Schlereth v. AMS Services, LLC
MEMORANDUM AND ORDER re: 39 MOTION for Reconsideration Plaintiff's Motion to Reconsider Entry of Summary Judgment filed by Plaintiff Kim Schlereth. IT IS HEREBY ORDERED that plaintiff's motion to reconsider entry of summary judgment (#39) is GRANTED. Signed by District Judge Stephen N. Limbaugh, Jr on 3/27/17. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
AMS SERVICES, LLC,
Case No. 4:16-cv-236 SNLJ
Memorandum and Order
This case comes before the Court on what this Court construes as plaintiff’s
motion to reconsider the entry of summary judgment under Federal Rule of Civil
Procedure 59(e) (#39). Defendant did not respond and the time to do so has passed.
Nonetheless, the issues are ripe for disposition.
Plaintiff filed a three-count complaint, including a Fair Labor Standards Act
(“FLSA”) violation claim and an FLSA retaliation claim. Plaintiff’s FLSA violation
claim alleges that the defendant employer did not properly pay the plaintiff her requisite
overtime as required under the FLSA. The FLSA violation claim survived summary
judgment and is set for trial in June. However, this Court disposed of plaintiff’s FLSA
retaliation claim in its entry of summary judgment on March 13, 2017 (#38). Plaintiff
claimed that the defendant terminated her employment in retaliation for her informal oral
complaints with her employer and a written complaint with the Department of Labor
(“DOL”). In the briefing for the motion for summary judgment, plaintiff cited only one
case in her three and a half page response in opposition to defendant’s motion for
summary judgment, and plaintiff cited no authority at all in relation to her FLSA
This Court granted summary judgment in favor of the defendant as to plaintiff’s
FLSA retaliation claim, holding that there was no genuine issue of material fact and that
the undisputed facts indicated that plaintiff could not establish the requisite element of
causation. More pertinent to this motion to reconsider, this Court held that plaintiff’s
informal oral complaints to her employer did not constitute a protected activity under the
FLSA and thus could not serve as the basis of the FLSA retaliation claim. The Court
cited Bartis v. John Bommarito Oldmosbile-Cadillac, Inc., 626 F. Supp. 2d 994 (E.D.
Mo. 2009) and Gray v. City of Oak Grove, 396 F.3d 1031 (8th Cir. 2005) as controlling
authority on this issue. Now, for the first time, plaintiff cites Kasten v. Saint-Gobain
Performance Plastics Corp., 563 U.S. 1 (2011) for the proposition that that case
superseded the 8th Circuit precedent. Plaintiff argues that this Court overlooked the
Kasten case and because it is controlling authority, this Court’s entry of summary
judgment should be reconsidered.
The FLSA makes it unlawful to discharge or to discriminate against an employee
“because such employee has filed any complaint or instituted or caused to be instituted
any proceeding ..., 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). To
establish a prima facie case of retaliation under the FLSA, “a plaintiff must show that
[he/she] participated in statutorily protected activity, that the defendant took an adverse
employment action against [him/her], and there was a causal connection between the
two.” Bartis v. John Bommarito Oldsmobile-Cadillac, Inc., 626 F. Supp. 2d 994, 998
(E.D. Mo. 2009) (citing Grey v. City of Oak Grove, 396 F.3d 1031, 1034–35 (8th Cir.
2005). “The Eighth Circuit decisions interpreting § 215(a)(3) make clear that the
employee must engage in protected activity in order to be shielded from retaliation. See
Grey, 396 F.3d at 1034–35. The ‘protected activities’ are listed explicitly in the statute:
filing a complaint, instituting or testifying in a proceeding, or serving on a committee.”
Bartis, 626 F. Supp. 2d at 999. Prior to 2011, informal workplace complaints were not
considered protected activities under the FLSA in the Eighth Circuit Court of Appeals.
Kasten altered Eighth Circuit Court of Appeals’ precedent and found that the
statutory term “filed any complaint” included oral complaints as well as written
complaints, meaning that oral complaints to employers can serve as the basis of an FLSA
retaliation claim. 563 U.S. at 4. But, not any oral complaint will suffice. The standard
set out in Kasten stated that an oral 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 call for their protection” to find the
employee engaged in the statutorily protected activity of filing a complaint. Id. at 14. In
Kasten, the employee claimed he was not compensated for time taking off protective
gear, which constituted a violation of the FLSA, and he complained of the supposed
illegality to four different individuals who were his superiors in the company. Id. at 5-6.
Specifically, he told his superiors that he “was thinking about starting a lawsuit” and that
if the company was sued because of its actions, “they would lose” in court. Id. The
Supreme Court found that his highly specific oral allegations that the defendant violated
his rights under the FLSA could constitute the filing of an action under the FLSA,
remanding the case back to the district court. Id. See Kasten v. Saint-Gobain
Performance Plastics Corp., 703 F.3d 966, 968 (7th Cir. 2012).
Following Kasten, courts have held that not every instance of an employee “letting
off steam” constitutes the filing of a complaint under the FLSA and that “some degree of
formality” is required to put the employer on fair notice that a grievance has been lodged
against it. Minor v. Bostwick Laboratories, Inc., 669 F.3d 428, 439 (4th Cir. 2012). To
do so, the employee’s oral complaint does not have to reference the FLSA but should “be
framed in terms of potential illegality,” either by alleging a violation under the FLSA or
by asserting facts that establish a violation. Cotto v. John C. Bonewicz, P.C., Case No. 13
C 842 TMD, 2015 WL 3609167 at *8 (N.D. Ill. June 9, 2015). Simply complaining
about wages or hours does not necessarily entitle the employee to protection under the
FLSA. Id. at 9 (citing Kasten, 563 U.S. at 13-15). The complaint must suggest to a
reasonable employer that the employee was asserting a legal right to overtime pay. Id.
In this case, plaintiff presented evidence that she referenced her legal right to
overtime wages to her employer. She stated:
“I did inform [defendant] that I was not being paid overtime hours.” Pl. Affidavit
“I asked to be paid my overtime hours on several occasions commencing in
August/September of 2015 and continuing.” Pl. Affidavit ¶ 23.
“I complained about not being paid appropriate overtime wages on several
occasions with [defendant.]” Pl. Affidavit ¶ 25.
Plaintiff indicated that she was not being paid appropriate overtime hours and repeated
this argument on several occasions to the defendant’s management. Because this Court
must review the facts and resolve all conflicts of evidence in favor of the party opposing
a motion for summary judgment, this Court holds that the grant of summary judgment in
favor of the defendant is vacated.
Plaintiff’s informal oral complaints to the defendant could constitute the filing of
an action under the FLSA and thus could be the basis of an FLSA retaliation claim.
Thus, this Court’s entry of summary judgment is vacated.
IT IS HEREBY ORDERED that plaintiff’s motion to reconsider entry of
summary judgment (#39) is GRANTED.
So ordered this 27th day of March, 2017.
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE
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