4th Circuit Examines FLSA’s Anti-Retaliation Provision

In Dellinger v. Sci. Applications International Corp., Natalie Dellinger sued her former employer, CACI, Inc., in July 2009 for alleged violations of the FLSA’s minimum wage and overtime provisions.  Around the same time, she applied for a job with Science Applications International Corporation.  In late August 2009, Science Applications offered Dellinger a job, contingent on her passing a drug test, completing specified forms, and verifying and transferring her security clearance.  Dellinger accepted the offer and began the confirmation process.  On the security clearance form, she had to list any pending lawsuits and so listed her FLSA lawsuit against CACI.  Several days after she submitted her form, Science Applications withdrew its offer of employment.  Dellinger filed suit for FLSA retaliation, alleging that the job offer was withdrawn because of her pending lawsuit.  The district court granted the defendant’s motion to dismiss.

FLSA prohibits retaliation, which it defines in relevant part as discrimination “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.”  29 U.S.C. § 215(a)(3).  Section 216(b) provides that an employee may file suit against “any employer who violates the provisions of section 215(a)(3)” and can recover “legal or equitable relief . . . including without limitation employment, reinstatement . . . .”  Despite these broad provisions, the Fourth Circuit affirmed the dismissal in a 2-1 decision by Judges Niemeyer and Keenan.

Interpreting this language, the majority focused on the terms employee and employer and then made the logical leap that those terms meant individuals could only sue their employer.  In other words, current or former employers can be sued, but not prospective employers.  The majority relied on two district court opinions for support as no other circuit courts had addressed the issue.  In dissent, Judge King cogently discussed several points that amply rebut the majority’s position: (1) Robinson v. Shell Oil Co., 519 U.S. 337 (1997), in which the Supreme Court unanimously held that former employers can be sued under Title VII’s anti-retaliation provision; (2) the FLSA provision’s use of the broad term “any” repeatedly, indicating wide scope; (3) listed remedies include “employment” and “reinstatement,” and the former only makes sense with prospective employers; (4) many other employment laws (e.g. Title VII, ADEA, OSHA, NLRA) cover prospective employers; (5) the purpose of the act is plainly furthered by protecting prospective employees; and (6) the majority’s decision bucks the Supreme Court’s recent trend of broadly interpreting anti-retaliation provisions (including Thompson and Kasten last year).  Despite the evident correctness of the dissent, this view has not prevailed.  The Circuit denied en banc review in October 2011 and the Supreme Court, somewhat surprisingly, denied certiorari in February 2012.