On November 26, 2012, the Eighth Circuit held that an employee’s call to a supervisor to resolve a pay deduction was not a complaint protected under the Fair Labor Standards Act (FLSA). Montgomery v. Havner, No. 12-1977 (8th Cir. Nov. 26, 2012).
The Plaintiff Leslie Montgomery worked as a paralegal for attorney Kyle Havner at the Havner law office. Kathy Havner (Kyle Havner’s wife) worked as office manager. She and Montgomery had a series of disagreements regarding, among other things, Montgomery’s choice of dress and use of Facebook during work hours. On June 16, 2011, Montgomery stopped working and began cleaning her desk at approximately 4:45 p.m. Kathy Havner observed Montgomery not working. At 4:55 p.m., Kathy Havner told Montgomery and the two other employees they could leave for the day and she would clock them out. Montgomery learned from another employee that she had been clocked out at 4:45 p.m. while the other employees were clocked out at 4:55 p.m.
When Montgomery got home, she called Kathy Havner to ask why she had been clocked out at 4:45 p.m. Kathy Havner explained the deduction and Montgomery explained her side of the story. The conversation was “civil and ‘ended nicely’ with Kathy Havner agreeing to adjust Montgomery’s clockout time.” Id. at 2-3. A short time later, Havner called Montgomery back to discuss a different issue about another employee taking breaks. The conversation became heated and, soon after, Kyle Havner called Montgomery and fired her.
Montgomery brought suit against the law firm and both Kyle and Kathy Havner. She asserted that the Havners retaliated against her for raising a wage complaint, in violation of the FLSA. The district court granted summary judgment in the Defendants favor, concluding that Montgomery failed to establish a prima facie case of retaliation.
The Eighth Circuit agreed, explaining: “‘To fall within the scope of the antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection….’” Id. at 4 (quoting Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. ___, ___, 131 S. Ct. 1325, 1335 (2011)). Considering the circumstances and content of the phone call, the Eighth Circuit found that “[n]o reasonable jury could conclude Montgomery’s discussion with Kathy Havner about the ten-minute deduction was a sufficiently clear and detailed FLSA complaint for the Havners reasonably to understand Montgomery was alleging an FLSA violation.” Id. at 5.
Although the Supreme Court’s decision in Kasten found that a protected complaint under the FLSA can be asserted by oral complaints as well as written ones, the Eighth Circuit’s affirmance of summary judgment and dismissal of Montgomery’s FLSA claim here demonstrates that not every wage-related dialog necessarily entitles an employee to FLSA protection. Moreover, the court’s attention to the fact that the conversation between Montgomery and Kathy Haven was civil and “ended nicely” emphasizes the importance of timely and appropriate supervisor response to employee “complaints,” whether or not they rise to the level of protected activity.
Tracey Holmes Donesky and Christina Sans
Leonard, Street and Deinard P.A.