[author: Michael Cardman, XpertHR Legal Editor]
An amicable phone call in which an employee asked her office manager why she had been clocked out 10 minutes early was not a protected activity that can trigger a retaliation claim under the Fair Labor Standards Act (FLSA), a federal appeals court ruled today.
No reasonable jury could conclude that the conversation "was a sufficiently clear and detailed FLSA complaint" for the employer to reasonably understand that the employee had alleged a violation of the FLSA, the 8th U.S. Circuit Court of Appeals held in Montgomery v. Havner, +2012 U.S. App. LEXIS 24224 (8th Cir. 2012).
The plaintiff in the case was a paralegal named Leslie Montgomery. One afternoon at 4:45 p.m., Montgomery had reached what she considered to be a good stopping point in her work and cleaned her desk in preparation for closing. The office manager, Kathy Havner, observed Montgomery not working. At 4:55 p.m., Havner dismissed Montgomery and clocked her out at 4:45 p.m.
When Montgomery arrived at home, she called Havner to ask why she had been clocked out early. The conversation "ended nicely," according to Montgomery, with Havner agreeing to adjust her clock-out time. Later, Montgomery called back to discuss a different issue. This time, the conversation was more heated and Montgomery was terminated.
Soon after, Montgomery sued her employer, alleging retaliation in violation of the FLSA. To make a retaliation claim under the FLSA, an employee must show that:
He or she participated in a statutorily protected activity (such as filing a complaint);
The employer took an adverse employment action against him or her; and
There was a causal connection between the protected activity and the adverse employment action.
In Kasten v. Saint-Gobain Performance Plastics Corp., +131 S. Ct. 1325 (2011), the U.S. Supreme Court ruled that oral complaints can constitute a protected activity as well as written complaints. However, the court ruled in Kasten that "a complaint must be sufficiently clear and detailed for a reasonable employer to understand it ... as an assertion of rights protected by the statute and a call for their protection."
The 8th Circuit ruled that Montgomery's phone call failed to qualify as sufficiently clear and detailed and upheld the district court's summary judgment for the employer.