Lisa Ritchie v. St. Louis Jewish Light, et al

Filing

OPINION FILED - THE COURT: JAMES B. LOKEN, DAVID R. HANSEN and DUANE BENTON. David R. Hansen, Authoring Judge (PUBLISHED) [3740702] [10-1356]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

________________
No. 10-1356
________________
Lisa Ritchie,

*
*
*
*
*
*
*
*
*
*

Appellant,
v.
St. Louis Jewish Light; Larry
Levin,
Appellees.

Appeal from the United States
District Court for the
Eastern District of Missouri.
[PUBLISHED]

________________
Submitted: September 22, 2010
Filed: January 4, 2011
________________
Before LOKEN, HANSEN, and BENTON, Circuit Judges.
________________
HANSEN, Circuit Judge.
Lisa Ritchie, a former employee of St. Louis Jewish Light, filed a federal court
complaint against Larry Levin, Ritchie's supervisor, and St. Louis Jewish Light
(collectively, appellees), pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C.
§ 215, claiming that her employment was terminated in retaliation for insisting on
recording her overtime work. Appellees filed a motion to dismiss, which the district

Appellate Case: 10-1356

Page: 1

Date Filed: 01/04/2011 Entry ID: 3740702

court1 granted, finding that informal FLSA complaints to one's employer are not
protected. Ritchie appeals. Because we find that Ritchie's federal court complaint
failed to state a claim, we affirm.
I.
Ritchie was employed at St. Louis Jewish Light in various capacities between
February 2002 and September 2009. According to Ritchie, around May or June of
2009, Levin, the chief executive officer of St. Louis Jewish Light, asked her to
perform work that previously had been performed by two employees. Ritchie stated
that Levin asked her to perform the work without recording overtime. According to
Ritchie's complaint, the work required that Ritchie perform overtime, which she
recorded. Levin again instructed her to perform the work without recording overtime.
When Ritchie continued to record the overtime, her employment was terminated.
Ritchie asserts that this termination was in violation of the FLSA. She claims that her
employment "was terminated in retaliation for her insistence of recording overtime."
(Appellant's App. at 1.) She did not allege that she was not paid for the overtime she
worked, and her counsel conceded at oral argument that she was in fact paid for all
overtime work she performed.
Ritchie filed a complaint in the United States District Court, asserting a claim
under the FLSA. The appellees filed a motion to dismiss, asserting that her complaint
failed to state a claim. The district court granted the appellees' motion, finding that
Ritchie did not state a claim of retaliation under the FLSA because she did not allege
that she engaged in statutorily protected activity. Ritchie appeals, arguing that
informal complaints to an employer trigger the anti-retaliation protection of the FLSA
and that she was retaliated against for exercising her rights under the FLSA.

1

The Honorable Charles A. Shaw, United States District Judge for the Eastern
District of Missouri.
-2-

Appellate Case: 10-1356

Page: 2

Date Filed: 01/04/2011 Entry ID: 3740702

II.
We review a district court's grant of a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6) de novo. Carton v. Gen. Motors Acceptance Corp.,
611 F.3d 451, 454 (8th Cir. 2010). In reviewing an appeal from a grant of a motion
to dismiss, "we construe the complaint in the light most favorable to the nonmoving
party." Id. "To survive a motion to dismiss, the factual allegations in a complaint,
assumed true, must suffice 'to state a claim to relief that is plausible on its face.'"
Northstar Indus., Inc. v. Merrill Lynch & Co., 576 F.3d 827, 832 (8th Cir. 2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
The anti-retaliation provision of the FLSA makes it 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).
In granting the appellees' motion to dismiss, the district court analyzed the issue
of whether "informal complaints" are covered by the FLSA's anti-retaliation provision.
The district court acknowledged that the Eighth Circuit had not addressed the issue
directly but held that Ritchie's "oral complaint to her employer concerning the failure
to pay overtime is not protected activity under § 215(a)(3) of the FLSA." (Appellant's
App. at 14.) On appeal, Ritchie argues that she made informal complaints to the

-3-

Appellate Case: 10-1356

Page: 3

Date Filed: 01/04/2011 Entry ID: 3740702

appellees about their requirement that she not record overtime hours and that she was
fired for recording her overtime hours.
We need not decide today whether informal complaints are protected activity
under the FLSA because there is nothing in Ritchie's verified federal court complaint
that alleged that Ritchie made any sort of complaint to either Levin or St. Louis
Jewish Light. The verified complaint alleged that:
7. Starting on or about May or June 2009, Levin asked Ritchie to
perform work ("Work") [formerly] performed by two employees by
herself which Ritchie commenced to do.
8. Levin asked Ritchie to perform the Work without recording overtime.
9. The Work required that Ritchie perform overtime hours (more than
40 hours in a week) ("Overtime") which Ritchie recorded.
10. Levin complained to Ritchie about her recording the Overtime and
again requested that she perform the Work without recording overtime.
11. When Ritchie continued to record the Overtime, she was terminated
by Levin and [St. Louis Jewish Light].
(Appellant's App. at 1-2.)
Even assuming that informal complaints are sufficient to trigger the antiretaliation provision of the FLSA, a legal conclusion we do not make, Ritchie failed
to allege sufficient facts to indicate that she made even an informal complaint to either
Levin or St. Louis Jewish Light. The only complaining asserted in her pleading goes
the other way—Levin complaining to Ritchie. Ritchie asserts that she complained
pursuant to the FLSA when she gave "Levin notice that she believed Levin's
instructions were a violation of the law because she, in fact, recorded the overtime
hours in writing despite his orders not to record them." (Appellant's Reply Br. at 4.)
In fact, rather than constituting an affirmative complaint that would trigger the antiretaliation provision of the FLSA, her recording of her overtime could be nothing
more than mere insubordination, she having been instructed to the contrary.
-4-

Appellate Case: 10-1356

Page: 4

Date Filed: 01/04/2011 Entry ID: 3740702

Insubordination is not protected under the FLSA, and insubordination is not sufficient
to trigger the anti-retaliation provision in 29 U.S.C. § 215(a)(3). As appellees' counsel
noted at oral argument, if merely recording one's overtime is a "complaint" that
triggers the anti-retaliation provision of the FLSA, an employer would not be able to
discipline an employee for working unauthorized overtime so long as the employee
recorded the overtime.
As the Supreme Court has recently said, the plausibility standard, which
requires a federal court complaint "to state a claim to relief that is plausible on its face,
. . . asks for more than a sheer possibility that a defendant has acted unlawfully."
Iqbal, 129 S. Ct. at 1949 (internal quotation marks omitted). "[W]here the wellpleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not 'show[n]—'that the pleader is
entitled to relief.'" Id. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)).
To establish a prima facie case of retaliation under the FLSA, Ritchie would
have to show that she participated in statutorily protected activity, that the appellees
took an adverse employment action against her, and that there was a causal connection
between Ritchie's statutorily protected activity and the adverse employment action.
See Grey v. City of Oak Grove, 396 F.3d 1031, 1034-35 (8th Cir. 2005). The facts
pleaded in Ritchie's complaint do not permit us to infer more than the mere possibility
of misconduct. Thus, Ritchie's complaint merely alleged, but did not show, that
Ritchie is entitled to relief.2
Thus, the district court did not err in granting the appellees' motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6). See Carton, 611 F.3d at 454.
2

In fact, we note that the complaint alleged only that Levin instructed her to stop
recording overtime. Levin could merely have been instructing Ritchie to complete the
work required by the job within a 40-hour workweek and to stop working overtime
altogether.
-5-

Appellate Case: 10-1356

Page: 5

Date Filed: 01/04/2011 Entry ID: 3740702

III.
Accordingly, the judgment of the district court is affirmed.
______________________________

-6-

Appellate Case: 10-1356

Page: 6

Date Filed: 01/04/2011 Entry ID: 3740702