Jose Arias v. Anthony Raimondo

Filing

FILED OPINION (STEPHEN S. TROTT, KIM MCLANE WARDLAW and RONALD M. GOULD) REVERSED AND REMANDED. Judge: SST Authoring. FILED AND ENTERED JUDGMENT. [10483741]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOSE ARNULFO ARIAS,
Plaintiff-Appellant,

No. 15-16120

v.

D.C. No.
2:13-cv-00904-TLN-EFB

ANTHONY RAIMONDO,
Defendant-Appellee.

OPINION

Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Argued and Submitted March 14, 2017
San Francisco, California
Filed June 22, 2017
Before: Stephen S. Trott, Kim McLane Wardlaw,
and Ronald M. Gould, Circuit Judges.
Opinion by Judge Trott

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ARIAS V. RAIMONDO
SUMMARY*

Labor Law
The panel reversed the district court’s dismissal of a
retaliation claim under the Fair Labor Standards Act.
The plaintiff alleged that after he filed suit against his
employers in state court, the employers’ attorney, acting as
their agent, retaliated against him by planning for U.S.
Immigration and Customs Enforcement to take him into
custody at a scheduled deposition and then to remove him
from the United States. The panel held that unlike the Fair
Labor Standards Act’s wage and hour provisions, its
retaliation provisions apply to “any person” and do not
require that a defendant be the plaintiff’s employer. The
panel remanded the case to the district court for further
proceedings.

COUNSEL
Christopher Ho (argued) and Stacy Villalobos, The Legal Aid
Society – Employment Law Center, San Francisco,
California; Esmeralda Zendejas and Blanca A. Bañuelos,
California Rural Legal Assistance, Inc., Stockton, California;
Michael L. Meuter, California Rural Legal Assistance, Inc.,
Salinas, California; for Plaintiff-Appellant.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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Scott P. Dixler (argued) and Peder K. Batalden, Horvitz &
Levy LLP, Burbank, California, for Defendant-Appellee.
Nora A. Preciado and Joshua T. Stehlik, National
Immigration Law Center, Los Angeles, California; Jessica
Hahn, National Immigration Law Center, Washington, D.C.;
for Amicus Curiae National Immigration Law Center, Asian
Americans Advancing Justice – Asian Law Caucus, Asian
Americans Advancing Justice – Los Angeles, Bet Tzedek
Legal Services, Centro Legal de la Raza, Farmworker Justice,
Jobs with Justice, National Employment Law Project, New
Orleans Workers’ Center for Racial Justice, UCLA Center for
Labor Research and Education, United Food and Commercial
Workers International Union, and Worksafe Inc.

OPINION
TROTT, Circuit Judge:
Can an employer’s attorney be held liable for retaliating
against his client’s employee because the employee sued his
client for violations of workplace laws? The district court’s
answer was no. We respectfully disagree.
We have jurisdiction over this timely appeal pursuant to
28 U.S.C. § 1291, and we reverse and remand.
I
Background
In 1995, plaintiff José Arnulfo Arias went to work as a
milker for Angelo Dairy. Three Angelos owned and operated

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the dairy: Luis, Maria, and Joe (“Angelos”). When the
Angelos hired Arias, they did not complete and file a Form I9 (“I-9”) regarding his employment eligibility in the United
States.
An I-9 is a document required by U.S. Citizenship and
Immigration Services (“USCIS”), a component of our
Department of Homeland Security. USCIS explains the
purpose of the I-9 and process as follows:
Form I-9 is used for verifying the identity and
employment authorization of individuals hired
for employment in the United States. All U.S.
employers must ensure proper completion of
Form I-9 for each individual they hire for
employment in the United States. This
includes citizens and noncitizens. . . .
Employers must retain Form I-9 for a
designated period and make it available for
inspection by authorized government officers.
U.S. Citizenship and Immigration Services, I-9, Employment
Eligibility Verification, https://www.uscis.gov/i-9 (last
updated Jan. 23, 2017).
Instead of complying with federal law, the Angelos
wielded it as a weapon to confine Arias in their employ.
When Arias informed Luis Angelo in 1997 that he had been
offered a position with another dairy, Luis “responded that if
[Arias] left to work at the other dairy, [Luis] would report the
other dairy to federal immigration authorities as an employer
of undocumented workers,” which Arias was. This threat
caused Arias to forego his other employment opportunity and
to remain with the Angelos.

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In 2006, Arias sued Angelo Dairy in California state
court. Arias alleged causes of action on behalf of himself and
other employees under California’s Unfair Competition Law
(“UCL”), CAL. BUS. & PROF. CODE § 17200 et seq., for a
variety of workplace violations, including failure to provide
overtime pay and rest and meal periods. Later, he added a
cause of action under California’s Private Attorneys General
Act of 2004 (“PAGA”), CAL. LAB. CODE § 2698 et seq. The
Superior Court struck his representative claims in the UCL
and PAGA causes of action. The Court of Appeal later issued
a peremptory writ of mandate directing the Superior Court to
vacate its order as to the PAGA cause of action. See Arias v.
Superior Court, 63 Cal. Rptr. 3d 272 (Cal. Ct. App. 2007),
aff’d, 46 Cal. 4th 969 (2009). The Superior Court then set a
trial date of August 15, 2011.
II
The Plot Thickens
On June 1, 2011, ten weeks before the state court trial, the
Angelos’ attorney, Anthony Raimondo, set in motion an
underhanded plan to derail Arias’s lawsuit. Raimondo’s plan
involved enlisting the services of U.S. Immigration and
Customs Enforcement (“ICE”) to take Arias into custody at
a scheduled deposition and then to remove him from the
United States. A second part of Raimondo’s plan was to
block Arias’s California Rural Legal Assistance attorney
from representing him. This double barrel plan was captured
in email messages back and forth between Raimondo, Joe
Angelo, and ICE’s forensic auditor Kulwinder Brar. Arias
quoted these revealing exchanges in his current complaint:

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23. On June 1, 2011, Defendant RAIMONDO
emailed Immigration and Custom
Enforcement (“ICE”) Forensic Auditor
Kulwinder Brar, an employee of the U.S.
Department of Homeland Security. In this
email, Defendant RAIMONDO supplied Brar
with information about Plaintiff’s identity,
and asked Brar to “[l]et me know if there is
anything that you can do. . . .”
24. On the same day, June 1, 2011, all parties
to the 2006 Lawsuit attended a mediation in
Stockton, California. The mediation was
unsuccessful.
25. On June 14, 2011, Defendant
RAIMONDO sent Joe Angelo a text message
stating, “Immigration is trying to verify Arias
[sic] status - let me know if you have any
more info on him.” Joe Angelo responded by
providing Defendant RAIMONDO with
Plaintiff’s driver’s license number. . . .
26. On June 15, 2011, Defendant
RAIMONDO emailed to ICE Auditor Brar the
information Joe Angelo had provided. In
doing so, Defendant RAIMONDO stated, “I
hope this helps. [Plaintiff] will be attending a
deposition next week. If there is an interest in
apprehending him, please let me know so that
we can make the necessary arrangements. . . .”
27. On June 16, 2011, ICE Auditor Brar
responded to Defendant RAIMONDO’s email

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of June 1, 2011, stating that “[b]ased on our
records he [Plaintiff] has no legal status. We
will be forwarding this information to ERO
[Enforcement and Removal Operations] and
your contact information if they want to
proceed with this matter. . . .”
28. Defendant RAIMONDO replied to ICE
Auditor Brar, asking her to “[p]lease let ERO
know that they can expect our full cooperation
and assistance”, and to “let me know if there
is anything I can do to be of assistance to
you.” Brar responded, “No problem and we
will get your contact information as soon as
contact is made.”
Arias’s current complaint also alleged the impact of
Raimondo’s actions on him and his case, and Raimondo’s
pattern and practice of similar conduct in other cases:
29. Plaintiff became aware on June 22, 2011
that Defendant had provided information
concerning Plaintiff to the immigration
authorities. Fearing that he would be deported
and separated from his family, Plaintiff
suffered anxiety, mental anguish, and other
emotional distress from Defendant’s
retaliatory action.
30. On July 11, 2011, one month before trial,
the parties participated in a settlement
conference. In lieu of proceeding to trial on
the wage and hour claims comprised within
the 2006 Lawsuit, Plaintiff entered into a

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settlement and release of those claims, due in
substantial part to the threat of deportation
created by Defendant’s communications with
ICE.
31. On information and belief, Defendant
RAIMONDO’s actions against Plaintiff are
reflective of and consistent with his pattern
and practice of retaliating against employees
who assert their workplace rights. In fact,
Defendant RAIMONDO has stated in a
declaration filed in a court action that it is his
practice to investigate the immigration status
of plaintiffs who have brought legal claims
against his clients. . . .
32. On at least five additional occasions, and
consistent with his pattern and practice,
Defendant RAIMONDO has contacted ICE
with respect to employees who have asserted
their workplace rights against employers
whom Defendant RAIMONDO has
represented, and has offered his assistance to
ICE in apprehending those employees. . . .
33. On May 2, 2013, Defendant RAIMONDO
confirmed the above pattern and practice in an
email he sent to Thomas Hester of the Office
of Inspector General at the Legal Services
Corporation, in which he stated, “The time
when I have had litigants deported, I have
always simply taken action rather than make
any threats. The attorneys find out when their
clients are already gone.”

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III
Arias’s Complaint
On May 8, 2013, Arias filed this lawsuit against Angelo
Dairy, the Angelos, and Raimondo in the Eastern District of
California. Arias alleged that the defendants violated section
215(a)(3) of the Fair Labor Standards Act (“FLSA”),
29 U.S.C. § 201 et seq.1
Arias’s theory of his case is that Raimondo, acting as the
Angelos’ agent, retaliated against him in violation of section
215(a)(3) for filing his original case against Raimondo’s
clients in state court . Raimondo’s sole legal defense is that
because he was never Arias’s actual employer, he cannot be
held liable under the FLSA for retaliation against someone
who was never his employee.
Angelo Dairy and its owners settled their part of this case
at the early stages of its existence.
IV
A.
The District Court’s Dismissal
Notwithstanding section 215(a)(3)’s reference to “any
person,” section 203(a)’s inclusion of a legal representative
as a “person,” and section 203(d)’s plain language defining
“employer,” the district court granted Raimondo’s motion to
1

Arias’s current complaint also contains claims for intentional
infliction of emotional distress and unfair competition.

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dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
The court did so without the benefit of oral argument,
concluding that because Arias “ha[d] not alleged that
[Raimondo] exercised any control over [his] employment
relationship,” Raimondo as a matter of law could not be
Arias’s employer.
B.
Standard of Review
We review de novo a Rule 12(b)(6) dismissal for failure
to state a claim, and we take all allegations of material fact as
true, construing them in the light most favorable to the
nonmoving party, here Arias.
V
Discussion
Section 215(a)(3), an anti-retaliation provision, makes it
unlawful “for any person . . . to discharge or in any other
manner discriminate against any employee because such
employee has filed any complaint . . . under or related to this
chapter.” The FLSA defines the term “person” to include a
“legal representative.” Id. § 203(a). Section 216(b) in turn
creates a private right of action against any “employer” who
violates section 215(a)(3); and the FLSA defines “employer”
to include “any person acting directly or indirectly in the
interest of an employer in relation to an employee.” Id.
§§ 203(d), 216(b).
Controversies under FLSA sections 206 and 207 that
require a determination of primary workplace liability for

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wage and hour responsibilities and violations, on one hand,
and controversies arising from retaliation against employees
for asserting their legal rights, on the other, are as different as
chalk is from cheese. Each category has a different purpose.
It stands to reason that the former relies in application on tests
involving economic control and economic realities to
determine who is an employer, because by definition it is the
actual employer who controls substantive wage and hours
issues.
Retaliation is a different animal altogether. Its purpose is
to enable workers to avail themselves of their statutory rights
in court by invoking the legal process designed by Congress
to protect them. Robinson v. Shell Oil Co., 519 U.S. 337, 346
(1997) (the “primary purpose of antiretaliation provisions” is
to “[m]aintai[n] unfettered access to statutory remedial
mechanisms”).
This distinctive purpose is not served by importing an
“economic control” or an “economic realities” test as a line
of demarcation into the issue of who may be held liable for
retaliation. To the contrary, the FLSA itself recognizes this
sensible distinction in section 215(a)(3) by prohibiting “any
person” – not just an actual employer – from engaging in
retaliatory conduct. By contrast, the FLSA’s primary wage
and hour obligations are unambiguously imposed only on an
employee’s de facto “employer,” as that term is defined in the
statute. Treating “any person” who was not a worker’s actual
employer as primarily responsible for wage and hour
violations would be nonsensical.
The district court based its decision on precedent
pertaining to whether a person was an employer for purposes
of the FLSA’s substantive economic provisions, i.e., those

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involving wages and hours, etc., not section 215(a)(3)
retaliation. See Boucher v. Shaw, 572 F.3d 1087, 1090–93
(9th Cir. 2009) (holding that an employer’s individual
managers were personally liable under the FLSA for unpaid
wages, pursuant to an “economic control” test); Bonnette v.
Cal. Health & Welfare Agency, 704 F.2d 1465, 1470 (9th Cir.
1983) (holding that state and county agencies were employers
of in-home chore workers who alleged violations of minimum
wage provisions).
The district court also relied on Dellinger v. Science
Applications International Corp., 649 F.3d 226 (4th Cir.
2011). However, Dellinger is inapposite because Dellinger
was never officially hired by the defendant. All Dellinger
stands for is that “the FLSA gives an employee the right to
sue only his or her current or former employer and that a
prospective employee cannot sue a prospective employer for
retaliation.” Id. at 227 (emphasis added). In other words, a
person who never worked for the employer – in our case
Angelo Dairy – does not fit anywhere in the FLSA. See id. at
230 n.2. Because Angelo Dairy was Arias’s actual employer,
Arias is indisputably an employee, as section 215(a)(3) uses
that term.
These cases and the others the district court relied on are
not in tension with our decision. The cases are simply
inapposite in the context of an allegation of retaliation.
The Supreme Court’s decision in Burlington Northern &
Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), supports
our analysis, albeit in a different context: Title VII of the
Civil Rights Act of 1964’s (“Title VII”) anti-retaliation
provision, 42 U.S.C. § 2000e-3(a). See Darveau v. Detecon,
Inc., 515 F.3d 334, 342 (4th Cir. 2008) (recognizing “the

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almost uniform practice of courts in considering the
authoritative body of Title VII case law when interpreting the
comparable provisions of other federal statutes” and noting in
particular that “courts have looked to Title VII cases in
interpreting the FLSA” (citations omitted)).
The issue in Burlington was whether the actions and
harms forbidden by Title VII’s anti-retaliation provision are
confined to those that are related to employment or occur at
the workplace. 548 U.S. at 57. Focusing on differences in
language and purpose between the substantive provisions of
Title VII and the anti-retaliation provision, the Court held that
Title VII’s anti-retaliation provision is not so confined.
There is strong reason to believe that
Congress intended the differences that its
language suggests, for the two provisions
differ not only in language but in purpose as
well. The antidiscrimination provision seeks
a workplace where individuals are not
discriminated against because of their racial,
ethnic, religious, or gender-based status. The
antiretaliation provision seeks to secure that
primary objective by preventing an employer
from interfering (through retaliation) with an
employee’s efforts to secure or advance
enforcement of the Act’s basic guarantees.
The substantive provision seeks to prevent
injury to individuals based on who they are,
i.e., their status. The antiretaliation provision
seeks to prevent harm to individuals based on
what they do, i.e., their conduct.

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To secure the first objective, Congress did not
need to prohibit anything other than
employment-related discrimination.
The
substantive provision’s basic objective of
“equality of employment opportunities” and
the elimination of practices that tend to bring
about “stratified job environments,” would be
achieved were all employment-related
discrimination miraculously eliminated.
But one cannot secure the second objective by
focusing only upon employer actions and
harm that concern employment and the
workplace. Were all such actions and harms
eliminated, the antiretaliation provision’s
objective would not be achieved.
An
employer can effectively retaliate against an
employee by taking actions not directly
related to his employment or by causing him
harm outside the workplace. . . .
Thus, purpose reinforces what language
already indicates, namely, that the
antiretaliation provision, unlike the
substantive provision, is not limited to
discriminatory actions that affect the terms
and conditions of employment. . . .
In any event, as we have explained,
differences in the purpose of the two
provisions remove any perceived “anomaly,”
for they justify this difference of
interpretation. Title VII depends for its
enforcement upon the cooperation of

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employees who are willing to file complaints
and act as witnesses. “Plainly, effective
enforcement could thus only be expected if
employees felt free to approach officials with
their grievances.”
Interpreting the
antiretaliation provision to provide broad
protection from retaliation helps ensure the
cooperation upon which accomplishment of
the Act’s primary objective depends.
For these reasons, we conclude that Title
VII’s substantive provision and its
antiretaliation provision are not coterminous.
The scope of the antiretaliation provision
extends beyond workplace-related or
employment-related retaliatory acts and harm.
We therefore reject the standards applied in
the Courts of Appeals that have treated the
antiretaliation provision as forbidding the
same conduct prohibited by the
antidiscrimination provision and that have
limited actionable retaliation to so-called
“ultimate employment decisions.”
Id. at 63–67 (citations omitted).
In our case, the difference in reach between FLSA’s
substantive economic provisions and its anti-retaliation
provision is unmistakable. The wage and hours provisions
focus on de facto employers, but the anti-retaliation provision
refers to “any person” who retaliates. See 29 U.S.C.
§ 215(a)(3). In turn, section 203(d) extends this concept to
“any person acting directly or indirectly in the interest of an
employer in relation to an employee.” See Id. § 203(d).

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Thus, Congress clearly means to extend section 215(a)(3)’s
reach beyond actual employers. Raimondo’s activity in this
case on behalf of his clients illustrates the wisdom of this
extension.
Although decided before Congress amended the FLSA in
1977 to explicitly create a private right of action for
violations of section 215(a)(3), the Third Circuit’s opinion in
Bowe v. Judson C. Burns, Inc., 137 F.2d 37 (3d Cir. 1943) –
in which a private right of action for such violations was
implied – reinforces our interpretation of this statute. The
Third Circuit rejected a union’s contention that it could not be
liable under section 215(a)(3) for retaliation against its
members because the union was not the members’ actual
employer. The court said,
Legislative intent must be drawn from the Act
as a whole. Those portions of the Act . . .
relating to wages and to hours do apply only
to employers. The prohibitions expressed in
Section 15, 29 U.S.C.A. § 215, however, are
applicable “to any person[.]” Section 15(a)(3)
makes it unlawful for “any person” . . .
whether or not he is an employer, to
discriminate against any employee.
Id. at 38 (emphasis added).
In Sapperstein v. Hager, 188 F.3d 852, 856–57 (7th Cir.
1999), the Seventh Circuit interpreted and applied this “any
person” distinction in a manner that supports our analysis.
The court concluded that section 215(a)(3) provides an
“alternative basis for subject matter jurisdiction” where the
employer’s gross annual sales amount appeared to fall short

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of the jurisdictional amount required to bring the employer
within the purview of the FLSA’s wage and hour provisions
set forth in sections 206 and 207. The court held that:
Congress made it illegal for any person, not
just an “employer” as defined under the
statute, to retaliate against any employee for
reporting conduct “under” or “related to”
violations of the federal minimum wage or
maximum hour laws, whether or not the
employer’s conduct does in fact violate those
laws. . . . Moreover, “the remedial nature of
the statute further warrants an expansive
interpretation of its provisions. . . .”
Id. at 857 (second omission in original) (quoting Herman v.
RSR Sec. Servs., 172 F.3d 132, 139 (2d Cir. 1999)).
VI
Conclusion
The FLSA is “remedial and humanitarian in purpose. We
are not here dealing with mere chattels or articles of trade but
with the rights of those who toil, of those who sacrifice a full
measure of their freedom and talents to the use and profit of
others . . . . Such a statute must not be interpreted or applied
in a narrow, grudging manner.” Tenn. Coal, Iron & R.R. Co.
v. Muscoda Local No. 123, 321 U.S. 590, 597 (1944).
Accordingly, we conclude that Arias may proceed with
this retaliation action against Raimondo under FLSA sections
215(a)(3) and 216(b). Raimondo’s behavior as alleged in
Arias’s complaint manifestly falls within the purview, the

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purpose, and the plain language of FLSA sections 203(a),
203(d), and 215(a)(3).
Our interpretation of these provisions is limited to
retaliation claims. It does not make non-actual employers
like Raimondo liable in the first instance for any of the
substantive wage and hour economic provisions listed in the
FLSA. As illustrated by the Court’s opinion in Burlington,
the substantive provisions of statutes like Title VII and the
FLSA, and their respective anti-retaliation provisions, stand
on distinctive grounds and shall be treated differently in
interpretation and application. Ultimately a retaliator like
Raimondo may become secondarily liable pursuant to section
216(b) for economic reparations, but only as a measure of
penalties for his transgressions.
REVERSED and REMANDED for further proceedings.