Bernabei & Wachtel Blog

Supreme Court decision on EEOC charge filing requirements

The Supreme Court issued a good 7-2 decision in Fed Ex v. Holowecki. In short, at least as to ADEA complaints, the court holds that an EEOC charge or complaint is to be broadly construed, and technical problems with the EEOC's treatment of that charge should not be held against the complainant, since the employment statutes are designed to be remedial. This decision will be useful in representing clients who initially filed their EEOC charge on a pro se basis, and subsequently retained counsel.

The key phrase is:

"We conclude as follows: In addition to the information required by the regulations, i.e., an allegation and the name of the charged party, if a filing is to be deemed a charge it must be reasonably construed as a request for the agency to take remedial action to protect the employee's rights or otherwise settle a dispute between the employer and the employee."

Some excerpts follow:

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and STEVENS, SOUTER, GINSBURG, BREYER, and ALITO, JJ., joined.

THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined.

JUSTICE KENNEDY delivered the opinion of the Court.

This case arises under the Age Discrimination in Employment Act of 1967 (ADEA or Act), 81 Stat. 602, as amended, 29 U. S. C. §621 et seq. When an employee files "a charge alleging unlawful [age] discrimination" with the Equal Employment Opportunity Commission (EEOC), the charge sets the Act's enforcement mechanisms in motion, commencing a waiting period during which the employee cannot file suit. The phrase, "a charge alleging unlawful discrimination," is used in the statute, §626(d), and "charge" appears in the agency's implementing regulations; but it has no statutory definition. In deciding what constitutes a charge under the Act the Courts of Appeals have adopted different definitions. As a result, difficulties have arisen in determining when employees may seek relief under the ADEA in courts of competent jurisdiction.

As a cautionary preface, we note that the EEOC enforcement mechanisms and statutory waiting periods for ADEA claims differ in some respects from those pertaining to other statutes the EEOC enforces, such as Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq., and the Americans with Disabilities Act of 1990, 104 Stat. 327, as amended, 42 U. S. C. §12101 et seq. While there may be areas of common definition, employees and their counsel must be careful not to apply rules applicable under one statute to a different statute without careful and critical examination. Cf. General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581, 586-587 (2004). This is so even if the EEOC forms and the same definition of charge apply in more than one type of discrimination case.

. . . The immediate question before us is the timeliness of the suit filed by one of the plaintiffs below, Patricia Kennedy, referred to here as "respondent." Petitioner moved to dismiss respondent's action, contending respondent had not filed her charge with the EEOC at least 60 days before filing suit, as required by 29 U. S. C. §626(d). Respondent countered that she filed a valid charge on December 11, 2001, by submitting EEOC Form 283.

The agency labels Form 283 an "Intake Questionnaire." Respondent attached to the questionnaire a signed affidavit describing the alleged discriminatory employment practices in greater detail. The District Court determined these documents were not a charge and granted the motion to dismiss. No. 02 Civ. 3355(LMM) (SDNY, Oct. 9, 2002), App. to Pet. for Cert. 39a. An appeal followed, and the Court of Appeals for the Second Circuit reversed. See 440 F. 3d 558, 570 (2006). We granted certiorari to consider whether respondent's filing was a charge, 551 U. S. ___ (2007), and we now affirm.

. . . For efficient operations, and to effect congressional intent, the agency requires some mechanism to separate information requests from enforcement requests. Respondent's proposed standard, that a charge need contain only an allegation of discrimination and the name of the employer, falls short in this regard. Were that stripped-down standard to prevail, individuals who approach the agency with questions could end up divulging enough information to create a charge. This likely would be the case for anyone who completes an Intake Questionnaire-which provides space to indicate the name and address of the offending employer and asks the individual to answer the question, "What action was taken against you that you believe to be discrimination?" App. to Pet. for Cert. 43a. If an individual knows that reporting this minimal information to the agency will mandate the agency to notify her employer, she may be discouraged from consulting the agency or wait until her employment situation has become so untenable that conciliation efforts would be futile. The result would be contrary to Congress' expressed desire that the EEOC act as an information provider and try to settle employment disputes through informal means.

For these reasons, the definition of charge respondent advocates-i.e., that it need conform only to 29 CFR §1626.6-is in considerable tension with the structure and purposes of the ADEA. The agency's interpretive position- the request-to-act requirement-provides a reasonable alternative that is consistent with the statutory framework. No clearer alternatives are within our authority or expertise to adopt; and so deference to the agency is appropriate under Skidmore. We conclude as follows: In addition to the information required by the regulations, i.e., an allegation and the name of the charged party, if a filing is to be deemed a charge it must be reasonably construed as a request for the agency to take remedial action to protect the employee's rights or otherwise settle a dispute between the employer and the employee.

. . . It is true that under this permissive standard a wide range of documents might be classified as charges. But this result is consistent with the design and purpose of the ADEA. . . .

Having determined that the agency acted within its authority in formulating the rule that a filing is deemed a charge if the document reasonably can be construed to request agency action and appropriate relief on the employee's behalf, the question is whether the filing here meets this test. The agency says it does, and we agree. The agency's determination is a reasonable exercise of its authority to apply its own regulations and procedures in the course of the routine administration of the statute it enforces. . . .

Documents filed by an employee with the EEOC should be construed, to the extent consistent with permissible rules of interpretation, to protect the employee's rights and statutory remedies. Construing ambiguities against the drafter may be the more efficient rule to encourage precise expression in other contexts; here, however, the rule would undermine the remedial scheme Congress adopted. It would encourage individuals to avoid filing errors by retaining counsel, increasing both the cost and likelihood of litigation.

JUSTICE THOMAS, with whom JUSTICE SCALIA joins, dissenting.

Today the Court decides that a "charge" of age discrimination under the Age Discrimination in Employment Act of 1967 (ADEA) is whatever the Equal Employment Opportunity Commission (EEOC) says it is. The filing at issue in this case did not state that it was a charge and did not include a charge form; to the contrary, it included a form that expressly stated it was for the purpose of "precharge" counseling. What is more, the EEOC did not assign it a charge number, notify the employer of the complainant's allegations, or commence enforcement proceedings. Notwithstanding these facts, the Court concludes, counterintuitively, that respondent's filing is a charge because it manifests an intent for the EEOC to take "some action."

[Alan Kabat / Bernabei & Wachtel, PLLC]

Supreme Court decision on "me too" evidence

Today (Feb. 26), the Supreme Court quickly issued an unanimous decision in the Sprint v. Mendelsohn case, on appeal from the Tenth Circuit, addressing the use of "me too" evidence, i.e., other witnesses testifying that other supervisors in the same workplace also discriminated / harassed or retaliated against them.

The Supreme Court, however, did not decide the ultimate issue, i.e., admissibility of such evidence, but instead punted back to the district court to explain its reasoning. The decision may be useful in upholding challenges to evidentiary rulings on appeal, i.e., the appellate courts should not be second-guessing evidentiary decisions under Rule 403, Fed. R. Evid., where those decisions are fact-intensive. Further, at the district court level, there is no per se rule as to the admissibility or exclusion of evidence under Rules 401 and 403, since those determinations turn on the specific factual circumstances of each case.

Some excerpts follow:

JUSTICE THOMAS delivered the opinion of the Court.

In this age discrimination case, the District Court excluded testimony by nonparties alleging discrimination at the hands of supervisors of the defendant company who played no role in the adverse employment decision challenged by the plaintiff. The Court of Appeals, having concluded that the District Court improperly applied a per se rule excluding the evidence, engaged in its own analysis of the relevant factors under Federal Rules of Evidence 401 and 403, and remanded with instructions to admit the challenged testimony. We granted certiorari on the question whether the Federal Rules of Evidence required admission of the testimony. We conclude that such evidence is neither per se admissible nor per se inadmissible. Because it is not entirely clear whether the District Court applied a per se rule, we vacate the judgment of the Court of Appeals and remand for the District Court to conduct the relevant inquiry under the appropriate standard.

. . . In a minute order, the District Court granted the motion, excluding, in relevant part, evidence of "discrimination against employees not similarly situated to plaintiff." App. to Pet. for Cert. 24a. In clarifying that Mendelsohn could only "offer evidence of discrimination against Sprint employees who are similarly situated to her," the court defined " ' [s]imilarly situated employees,' for the purpose of this ruling, [as] requir[ing] proof that (1) Paul Ruddick [sic] was the decision-maker in any adverse employment action; and (2) temporal proximity." Ibid. Beyond that, the District Court provided no explanation of the basis for its ruling. As the trial proceeded, the judge orally clarified that the minute order was meant to exclude only testimony "that Sprint treated other people unfairly on the basis of age," and would not bar testimony going to the "totally different" question "whether the [reduction in force], which is [Sprint's] stated nondiscriminatory reason, is a pretext for age discrimination." App. 295a-296a.

The Court of Appeals for the Tenth Circuit treated the minute order as the application of a per se rule that evidence from employees with other supervisors is irrelevant to proving discrimination in an ADEA case. . . . The Court of Appeals then determined that the evidence was relevant and not unduly prejudicial, and reversed and remanded for a new trial. We granted certiorari, 551 U. S. ___ (2007), to determine whether, in an employment discrimination action, the Federal Rules of Evidence require admission of testimony by nonparties alleging discrimination at the hands of persons who played no role in the adverse employment decision challenged by the plaintiff.

. . . The question whether evidence of discrimination by other supervisors is relevant in an individual ADEA case is fact based and depends on many factors, including how closely related the evidence is to the plaintiff's circumstances and theory of the case. Applying Rule 403 to determine if evidence is prejudicial also requires a fact intensive, context-specific inquiry. Because Rules 401 and 403 do not make such evidence per se admissible or per se inadmissible, and because the inquiry required by those Rules is within the province of the District Court in the first instance, we vacate the judgment of the Court of Appeals and remand the case with instructions to have the District Court clarify the basis for its evidentiary ruling under the applicable Rules.

[Alan Kabat / Bernabei & Wachtel, PLLC]

Supreme Court grants cert in arbitration case

The U.S. Supreme Court granted certiorari today in 14 Penn Plaza LLC v. Pyett, et al. (Feb. 19, 2008), from the Second Circuit, which addresses the question of whether a waiver of a judicial forum for employment discrimination claims in a union-negotiated collective bargaining agreement is enforceable, where the CBA provides for arbitration of such claims.É A. CABRANES, Circuit Judge:

In short, the Second Circuit held that union-negotiated waivers are unenforceable, which is contrary to the Fourth Circuit's decision in Austin v. Owens Brockway Glass Container, 78 F.3d 875 (4th Cir. 1996). This circuit conflict is presumably the reason the SCT granted cert, even though it denied cert to the Austin decision in 1996.

One wrinkle is that here, while the union initially submitted the members' age discrimination claims to arbitration, it then withdrew those claims. After the members obtained an EEOC right to sue letter and filed a lawsuit in federal district court, the union then ultimately agreed to allow the members to have the ADEA claims heard by the arbitrator, albeit at their own expense (which they declined to do). The plaintiffs were night watchmen at an office building, and the union is the SEIU.

Some language from the Second Circuit's opinion follows, so you can see what the dispute entails:

498 F.3d 88 (2d Cir. 2007)

Before: CABRANES and RAGGI, Circuit Judges, and KORMAN, District Judge.

Defendants in an employment discrimination suit appeal from an order of the United States District Court for the Southern District of New York (Naomi Reice Buchwald, Judge) denying their motion to compel arbitration to resolve plaintiffs' age discrimination claims in accordance with the collective bargaining agreement between plaintiffs' union and their employer. The District Court concluded that the arbitration clause in the collective bargaining agreement was unenforceable under Rogers v. New York University, 220 F.3d 73 (2d Cir. 2000).

Affirmed.

In this appeal, defendants challenge an order of the United States District Court for the Southern District of New York (Naomi Reice Buchwald, Judge) denying their motion to compel arbitration of plaintiffs' age discrimination claims in accordance with the collective bargaining agreement between plaintiffs' union and their employer. Defendants argue that the District Court, which relied on the Supreme Court's decision in Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), and our Court's decision in Rogers v. New York University, 220 F.3d 73 (2d Cir. 2000), failed to take into account the Supreme Court's decisions in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991), and Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998). We disagree, and reaffirm our decision in Rogers that mandatory arbitration clauses in collective bargaining agreements are unenforceable to the extent they waive the rights of covered workers to a judicial forum for federal statutory causes of action.

. . . While conceding that in Gilmer the Supreme Court dealt only with contracts signed by individuals and not CBAs, defendants claim, see Appellants' Br. 12, that in Wright the Supreme Court made clear its abandonment of Gardner-Denver's rule that a union may only "waive certain statutory rights related to collective activity, such as the right to strike," Gardner-Denver, 415 U.S. at 51. We disagree. Our Court in Rogers squarely decided that a union-negotiated mandatory arbitration agreement purporting to waive a covered worker's right to a federal forum with respect to statutory rights is unenforceable. We took full account of both Gilmer and Wright and concluded that the Supreme Court's decision in Gardner-Denver remains good law. Our conclusion in Rogers was an alternative holding, not dicta, and continues to bind our Court. In any event, none of the cases relied upon by defendants persuades us that this holding in Rogers was incorrect.

. . . None of the other Supreme Court cases on which defendants rely casts doubt on our holding in Rogers. For example, they draw our attention to Metropolitan Edison Co. v.. N.L.R.B., 460 U.S. 693 (1983), and Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001). Metropolitan Edison held that union officials may be bound by union-negotiated agreements to enforce no-strike agreements, and thus waive their right, guaranteed by the National Labor Relations Act § 8(a)(3), 29 U.S.C. § 158(a)(3), to be free of anti-union discrimination. Metropolitan Edison, 460 U.S at 708. However, rather than supporting the notion that individual rights may be waived by CBAs, as defendants claim, that holding is in line with the Supreme Court's observation in Gardner-Denver that unions "may waive certain statutory rights related to collective activity, such as the right to strike." Gardner-Denver, 415 U.S. at 51 (emphasis added). Circuit City addressed an individual's employment contract, rather than a CBA, and therefore likewise does not address the issue before us now.

In short, there is nothing that has changed in the nine years since Wright or the seven years since Rogers that compels us to reverse our ruling in Rogers that arbitration provisions contained in a CBA, which purport to waive employees' rights to a federal forum with respect to statutory claims, are unenforceable.

(Alan R. Kabat / Bernabei & Wachtel, PLLC)

Federal Circuit, whistleblower decision

The US Court of Appeals for the Federal Circuit, in a high-profile Whistleblower Protection Act decision involving the former head of the US Park Police, who was terminated for speaking to a Washington Post reporter about safety problems due to budget cuts, gave a partial victory to the plaintiff.  Chambers v. Dept. of the Interior, No. 2007-3050 (Fed. Cir. Feb. 14, 2008). 

The Federal Circuit found that the MSPB improperly applied the "gross misconduct" standard of the WPA, and not the "public health or safety" standard, in analyzing whether the plaintiff's disclosures were protected under the WPA.  The court remanded to the MSPB for further determination under the correct standard.  However, the dissenting opinion (Judge Mayer) suggests that the result would still be the same under the correct standard, which may foreshadow the result on remand.

The opinion is online at:

http://www.cafc.uscourts.gov/opinions/07-3050.pdf

Some excerpts follow:

United States Court of Appeals for the Federal Circuit 2007-3050

TERESA C. CHAMBERS, Petitioner, v. DEPARTMENT OF THE INTERIOR, Respondent.

Before MAYER, DYK, and PROST, Circuit Judges.

PROST, Circuit Judge.

      Teresa Chambers petitions for review of an adverse decision of the Merit Systems Protection Board ("MSPB" or "Board"). Chambers v. Dep't of the Interior, DC1221040616-W-1, DC0752040642-I-1 (M.S.P.B. Sept. 21, 2006) ("Board Decision"). We find no error with the portion of Board's decision affirming the administrative judge's findings and conclusions on the charges of misconduct and the penalty imposed, and therefore we affirm-in-part. Because the Board, however, applied an incorrect standard to determine if Chambers made a protected disclosure under the Whistleblower Protection Act, we remand for reconsideration under the correct standard.

BACKGROUND

      Chambers served as Chief of the United States Park Police, a component of the National Park Service ("NPS"), from February 10, 2002, until she was removed on July 9, 2004. The NPS acts as a sub-agency of the Department of the Interior ("DOI" or "the agency"). In 2003, the Office of Management and Budget ("OMB") decided not to seek increases in the Park Police budget. Dissatisfied with that decision, Chambers spoke with a reporter from The Washington Post and also with a United States House of Representatives ("House") Interior Appropriations Subcommittee staffer about the budget and its implications for the Park Police. The newspaper then published an article attributing several statements regarding the budget to Chambers, prompting Chambers's supervisor, Donald Murphy, to first restrict Chambers from further communication with the press and then to place her on administrative leave pending review.

      On December 17, 2003, Murphy proposed to remove Chambers from service based on six charges of misconduct. Chambers, in response, filed a complaint with the Office of Special Counsel ("OSC"), claiming reprisal for a protected disclosure, and also appealed the proposed removal and her administrative leave. After the deciding official sustained all six charges of misconduct and effectuated the removal, Chambers filed another appeal with the Board. . . .

      

      On appeal, Chambers argues that the Board erred by denying her claim that, by removing her from service, the agency acted in retaliation for a protected disclosure by Chambers. Specifically, she alleges that a number of her actions constitute disclosure of substantial and specific dangers to public safety under the Whistleblower Protection Act, 5 U.S.C. § 2302(b)(8) ("WPA"). Further, the National Treasury Employees Union, as amicus curiae, argues that the Board applied an incorrect and overly narrow standard for what constitutes a protected disclosure of a risk to public health or safety. . . .

      

      To prevail on a claim under the WPA, an employee must show that she disclosed information she reasonably believed "evidences (i) a violation of law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety." 5 U.S.C. § 2302(b)(8)(A); see Reid v. Merit Sys. Prot. Bd., 508 F.3d 674, 678 (Fed. Cir. 2007) (concluding that, to make a protected disclosure, a whistleblower need only disclose what he reasonably believes is an imminent-not actual-violation of law, rule, or regulation).

      With respect to the denial of her claims under the WPA, Chambers only challenges the Board's conclusion regarding her alleged disclosure of a danger to public safety. Specifically, she and the amicus point to the disclosures to the Washington Post reporter and the House staffer. According to Chambers, she disclosed information she reasonably believed identified substantial and specific dangers to public safety, and the agency removed her in response. She argues that the Board applied an erroneous standard when reviewing the administrative judge's decision, and therefore reached the wrong conclusion with respect to her disclosures.

      We agree with Chambers and the amicus that the Board applied an incorrect standard when evaluating her WPA claim relating to disclosure of a risk to public safety. In our view, the Board improperly blended the concepts of gross mismanagement and risk to public safety.

      The Board considered Chambers's disclosures under the standard from White, 391 F.3d at 1382. Board Decision, slip op. at 12-14. Where the Board considered whether Chambers's disclosures evidenced gross mismanagement, White does provide the applicable standard. As discussed in White, a lawful but problematic policy constitutes gross mismanagement when reasonable people could not debate the error in the policy. 391 F.3d at 1382. But White concerned only gross mismanagement, not a danger to public health or safety. Id. at 1381.

      The Board failed to distinguish disclosures of a danger to public health or safety from allegations of gross mismanagement. In particular, it applied the White standard to "a statement that a particular policy choice raises risks to the citizenry." Board Decision, slip op. at 13. While Chambers certainly expressed a disagreement with a policy decision, she also potentially disclosed a danger to public safety that may have resulted from that decision. The Board classified "[t]he personal opinions that [Chambers] shared with the newspaper reporter and congressional staffer regarding the funding level and priorities consciously set by policymakers for her agency," as different from disclosures of a danger to public safety, id., slip op. at 15; but Chambers's opinions about the consequences of the policy decisions could have disclosed a danger to public safety. The Board should have considered those aspects of Chambers's disclosures directed to public safety and determined if she disclosed information she reasonably believed evidenced a substantial and specific danger to public safety.

      

      

CONCLUSION

      Because the Board applied an incorrect standard when evaluating Chambers's claim that the agency removed her in reprisal for a protected disclosure under the WPA, we vacate and remand for application of the correct standard, as explained above. As to all other aspects of the Board's decision, however, we affirm.

[Alan R. Kabat, Bernabei & Wachtel PLLC]

Fourth Circuit, decision on retaliatory lawsuits

The Fourth Circuit issued a good FLSA retaliation decision, addressing whether a lawsuit filed by the employer against the employee after the employee asserted his statutory rights (here, for overtime pay), could constitute retaliation. Although the Fourth Circuit found that plaintiff's underlying FLSA claim was properly dismissed since he fell into the administrative exception under the statute, the court squarely rejected the employer's assertion that a lawsuit filed against a former employee could not constitute retaliation. The Fourth Circuit found that it was an adverse employment action, in part because it affected the former employee's ability to obtain job references from his former employer, and that the lawsuit would otherwise be a black mark on him. The Fourth Circuit also explains that case law under Title VII's anti-retaliation statute is equally applicable to the FLSA anti-retaliation statute.

The decision is online at the link below, and some excerpts follow:

http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/062092.P.pdf 

Darveau v. Detecon, Inc., No. 06-2092 (4th Cir. Jan. 31, 2008)

Before MOTZ and GREGORY, Circuit Judges, and Henry F. FLOYD, United States District Judge for the District of South Carolina, sitting by designation.

Affirmed in part and reversed and remanded in part by published opinion. Judge Motz wrote the opinion, in which Judge Gregory and Judge Floyd joined.

COUNSEL

ARGUED: Harris D. Butler, III, BUTLER, WILLIAMS & SKILLING, P.C., Richmond, Virginia, for Appellant. John Francis Scalia, GREENBERG & TRAURIG, L.L.P., McLean, Virginia, for Appellee.

ON BRIEF: William C. Tucker, BUTLER, WILLIAMS & SKILLING, P.C., Richmond, Virginia, for Appellant. Matthew H. Sorensen, GREENBERG & TRAURIG, L.L.P., McLean, Virginia, for Appellee.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

After Detecon, Inc., a small wireless telecommunications consulting company, discharged one of its officers, Larry Darveau, he brought this action, alleging that Detecon had not paid him overtime in violation of the Fair Labor Standards Act of 1938 ("FLSA" or the "Act"), 29 U.S.C. § 207 (2000). Fifteen days later, Detecon filed a fraud suit in state court against Darveau. Darveau then amended his complaint in this case to allege that Detecon's lawsuit constituted an illegal retaliatory action under 29 U.S.C. § 215(a)(3) (2000) of the FLSA. The district court dismissed Darveau's retaliation claim for failure to state a cause of action, and the court granted summary judgment to Detecon on Darveau's remaining claims. We affirm in part and reverse and remand in part.

. . . . Darveau notes that the Supreme Court has expressly held that a lawsuit filed by an employer against an employee can constitute an act of unlawful retaliation under another federal statute governing employment rights when the lawsuit is filed with a retaliatory motive and lacking a reasonable basis in fact or law. See Bill Johnson's Rests. v. NLRB, 461 U.S. 731, 744 (1983); see also BE & K Constr. Co. v. NLRB, 536 U.S. 516, 528-37 (2002) (affirming Bill Johnson's holding, stressing that only those lawsuits that are retaliatory in intent and baseless in fact or law do not implicate First Amendment and federalism concerns). Darveau's complaint alleges Detecon filed its lawsuit with retaliatory motive and without any reasonable basis in fact or law.

. . . But we find no significant differences in either the language or intent of the two statutes [[Title VII and FLSA]] regarding the type of adverse action their retaliation provisions prohibit. The FLSA and Title VII contain identical general definitions of "employee." Compare 29 U.S.C. § 203(e)(1) (2000) (FLSA) with 42 U.S.C. § 2000e(f) (2000) (Title VII); see also United States v. Rosenwasser, 323 U.S. 360, 362 (1945) (declaring with regard to the FLSA that "[a] broader or more comprehensive coverage of employees within the stated categories would be difficult to frame."). Moreover, both statutes provide the same broad definition of a prohibited retaliatory act; each statute renders it unlawful to "discriminate against" any employee who has engaged in the described protected activities. Compare 29 U.S.C. § 215(a)(3) (FLSA) with 42 U.S.C. § 2000e-3(a) (2000) (Title VII). The similar statutory language suggests that the Supreme Court's interpretation of "employee" in Robinson - to include former as well as current employees - and definition of retaliatory acts in Burlington Northern similarly apply in the FLSA context.

. . . Somewhat surprisingly, Detecon contends that looking to the Supreme Court's Title VII jurisprudence in this FLSA case will generate the "anomalous result" of extending protection from retaliation to former employees who no longer enjoy the substantive protections of the FLSA. Br. of Appellee at 50. Yet in Burlington Northern, the Court rejected this very argument in the Title VII context, observing that Title VII's anti-retaliation provision serves a different purpose than its substantive provisions and that such "differences in . . . purpose . . . remove any perceived 'anomaly.'" 126 S. Ct. at 2414. The more unfortunate anomaly would be if an employee's underlying FLSA claim could be brought after he quit, but the employee's protection from retaliation ended when the employee stepped beyond the employer's doorstep.

Our conclusion accords with that reached by our sister circuits. The Tenth Circuit has held that an employer's third-party complaint for indemnity against four former employers could, as a matter of law, qualify as unlawful retaliation under the FLSA. Martin v. Gingerbread House, Inc., 977 F.2d 1405, 1406-08 (10th Cir. 1992). Similarly, the Sixth Circuit has concluded that the FLSA retaliation provision should extend to former employees: "There is nothing in the language or history of [the FLSA] to indicate that Congress intended to penalize dissatisfied employees who voluntarily leave an employer by thereafter denying them the protections of [the Act]. There is every reason to conclude precisely the contrary." Dunlop v. Carriage Carpet Co., 548 F.2d 139, 147 (6th Cir. 1977). The Fifth Circuit has likewise recognized that the FLSA protects former employees from retaliation, and not merely current ones. Hodgson v. Charles Martin Inspectors of Petroleum, Inc., 459 F.2d 303, 306 (5th Cir. 1972). Former employees require such protection because they often need references from past employers, they may face retaliation from new employers who learn they have challenged the labor practices of previous employers, and they sometimes must return to past employers for a variety of reasons, putting them once more at risk of retaliation. Id.

For all these reasons, we hold that the district court clearly erred in requiring Darveau to allege that his employer retaliated against him with a "materially adverse employment action." Rather, a plaintiff asserting a retaliation claim under the FLSA need only allege that his employer retaliated against him by engaging in an action "that would have been materially adverse to a reasonable employee" because the "employer's actions . . . could well dissuade a reasonable worker from making or supporting a charge of discrimination." Burlington Northern, 126 S. Ct. at 2409. Darveau has alleged such an action here, i.e., that his employer filed a lawsuit against him alleging fraud with a retaliatory motive and without a reasonable basis in fact or law. We therefore must reverse the judgment of the district court dismissing Darveau's retaliation claim and remand for further proceedings consistent with this opinion.

Alan R. Kabat (Bernabei & Wachtel, PLLC)