Stramaski v. Lawley

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

August 11, 2022

No. 20-20607 Lyle W. Cayce

Clerk

Eva Kristine Stramaski,

Plaintiff—Appellee,

versus

Mark Lawley, Individually,

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:20-CV-156

Before Elrod, Southwick, and Costa, Circuit Judges.

Leslie H. Southwick, Circuit Judge:

Eva Stramaski claims her employment was terminated in retaliation

for complaining she was going to be paid late. She filed a complaint against a

department head within the Texas A&M Engineering Station, Dr. Mark

Lawley, in his individual capacity, alleging he violated the anti-retaliation

provision of the Fair Labor Standards Act. Lawley moved to dismiss

Stramaski’s retaliation claim because the suit was barred by sovereign

immunity, and in the alternative, that he was entitled to qualified immunity.

The district court determined that neither immunity applied. We agree as to

No. 20-20607

sovereign immunity but VACATE and REMAND as to qualified

immunity.

FACTUAL AND PROCEDURAL BACKGROUND

Eva Stramaski was employed as an Academic Advisor by Texas A&M

University through the Texas A&M Engineering Experiment Station

(“TEES”). She had recently returned from leave due to a surgical procedure

when, on January 30, 2019, a TEES employee informed Stramaski that she

would not be paid on time unless she submitted a second doctor’s note that

would release her back to work. Stramaski requested the second note but also

spoke with TEES’s Associate Director of Human Resources, Nicole

Pottberg, to ensure she would be paid on time. Pottberg told Stramaski that

she would be timely paid.

The next day, Stramaski received an e-mail from a man named Huff

(whom the record does not otherwise identify) informing her she would not

be paid in full for five or six days, even though her pay was finalized. On

February 1, Stramaski went to Huff’s office on an unrelated matter and again

addressed her payment schedule. She confirmed with him that she would

not be paid for five or six days from then. Huff also confirmed this timeline

with the Assistant Dean for Finance. After this confirmation, Stramaski

informed Huff that “she needed to be paid on time, as it was her legal right.”

Stramaski then went directly to Human Resources to speak with

someone about her potentially late pay. She spoke with an employee who

ensured her that her “check would be cut within a few hours, and that she

would be paid on time.” Stramaski was timely paid.

Soon after Stramaski received this check, Dr. Mark Lawley, head of

the Department of Industrial and Systems Engineering within TEES, entered

Stramaski’s office and told her she “was being aggressive with regard to

being paid on time” and sent her home for the day. On February 13, Lawley

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No. 20-20607

issued Stramaski a coaching letter detailing allegations against her from

August to September 2018. Stramaski submitted a memo disputing those

allegations on February 20. Two weeks later, on March 7, 2019, Lawley

terminated Stramaski’s employment.

In January 2020, Stramaski filed suit against Lawley in the United

States District Court, Southern District of Texas. Lawley was sued only in

his individual capacity for an alleged violation of the Fair Labor Standards

Act (“FLSA”). See 29 U.S.C. § 215(a)(3). Stramaski claimed she was

wrongfully terminated in retaliation for complaining that she would not be

timely paid for a particular pay period. She sought injunctive and declaratory

relief as well as damages.

Lawley moved to dismiss Stramaski’s claims under Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6). He argued her suit was barred under

the Eleventh Amendment and, in the alternative, that he was entitled to

qualified immunity. The magistrate judge issued a report and

recommendation on the motion. The district court adopted the magistrate

judge’s recommendation and granted Lawley’s motion to dismiss the claims

for injunctive and declaratory relief due to a lack of standing. The district

court refused to dismiss the claims for damages, finding neither the Eleventh

Amendment nor qualified immunity applied. Lawley timely appealed.

DISCUSSION

Denials of sovereign immunity and qualified immunity are both

reviewed de novo. Corn v. Miss. Dep’t of Pub. Safety, 954 F.3d 268, 273 (5th

Cir. 2020); Morgan v. Swanson, 659 F.3d 359, 370 (5th Cir. 2011). Absent

waiver, the immunity of a state from suit as signified by, but not fully

expressed in, the Eleventh Amendment is a jurisdictional barrier. Corn, 954

F.3d at 274, 276. We therefore start by considering the Eleventh

Amendment. After concluding that there is jurisdiction, we evaluate the

applicability of qualified immunity to Stramaski’s FLSA claim.

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No. 20-20607

I. Eleventh Amendment

Lawley argues this suit is barred by the Eleventh Amendment because

the state is the “real party in interest.” See Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 101 (1984). He contends Stramaski’s suit is only

nominally against him in his individual capacity but in fact is against the state

because all the relief Stramaski seeks will ultimately come from TEES, her

state employer.

Generally, the Eleventh Amendment does not bar suits against

governmental officials in their individual capacities, but “where the state is

the real and substantial party in interest, the Eleventh Amendment may bar

the suit.” Modica v. Taylor, 465 F.3d 174, 183 (5th Cir. 2006). Whether the

state is the real party in interest depends on the circumstances of the case.

Id. We begin our analysis of the relevant circumstances by discussing one of

our precedents involving a different but related statute — the Family and

Medical Leave Act (“FMLA”).

In Modica, we held that the definition of covered employers in the

FMLA and the FLSA are “very similar.” Id. at 186. We are one of several

courts to hold that the term “employer” should be interpreted the same in

both statutes. Id. at 186–87. Thus, because Congress “chose to make the

definition of employer materially identical” in these two acts, the FMLA

offers “the best guidance” to inform our analysis of the same terms in the

FLSA. See id. at 196 (quotation marks and citation omitted).

Our Modica decision relied on the statutory definition of employer in

the FMLA to conclude that the “plain language of the FMLA permits public

employees to be held individually liable.” Id. at 187. FMLA-covered

employers include “any person who acts, directly or indirectly, in the interest

of an employer to any of the employees of such employer.” 29

U.S.C. § 2611(4)(A)(ii)(I). We explained that this language is

straightforwardly read to allow public employees to be held individually liable

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No. 20-20607

so long as they “act[], directly or indirectly, in the interest of an employer.”

Modica, 465 F.3d at 184–86. Our conclusion necessarily followed that the

state-employed supervisor who allegedly retaliated against Modica could be

liable in her individual capacity under the FMLA. Id. at 187.

The FLSA’s “employer” definition is nearly identical. It covers

any person acting directly or indirectly in the interest of an

employer in relation to an employee and includes a public

agency, but does not include any labor organization (other than

when acting as an employer) or anyone acting in the capacity of

officer or agent of such labor organization.

29 U.S.C. § 203(d). We thus interpret the FLSA as we have the FMLA.

When a defendant employee was “acting directly or indirectly in the interest

of an employer in relation to an employee,” that defendant may be subject to

liability in an individual capacity. See Modica, 465 F.3d at 186.

Before proceeding too far in addressing individual capacity suits under

the FLSA, we need to inject some cautionary principles. The portion of the

Modica opinion addressing FMLA liability dealt with a claim by an employee

of a Texas state agency. See id. at 177–78. Among Modica’s claims was one

against agency Executive Director Humphrey for terminating her in alleged

retaliation for seeking FMLA leave. Id. at 178. When considering defendant

Humphrey’s argument that the claim was actually against the state, we first

cited one of our precedents in which we held that the FMLA claims in that

suit brought by an employee of a Louisiana state agency were clearly against

the state. Id. at 183 (citing Kazmier v. Widmann, 225 F.3d 519, 533 n.65 (5th

Cir. 2000), abrogated on other grounds by Nevada Dep’t of Hum. Res. v. Hibbs,

538 U.S. 721 (2003)). The entire analysis of why the suit was actually against

the state was in a footnote, where we cited a Supreme Court decision in which

a suit “nominally against an officer” was held actually to be against the state.

Kazmier, 225 F.3d at 533 n.65 (quoting Pennhurst, 465 U.S. at 101). The

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Modica opinion did not distinguish Kazmier in any meaningful way, but we

suggested two reasons not to apply it. See Modica, 465 F.3d at 183–87.

The first reason was that when deciding whether the Eleventh

Amendment bars a suit because it is actually against a state, the

circumstances of the case are determinative. Id. at 183. We discussed in a

parenthetical the circumstances of another circuit’s decision that led it to

conclude that an FLSA suit, though brought against a state employee

individually, was actually against the state. Id. (citing Luder v. Endicott, 253

F.3d 1020, 1024–25 (7th Cir. 2001)). We summarized the other circuit’s

holding this way:

the state would be required to pay damages to the 145 plaintiffs

and concluding that casting the suit, brought under the Fair

Labor Standards Act, as one against the officers in their

individual capacities was a “transparent[ ] effort at an end run

around the Eleventh Amendment.”

Id. (quoting Luder, 253 F.3d at 1024–25). The facts in Luder were nothing

like those of Modica, which involved a single employee’s claim against her

supervisor. See id. at 177–78. Rather, it was the way the Modica opinion

emphasized that the facts matter that is important. To be clear, Kazmier did

not mention Luder, nor were the facts of Kazmier similar to Luder.

The second reason the Modica court used to avoid applying Kazmier

is that it could be inconsistent with earlier, and thus controlling, Fifth Circuit

precedents that the Eleventh Amendment does not bar suits against state

officials in their individual capacities. Id. at 183 (citing Hudson v. City of New

Orleans, 174 F.3d 677, 687 n.7 (5th Cir. 1999); Martin v. Thomas, 973 F.2d

449, 458 (5th Cir. 1992)). Yet, we read neither of the cited precedents as

establishing an absolute rule relevant here.

The first case, Hudson, is neither an FLSA nor an FMLA case, as it

was brought under Section 1983. Hudson, 174 F.3d at 679. Hudson is one of

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No. 20-20607

our foundational decisions on the Eleventh Amendment, in which we

restated — and for the first time enumerated — six factors for when suit

against a governmental defendant was prohibited by the Eleventh

Amendment. Id. (applying factors from Clark v. Tarrant Cnty., 798 F.2d 736,

744–45 (5th Cir. 1986)). Relevant here is that Hudson made this observation:

“The Eleventh Amendment does not come into play in personal capacity

suits, . . . and the existence of an indemnification statute promising to pay

judgments when an officer is sued in his individual capacity does not extend

the Eleventh Amendment’s protections around the officer.” Id. at 687 n.7

(internal citations omitted). The Hudson court stated that indemnification is

“only an agreement between the state and these individuals and cannot

thereby be converted into an extension of Eleventh Amendment immunity

by the state.” Id. (quoting Downing v. Williams, 624 F.2d 612, 626 (5th Cir.

1980), vacated on panel reh’g on other grounds, 645 F.2d 1226 (5th Cir. 1981)).

Indemnification, statutory or otherwise, is not involved in the case before us.

The second case the Modica court cited as raising doubts about

Kazmier made a general statement that “[t]he Eleventh Amendment does

not bar suits against officials in their individual capacities.” Martin, 973 F.2d

at 458. There was no consideration in Martin of the effect of a situation such

as in Luder, in which any liability imposed on the named individual defendant

would be shifted to the state itself. See id. What Luder held and Kazmier

embraced is that cases brought against an individual state employee may

actually be against the state. We see no unavoidable conflict between

Kazmier and the older precedents of Hudson and Martin. Nonetheless, the

facts of Kazmier are hardly Luder-ite — in Kazmier, a Louisiana

governmental department fired a single employee for reasons that allegedly

violated the FMLA. Kazmier, 225 F.3d at 522–23. Regardless, what is

important in our analysis is that Kazmier properly held that the fact a plaintiff

brings a suit against a state employee solely in that employee’s individual

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No. 20-20607

capacity does not eliminate the Eleventh Amendment as a possible defense.

Id. at 523, 533 n.65. The facts matter.

Our conclusion that there is a place in our jurisprudence for holding

that a suit nominally against an individual state employee is actually against

the state was also the opinion of another panel of this court after Modica. See

Henley v. Simpson, 527 F. App’x 303, 304, 308 (5th Cir. 2013). Though

unpublished and not a precedent, the opinion’s analysis is worthy of our

review. Of some note, perhaps, the same judge who authored both Modica

and Hudson was on the Henley panel, suggesting a fair potential for

consistency in the three opinions. In Henley, five former Mississippi

Highway Patrol officers whose duties included using and caring for police

canines, initially brought suit under the FLSA against the state agency in

charge of the Highway Patrol. Id. at 304. The commissioner of the state

department overseeing the Highway Patrol and the director of the Highway

Patrol were added to the suit in their individual and official capacities after

the agency itself sought dismissal based on the Eleventh Amendment. Id.

The district court dismissed the state agency and the official capacity

claim against the commissioner and the director because the claims were

barred under the Eleventh Amendment. Id. The district court cited Modica’s

holding that suits against state employees in their individual capacities are

not barred by the Eleventh Amendment; the court also stated, though, that

the Luder analysis was “somewhat appealing.” Henley v. Simpson, No. 3:10-

CV-590, 2012 WL 3017812, at *3 (S.D. Miss. July 23, 2012). What was

“appealing” was that suits which were “transparently an effort at an end run

around the Eleventh Amendment” by suing a state employee and not the

state should also be dismissed. Id. (quoting Luder, 253 F.3d at 1025). The

district court left it for this court to decide whether to add that consideration

to our Eleventh Amendment caselaw. That is just what the panel did on

appeal.

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Our Henley panel identified the controlling issue as whether

Mississippi was “the real party in interest.” 527 F. App’x at 305. On the

one hand, if the individual state employees will be personally liable for the

judgment — even if indemnified by the state — then the Eleventh

Amendment is inapplicable. Id. at 305–06. The panel then, as did Kazmier,

discussed situations in which the individual was simply a nominal defendant

and the “judgment sought would expend itself on the public treasury . . . or

[] compel [the State] to act.” Id. at 306 (alteration in original) (quoting

Pennhurst, 465 U.S. at 101 n.11). In those situations, the Eleventh

Amendment was a bar. Id.

The Henley panel then made a distinction that is key for us. The claim

there concerned “the State’s compensation policy and whether [the state

employees’] caring for, and training, service canines resulted in an accrual of

overtime hours.” Id. at 307. The individual defendants “nether signed nor

promulgated” the policy manual, but they were obligated to enforce it. Id.

Thus, the individual defendants did not act wrongfully under state law. Id.

at 307–08. At most, the policy promulgated by the state itself violated federal

wage and hour laws. Id. A successful suit against the commissioner and the

director, therefore, would evade the Eleventh Amendment for what was in

fact a complaint about what the state had done. Id. at 305.

Quite differently, in the current case, Stramaski is claiming that the

defendant retaliated specifically against her for complaints she was making

about a possible delay in being paid. At least in the usual case, a claim of

retaliation is not going to be a challenge to a state policy simply being

implemented by a supervisor employee.

The Henley panel did go further than this distinction, though, by

concluding that “payment of any wages owed Plaintiffs must ultimately come

from the State treasury (indeed, Defendants may not have the ability to

pay).” Id. at 307. That might be a categorical recasting of FLSA claims for

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No. 20-20607

lost wages as claims against the state. At least in the context of a retaliation

case on facts such as in the case before us, we conclude that the FLSA does

provide a remedy against an individual employer for lost wages.

We also acknowledge that the Seventh Circuit Luder opinion does not

mirror Henley. The Luder case did not clearly involve an official state policy

that caused the possible FLSA violations. That court’s factual account was

that a prison warden forced defendant prison employees to work before and

after their shifts without pay in order to perform such tasks as checking

equipment and briefing the next shift of workers. Luder, 253 F.3d at 1022.

There is no discussion in the opinion of whether that was official state policy,

as in Henley. The 145 plaintiffs in Luder sought minimum wage for those

hours, beginning three years before suit was filed. Id. at 1024. The court

remarked on the likely impossibility that the warden and the three other

defendants would be able to pay such a judgment, with the potential for

bankruptcy. Id. The Seventh Circuit concluded that the effect of the suit

was the same as a suit against the state, because the practical effect would be

that the state would have to pay the judgment or else the state could not

attract individuals to the supervisory positions such as being a warden at a

prison. Id. In effect, the Seventh Circuit concluded that the real, substantial

party in interest will be the state when the claims are too large for an

individual to be able to pay. Id. at 1024.

The current suit does not present such a doomsday scenario for

potential state individual “employers.” This is a single-plaintiff, retaliation

case in which the defendant is said to have terminated her for complaining

about a delay in receiving her pay.

We return, now, to where we started with Modica’s uncertainty about

the validity of Kazmier as an across-the-board holding that a suit against a

state employee individually should be converted into one against the state.

We conclude that Kazmier went beyond controlling precedent if that is what

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No. 20-20607

it meant. At least in the retaliation context of this case, we will not recast the

claims as being against the state as the real, substantial party in interest. We

also interpret Modica and Kazmier as properly recognizing, though, that

sometimes a suit against an individual state employee under the FLSA or

FMLA will actually be against the state. The potential financial liability

arising from the Seventh Circuit Luder facts was extreme, but we are not

called on in this case to address individual liability arising on similar facts.

Holding public officials individually liable for retaliation under the

FLSA also is consistent with our prior holdings regarding individual liability

in other FLSA contexts. Some of those opinions did not make the

distinctions we have here, but we need not sort through all such issues in

order to resolve the present appeal. We have held, for example, that

governmental employees can be sued in their individual capacity for FLSA

violations generally, such as for failure to pay overtime wages. Lee v.

Coahoma Cnty., 937 F.2d 220, 226 (5th Cir. 1991). We explained that

“individual[s] with managerial responsibilities” could be held jointly and

severally liable for damages if the individual failed to comply with the FLSA

because that kind of employee fit within the FLSA’s definition of

“employer.” Id. In Lee, we recognized that a sheriff “clearly f[ell] within”

that definition and therefore could be individually liable. Id.

Lawley, as a department head within TEES, is someone who at least

at times acts “directly or indirectly in the interest of an employer” regarding

employees. Further, the actions Stramaski identifies as retaliation are those

Lawley committed. Stramaski does not challenge a TEES policy or other

state-initiated action. Instead, she complains of the actions Lawley took

specifically against her. The circumstances of the suit therefore show Lawley

is the true party in interest. Accordingly, Stramaski’s suit is not barred by

sovereign immunity, and she can bring her retaliation claim against Lawley in

his individual capacity.

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No. 20-20607

II. Qualified Immunity

The parties have assumed that the doctrine of qualified immunity

applies to claims brought under the FLSA. Starting from that premise, their

differing arguments address the doctrine. Our starting point is a conviction

that substantial analysis is necessary before deciding if qualified immunity

ever applies to the FLSA. Nonetheless, because neither party has disputed

the relevance of that doctrine, perhaps any contrary notion has been waived.

Whether waiver applies in this court due to the absence of argument

by either party depends on the nature of the issue. If the issue of whether a

qualified immunity defense is implied by or otherwise exists under a federal

statute is a question of statutory interpretation, then this court is required to

discern statutory meaning regardless of party argument. See Young v. United

Parcel Serv., Inc., 575 U.S. 206, 227–28 (2015). Further, regardless of the

category in which to place the unasked question of whether the doctrine even

applies, we may use our “independent power to identify and apply the proper

construction of governing law” to any “issue or claim [that] is properly

before the court, . . . not limited to the particular legal theories advanced by

the parties.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991). We

conclude that regardless of whether the applicability of qualified immunity to

the FLSA is a statutory-construction issue or whether it is simply too critical

to ignore in this case, we will address it. See Texas Off. of Pub. Util. Couns. v.

FCC, 183 F.3d 393, 440 n.86 (5th Cir. 1999) (explaining the court’s decision

to analyze a constitutional issue not raised by any party on the appeal).

We discover no Fifth Circuit opinion that holds qualified immunity is

a defense under the FLSA. We also find very little discussion in opinions

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No. 20-20607

from other circuits and none from the Supreme Court. 1 See, e.g., Lang v. Pa.

Higher Educ. Assistance Agency, 610 F. App’x 158, 160, 162–63 (3d Cir. 2015)

(remanding for district court to reevaluate qualified immunity defense to

FLSA claim). We have, though, determined that qualified immunity applies

to FMLA claims. See, e.g., Bryant v. Tex. Dep’t of Aging & Disability Servs.,

781 F.3d 764, 770–71 (5th Cir. 2015) (applying qualified immunity to FMLA

interference claim); Rutland v. Pepper, 404 F.3d 921, 924 (5th Cir. 2005)

(holding the district court “should have granted [defendant] summary

judgment based on qualified immunity” because plaintiff failed to allege

FMLA violation); see also Darby v. Bratch, 287 F.3d 673, 681–82 & n.13 (8th

Cir. 2002) (rejecting qualified immunity defense because FMLA creates

clearly established rights but stating defendant did not raise argument

regarding application of qualified immunity because of uncertainty in its

application to public officials).

In light of the absence of any briefing on this foundational point, and

because the analysis we set out indicates there are complexities involved for

which briefing is needed prior to any decision, we will only identify some of

the analysis that is necessary without reaching a conclusion. Because of our

subsequent determination that qualified immunity would be available on

these facts if it is available for this statute, we remand so the parties and the

district court can make the initial resolution of whether the defense applies

to the FLSA.

We set out the principles for the availability of qualified immunity

under a statute. It is applicable to a congressional enactment when two

1

The Supreme Court made clear more than two decades ago that sovereign

immunity applied to claims brought against states under the FLSA. See Alden v. Maine, 527

U.S. 706, 712 (1999). No issue of qualified immunity as a defense by an individual

defendant was involved in the case. It is Alden that makes a claimant’s only option under

the FLSA to sue another state employee in an individual capacity.

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conditions exist: (1) “the tradition of immunity was so firmly rooted in the

common law” and (2) is “supported by such strong policy reasons that

Congress would have specifically so provided had it wished to abolish the

doctrine.” Wyatt v. Cole, 504 U.S. 158, 163–64 (1992) (quotation marks and

citation omitted) (holding that qualified immunity applies to claims under

Section 1983)). The Wyatt Court held it necessary to analyze “whether there

was an immunity at common law that Congress intended to incorporate”

implicitly into the statute in question; in making the determination, “we look

to the most closely analogous torts” in the common law compared to the

conduct covered by the statute. Id. at 164.

Were there analogous torts in the common law? Did Congress

“intend” to incorporate concepts of qualified immunity when it explicitly

created a more limited defense of good faith in the FLSA? For example, a

good faith following of administrative rulings on the meaning of the FLSA

will bar an action for a violation of the Act. 29 U.S.C. § 259. Further, any

employer who can show that the violation of the FLSA was committed “in

good faith and that he had reasonable grounds for believing that his act or

omission was not a violation” will not be liable for liquidated damages in

addition to actual damages. Id. § 260. We will not go further with setting out

the difficulties, which may not be insurmountable, of applying qualified

immunity to the FLSA. Certainly, though, there are difficulties. The initial

resolution of the issue is for the district court.

When qualified immunity applies, it “shields officials from civil

liability so long as their conduct ‘does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known.’”

Mullenix v. Luna, 577 U.S. 7, 11 (2015) (quoting Pearson v. Callahan, 555 U.S.

223, 231 (2009)). A plaintiff can overcome the defense by showing (1) “that

the official violated a statutory or constitutional right” and (2) that “the right

was clearly established at the time of the challenged conduct.” Voss v. Goode,

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No. 20-20607

954 F.3d 234, 238 (5th Cir. 2020). A clearly established right is a right that

is “sufficiently clear that every reasonable official would [have understood]

that what he is doing violates that right.” Reichle v. Howards, 566 U.S. 658,

664 (2012) (alterations in original) (quotation marks and citation omitted).

In assessing whether the defendant violated a clearly established right, we

must ask “not only whether courts have recognized the existence of a

particular constitutional right, but also . . . whether that right has been defined

with sufficient clarity to enable a reasonable official to assess the lawfulness

of his conduct.” Morgan, 659 F.3d at 372 (alteration in original) (citation

omitted).

We now examine the facts as to whether, if available under the FLSA,

qualified immunity would apply. The district court accepted the magistrate

judge’s conclusion that Stramaski’s claim is that she was terminated for

insisting that she be timely paid. We have held that a violation of a much

earlier version of the FLSA occurs when “an employer on any regular

payment date fails to pay the full amount of the minimum wages and overtime

compensation due an employee.” Atlantic Co. v. Broughton, 146 F.2d 480,

482 (5th Cir. 1944). For purposes of our analysis in this case, we accept that

as a fair reading of the obligation.

For Stramaski’s retaliation claims, she must have plausibly alleged

that her discharge was because she “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). No complaint was filed in the sense of a formal, written

statement. We have held that some informal complaints about FLSA

violations may suffice, but they have to be more than “abstract grumblings or

vague expressions of discontent.” See Hagan v. Echostar Satellite, L.L.C., 529

F.3d 617, 626 (5th Cir. 2008) (quotation marks and citation omitted). Among

other requirements, there must be assertions that the challenged conduct is

or would be unlawful. Id. Here, Stramaski insisted that she has a “legal

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right” to be paid on time. Thus, much of what is required by our caselaw is

satisfied here.

There is a question, though, arising from the fact that Stramaski never

complained about not being timely paid. In fact, she received her wages for

the relevant time period on the proper date. Instead, her claim is that she

suffered retaliation because she complained about being told that her next

paycheck would be late. Whether her complaints made the difference or not,

the prospect of late wages did not materialize. Thus, the issue under qualified

immunity is whether discharging an employee when the employee insists that

a violation of law not occur in the future, and the violation did not in fact

occur, can constitute retaliation under the FLSA. It is that factual

permutation that causes us to conclude that there is no clearly established

law, with a sufficient degree of specificity, that Stramaski’s termination was

a violation of the FLSA.

We will mention the defendant’s separate argument that the law also

was not clearly established that an individual supervisory state employee like

Lawley could be held personally liable under the FLSA. Even if that was

uncertain, and we do not conclude it was, any uncertainty about the liability

that would arise for violating someone’s certain rights is not the proper focus.

Whether a lawsuit can follow, i.e., whether liability can be imposed, from

someone’s actions is an entirely separate question from whether it is clearly

established that someone’s actions were objectively reasonable at the time

they occurred. In other words, the concern is whether, at the time that the

relevant acts occurred, the future defendant’s actions violated a clear right of

a future plaintiff. See Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).

We have been shown no caselaw that supports that the prospective defendant

needs to know all the repercussions of a knowing violation of someone’s

right. It is enough that the right being violated is clear.

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Based on this analysis, Stramaski’s claim would be barred by qualified

immunity because she does not allege that Lawley violated a clearly

established law. However, the antecedent question is whether qualified

immunity applies to the FLSA to begin with. We therefore remand for the

district court to decide this question in the first instance. Montano v. Texas,

867 F.3d 540, 546 (5th Cir. 2017) (“[A] court of appeals sits as a court of

review, not of first view.’” (citation omitted)). 2

In summary, we affirm the rejection of sovereign immunity as a

defense. We AFFIRM the denial of the defense of sovereign immunity. We

VACATE the judgment denying the defense of qualified immunity and

REMAND for further proceedings consistent with this opinion.

2

If qualified immunity does not apply to the FLSA, and Lawley is found liable,

Stramaski may recover lost wages and damages from him, but not relief that can be provided

only by the state, like employee benefits and continued employment with TEES. A suit for

lost benefits, even if brought against Lawley, would actually be a suit against the state, see

Modica, 465 F.3d at 183, which we have held is barred here by sovereign immunity.

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Gregg Costa, Circuit Judge, concurring:

It says something about how much qualified immunity dominates

section 1983 litigation that everyone in the district court—the experienced

lawyers and judges alike—assumed the immunity exists whenever a public

official is sued. But qualified immunity is not some “brooding omnipresence

in the sky” that automatically attaches in any suit. See S. Pac. Co. v. Jensen,

244 U.S. 205, 222 (1917) (Holmes, J., dissenting). Rather, it is a defense that

must be found in the governing statute. See Wyatt v. Cole, 504 U.S. 158, 163

(1992). So whether the FLSA contains an immunity defense is a question of

statutory interpretation.

And in a textualist world, recognizing an immunity defense when the

words of the statute do not provide one is an extraordinary act of

interpretation. Courts should read an immunity defense into a statute only

“if the ‘tradition of immunity was so firmly rooted in the common law and

was supported by such strong policy reasons that ‘Congress would have

specifically so provided had it wished to abolish the doctrine.” Wyatt, 504

U.S. at 163–64 (quoting Owen v. City of Independence, 445 U.S. 622, 637

(1980)). 1 Given this stringent inquiry, it is no surprise that qualified

immunity is “typically invoked” in constitutional tort cases under section

1983 and Bivens, causes of action “largely ‘devised by the Supreme Court

without any legislative . . . guidance.’” Berry v. Funk, 146 F.3d 1003, 1013

1

Justice Kennedy’s concurring opinion in Wyatt, seemingly the controlling opinion

as only four justices signed on to Justice O’Connor’s opinion, casts doubt on the role of

“policy reasons” in determining if an immunity defense exists. See 504 U.S. at 170–72

(Kennedy, concurring). It is not clear, however, that his opinion overrules the policy

considerations relied on in earlier cases. See id. at 171 (“We need not decide whether or

not it was appropriate for the Court in Harlow to depart from history in the name of public

policy, reshaping immunity doctrines in light of those policy considerations.”). What

Justice Kennedy’s opinion makes certain, however, is that common-law immunities for

analogous claims must have existed when Congress enacted a statute because implicitly

recognizing an immunity defense is “devising limitations to a remedial statute, enacted by

the Congress, which ‘on its face does not provide for any immunities.” Id. (quoting Malley

v. Briggs, 475 U.S. 335, 342 (1986)).

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No. 20-20607

(D.C. Cir. 1998) (quoting Crawford-El v. Britton, 93 F.3d 813, 832 (D.C. Cir.

1996) (en banc) (Siberman, J., concurring)). After all, when Congress creates

specific statutory defenses—which it did not do when enacting section 1983

in the Civil Rights Act of 1871—it likely does not intend to incorporate

general common law defenses as well. See id.

While the Supreme Court has found a sufficient common law

immunity to read in qualified immunity case a defense to constitutional torts,

lower courts have found no similar tradition for rights created by some

statutes. For example, we found no qualified immunity for retaliation suits

under the False Claims Act. See Samuel v. Holmes, 138 F.3d 173, 178 (5th Cir.

1998) (Reavley, J.). Other courts have rejected immunity defenses under the

antifraud provisions of the False Claims Act, United States ex rel. Citynet,

LLC v. Gianato, 962 F.3d 154, 159–60 (4th Cir. 2020); United States ex rel.

Parikh v. Citizens Med. Ctr., 977 F. Supp. 2d 654, 678–86 (S.D. Tex. 2013),

and under statutes as varied as the Wiretap Act, see Berry, 146 F.3d at 1013–

14, the Civil Rights Act, see Carl v. Angelone, 883 F. Supp. 1433, 1436–37 (D.

Nev. 1995); and the Stored Communications Act, see Hepting v. AT&T Corp.,

439 F. Supp. 2d 974, 1006–09 (N.D. Cal. 2006).

That said, courts have found immunity defenses to some statutory

claims. See, e.g., Tapley v. Collins, 211 F.3d 1210, 1214–17 (11th Cir. 2000)

(finding immunity defense under Wiretap Act); Blake v. Wright, 179 F.3d

1003, 1011–13 (6th Cir. 1999) (same); Lue v. Moore, 43 F.3d 1203, 1205 (8th

Cir. 1994) (same for Rehabilitation Act); Gonzalez v. Lee Cnty. Hous. Auth.,

161 F.3d 1290, 1299–1300 & n.31 (11th Cir. 1998) (same for Fair Housing

Act). Those cases, however, wrongly assume that immunity is the default

and exists unless Congress states otherwise. See, e.g., Tapley, 211 F.3d at 1214

(“[T]he defense of qualified immunity is so well established, that if Congress

wishes to abrogate it, Congress should specifically say so.”). The same

reasoning characterizes our decision recognizing an immunity defense under

the Family and Medical Leave Act. See Bryant v. Tex. Dep’t of Aging &

Disability Servs., 781 F.3d 764, 770–71 (5th Cir. 2015)

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No. 20-20607

But the Supreme Court’s instruction on how to evaluate the

availability of qualified immunity is different. To find an atextual immunity

defense, the court must conduct a statute-specific analysis to determine if

common-law immunity from suit was “firmly rooted” as a protection against

a closely analogous tort. Wyatt, 504 U.S. at 164–65; id. at 171 (Kennedy, J.,

concurring). For this case, then, the proper inquiry is whether, when

Congress enacted the Fair Labor Standards Act’s antiretaliation provision,

there was a tradition of immunity for a claim alleging intentional retaliation

in the workplace. 2

With these additional observations, I fully join the majority opinion

and leave it to the district court to decide the existence of an immunity

defense under the FLSA after full briefing from the parties.

2

There are two potential dates to focus on. The original FLSA, enacted in 1938,

only allowed the Secretary of Labor to bring retaliation claims. A 1977 Amendment to the

law created a private cause of action for such claims. See Pineda v. JTCH Apartments,

L.L.C., 843 F.3d 1062, 1064 (5th Cir. 2016).

20