Randolph et al v. ADT Security Services, Inc.
Filing
68
MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 8/8/11. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
SHARON RANDOLPH, et al.
:
v.
:
Civil Action No. DKC 09-1790
:
ADT SECURITY SERVICES, INC.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this Fair
Labor Standards Act (“FLSA”) case are cross-motions for summary
judgment filed by Plaintiffs Sharon Randolph and Tami Thompson
and Defendant ADT Security Services, Inc. (“ADT”).
48,
50).
Also
pending
are
several
motions
to
(ECF Nos.
seal
certain
exhibits that were filed in connection with the parties’ crossmotions.
(ECF Nos. 50, 54, 59).
The issues are fully briefed
and the court now rules pursuant to Local Rule 105.6, no hearing
being
deemed
necessary.
For
the
reasons
that
follow,
both
motions for summary judgment will be granted in part and denied
in part.
I.
The motions to seal will all be granted.
Background
A.
Factual Background
Unless
otherwise
uncontroverted.
noted,
the
following
facts
are
On December 1, 2008, Randolph and Thompson began working at
the Lanham, Maryland office of ADT, a security company.
ADT
hired the two as Residential Resale Representatives, a position
in which they sold ADT products and services to individuals.
ADT required them to meet a certain sales quota each week, and
both plaintiffs were paid on a commission-only basis after some
initial weeks of training wages.
explained
in
compensation
the
offer
plan
they
letters
were
This commission-based plan was
that
given
they
when
received
they
and
started
the
work.
Plaintiffs were at-will employees.
When Plaintiffs joined ADT, they each received copies of
the ADT Team Member Handbook (the “Handbook”) and a Tyco Guide
to Ethical Conduct (“Guide to Ethical Conduct”).1
Among other
things,
private
these
company
publications
stressed
the
and
confidential nature of protected customer information (and the
company’s own proprietary business information):
Customers and suppliers entrust us with
sensitive information[.] . . . In addition,
much of the information you obtain while
employed
by
us
is
propriety
business
information that must not be disclosed.
Therefore,
your
employment
imposes
an
obligation
on
you
to
maintain
confidentiality, even after you leave ADT.
1
ADT is a subsidiary of Tyco International Ltd.
2
(ECF No. 48, Ex. A, at ADT 172).
instructs
that
employees
should
The Handbook specifically
not
discuss
any
business
confidential information with anyone outside ADT.
or
It provides
some examples of confidential information and directs employees
to
ask
their
supervisors
about
disclosing
information.
The
Guide to Ethical Conduct similarly stressed that customer and
employee data was only to be disseminated for business purposes
and in accordance with the law.
Some time after receiving their first paycheck from ADT,
Plaintiffs became unhappy with their pay and began to voice
complaints.
were
(1)
sales
In particular, Plaintiffs were concerned that they
not
quotas
receiving
and
(2)
promised
facing
bonuses
unexpected
based on customer cancellations.2
for
exceeding
commission
their
reductions
These concerns led Plaintiffs
to complain to ADT residential resale manager Chancey Manwiller
and area sales manager Robin McVey.
concluded
that
Plaintiffs
simply
Both Manwiller and McVey
had
a
good
faith
misunderstanding of their compensation plan.
Apparently
unhappy
with
the
response
they
received
from
ADT, Plaintiffs decided to contact the Maryland Department of
Labor, Licensing, and Regulation (“DLLR”).
2
While riding in a
ADT disputes that there were any such problems with
its compensation scheme.
3
car with Randolph, Thompson called the DLLR to discuss their
compensation concerns.
a
blank
wage
Plaintiffs
to
claim
The DLLR responded by sending Plaintiffs
form
fill
out
to
the
complete.
form
and
The
form
provide
instructed
documentation
supporting their claims, including, for example, “an employment
contract, wage agreement, commission statements, invoices, time
records,
list
of
hours
worked,
check
benefit . . . policy or contract.”
220).
stubs,
written
fringe
(ECF No. 48, Ex. J, at ADT
The bottom of the form further emphasized the importance
of documentation, stating:
If your claim pertains to company paid
benefits (ex: vacation), and/or you worked
under a written contract, please attach a
photocopy of all relevant documents.
If
documentation is not available, you must
attach a complete explanation of the policy
and/or contract.
Please attach any other
relevant documentation which could assist in
proving your claim.
(Id. (emphasis in original)).
Plaintiffs each completed a wage claim form and gathered a
number of documents to send to the DLLR to support their claims.
Among
other
things,
Plaintiffs
submitted
copies
of
their
compensation plan, pay stubs and commission statements, company
handbooks,
company
sales
reports,
service contracts with clients.
and
individual
residential
The documents establish what
products and services Plaintiffs sold, what payments they were
4
promised from ADT, what hours they worked, and what payments
they
actually
received.
Yet
the
service
contracts
also
contained a variety of personal information about ADT customers,
including customer names, addresses, phone numbers, and payment
information.
what
Some of the submitted information also indicated
services
specific
ADT
customers
information
about
had
those
obtained
services
DLLR
copies
of
PowerPoint
slides
spelled
(e.g.,
panels were located, alarm passwords, etc.).3
the
and
where
out
alarm
Randolph also sent
detailing
an
ADT
“reactivation” program that ADT characterizes as proprietary.
Neither Thompson nor Randolph asked for permission from their
customers or supervisors before disclosing the above information
to the DLLR, but they were entitled to maintain the documents
for their own records.
The DLLR received Plaintiffs’ materials on March 25, 2009.4
A few days later, on either April 2 or April 3, 2009, the DLLR
notified ADT that Plaintiffs had submitted wage claims and sent
the
company
copies
documentation).
of
the
claim
forms
(and
all
supporting
After ADT Human Resources coordinator Roberta
3
Plaintiffs
have
admitted
that
some
of
information, at least as a general matter, is confidential.
4
this
The DLLR eventually closed its investigation on April
6, 2009, as Plaintiffs’ claims exceeded $50,000 and the office
was only empowered to investigate claims of $20,000 or less.
5
McCarten received the submissions, she contacted Manwiller about
them.
Manwiller
then
Theresa
Maia,
Manager
Bloomfield.
spoke
and
to
McVey,
Human
Area
Resources
Human
Resources
director
Angela
The company also consulted counsel.
ADT decided to suspend Randolph and Thompson pending an
investigation,
ostensibly
confidentiality policy.
for
violating
the
company’s
Later, in two letters from Manwiller
dated April 10, 2009, ADT terminated Plaintiffs.
According to
the letter, ADT’s investigation determined that Plaintiffs had
“violated
company
policy”
by
(1)
breaching
“confidentiality
agreements that [were] in [ADT’s] compensation plans for sales
representatives”; (2) disclosing “customers’ personal data” to a
third
party;
and
(3)
disclosing
information to a third party.”
“company
confidential
(See, e.g., ECF No. 48, Ex. B,
at ADT 1).5
B.
Procedural Background
Plaintiffs filed their complaint against ADT on July 21,
2009.
(ECF No. 1).
The complaint contained two counts:
a
claim under the FLSA and a claim asserting wrongful termination
“under
the
Maryland
public
policy
5
exception
to
at-will
In deposition testimony, the relevant decisionmakers
further clarified that Plaintiffs were dismissed specifically
because they disclosed confidential customer information and
information concerning ADT’s reactivation program.
6
employment.”6
(Id. ¶¶ 39-52).
Roughly two months later, on
August 26, 2009, ADT filed a motion to dismiss the complaint.
(ECF Nos. 6, 9).
Plaintiffs then filed an amended complaint
(ECF No. 12), but ADT asked that its previous motion to dismiss
be
applied
to
the
amended
complaint
(ECF
No.
14).
After
receiving full briefing from the parties, the court denied ADT’s
motion to dismiss on March 23, 2010.
After
summary
discovery
judgment
on
was
largely
October
8,
(ECF Nos. 23, 24).
completed,
2010.
ADT
(ECF
moved
for
48).
In
No.
response, Plaintiffs cross-moved for partial summary judgment on
the issue of liability, while reserving the issue of damages.
(ECF No. 52).
ADT then filed a concurrent reply (on its own
motion) and opposition (on Plaintiffs’ cross-motion) on November
12,
2010.
(ECF
November
24,
authority
on
No.
2010,
57).
which
December
3,
Plaintiffs
they
filed
supplemented
2010.
(ECF
their
with
Nos.
60,
reply
on
additional
61).
In
connection with the briefing on the summary judgment motions,
both
parties
submitted
motions
submitted with their memoranda.
to
seal
certain
exhibits
(ECF Nos. 50, 54, 59).
6
The complaint contains only two counts,
counts are labeled “count I” and “count III.”
7
but
those
II.
Cross-Motions for Summary Judgment
A.
Standard of Review
A court may enter summary judgment only if there is no
genuine issue as to any material fact and the moving party is
entitled
56(a);
to
judgment
Celotex
Corp.
as
a
matter
v.
Catrett,
of
477
law.
U.S.
See
317,
Fed.R.Civ.P.
322
Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008).
(1986);
Summary
judgment is inappropriate if any material factual issue “may
reasonably be resolved in favor of either party.”
Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); JKC Holding Co.
LLC v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th
Cir. 2001).
“A party opposing a properly supported motion for summary
judgment ‘may not rest upon the mere allegations or denials of
[his]
pleadings,’
but
rather
must
‘set
forth
specific
showing that there is a genuine issue for trial.’”
facts
Bouchat v.
Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.
2003) (quoting former Fed.R.Civ.P. 56(e)).
proof
.
.
.
will
not
suffice
to
prevent
“A mere scintilla of
summary
Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003).
judgment.”
“If the
evidence is merely colorable, or is not significantly probative,
summary judgment may be granted.”
249-50.
(citations omitted).
Liberty Lobby, 477 U.S. at
At the same time, the court must
8
construe
the
favorable
to
facts
the
that
presented
opposing
party
are
the
in
the
motion.
light
See
most
Scott
v.
Harris, 550 U.S. 372, 378 (2007); Emmett, 532 F.3d at 297.
When
faced
with
cross-motions
for
summary
judgment,
the
court must consider “each motion separately on its own merits to
determine whether either of the parties deserves judgment as a
Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th
matter of law.”
Cir.
2003)
(internal
quotation
marks
omitted).
The
court
reviews each motion under the familiar standard outlined above.
The court must deny both motions if it finds there is a genuine
issue of material fact, “[b]ut if there is no genuine issue and
one or the other party is entitled to prevail as a matter of
law, the court will render judgment.”
10A Federal Practice &
Procedure § 2720.
B.
Analysis
As
explained
above,
Plaintiffs’
complaint
contains
two
counts.
In the first, Plaintiffs assert that ADT violated the
FLSA
firing
by
related
to
an
them
unfair
Plaintiffs
aver
retaliation
for
that
in
retaliation
wage
ADT
exercising
for
practice.
wrongfully
a
statutory
addresses each in turn.
9
filing
In
the
a
second
terminated
right.
complaint
count,
them
The
in
court
1.
Fair Labor Standards Act
“Congress
originally
enacted
the
FLSA
to
protect
all
covered workers from substandard wages and oppressive working
hours, labor conditions that are detrimental to the maintenance
of
the
minimum
standard
of
living
necessary
efficiency and general well-being of workers.”
for
health,
Lopez v. NTI,
LLC, 748 F.Supp.2d 471, 476 (D.Md. 2010) (quotation marks and
brackets
omitted).
To
achieve
that
purpose,
enacted an FLSA anti-retaliation provision.
Congress
also
Darveau v. Detecon,
Inc., 515 F.3d 334, 340 (4th Cir. 2008); see also Kasten v.
Saint-Gobain Performance Plastics Corp., 131 S.Ct. 1325, 1333
(2011).
One
part
of
that
provision,
sometimes
called
the
“complaint clause,” provides that an employer may not “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.”
29 U.S.C. § 215(a)(3).
retaliation
provision
While the language of the FLSA’s antiis
“much
more
circumscribed”
than
many
other employment retaliation provisions, King v. Marriott Int’l
Inc., 337 F.3d 421, 427 (4th Cir. 2003),7 the Supreme Court has
7
ADT places great weight on the purportedly narrower
scope of the FLSA’s anti-retaliation provision. Differences in
scope might be read two ways, though.
“[T]he use of broader
language elsewhere may mean (1) that Congress wanted to limit
10
indicated that courts should broadly interpret the provision to
effectuate the remedial purposes of the Act, Kasten, 191 S.Ct.
at 1334.
“A plaintiff asserting a prima facie claim of retaliation
under the FLSA must show that (1) he engaged in an activity
protected by the FLSA; (2) he suffered adverse action by the
employer subsequent to or contemporaneous with such protected
activity;
and
employee’s
(3)
a
activity
causal
and
connection
the
Dareveau, 515 F.3d at 340.
exists
employer’s
between
adverse
the
action.”
In this case, the parties focus
primarily on the first aspect of a prima facie showing:
whether
Plaintiffs
engaged
in
parties
essentially
agree
that
a
protected
Plaintiffs
activity.
were
fired
documentation they submitted to the DLLR.
question
here
is
whether
“Plaintiffs
Both
because
of
the
Thus, the fundamental
properly
submitted
the
documentation” and consequently engaged in a protected activity
in doing so.
(ECF No. 60, at 1).
This court has already held that filing a minimum wagerelated complaint with a state agency can amount to a protected
activity.
See Randolph v. ADT Sec. Servs., Inc., 701 F.Supp.2d
the scope of the phrase before us . . ., or (2) that Congress
did not believe the different phraseology made a significant
difference in this respect.” Kasten, 131 S.Ct. at 1333.
11
740, 745-46 (D.Md. 2010) (citing Sapperstein v. Hager, 188 F.3d
852 (7th Cir. 1999)).
This is so because such a complaint would
be related to the FLSA in that it would put a “reasonable,
objective” employer “on notice that the employee is asserting
statutory rights under the Act.”
(brackets omitted).8
Kasten, 131 S.Ct. at 1335
But even though a complaint filed with a
state agency may amount to protected activity, the matter is
complicated
here
by
Plaintiffs’
submission
of
various
confidential documents in support of their complaints to the
DLLR.
of
ADT maintains that, in light of the confidential nature
the
documents,
activity
in
filing
Plaintiffs
the
did
not
supporting
engage
in
protected
documentation
because
Plaintiffs’ allegedly protected activity was not part of the
“complaint” and was unreasonable.
a.
The Reasonableness Requirement
The parties all apparently agree - mistakenly, as it turns
out
-
amount
that
to
reasonable.
the
disclosure
protected
of
activity
confidential
unless
it
is
documents
in
some
cannot
sense
Their argument draws from a line of cases imposing
8
It is also worth noting that the Department of Labor
has construed the phrase “filed any complaint” to include
complaints to “State or local agencies” in an interpretative
regulation of an identical provision in the Occupational Health
and Safety Act.
See 29 C.F.R. § 1977.9(b) (interpreting 29
U.S.C. § 660(c)(1)).
12
a “reasonableness” requirement in other employment contexts.
In
Laughlin v. Metropolitan Washington Airports Authority, 149 F.3d
253 (4th Cir. 1998), for example, the Fourth Circuit considered
whether
an
employee’s
disclosure
of
certain
confidential
documents amounted to opposition activity under Title VII of the
Civil Rights Act of 1964.
“balance[d]
the
purpose
of
To resolve the issue, the court
the
Act
.
.
.
against
Congress’
equally manifest desire not to tie the hands of employers in the
objective selection and control of personnel.”
Id. at 259.
In
balancing the particular facts of that case, the court “easily
conclude[d] that the employer’s interest in maintaining security
and
confidentiality
outweigh[ed]
the
of
sensitive
[employee]’s
interest
documents to [another employee].”
court
termed
the
employee’s
personnel
in
providing
Id. at 260.
actions
documents
those
Indeed, the
“disproportionate
and
unreasonable,” while the employer’s interest in guarding against
the
dissemination
of
its
confidential
“reasonable and significant.”
appeal
have
also
imposed
Id.
some
records
was
deemed
Several other courts of
form
of
a
reasonableness
requirement in cases involving the disclosure of confidential
documents.9
9
See, e.g., Niswander v. Cincinnati Ins. Co., 529
Like Laughlin, however, cases in other circuits are
not always clear or consistent on what facts are relevant in
13
F.3d 714, 727 (8th Cir. 2008) (finding employee’s disclosure was
not
protected
activity
under
Title
VII);
O’Day
v.
McDonnell
Douglas Helicopter Co., 79 F.3d 756, 763 (9th Cir. 1996) (finding
employee’s
disclosure
was
not
protected
activity
under
Age
Discrimination and Employment Act (“ADEA”)); Kempcke v. Monsanto
Co., 132 F.3d 442, 446 (8th Cir. 1998) (recognizing that misuse
of confidential documents may render an act unprotected under
the ADEA, but finding that employee was reasonable in particular
facts of case); Jefferies v. Harris Cnty. Cmty. Action Ass’n,
615
F.2d
1025,
1036
(5th
Cir.
1980)
(finding
“surreptitious
copying and dissemination” of documents was not protected under
Title VII).
In arguing that the reasonableness balancing test applies
to
this
case,
both
sides
overlook
the
distinction
between
opposition clause cases and participation clause cases.
Most of
applying
the
balancing
tests
(although
there
are
some
overlapping features).
As one court has put it, “[t]here is
. . . no clear consensus among the courts about what the
appropriate factors are, or about how to weigh them in
comparison to the concededly legitimate needs of the employer
for protection of its confidential documents and its rights to
conduct its business free of unnecessary interference.” Quinlan
v. Curtiss-Wright Corp., 204 N.J. 239, 266-67 (2010).
As
explained
below,
the
Fourth
Circuit
has
expressed
an
unwillingness
to
impose
a
reasonableness
requirement
on
participation clause cases under Title VII precisely because
such a requirement is “nebulous.”
Glover v. S. Carolina Law
Enforcement Div., 170 F.3d 411, 415 (4th Cir. 1999).
14
the
cases
opposed
are
alleges
employee
above
that
an
unlawful
opposition
he
was
clause
cases,
retaliated
employment
wherein
against
practice.
the
because
But
the
he
FLSA’s
complaint clause is more akin to a participation clause, which
generally bars retaliation based on an employee’s involvement in
or initiation of an investigation, proceeding, or hearing.
example,
like
the
FLSA
provision
in
this
case,
Title
For
VII’s
participation clause makes it unlawful to retaliate against an
employee “because he has made a charge.”
42 U.S.C. § 2000e-
3(a); cf. Kubicko v. Ogden Logistics Servs., 181 F.3d 544, 552
(4th Cir. 1999) (finding participation in state agency proceeding
was protected activity under Title VII’s participation clause).
The
distinction
important
because
between
the
opposition
level
of
and
participation
protection
participation clause and opposition clause cases.
varies
is
in
See Laughlin,
149 F.3d at 259 n.4 (“[T]he scope of protection for activity
falling
under
activity
protected
the
participation
falling
under
activity
“reasonable,”
the
the
under
Fourth
clause
opposition
the
is
has
than
clause.”).
opposition
Circuit
broader
clause
specifically
for
While
must
refused
be
to
apply any reasonableness requirement in the participation clause
context.
F.3d
411,
See Glover v. S. Carolina Law Enforcement Div., 170
414
(4th
Cir.
1999)
(“The
15
plain
language
of
the
participation clause itself forecloses us from improvising such
a reasonableness test.”); Kubicko, 181 F.3d at 554 (“Application
of § 704’s participation clause . . . does not turn on the
substance of an employee’s testimony.”); see also Cumbie v. Gen.
Shale Brick, Inc., 302 F.App’x 192, 194 (4th Cir. 2008) (“[W]hen
an individual engages in activities constituting participation,
such activity is protected conduct regardless of whether that
activity
is
reasonable.”);
Martin
v.
Mecklenburg
Cnty.,
151
F.App’x 275, 279 (4th Cir. 2005) (explaining that it was “of no
moment” that employee’s statements arguably bore no relevance to
pending Title VII action, so long as statements were given in
meeting related to that Title VII proceeding); accord Slagle v.
Cnty. of Clarion, 435 F.3d 262, 268 (3d Cir. 2006) (listing cases
establishing that participation clause activity is essentially
an absolute protection).10
10
The difference in treatment between participation and
opposition clause claims stems from the nature of the activities
protected under each clause. A reasonableness test is necessary
when dealing with opposition clause activity because of the
broad range of conduct (ranging from the productive to the
grossly destructive) that could necessary fall within such a
clause. Glover, 170 F.3d at 415. In contrast, a participation
clause is typically “unambiguous and specific,” applying to only
a few particular activities. Id. Those activities are critical
to the operation of the various employment statutes.
Thus,
courts need not be as zealous in guarding against abusive
invocations of the clause.
Because applying a “slippery
reasonableness
standard”
would
only
serve
to
chill
the
employee’s
participation,
the
court
insisted
that
the
16
If
Title
VII’s
participation
clause
provides
the
closer
analogy to the FLSA’s complaint clause, and if reasonableness
has
no
place
in
a
participation
conclusion inexorably follows:
place
in
a
complaint
clause
clause
analysis,11
then
one
reasonableness does not have a
analysis
either.
Consequently,
although both parties place heavy reliance on the reasonableness
balancing test described in Laughlin and other cases, that test
is irrelevant.
b.
Defining “Complaint”
The
only
real
question
then,
is
whether
the
supporting
documentation Plaintiffs submitted to the DLLR was actually a
application of the participation clause could not “turn on the
substance” of that participation.
Id. at 414.
ADT emphasizes
that the language of the FLSA’s complaint clause is narrower
than the participation clause in Title VII; under Glover’s
reasoning, that would be even more reason not to apply a
reasonableness test – as the complaint clause is even more
specific.
11
Niswander, a case cited by both parties, suggests that
a balancing test does apply - even in the participation clause
context – “when confidential information is at issue.” 529 F.3d
at 726.
The Sixth Circuit’s decision in Niswander, however,
would seem to be at odds with the Fourth Circuit’s decision in
Glover, which refused to find an employee’s participation clause
activity
unreasonable,
even
where
the
employee
offered
information
that
the
district
court
characterized
as
“unresponsive, uncompelled, and gratuitous.”
170 F.3d at 413.
Moreover, Niswander was “not a case of an employee mistakenly or
inadvertently delivering confidential information out of a
belief
that
the
documents
provided
direct
proof
of
discrimination.” 529 F.3d at 722. As explained below, that is
exactly the case here.
17
part of Plaintiffs’ “complaint,” such that ADT was unjustified
in dismissing Plaintiffs because of it.
ADT maintains that the
complaint consisted only of the two or three page Maryland Wage
Claim
Forms
that
Randolph
and
Thompson
each
filled
out.
Plaintiffs respond that all of the supporting documentation was
a part of the complaint.
The parties have not identified,12 and the court is not
aware of, any case law explaining whether documents attached to
a
formal
agency
document
fall
within
12
the
scope
of
an
FLSA
ADT cites two FLSA cases that it says support its
reading of the statute, but those cases are inapposite.
In
th
Hodgson v. Texaco Inc., 440 F.2d 662, 663 (5
Cir. 1971), the
Fifth Circuit agreed that the employer-defendant did not
retaliate against its employee when it fired the employee for
introducing certain exhibits in his FLSA suit that he had taken
from the company without permission.
In that case, the court
specifically noted that it was not the use of the information
that instigated the dismissal, but rather the unauthorized
taking.
Id.
Here, Plaintiffs’ dismissal was based on their
disclosure of the information, not the taking of records (which,
in any event, they were entitled to maintain under ADT policy).
ADT also misreads Hamby v. Associated Ctrs. for Therapy, 230
In Hamby, the Tenth Circuit
F.App’x 772 (10th Cir. 2007).
determined that the employer had offered a legitimate, nonretaliatory reason for the employee’s discharge that the
employee had failed to rebut with evidence of pretext.
Id. at
785.
In particular, the employer explained that it had
terminated the employee for disclosing a client’s confidential
information.
Id.
That disclosure, however, was in no way
related to the employee’s then-pending FLSA claim and occurred
more than a week after the complaint was filed. Id.
In this
case, the challenged disclosure occurred when Plaintiffs
submitted their complaint.
18
“complaint” for purposes of Section 215(a)(3).13
Therefore, it
seems appropriate to start the analysis of Section 215(a) from
the beginning - with “an examination of the statute’s plain
text.”
2010)
See Broughman v. Carver, 624 F.3d 670, 675 (4th Cir.
(quotation
marks
omitted).
In
interpreting
the
plain
language of a statute, [courts] give the terms their ordinary,
contemporary,
common
meaning,
absent
an
indication
intended [them] to be some different import.”
Congress
Crespo v. Holder,
631 F.3d 130, 133 (4th Cir. 2011).14
Here, some dictionary definitions suggest that “complaint”
would encompass supporting documentation included with a formal
agency form.
Such definitions broadly define “complaint” as
13
Language that is identical or similar to the FLSA’s
complaint clause is found in several other anti-retaliation
provisions.
See, e.g., 29 U.S.C. § 660(c)(1); 29 U.S.C. §
1855(a); 29 U.S.C. § 2002(4)(A); 8 U.S.C. § 1324b(a)(5); 49
U.S.C. § 31105(a)(1)(A); 29 U.S.C. § 2934(f).
The fact that
there are no cases accepting - or even addressing - ADT’s
interpretation
of
“complaint,”
despite
the
plethora
of
provisions including such language, might be some indication of
the aberrant nature of ADT’s position.
14
On the other hand, the Supreme Court has long
recognized that an overly rigid adherence to the text of the
FLSA might be inappropriate. Rather, interpreting provisions of
the FLSA can be done only “by discarding formalities and
adopting a realistic attitude, recognizing that we are dealing
with human beings and with a statute that is intended to secure
to them the fruits of their toil and exertion.” Tennessee Coal,
Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 592
(1944), superseded on other grounds by 29 U.S.C. § 254.
19
among
other
things,
an
“expression
of
grief,
pain,
or
dissatisfaction . . . something that is the cause or subject of
protest or outcry.”
see
also
Oxford
Merriam Webster Online Dictionary (2011);
English
Dictionary
Online
(2011)
(defining
complaint as a “representation of wrong suffered”); Cambridge
Dictionary of American English 172 (2000) (defining complaint as
“a
statement
that
something
is
wrong
or
not
good
enough”);
Webster’s New International Dictionary of the English Language
546 (2d ed. 1941) (defining complaint as an “[e]xpression of
grief, regret, pain, censure, grievance, or resentment . . .”).
The supporting documentation in this case would seem to fit
these definitions, as it helped Plaintiffs to articulate their
perception that they were being wrongfully underpaid.
In other
words, it established the “subject” of their displeasure.
There is no need to rely on dictionary definitions alone.
In
the
notion
standard
of
civil
a
documentation.
litigation
“complaint”
context,
embraces
for
instance,
attached
the
supporting
Federal Rule of Civil Procedure 10(c) provides
that “[a] copy of a written instrument that is an exhibit to a
pleading [such as a complaint] is a part of the pleading for all
purposes.”
documentation
complaint.
Consequently, courts routinely rely on supporting
in
evaluating
the
sufficiency
of
a
civil
Sec’y of State for Defence v. Trimble Navigation
20
Ltd., 484 F.3d 700, 705 (4th Cir. 2007); see also Patane v.
Clark, 508 F.3d 106, 111 n.2 (2d Cir. 2007) (“[A] complaint
includes documents that the plaintiffs either possessed or knew
about
and
upon
which
they
relied
in
bringing
the
suit.”
(quotation marks omitted)); Lee v. City of Los Angeles, 250 F.3d
668, 688 (9th Cir. 2001) (stating that, in evaluating sufficiency
of a complaint, courts may “consider material which is properly
submitted as part of the complaint” (quotation marks omitted)).
“Although unknown at common law, this practice of incorporating
exhibits into a pleading was part of federal equity pleading
prior
to
majority
the
of
federal
code
rules
and
was
jurisdictions.”
expressly
5A
Charles
adopted
Alan
by
a
Wright
&
Arthur Miller, Federal Practice & Procedure § 1327 (3d ed. 2010
supp) (citing cases).
of
a
complaint
was
Thus, the idea that an exhibit was a part
established
in
“contemporaneous
usage” when the FLSA was passed in 1938.
judicial
Kasten, 131 S.Ct. at
1332.
The fact that a “complaint” is generally thought to include
any
attached
supporting
documentation
employment-related contexts.
is
also
seen
in
other
Title III of the Civil Rights Act
of 1964, for instance, defines “complaint” as “a writing or
document” within the meaning of 18 U.S.C. § 1001, which in turn
governs any document – not simply a formal charging document 21
submitted
to
a
federal
agency.
See
42
U.S.C.
§
2000b-3.
Similarly, in evaluating the sufficiency of a charge under the
ADEA (which might be considered the functional equivalent of an
FLSA
complaint),
the
Supreme
Court
looked
to
attached
documentation beyond the form provided by the agency.
See Fed.
Express Corp. v. Holowecki, 552 U.S. 389, 405 (2008) (finding a
“charge” sufficient in light of an attached affidavit).
There
is no obvious reason why the same principles would not apply in
FLSA cases.
Furthermore,
a
reading
of
the
term
“complaint”
that
embraces attached exhibits serves the legislative purposes of
the Act.
The Supreme Court has indicated that the “enforcement
needs” of the FLSA “argue for an interpretation of the word
‘complaint’
that
would
provide
protection to the employee.”
position
would
provide
broad
rather
than
Kasten, 131 S.Ct. at 1334.
profoundly
narrow
narrow
ADT’s
protection
to
employees, in that it would create a troubling dilemma for an
employee who wishes to file a complaint: the employee could
either
present
unsubstantiated
claims
limited
to
the
formal
claims form or risk dismissal from his job if he strays from
company policy (however innocently) in the course of supporting
his claim.
An employee should not be forced to take such a
“calculated risk” in exercising the FLSA’s statutory remedies.
22
Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 293
(1960).
Perversely,
ADT’s
position
would
result
in
a
situation
wherein employees with the most supporting evidence would also
face the greatest risk of dismissal.
As a result, enforcement
agencies would be less able to undertake early assessments of
employees’ claims, as employees could not be expected to provide
much evidence on their own (for fear of exposing themselves to
termination).
Employers
would
then
have
to
face
greater
government intrusions into their business while the complaint
was
investigated;
these
because
investigations
of
would
the
lack
likely
of
information,
longer.
last
early
Meanwhile,
employers would have an incentive to cull through every document
attached to an FLSA complaint, looking for any violation of
company policy in an effort to forestall expensive litigation.
More problematically, they could simply choose to impair the
ability
possible
of
employees
supporting
to
make
claims
documentation
at
all
by
dubbing
“confidential.”
all
Such
a
situation would grossly undermine enforcement of the FLSA, which
hinges
upon
employees.”
retaliation
“information
Id.
is
and
complaints
added).
at
292
(emphasis
about
the
free
sharing
23
of
received
The
FLSA
information
from
antiand
a
narrow
view
of
complaint
would
hamstring
that
fundamental
purpose.
A
finding
that
supporting
materials
are
part
of
the
complaint would also comport with the Supreme Court’s approach
to
the
analogous
anti-retaliation
provision
in
the
National
Labor Relations Act (“NLRA”).
See Kasten, 131 S.Ct. at 1334
(comparing
anti-retaliation
Rutherford
NLRA
Food
and
Corp.
FLSA
v.
McComb,
331
U.S.
722,
provisions);
723
(1947)
(explaining that decisions interpreting the NLRA are useful in
interpreting the FLSA).
118-20
(1972),
an
In NLRB v. Scrivener, 405 U.S. 117,
employer
fired
four
employees
for
giving
testimony as part of an investigation by the National Labor
Relations Board.
Even though the Court found that the employees
did not fall within the scope of a rigid reading of the NLRA’s
anti-retaliation provision, the Court nevertheless deemed the
employees’ activities protected because they “participat[ed] in
the investigative stage.”
Id. at 121.
In the eyes of the
Court, “Congress has made it clear that it wishes all persons
with information about [violative] practices to be completely
free from coercion against reporting them to the Board.”
Id.
The same considerations would suggest that employees should be
completely free to provide all the information they wish in
advancing a complaint under the FLSA.
24
In sum, dictionary definitions of the word “complaint,” the
use
of
that
word
in
other
cases
and
statutes,
and
the
legislative purposes of the FLSA all support the conclusion that
supporting documentation is a part of an FLSA complaint.
Thus,
the filing of such documents is one aspect of the protected
activity of filing a complaint.
activity
in
submitting
their
Plaintiffs engaged in protected
supporting
documentation
to
the
DLLR.
Indeed, the facts of this case provide an example of the
fundamental fairness of the approach the court adopts.
As both
parties recognize, the DLLR claim form used by both Plaintiffs
specifically instructed them to file supporting documentation.15
15
This fact distinguishes the present case from Harris
v. Richland Cmty. Health Care Ass’n, Inc., No. 3:07-0421-CMCPJG, 2009 WL 2983010, at *2-3 (D.S.C. Sept. 14, 2009), a Title
VII case upon which ADT extensively relies.
In that case, the
court determined that the plaintiff did not engage in protected
activity when she attached certain confidential documents to a
charge filed with a state agency.
Id.
The court emphasized,
however, that the confidential documents in that case were
“neither required to be filed as part of a charge nor something
that a typical employee would be able to access for this
purpose.”
Id. at *3.
In this case, the documents Plaintiffs
submitted were in fact the types of documents that would
ordinarily support a complaint, as evidenced by the instructions
found on the cover of the DLLR form. Moreover, the documents at
issue in this case largely pertained to documents created and
maintained by Plaintiffs, evidencing their own work; such
documents stand in sharp contrast to the files at issue in
Harris, which concerned the work of other employees. Id. at *3
n.3.
25
Many of the examples listed on the DLLR form are exactly the
types of documents submitted by Plaintiffs in this case.
some
of
the
information
documents
submitted
characterized
by
by
confidential,
ADT
as
Plaintiffs
While
contained
those
same
documents also provided support for Plaintiffs’ wage claims by
evidencing the work done by Plaintiffs, the payments received by
ADT from customers, the payments received by Plaintiffs, and the
promises concerning payment that were made to Plaintiffs when
they began their employment.
(Thompson explaining:
(See ECF No. 52-7, at 75:10-12
“Well, I’m not a DLLR investigator, so
I’m sending documents that they asked me to submit.”)).
It
would seem contrary to the purposes of the FLSA to punish them
for complying with the instructions they received from the DLLR.
c.
Direct Evidence
The record is clear that ADT fired both Plaintiffs because
they
disclosed
certain
disclosure
of
those
Plaintiffs
suffered
documents
to
the
DLLR.
documents
was
a
retaliation
for
“filing
Because
protected
a
the
activity,
complaint.”
Although ADT complains that Plaintiffs have not satisfied the
requirements
of
the
McDonnell
Douglas
burden
shifting
test
(often used in employment cases), see McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-804 (1973), it is not necessary for a
plaintiff
who
summons
direct
evidence
26
to
satisfy
that
test.
Peters v. Jenney, 327 F.3d 307, 321 (4th Cir. 2003) (“Retaliation
may be proved either via direct evidence or the burdenshifting
scheme of [McDonnell Douglas].”); cf. Trans World Airlines, Inc.
v.
Thurston,
discrimination
469
U.S.
context,
111,
that
121
“the
(1985)
(finding,
McDonnell
in
test
Douglas
the
is
inapplicable where the plaintiff presents direct evidence”); see
also Proud v. Stone, 945 F.2d 796, 798 (4th Cir. 1991) (“Courts
must, however, resist the temptation to become so entwined in
the intricacies of the proof scheme that they forget that the
scheme exists solely to facilitate determination of the ultimate
question of discrimination vel non.” (quotation marks omitted)).
In this case, ADT has “announced, or admitted, or otherwise
unmistakably indicated that [a forbidden consideration] was a
determining factor” in its decision to fire them.
Cline v.
Roadway Exp., Inc., 689 F.2d 481, 485 (4th Cir. 1982).
ADT’s
explicit admissions that Plaintiffs lost their jobs because of
the filings with the DLLR mandate only one conclusion:
retaliated
against
protected activity.
Plaintiffs
because
they
engaged
ADT
in
a
Summary judgment must therefore be granted
for the Plaintiffs on count one of the complaint on the issue of
liability.
27
2.
Abusive Discharge
Plaintiffs also assert a claim for abusive discharge under
Maryland
state
law.
As
the
prior
opinion
in
this
case
explained, however, “the availability of a civil remedy under
the FLSA, a federal statute, preclude[s] application of the tort
of
abusive
discharge
under
Maryland
law.”
Randolph,
701
F.Supp.2d at 747 (citing Chappell v. S. Maryland Hosp., Inc.,
320 Md. 483, 496-97 (1990)); see also Magee v. DanSources Tech.
Servs., Inc., 137 Md.App. 527, 570 (2001) (finding availability
of civil remedies under the FLSA precluded abusive discharge
claim,
even
where
employee
did
not
file
complaint
regarding
violations of the FLSA); cf. Orci v. Insituform East, Inc., 901
F.Supp. 978, 982-83 (D.Md. 1995) (finding plaintiff could not
raise
abusive
discharge
where
he
claimed
discharge
was
retaliation for attempts to create affirmative action plan; such
claim could be vindicated under Title VII).
Because Plaintiffs’
“retaliation for reporting . . . violations of state and federal
minimum
wage
laws”
may
be
vindicated
under
abusive discharge claim may not proceed.
496-97.
the
FLSA,
their
Chappell, 320 Md. at
Summary judgment on the second count of the complaint
(dubbed Count III) will be granted for ADT.
28
III. Motions to Seal
Plaintiffs and ADT have also submitted motions to seal.
motion
to
seal
must
comply
with
Local
Rule
105.11,
A
which
provides:
Any motion seeking the sealing of pleadings,
motions, exhibits or other papers to be
filed in the Court record shall include (a)
proposed
reasons
supported
by
specific
factual
representations
to
justify
the
sealing
and
(b)
an
explanation
why
alternatives to sealing would not provide
sufficient protections.
The Court will not
rule upon the motion until at least 14 days
after it is entered on the public docket to
permit
the
filing
of
objections
by
interested parties.
Materials that are the
subject
of
the
motion
shall
remain
temporarily sealed pending a ruling by the
Court. If the motion is denied, the party
making
the
filing
will
be
given
an
opportunity to withdraw the materials.
This rule endeavors to protect the common law right to inspect
and
copy
judicial
records
and
documents,
Nixon
v.
Warner
Commc’ns, Inc., 435 U.S. 589, 597 (1978), while recognizing that
competing
interests
sometimes
outweigh
the
public’s
right
of
access, In re Knight Publ’g Co., 743 F.2d 231, 235 (4th Cir.
1984).
Before sealing any documents, the court must provide the
non-moving
party
with
opportunity to object.
satisfied
by
either
notice
of
Id.
notifying
the
request
to
seal
and
an
This notice requirement may be
the
29
persons
present
in
the
courtroom or by docketing the motion “reasonably in advance of
deciding the issue.”
Id. at 234.
Finally, the court should
consider less drastic alternatives to sealing, such as filing
redacted versions of the documents.
sealing
is
appropriate,
it
If the court decides that
should
also
provide
reasons,
supported by specific factual findings, for its decision to seal
and for rejecting alternatives.
Id. at 235.
Both parties seek to seal certain exhibits in connection
with
the
cross-motions
for
summary
judgment.
Both
motions
currently stand unopposed after having been on the docket for
several months, and two of the three motions are in fact consent
motions.
been
All of the documents the parties wish to seal have
produced
under
a
stipulated
“Confidential” designation.
be without basis.
protective
order
under
a
That designation would not seem to
Several of the documents include personal
information about ADT clients who are not parties to this case,
including individual home security setups and financial data.
Other documents relate to private business information held by
ADT, including pay structures and other matters.
Co.
v.
United
States,
368
F.3d
385,
406
(4th
See Pittson
Cir.
2004)
(affirming decision to seal certain “confidential, proprietary,
commercial,
or
financial
protective order).
data”
that
was
produced
under
a
But see Minter v. Wells Fargo Bank, N.A.,
30
258 F.R.D. 118, 123 (D.Md. 2009) (“Managerial structures and
general information regarding business operations . . . fail to
make the grade.”).
Given that this action finds its nexus in
ADT’s attempt to avoid the disclosure of such materials, it
seems
appropriate
to
seal
them
here.
See
Int’l
Ass’n
of
Machinists & Aerospace Workers v. Werner-Masuda, 390 F.Supp.2d
479, 485 (D.Md. 2005) (sealing materials that went to “heart of
th[e] case” concerning trade secrets); Padco Advisors, Inc. v.
Omdahl,
179
F.Supp.2d
600,
614-15
(D.Md.
2002)
(sealing
materials in action “based on enforcing a non-compete clause in
an
employment
in
order
Redacting,
secrets”).
contract
or
to
taking
protect
other
these
less
trade
restrictive
measures, would defeat the exhibits’ usefulness in a case such
as this, where the court must get a complete view of these
materials in order to understand whether ADT is correct that
they never should have been disclosed.
The parties’ memoranda are not under seal and of necessity
contain references to and quotations from some of the sealed
exhibits.
exhibits,
This opinion, too, refers to portions of the sealed
but
one
or
the
other
of
the
parties
has
already
referenced the material cited herein in an unsealed memorandum.
Thus,
although
the
opinion
references
some
of
the
materials
under seal, the opinion itself will not be filed under seal.
31
The parties may request any redactions they feel should be made
in the public record with 14 days.
IV.
Conclusion
For the foregoing reasons, the motion for summary judgment
filed by ADT will be granted in part and denied in part and the
cross-motion for summary judgment filed by Plaintiffs will be
granted in part and denied in part.
All three of the motions to
seal will be granted.
/s/
DEBORAH K. CHASANOW
United States District Judge
32
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