the plaintiff was terminated, and she subsequently brought suit against the
company alleging, inter alia, retaliatory discharge under § 215(a)(3). Id.

On appeal, the Tenth Circuit affirmed the district court’s entry of judgment as a matter of
law on the plaintiff's claim because the court found that the plaintiff failed to engage in
statutorily protected activity. The court noted:

in order to be protected under § 215(a)(3), an employee need only make a good faith

assertion of [one’s] statutory rights. Thus, it is the assertion of statutory rights (i.e., the
advocacy of rights) by taking some action adverse to the company — whether via formal

' T recognize that neither party cited to this case in their briefs on the present motion.
Accordingly, if I have missed some glaring reason as to why this case should not be considered, I
trust that the parties — or more likely, the movants whose motion is hereby denied — will bring it
to my attention.



Circuit’s opinion, the issue here has not been the subject of any holding. In this situation, it is
my view that the Court of Appeals for this Circuit ought to address this issue on a fully

developed factual record. Accordingly, I deny the company’s motion to dismiss.

For the reasons above, the company’s Motion to Dismiss Count II of the Complaint

Pursuant to Rule 12(b)(6) is DENIED.

\_¢

James B. Zagel ,
United States Distkict Judge

pare: _ MAR 05 2004



Minute Order Form (06/97)

United States District Court, Northern District of Illinois

nerde Magistrate ude James B. Zagel “Than Asigeed Suage

CASE NUMBER 03 C 7081 DATE 3/5/2004
CASE REED vs. MONAHAN’S LANDSCAPE CO., INC.
TITLE

[In the following box (a) indicate the party filing the motion, e.g. plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.)

DOCKET ENTRY:

qd) O Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

(3) oO Answer brief to motion due___. Reply to answer briefdue__.

(4) a Ruling/Hearingon set for___——at

(5) Qo Status hearing[held/continued to] {set for/re-setfor]on__—_—ssetfor___—_ at.

(6) oO Pretrial conference[held/continued to] [set for/re-set for]on__—_—ssetfor ss at_

(7) oO Trial{set for/re-set for]on__—_at

(8) oO [Bench/Jury trial} [Hearing] held/continued to__—_at

(9) o This case is dismissed [with/without} prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) O Local Rule 41.1 OFRCP41(a)(1) 0 FRCP41(a)(2).

qo) = [Other docket entry] | Motion (5-1) to dismiss is denied. Enter Memorandum Opinion and
Order.

aby @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required. number of notices

Notices mailed by judge's staff. MAR 0.8 2004

Notified counsel by telephone. date dockejed

a | Docketing to mail notices.

Mail AO 450 form. Lyaee
! iio Tite
Copy to judge/magistrate judge. ¥ ad SA
courtroom Cl eee,
Dw deputy’s rn.)

initials
& ¢  Dateltime réceived in
central Clerk's Office mailing deputy initials



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
KIMBERLY I. REED,
Plaintiff,
v. No. 03 C 7081
Judge James B. Zagel
MONAHAN’S LANDSCAPE CO., INC. DOCKETED
Defendant. MAR 08 2004

MEMORANDUM OPINION AND ORDER

On October 7, 2003, plaintiff Kimberly Reed filed a two-count Complaint against her
former employer, Monahan’s Landscape Company, Inc. (the “company”), alleging that she was
constructively discharged on May 6, 2002 and again on August 27, 2002, as a result of the
discriminatory treatment she allegedly received from the company’s president, Aidan Monahan,
during the course of her employment as an accounts payable clerk and bookkeeper. Count II
alleges that the company constructively discharged Reed in violation of the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. 201, et seq., because she allegedly protested and complained to
Monahan about the company’s failure to pay its hourly landscape employees overtime
compensation.

The company moves to dismiss this claim, pursuant to Federal Rule of Civil Procedure
12(b)(6), on the grounds that Reed did not engage in protected activity under the FLSA when she
protested on behalf of other employees. The purpose of a Rule 12(b)(6) motion is to test the
sufficiency of a complaint. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). In
considering such a motion, I review the facts alleged in the complaint and draw reasonable

inferences therefrom. Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326 (7th

||



Cir. 2000). Dismissal is warranted if Reed cannot prove any set of facts in support of Count II
that would entitle her to relief. Conley v, Gibson, 355 U.S. 41, 45-46 (1957).

Section 215(a)(3) of the FLSA prohibits an employer from discriminating against any
employee in retaliation for asserting an FLSA claim. 29 U.S.C. § 215(a)(3); Scott v. Sunrise
Healthcare Corp., 195 F.3d 938, 940 (7th Cir. 1999). Specifically, the statute provides that:

it shall be unlawful for any person . . . to discharge or in any other manner discriminate

against any employee because such employee has filed any complaint or instituted or

caused to be instituted any proceeding under or related to this chapter, or has testified or

is about to testify in any such proceeding, or has served or is about to serve on an industry

committee.
29 U.S.C, § 215(a)(3). To establish a prima facie case of retaliation, Reed must show that: (1)
she engaged in protected expression; (2) she suffered an adverse action; and (3) a causal link
existed between the protected expression and the adverse action. Scott, 195 F.3d at 940. Section
215(a)(3) has two clauses setting out protected expression under the statute — the complaint
clause and the testimonial clause. Reed alleges that she engaged in protected expression under
the complaint clause when she complained to Monahan that the company was not paying its
other hourly employees overtime compensation in violation of the FLSA.

The company argues that this claim should be dismissed because no protection is afforded
under § 215(a)(3) for a plaintiff making a complaint on behalf of other employees as opposed to
herself, citing Ball v. Memphis Bar-B-Q Co., 228 F.3d 360 (4th Cir. 2000), and Hinsdale v. City
of Liberal, 19 Fed. Appx. 749, 2001 U.S. App. LEXIS 19349 (10th Cir. 2001). However, neither
Ball nor Hinsdale supports this proposition. Neither the plaintiff in Ball nor the plaintiff in
Hinsdale claimed to have engaged in a statutorily-protected complaint against the defendant, as

Reed has alleged here. Rather, the dispute in each case involved the plaintiff's actual or intended