Petition for Writ of Certiorari — McKenzie v. Renberg's, Inc.

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Gupret® Court, U.8.

) FILED

W) 961293 JAN 211997

OFFICE, OF THE CLERK

In The

Supreme Court of the United States

October Term, 1996

LORI G. McKENZIE,

Petitioner,

Vv.

RENBERG’S, INC., and ROBERT L. RENBERG,

Respondents.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

James C. Hodges Charles L. Richardson

Counsel of Record Additional Counsel

ELLER & DETRICH THE RICHARDSON LAW FIRM

Attorneys for Petitioner Attorneys for Petitioner

2727 E. 21st St., #200 6846 S. Canton Ave., #200

Tulsa, Oklahoma 74114 Tulsa, Oklahoma 74136

(918) 747-8900 (918) 492-7674

QUESTION PRESENTED

I. Whether a personnel director, who has formed

a good faith belief that her employer is violating the overtime

pay requirements of the Fair Labor Standards Act, engages in

“protected activity” under §15(a)(3) of the Act when she

reports her belief to the company’s attorney and then to its

President and principal owner, persists in that belief and then

is fired in retaliation for expressing her belief.

LIST OF PARTIES

Lori G. McKenzie, Petitioner

Renberg’s, Inc., and Robert L. Renberg, Respondents

iti

TABLE OF CONTENTS

Page

ES SR ae a re i

SN US EV US OT Re ecco eeeeeees li

ee ee ree eee iii, iv, v,

Table of Authorities .............. vi, vii, viii, ix, x

CS a a a xi

ES eee eee eee ee 3

EE ee ee eee 3

EG Se 3

NS ee eee 4,5,6,7

Reasons for Granting the Writ ...............-- 8

I. This Court should grant a writ of

certiorari because the United States

Court of Appeals for the Tenth Circuit

has decided an important question of

Federal Law that has not been, but

should be, settled by this Court ...... 3

Page

A. The Anti-retaliation pro: sion

of §15(a) (3) has been given

broad and liberal construction

in order to implement the

remedial purposes of the

Fair Labor Standards )

FBP Pera ews 9, 10, 11, 12

B. The Court of Appeals failed

to recognize that the Fair Labor

Standards Act imposes independent

legal duties upon a personnel

GE se becne 12, 13, 14, 15

C. The decision of the Court of

Appeals conflicts with the position

of the Secretary of Labor under

other Federal Statutes guaranteeing

the protection of

CMPIOVESS 2. cee 16, 17, 18

D. Allowing the Court of Appeals’

decision to stand will violate the

public interest..... 18, 19, 20, 21

E. Allowing the Court of Appeals’

decision to stand will threaten

enforcement of the Fair Labor

Standards Act........ 22, 23, 24

iS uf5 eR ER OEE EEE AIO

TABLE OF AUTHORITIES

Cases

Page

Bechtel Construction Company v. Secretary of Labor,

50 F.2e Sam Ch cee Ga ee ied a <a eS ee 6 ek 17

Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179 (8th

Che BE) isc x. ool ee Se 10

Brock v, Casey Truck Sales, 839 F.2d 872 (2nd Cir.

WORE ok co 0 05 sled ei ees 10

Brock v. Richardson, 812 F.2d 121 (3rd Cir. 1987) . 10

Brooklyn Savings Bank v, O’Neil, 324 U.S. 697 (1945) 20

Chevron, USA, Inc... v. Natural Resources Defense

Council, Inc,, 467 U.S. 837 (1984) ............. 17

Daniel vy. Winn-Dixie Atlanta, Inc., 611 F.Supp. 57

oe ee Sr eee ee eee 10

Dole v. Haulaway, Inc., 723 F.Supp. 274

SE, Ec. 66:45 be ode ae eee ee oe 14

Donovan vy. Agnew, 712 F.2d 1509 (ist Cir. 1983)... 14

Donovan v. Sabine Irrigation Co... Inc., 695 F.2d 190

———

vil

Page

eee AON «csi alte asa Nie eae we eles 14

Drollinger v. State of Arizona, 962 F 2d 956 (9th

Ol BONE 2G Parktve’ os 6 oN wie Rive Fore) ors eho" 11

EEOC vy. Romeo Community Schools, 976 F.2d 1006

Ee Se Oe ne a 11

EEOC vy. White and Son, 881 F.2d 1006 (11th Cir

oS Spee ROIS SBE eC eee il

Kahn v. United States Secretary of Labor, 64 F.3d 271

a ek a 23

, 780 F.2d

1505 (10th Cir. 1985), cert. denied 478 U.S. 1011

re ee ae didiats habetadall 17

Love y. RE/MAX of America. Inc... 738 F.2d 383 (10th

ik MEE ed coun cn ts cere one eres 11

ems. Inc., 735

F.2d 1159 (9th Cir. 1984) ..---- seer r err 17

, 489 F.Supp.

viii

Page

McLaughlin v. Lunde Truck Sales, Inc., 714 Supp. 920

CU aes ee a ae a Oe ee ee a a 14

Meek v, United States, 136 F.2d 679 (6th Cir. 1943) . 13

Mitchell v, Robert DeMario Jewelry, Inc., 361 U.S. 288

CRE >. o0.0. 6 kb sivas mem eee ee eae 7, #1, 22

Norris v. Lumbermen’s Mutual Casualty Company, 881

ae 6 Ce Gal, BD vias 6 sc cen loin eern ent 17

NLRB vy, Scrivener, 405 U.S. 117. 122-23 (1972) ... 22

Associates, 539 F.Supp. 437 (N.D.Penn 1982)...... 23

Passaic Valley S ; papi United

States Department of Labor, 922 F.2d 474 (3rd Cir.

SOU Sire eed 26 Fee Cee ear wees wa FC% 17

Plourde vy. Massachusetts Cities Realty Co., 47 F.Supp

GE a TIE oko inva Si wewcncden BOX: 19

i Ses Perera rrr ens rr Le Be 17

OE) 6 che beenes she 0s 6s Ree Pre 17

Page

Saffels v. Rice, 40 F.3d 1546 (8th Cir.1994) ....... 10

Schultz _v. Falk, 439 F.2d 340 (4th Cir. 1971) ...... 14

Smith v. Singer Company, 650 F.2d 214 (9th Cir.

RED hob Siva Ottctoalk We Main ale’ Sk ws Be ole 23

U.S. v. Darby, 312 U.S. 100 (1941), as amended 312

iy ES POR ek i oc ews e ne 19

York v, City of Wichita Falls, 944 F.2d 236 (Sth

PRP NES WES 0 Ras oer ae oe ee 11

Statutes and Rules

Se MS 20 048 6 hs Geb eee ce eee 16

ee Sr ae FG 8 les WORN ble sce aes 0% 3

ES 5S up uy oa babs ts ee oa 6 as 6

Oe SPI, 6b 5 2% 0654's Calan pc cec sae 13

Co Ee ee rere ae o4

Page

ae U.K. GEA GD os Kaine Kaas 4, 6, 7, 9, 10, 11,

12, 13, 14, 16, 19

oP UBS BED sk 64 OER ES ORR RS 6, 20

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EUR. Bee oscil kh diedd Jeo os 16

Oh, Shae -« 9's 1.0 diane be ae eae eae 16

Te Wann END ws 6+ 4.6 ans. oe ees we 16

APPENDIX

Page

APPENDIX A - OPINION AND ORDER

OF THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT

hogy Be a | re la

APPENDIX B - OPINION AND ORDER

OF THE UNITED STATESCOURT OF

APPEALS FOR THE TENTH DISTRICT

DATED SEPTEMBER 4, 1996 .......... 19a

APPENDIX C - ORDER OF THE TENTH

CIRCUIT COURT OF APPEALS DENYING

REHEARING ENTERED OCTOBER 22,

Sass totic 0 clas FS eA Ae eretee » 42a

APPENDIX D - 29 U.S.C. §203(a) ....... tha

APPENDIX E - 29 U.S.C. §203(d) ....... 45a

APPENDIX F - 29 U.S.C. §216(a) ....... 40d

APPENDIX G - 29 U.S.C. §203(b) ....... 47a

No.

In The

Supreme Court of the United States

October Term, 1996

LORI G. McKENZIE,

Petitioner,

Vv.

RENBERG’S, INC., and ROBERT L. RENBERG,

Respondents.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioner, Lori G. McKenzie, respectfully petitions

for a writ of certiorari to review the judgment of the Court of

Appeals for the Tenth Circuit.

OPINIONS BELOW

McKenzie v. Renberg’s, Inc., 94 F.3d 1478 (10th

Cir. 1996).

The opinion of the Court of Appeals is reported at 94

F.3d 1478(10th Cir. 1996) and is reproduced in the Appendix

filed herewith. The unreported opinions of the district court

in the case are also reproduced in the Appendix filed

herewith.

STATEMENT OF JURISDICTION

The judgment sought to be reviewed in this Court was

entered by the Court of Appeals for the Tenth Circuit on

September 4, 1996. After the timely filing of a Petition for

Rehearing, the Court of Appeals entered its Order denying

the Petition for Rehearing on October 22, 1996.

This Court has jurisdiction to review the judgment of

the Court of Appeals on writ of certiorari pursuant to 28

U.S.C. § 1254(1).

STATUTE INVOLVED

§ 215. Prohibited acts; Prima facie evidence

(a) After the expiration of one hundred and twenty

days from the date of enactment of this Act, it shall be

unlawful for any person--

(3) to discharge or in. any other manner

discriminate against any employee because

such employee has filed any complaint or

instituted or caused to be instituted any

proceeding under or related to this Act, 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)

STATEMENT OF THE CASE

Material Facts

Lori G. McKenzie (the Petitioner) was employed as

the Personnel Director of Renberg’s, Inc. (a Respondent),

from May, 1985 to September 20, 1991. In her capacity as

Personnel Director, Petitioner was responsible for monitoring

compliance with State and Federal equal: employment

opportunity laws, wage and hour laws, and other laws

regulating the workplace. She was also responsible for the

hiring, training, and firing of employees. See Answer Brief

of Appellee, pp. 6, paragraphs 2 and 7, and 4.

In August, 1991, a co-worker of Petitioner, Marsha

McElroy (the Controller of Renberg’s), attended a seminar on

wage and hour laws and received various informational

materials. At McElroy’s request, Petitioner reviewed these

materials, discussed them with McElroy, and became

concerned that the company was not properly paying overtime

to certain of its sales associates and certain department

managers, in violation of the Fair Labor Standards Act. See

Answer Brief of Appellant, p. 5, paragraphs 1 and 2.

Petitioner based her concerns upon her knowledge of

the workers and upon her six years of experience in serving

as Personnel Director. To investigate the wage and hour

issue further, Petitioner reviewed time cards of employees

and reviewed a computer printout of employees showing rates

of pay, which she asked a payroll manager to produce. See

App. App. 66-76.

After reviewing these materials and discussing the

issues with McElroy, Petitioner sought a meeting with the

company attorney who she had been directed to consult on

personnel issues. With the results of her investigation, the

computer printout, and a company manual, Petitioner and

McElroy met with the company attorney on September 4,

1991 to discuss their concerns. Petitioner explained her

concerns to the attorney, showed him the materials and the

computer printout and expressed her belief that the method of

compensating certain sales associates and certain department

managers violated the Fair Labor Standards Act. After her

meeting with the attorney, Petitioner, on two occasions, told

the company president and principal owner of the company,

Robert L. Renberg (a Respondent), that she had discussed her

concerns about the perceived wage and hour violations with

Subsequently, Petitioner continued to discuss her concerns

with McElroy and began to fear for her job. See App. App.

pp. 78-85, 88-90.

‘haste’ #:

After the meeting with the company attorney,

Petitioner became the subject of an internal security

investigation. On September 20, 1991, Petitioner was

terminated by Respondents. After her termination, Petitioner

contacted the Department of Labor and later filed a

complaint. See App. 56-7.

Procedural Background

Petitioner brought this action in the District Court

against Respondents, asserting that she was terminated in

violation of the anti-retaliation provisions of the Fair Labor

Standards Act, 29 U.S.C. § 215(a)(3). The District Court

had jurisdiction pursuant to the provisions of 29 U.S.C.

§216(b) and 28 U.S.C. §1331. See Appellant’s Brief in

Chief, pp. 2-4.

The trial was conducted in three stages, with the

question of liability decided first, followed by the jury's

determination of back pay and compensatory damages, and

finally, of punitive damages. The evidence presented at trial

was disputed. The Petitioner presented evidence tending to

show that her termination was on account of her reporting her

concerns of wage and hour violations to the company attorney

and to the company president. The Respondents presented

evidence tending to show that Petitioner was terminated for

two separate non-retaliatory reasons. At the close of the

liability phase of the trial, the District Court instructed the

jury that "good faith reporting or communicating concerns

regarding possible FLSA violations is protected activity”.

Respondents objected to this instruction. See Appendix B, p.

25a-26a, 33a, Opinion of the Tenth Circuit.

After deliberating on the liability phase, the jury

concluded that the Respondents’ asserted non-retaliatory

reasons for discharging Petitioner were pretextual and

returned a special interrogatory finding that Petitioner was

terminated in retaliation for reporting her belief that

Renberg's, Inc. was in violation of the Fair Labor Standards

Act. See Appendix B, p. 26a, Opinion of the Tenth Circuit.

After the two damages phases of the trial, the jury

returned verdicts awarding Petitioner $100,000 in back pay,

$175,000 in emotional distress damages, and $50,000 in

punitive damages. On July 15, 1994, the District Court

issued its findings of fact and conclusions of law, granted

judgment in favor of Petitioner for back pay and liquidated

damages, and made other rulings not relevant here. See App.

25-31.

Respondents then filed a Motion for Judgment as a

Matter of Law under Fed. R. Civ. P. 50, or in the alternative,

a Motion for New Trial under Fed. R. Civ. P. 59. The

District Court granted the Motion for Judgment as a Matter

of Law, and ruled that the Motion for New Trial was moot.

See Appendix B, p. 26a Opinion of the Tenth Circuit.

Petitioner timely perfected her appeal of the District

Court's ruling on Respondents' Motion for Judgment as a

Matter of Law. The Court of Appeals for the Tenth Circuit

ruled that sufficient evidence existed to submit to the jury the

question of the "but for" cause of the Petitioner's termination.

However, the Court of Appeals affirmed, holding that

Petitioner did not engage in protected activity under §15(a)(3)

of the Act when, in her capacity as Personnel Director, she

undertook to advise Renberg's, Inc. that its wage and hour

policies were in violation of the FLSA. See Appendix B, p.

35a Opinion of the Tenth Circuit.

REASONS FOR GRANTING THE WRIT

THIS COURT SHOULD GRANT A WRIT

OF CERTIORARI BECAUSE THE UNITED

STATES COURT OF APPEALS FOR THE TENTH

CIRCUIT HAS DECIDED AN IMPORTANT

QUESTION OF FEDERAL LAW THAT HAS NOT

BEEN, BUT SHOULD BE, SETTLED BY THIS

COURT.

Introduction

The issue in this case is whether the legal duty

imposed on a personnel director by the Fair Labor Standards

Act should be preferred over the personnel director's status

as a member of management. The Court of Appeals would

require a personnel director to "cross the line" from being a

management employee to taking a position adverse to the

company. In other words, a personnel director, the Court of

Appeals would say, is the company itself. So, unless she

steps out of her role as personnel director and takes a role as

adversary or opponent, she is not speaking or acting separate

from the company. The company is essentially speaking to

itself.

In this, the Court of Appeals erred. Its concept is

fundamentally flawed, as it violates the intent of Congress and

the remedial purpose of the Fair Labor Standards Act.

THE ANTI-RETALIATION PROVISIONS OF

§15(a) (3) HAVE BEEN GIVEN BROAD AND

LIBERAL CONSTRUCTION IN ORDER TO

IMPLEMENT THE REMEDIAL PURPOSES OF

THE FAIR LABOR STANDARDS ACT.

This Court has directed that a broad and liberal

construction of the Fair Labor Standards Act should be

applied so as to implement the intent of Congress. In

Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288

(1960), this Court reviewed the s Congress intended to

be used to effectuate enforcement of the Fair Labor Standards

Act. Primary among them was that Congress determined that

enforcement of the Act would best be enhanced by

information brought forward by employees. There, Mr.

Justice Harlan wrote:

[Congress] chose to rely on information and

complaints received from employees seeking

to vindicate rights claimed to have been denied

. . . for it needs no argument to show that fear

of economic retaliation might often operate to

induce aggrieved employees quietly to accept

substandard conditions. [citation omitted] By

the proscription of retaliatory acts set forth in

§15(a)(3), . . . Congress sought to foster a

climate in which compliance with the

substantive provisions of the Act would be

enhanced.

361 U.S. 288, 292."

The Courts of Appeals and the District Courts have

with almost total uniformity employed this broad and liberal

construction of the Act when applying the provisions of

§15(a)(3). Accordingly, courts have held that an employee

who gives a statement to the Wage and Hour Division of the

Department of Labor is protected even though that employee

has not "filed any complaint", but has merely communicated

with investigators, Daniel y. Winn-Dixie Atlanta, Inc., 611

F.Supp. 57 (N.D.Ga. 1985). Likewise, §15(a)(3) has been

held to protect an employee who insisted on receiving or

refused to return to the employer an award of unpaid wages

obtained for him by the Department of Labor, Brock v, Casey

Truck Sales, 839 F.2d 872 (2nd Cir. 1988); Brennan vy.

Maxey's Yamaha, Inc., 513 F.2d 179 (8th Cir. 1975).

Using the same broad and liberal construction,

§15(a)(3) has been held to prohibit retaliation against an

employee whose employer mistakenly believed he had filed a

' In Tennessee Coal, Iron & R.Co, v. Muscoda Local No, 123, 321

U.S. 590 (1944), the Court had earlier noted that the provisions of the

Act relating to overtime pay were “remedial and humanitarian in

purpose". The Court went on to say: We are not here dealing with

mere chattels or articles of trade but with the rights of those who toil,

use and profit of others. Those are the rights that Congress has

specifically legislated so protect. Such a statute must not be interpreted

or applied in a narrow, grudging manner.

321 U.S. 590, 597.

claim under the Act, Saffels v. Rice, 40 F.3d 1546 (8th Cir.

1994); Brock v. Richardson, 812 F.2d. 121 (3rd Cir. 1987).

The Section has also been applied to protect an employee who

engaged in activity on behalf of a co-worker, York v, City of

Wichita Falls, 944 F.2d 236 (Sth Cir. 1991), Drollinger v.

State of Arizona, 962 F.2d 956 (9th Cir. 1992), and an

employee who asserted the rights of a spouse, Marshall v.

Georgia Southwestern College, 489 F.Supp. 1322 (M.D.Ga.

1980).

Extending this Court's broad and liberal interpretation,

§15(a)(3) has also been applied to complaints communicated

to the employer itself. In Love v, RE/MAX of America,

Inc,, 738 F.2d 383 (10th Cir. 1984), the Court of Appeals for

the Tenth Circuit held that a vice-president's request for a pay

raise to her superior, with a copy of the Equal Pay Act

attached, was protected under §15(a)(3), citing this Court's

decision in Mitchell v. DeMario, supra. See also, EEOC v.

White and Son, 881 F.2d. 1006 (11th Cir. 1989); and EEOC

y. Romeo Community Schools, 976 F.2d 985 (6th Cir. 1992).

The Decision of the Court of Appeals in this case paid

lip service to its earlier decision in Love and to that of the

Sixth Circuit in Romeo Community Schools (App. B, p. 35a).

Yet, the Court refused to extend its earlier holding to the

conduct of the Petitioner in this case.

While the Court did not cite any authority for its

holding, the key to its decision seems to be its statement that

the Petitioner never "crossed the line” from being an

employee merely performing her job as Personnel Director to

an employee “asserting a right adverse to the company" (App.

B, p. 37a). Rather, the Court noted, the Petitioner, in her

capacity as personnel manager, merely informed the company

that it was at risk of claims that might be instituted by others

: as a result of its alleged FLSA violations (App. B, p. 35a).

. In order to engage in protected activity under §15(a)(3), the

Court of Appeals would require the Petitioner to "step outside

his or her role of representing the company" (App. B, p.

36a).

Therein lies the error of the Court of Appeals’

decision in this case. The Court failed to apply the broad and

liberal interpretation of the Act that has been adopted by this

Court. In order to give effect to the "remedial and

humanitarian" purposes of the Act, the Court should have

held that the District Court's instruction was correct as a

matter of law; that is, that "the good faith reporting or

communicating concerns regarding possible FLSA violations

is protected activity”.

THE COURT OF APPEALS FAILED TO

RECOGNIZE THAT THE FAIR LABOR

STANDARDS ACT IMPOSES INDEPENDENT

LEGAL DUTIES UPON A _ PERSONNEL

DIRECTOR.

and other laws governing employees and the workplace. The

Petitioner is therefore not an officious meddler or 2 stranger

to the corporation's compliance with the Fair Labor Standards

Act. Congress has specifically mandated for her a function

separate and apart from her function as a management

employee. She is independently liable, both civilly and

criminally, for the company's compliance with the Act.

Status as a "person" under the Act

Congress specifically intended that an employee

having the duties of the Petitioner occupy a unique position,

with its own legally cognizable duties. By its terms, §15(a)

makes it unlawful for any "person" to violate the provisions

of §6 of the Act (relating to minimum wage), or §7 of the Act

(relating to overtime pay), or §15(a)(3) of the Act (relating to

retaliation under the Act). Under the provisions of §16(a) of

the Act [29 U.S.C. §216(a)], any "person"? who willfully

violates any of the provisions of §15 is subject to criminal

prosecution, and upon conviction is subject to fines or

imprisonment, or both.

Thus, a personnel director who willfully maintains

compensation plans which do not comply with the Act, or a

payroll supervisor who knowingly pays employees less than

they are entitled to under the Act may be convicted under the

Act. See, Meek v. United States, 136 F.2d. 679 (6th Cir.

1943). This threat to the liberty interest of a "person" under

the Act is direct and independent of any other legal

relationship. This threat of criminal liability sets a personnel

2 Under the Act, “person” is defined as “an individual, partnership,

association, corporation, business trust, legal representative, or any

organized group of persons,” §3(a) [29 U.S.C.§203{a)}.

director apart from other management employees, and apart

from the corporation itself.

Moreover, a personnel director can be held to be an

"employer" under the Act and therefore may be subject to

civil liability, as well. Section 16(b) of the Act provides that

any "employer"? who fails to pay the minimum wage or

overtime pay to an employee or who discharges or

discriminates against an employee in violation of §15(aX3) of

the Act shall be liable for the damages allowed under the Act.

The district courts and courts of appeals have not

hesitated to apply the definition of "employer" to cover

management employees. See Dole v, Haulaway, Inc., 723

F.Supp. 274 (D.N.J. 1989). (corporate officers exercising

control, including a payroll supervisor, are "employers"):

McLaughlin v. Lunde Truck Sales, Inc., 714 F.Supp. 920

(N.D. Ill. 1989) (president of corporation was an

"employer"); Shultz v. Falk, 439 F.2d. 340 (4th Cir. 1971)

air ey fire and supervise building workers

employers"); Estevez vy. Hayes, 1990 W.L. 605076

DOr. 1990) (contractor who hired and fired agricultural

workers was an "“employer"); Donovan v. Sabine Irrigation

Co., Inc., 695 F.2d. 190 (Sth Cir. 1983) (president of

corporation is an "“employer"); and Donovan v. Agnew, 712

F.2d. 1509 (1st Cir. 1983) (corporate officers with significant

ownership interest and operational control of corporation's

> Under Section 3(d) of the Act, an “employer” includes any person

acting directly or indirectly in the interest of an employer in relation to an

employee, [29 U.S.C.§203(d)].

15 |

day to day functions including compensation of employees are

"employers").

As is the case with criminal liability imposed upon a

"person", civil liability attaches to an "employer" whether or

not the actual corporate employer is also sued. Civil liability,

as created by the Act, is separate and apart from the

employee's relationship to the actual employer. It is an

independent legal duty mandated by Congress and imposed by

the Act. It cannot be waived or defended or explained away

by a claim that the employee was merely "doing her job".

The record in this case demonstrates that as the normal

incidents of her duties as personnel director, Petitioner had

responsibility for hiring and firing of employees, of

supervising and training them and maintaining their method

of compensation in compliance with provisions of applicable

law’. Petitioner, therefore, at the times of her meetings with

the company attorney and with the company president, was

both a "person" subject to criminal liability and an

"employer" subject to civil liability under the Act. Her

expressions of her belief that the company was violating the

Act were by law her own separate acts, not the company's,

because they were founded on a separate duty imposed on her

alone. To require her to take additional actions to set her

apart from her corporate employer in order to be protected

under the Act is erroneous as a matter of law.

* These facts were admitted by the Respondents in the court below

(Appellee's Answer Brief, page 7) and are binding upon them in this

Court.

THE DECISION OF THE COURT OF APPEALS

CONFLICTS WITH THE POSITION OF THE

SECRETARY OF LABOR UNDER OTHER

FEDERAL STATUTES GUARANTEEING THE

PROTECTION OF EMPLOYEES.

The Decision of the Court of Appeals conflicts with

the position taken by the Secretary of Labor and by the

Courts of Appeals in decisions under other federal statutes

protecting employees from retaliation.

Congress has conferred upon the Secretary of Labor

the responsibility to enforce seven federal statutes

guaranteeing employees' freedom from employer retaliation’.

Those statutes are (or, have been, at relevant times) in their

material provisions identical to §15(a)(3) of the Fair Labor

Standards Act. According to its statutory duty, the

Department of Labor provides an administrative remedy for

employees who have been discharged or discriminated against

because they engaged in protected activity. To accomplish

that duty, the Department has promulgated Regulations which

define the activity which is protected under each of these

statutes.

* Safe Drinking Water Act, 42 U.S.C. §300j-9(1); Federal Water

Pollution Control Act, 33 U.S.C. §1367; Toxic Substances Control Act,

15 U.S.C. §2622; Solid Waste Disposal Act, 42 U.S.C. §6971; Clean

Air Act, 42 U.S.C. $7622; Energy Reorganization Act of 1974, 42

U.S.C. §5851; and Comprehensive [Environmental Response,

Compensation and Liability Act of 1980, 42 U.S.C. 89610.

In its Regulations, 29 C.F.R. §24.2(b)(3), the

Department considers that any employee who has (among

other things):

Assisted or participated, or is about to

assist Or participate . . . in any other

action to carry out the purposes of such

Federal statute.

has engaged in "protected activity”.

This Regulation has been upheld as a valid exercise of

the Secretary's authority under various _ statutes®,

notwithstanding that the reporting of illegalities was a part of

the employee's job, and the employee did not "cross the

line". See, for example, Passaic Valley Sewerage

Commissioners v. United States Department of Labor, 992

F.2d 474 (3rd Cir. 1993), cert. denied 510 U.S. 964 (1993).

There, in reliance upon this Court's decision in Chevron,

¢ Energy Reorganization Act (prior to changes effected in 1992):

Kansas Gas & Electric Company vy. Brock, 780 F.2d 1505 (10th Cir.

1985), cert. denied 478 U.S. 1011 (1986); Mackowiak v. University

Nuclear Systems. Inc., 735 F.2nd 1159 (9th Cir. 1984); Norris _v.

pear rare areca enema 881 & - 1144 (9th Cir. 1989);

: x : bor, 50 F.3d 926

dare 1995).

Unspecified federal environmental laws: Pogue v. Department of

Labor, 940 F.2d 1287 (9th Cir. 1991) (employee sent seven internal

reports and a letter to her superior reporting environmental violations).

Clean Water Act:

United States Department of Labor, 992 F.2d 474 (3rd Cir. 1993) , cert.

denied 510 U.S. 964 (1993) (pollution control chief of a sewage treatment

plant wrote internal memoranda criticizing the plant's use of a water

sampling technique). There Secretary of Labor found, and the Third

Circuit affirmed, that the firing was in retaliation for the chief's internal

memoranda, in violation of §507 of the Clean Water Act.

USA. Inc, v, Natural Resources Defense Council, Inc. 467

U.S. 837 (1984), the Court of Appeals held that the

Secretary's Regulations interpreting the term "proceeding"

under § 507(a) of the Clean Water Act to include intra-

corporate complaints was reasonable in light of the Act's

remedial intent, 992 F.2d 474, 480.

Therefore, the Secretary of Labor advocates that

"assisting . . . . in any other action to carry out the purposes"

of a federal statute constitutes protected activity. The Courts

of Appeals hold that the Secretary's interpretation is

reasonable in light of the policies sought to be served by

Congress. Neither the Regulations nor the Secretary nor the

Courts of Appeals in those cases require the employee to

"cross the line" from simply doing his or her job to taking an

adversary position against the employer. Doing so, the courts

have held, would be inimical to Congressional intent in

passing the statutes there at issue.

The same is true in this case. The Court of Appeals'

requirement that Petitioner step outside her role as Personnel

Director conflicts with the pattern of enforcement that

Congress intended to obtain under the Fair Labor Standards

Act.

ALLOWING THE COURT OF APPEALS’

DECISION TO STAND WILL VIOLATE THE

PUBLIC INTEREST. :

The duty to enforce various provisions of the Fair

Labor Standards Act has been accorded the dignity of a

"public right”. Petitioner, therefore, had a congressionally-

mandated duty founded upon the public interest to urge the

corporation to comply with the provisions of Section 7 of the

Act governing overtime pay to employees. By researching,

documenting and voicing her concerns to her employer that

Renberg's was not paying overtime pay to two broad

categories of employees as required by the Act, the Petitioner

was vindicating a public right. She cannot be required, as did

the Court of Appeals, to step outside her role as Personnel

Director in order to be protected under §15(a)(3) of the Act.

In ..ourde v. Massachusetts Cities Realty Co., 47

F.Supp. 668 (D.Mass. 1942), the district court stated, in an

action to recover overtime compensation and liquidated

damages under the Act:

It is true that an action under Section

16(b) is one to enforce a private or individual

right. However, it is one in which the public

has a decided interest. It is one method by

which the congressional conception of public

policy is enforced. [citing US. v. Darby, 312

U.S. 100 (1941), as amended 312 U.S. 657

(1941)]

The main purpose of the entire Act is

to maintain a decent standard of living for

employees engaged im commerce or the

production of goods for commerce. (citation

omitted)

Consequently, the liability of an

employer under the Act is something more

—

than a debt or liability to an individual. ”

(citation omitted) An employee, exercising his

rights under Section 16(b) of the Act,

exercises them, not only for his own benefit,

but for the benefit of the general public.

Consequently, public policy demands that such

exercise be not unnecessarily hampered.

47 F.Supp. 668, 670-71.

This Court has agreed that the rights invoked by an

employee under the Act vindicate a congressionally-

recognized public interest. In

O'Neil, 324 U.S. 697 (1945), this Court considered the

question of whether an employer may require its employees

to waive their right to recover liquidated damages under the

Fair Labor Standards Act. There the Court noted:

Where a private right is granted in the

public interest to effectuate a legislative

policy, waiver of a right so charged or colored

with the public interest will not be allowed

where it would thwart the legislative policy

which it was designed to effectuate. With

respect to private rights created by a federal

Statute, such as Section 16(b), the question of

whether the statutory right may be waived

depends upon the intention of Congress as

manifested in the particular statute . . .

Neither the statutory language, the

legislative reports nor the debates indicates

that the question at issue was specifically

considered and resolved by Congress. In the

absence of evidence of specific Congressional

intent, it becomes necessary to resort to a

broader consideration of the legislative policy

behind this provision as evidenced by its

legislative history and the provisions in and

structure of the Act. . . . Such consideration

Clearly shows that Congress did not intend that

an employee should be aliowed to waive his

right to liquidate’ ~amages.

324 U.S. 697, 704-6.

The Court went on to state:

No one can doubt but that to allow

waiver of statutory wages by agreement would

nullify the purposes of the Act. We are of the

opinion that the same policy considerations

which forbid waiver of basic minimum and

overtime wages under the Act also prohibit

waiver of the employee's right to liquidated

damages.

324 U.S. 697, 707.

Given the public interest in the rights of employees to

be paid their due under the Act, a personnel director who is

attempting to vindicate these rights must be safe from

retaliation. The Decision of the Court of Appeals threatens

to violate public interest in the enforcement of the Act, and

should therefore be reviewed by this Court.

ALLOWING THE COURT OF APPEALS’

DECISION TO STAND WILL THREATEN

ENFORCEMENT OF THE FAIR LABOR

STANDARDS ACT.

Congress specifically intended that employees should

be free from the chilling effect of retaliation. As this Court

noted in Mitchell v. DeMario, supra.:

To an employee considering an attempt to

secure his just wage deserts under the Act, the

value of such an effort may pale when set

against the prospect of discharge and the total

loss of wages for the indeterminate period

necessary to seek and obtain reinstatement....

We cannot read the Act as presenting those it

sought to protect with, what is little more than

a Hobson's choice.

361 U.S. 288, 292-93.

A personnel director suffers no less from the weight

of this "Hobson's choice” than the hourly worker. Unless the

Court of Appeals’ decision in this case is reversed, personnel

directors will be unwilling to freely and openly discuss their

concerns that their employer is violating the Act. The

channels of internal communication will be "dried up" by

employer intimidation, just as this Court noted in NLRB vy.

Scrivener, 405 U.S. 117, 122-23 (1972). The effective

enforcement of the Act will thus be impaired, as 10 personnel

director will be willing to voice her concerns for fear of

retaliation.

The Court need not fear that to adopt Petitioner's

position in this case under these facts will improperly intrude

upon an employer's rightful expectation of loyalty from its

management team. The courts have properly carved out

exceptions for the abusive, the disruptive and the disloyal

employee, Kahn v. United States Secretary of Labor, 64 F.3d

271 (7th Cir. 1995); Smith v. Singer Company, 650 F.2d 214

(9th Cir. 1981); and Novotny v. Great American Federal

Savings & Loan Association, 539 F. Supp. 437 (N.D. Penn.

1982). The Petitioner clearly acted totally within the confines

of her duties as Personnel Director, and Respondents made no

claim otherwise in the court below.

Neither should the Court fear that to announce the rule

proposed by Petitioner will grant the personnel director some

sort of "super-tenure" from which she cannot be fired. In the

trial court, Respondents attempted to prove that Petitioner

was terminated for valid reasons. The jury, as the Court of

Appeals noted, "was not convinced". The jury system

provides ample protection from any abuse.

Rather, by adopting the position that a personnel

director 2xpresses her belief of illegalities under the Act

to her s. -riors is engaging in activity protected under the

Act, the Court will further the effective enforcement of the

Act. Personnel directors will be encouraged to raise their

concerns within proper management channels, where the

problem (if one exists) may best be addressed and corrected.

If the concern is ill-founded and is the result of

misunderstanding, management will have the opportunitv to

justify or explain its policies. The courts and the

administrative channels available for complaints by employees

will thereby be freed from needless claims which could have

deen handled more efficiently within the company itself.

In short, the protection of a personnel director from

retaliation under these circumstances enhances the

enforcement of the Fair Labor Standards Act. Leaving her

unprotected will hamper and impair it.

CONCLUSION

This Court should grant a writ of certiorari to the

Court of Appeals to address this important issue. Upon

further review, the Court should reverse the decision of the

Court of Appeals and hold, as a matter of law, that the

Petitioner in this case was engaging in activity protected

under §15(a)(3) of the Fair Labor Standards Act when she

reported to the company attorney and the president and

principal owner of her employer her belief that the company

was violating the Act.

Respectfully submitted,

C. Hodges, O 4254

Counsel of Reco

ELLER & DETRICH

Attorneys for Petitioner

2727 East 21st Street, Suite 200

Tulsa, Oklahoma 74114

es L. Richardson, OBA# 13388

Additional Counsel

THE RICHARDSON LAW FIRM

Attorneys for Petitioner

6846 South Canton Avenue, Suite 200

Tulsa, Oklahoma 74136

(918) 492-7674

APPENDIX A - OPINION OF THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN DISTRICT

OF OKLAHOMA ENTERED SEPTEMBER __» 1994

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

Case No. 92-C-398-B

LORI G. MCKENZIE,

Plaintiff,

vs.

RENBERG'S, INC., and ROBERT L. RENBERG,

Defendants.

ORDER

The Court has for decision the motion for judgment as

a matter of law pursuant to Fed.R.Civ.P. 50, or alternatively a

motion for new trial pursuant to Fed.R.Civ.P.59 (Docket #1 08)

of the Defendants, Renberg’s, Inc. and Robert L. Renberg.

The judgment herein for the Plaintiff, Lori G.

McKenzie ("McKenzie"), in the amount of $103,966.00, was

entered after a jury verdict finding Plaintiff's employment was

terminated by Defendants on September 20, 1991, due to

retaliation in violation of 29 U.S.C. § 215(a)3) of the Fair

Labor Standards Act ("FLSA") '.

Plaintiff, as personnel director of Defendant, Renberg's,

Inc. (retail clothing business), following attendance at an

FLSA-related seminar, had raised the issue approximately three

weeks before her termination ihat perhaps certain management

and/or commissioned sales employees were being denied

overtime compensation in violation of the ELSA. The parties

agreed that discharging the Plaintiff for said conduct would be

a violation of 29 U.S.C. § 215(a)(3).

As nonpretextual legitimate reasons for Plaintiff's

termination, Defendants offered evidence that Plaintiff, as

personnel director, had improperly disclosed confidential

information, and additionally, had participated in notarizing a

written quid pro quo employment-related contract for sexual

favors. The Defendants deny that Plaintiff, an at-will

employee, was discharged in retaliation for her raising the

FLSA matter.

Concerning an employee disseminating confidential

information, even when done in support of a discrimination

' 29 U.S.C. § 215 Prohibited acts; prima facie evidence

(a) After the expiration of one hundred and

twenty days from June 25, 1938, it shall be unlawful for

we . * 7

(3) to discharge or in any other manner because such employee has

file any compiaint or instituted any proceeding under or related to this

chapter, or has testified or is about to testify in any such proceeding, o has

served or is about to serve on an industry committee; * * *”

charge, numerous cases have found that this and disloyalty is

a legitimate reason for employee discharge. Jefferies v. Harris

Cty, Community Action Ass'n, 615 F.2d 1025, 1036 (Sth Cir.

1980); O'Day _v. McDonnell Douglas Helicopter Co,,784

F.Supp. 1466, 1470 (D.Ariz. 1992); Baker v. Georgia Power

Co., 27 Fair Empl. Prac. Cas. (BNA) 1301 (N.D.Ga. 1980);

Herrera _v. Mobil Oil, Inc,, 53 Fair Empl. Prac.Cas. (BNA)

1406 (W.D.Tex. 1990); and Hamm v. Members of the Board of

Regents of the State of Florida, 708 F.2d 647, 653 (11th

Cir. 1983).

Defendants also asserted defensively that the FLSA was

integral to Plaintiffs job as personnel director, so any

communications on the subject of the FLSA by Plaintiff could

not be considered protected activity for purposes of a retaliation

discharge claim. In support of this position, Defendants submit

two law review articles: 35 S.Tex.L.Rev., No. 1, January 1994,

p. 95, and B.C.L.Rev. Vol. 29:347. p. 391.

29 U.S.C. § 215(a)(3) protects all employees from being

terminated for speaking up regarding good faith FLSA

violations. This would include the Plaintiff as Renberg’s, Inc.,

personnel director as well. Her position as personnel director

should not be a per se exemption from § 215(a)(3) prohibition

against a retaliatory discharge. See, Harris v, First National

Bank of Hutchinson, Kansas, 680 F.Supp. 1489 (D.Kan. 1987);

Harris v. Board of Public Util, 757 F.Supp. 1185 (D.Kan.

1991); and Francoeur v, Carroon & Black Company, 552

F.Supp. 403 (S.D.N.Y. 1982). Thus, the court concludes

Plaintiff's conduct herein regarding reporting the possible

FLSA violation is protected activity under § 215(a)(3).

In their motion for judgment as a matter of law,

Defendants also assert that Plaintiff did not present evidence of

pretext joining issue with Defendants’ legitimate

nondiscriminatory reasons for discharging Plaintiff. This

failure, urged Defendants, entitles them to a judgment as a

matter of law. Saint Mary's Honor Center v, Hicks, 113 S.Ct.

2742, 125 L.Ed.2d 407 (1993); Hooks v. Diamond Crystal

Specialty Foods, Inc,, 997 F.2d 793, 798 (10th Cir. 1993);

Lovelace v, Sherwin- WilliamsCo,, 681 F.2d 230, 242 (4th Cir.

1982); and Odima v. Westin Tucson Hotel Co,, 991 F.2d 595,

600 (9th Cir. 1993). Thus, ..der Fed.R.Civ.P. 50, the court

must determine from the recurd whether sufficient probative

evidence exists to permit the trier of fact to decide the issue of

pretext. Wright & Miller, Federal Practice & Procedure §2524

(1st ed. 1971).

Concerning Plaintiffs discharge due to retaliation in

violation of 29 U.S.C. § 215(a)3), for her good faith raising of

possible FLSA violations, the Court does not consider it

necessary to analyze in depth all of the trial evidence joining

issue with Defendants’ proffered legitimate nondiscriminatory

reasons of Plaintiff's breaches of confidential information as

pretextual’.

Suffice it to say that when all of the evidence is viewed

2 As long as the employee's protected activity complaint is in good faith,

although centered in a mistake of fact, the employer is not permitted to

retaliate. Love v, Re/Max of America, Inc,, 738 F.2d 383, 385 (10th Cir.

1984).

in a light favorable to Plaintiff, and all reasonable inferences

are granted thereto, the evidence is sufficient to submit the

issue to the trier of fact’.

The more compelling fact in this regard is the timing of

Plaintiff's discharge being two to three weeks following her

Suggesting to Renberg’s, Inc., management that perhaps there

were FLSA violations. In the recent case of Candelaria v. E G

& G Energy Measurements, Inc,, 1994 WL 474233 (10th Cir.

1994), the court stated:

"We are mindful that a retaliatory motive can be

inferred from the fact that an adverse employment

action follows charges by an employee against his/her

employer. Such an inference can only be made,

however, where ‘close temporal proximity’ exists

between ihe bringing of charges and the subsequent

adverse action. Smith v, Maschner, 899 F.2d 940, 948-

49 (10th Cir. 1990)...”

See also, Miller v, Fairchild Industries, Inc., 797 F.2d 727,

731-33 (9th Cir. 1986), McDonald v, Hall, 610 F.2d 16, 18 (1st

Cir. 1979), and Harris v, Fleming, 339 F.2d 1232, 1236-38 (7th

Cir. 1988).

However, the evidence regarding Plaintiffs

* This is even in the face of Plaintiff's testimony that she had no

evidence to refute that reasons given for her discharge were based on

Defendant Robert L. Renberg’s good faith reasonable belief that Plaintiff

had engaged im employment-related misconduct (Tr. 178).

participation in the written quid pro quo contract for sexual

favors presents a different matter. If this nonpretextual reason

standing alone would support employment termination, a

judgment as a matter of law is appropriate even though a

factual issue exists regarding alleged retaliation pursuant to 29

U.S.C. § 215 (a) (3). Price Waterhouse v. Hopkins, 490 U.S.

228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989).

The relevant evidence concerning the quid pro quo

sexual favor contract is as follows: In 1989, Plaintiff was the

Renberg's, Inc., personnel director. As such, it was her job

function to be involved with the hiring of retail sales personnel

and she was the Renberg’s, Inc., affirmative action officer

concerning sexual discriminationand harassment. Plaintiff was

also a notary public, and notarized Defendants’ Exhibit 1 which

states as follows:

"September 26, 1989

Brenda Jagels

Dean Witter Reynolds

100 West Sth

Suite 600

Tulsa, OK 74103

Dear Brenda,

The purpose of this letter is to outline the terms

of the agreement we reached in conversation

Monday night September 25, 1989.

"AREA OF CONTENTION: Renberg's

Christmas Bonus

TERMS OF THE AGREEMENT: Should

Christmas bonuses not be paid in their usual

manner to the employees of Renberg's, Inc., a

company operating in Tulsa, Oklahoma, then

David Childers will provide Brenda Jagels with

the following:

(1) Fendi Parfurn 1/4 oz

(1) Fendi EDT

(1) Fendi Body Lotion or Creme

(1) Erno Laszlo Eye Creme

However, should Christmas bonuses be paid

then Brenda Jagels will provide David Childers

with a very special and provocatively intimate

evening; time, place and duration to be

negotiated.

PAYMENT: Made on or before December 25,

1989."

Brenda, this letter is intended to be a binding

contract. Please signify your agreement with the

foregoing provisions by signing below and

returning one copy for my file.

Sincerely,

/s/ David R. Childers

311 South Main

Tulsa, OK 74103

Accepted and agreed to this day of

1989.

/s/ Brenda S. Jagels_ _

Brenda Jagels

Witnessed before me on this the 27 day of

September, 1989.

/s/ Lori G. McKenzie

My commission expires Py

(month, date and year unclear)

David R. Childers, at the time of Defendants’ Exhibit 1,

was a Renberg’s, Inc., retail clothing store manager who was

seeing Brenda Jagels socially. Brenda Jagels was a former

Renberg’s, Inc. employee who was an "on-call" Renberg’s, Inc.,

employee during the holiday season.

In August 1991, David R. Childers ceased employment

with Renberg’s, Inc., and moved to the state of Washington.

When Childers’ Renberg's, Inc., desk was cleaned out,

Defendants’ Exhibit 1 was found therein. Robert Renberg

testified that in late August or early September 1991,

Defendants’ Exhibit 1 was brought to his attention. In addition

to Plaintiffs breaches of confidential personnel information,

Robert Renberg concluded that Plaintiffs involvement with

Defendants’ Exhibit 1, an employee quid pro quo sexual favor

contract, was also justification for Plaintiff's discharge. When

Robert Renberg terminated Plaintiffon September 20, 1991, he

advised her he was discharging her as an employee because he

had lost confidence in her.

Clearly, Defendants’ Exhibit | alludes to a type of guid

pro quo employee sexual favor contract that is condemned by

Title VII, 42 U.S.C. § 2000(e) et seq; Meritor Sav, Bank, FSB

y. Vinson, 477 U.S. 57, 91 L.Ed.2d 49, 106 S.Ct. 2399 (1986).

The facts that Childers and Jagels signed Defendants’ Exhibit

1, and that it was notarized before Plaintiff in the latter part of

September, 1989, were undisputed. In Plaintiff's deposition she

admitted reading Defendants’ Exhibit 1 before she notarized it.

(Tr. 191-192). At trial Plaintiff recanted her deposition

testimony and said she had misunderstood the question,

thinking the question was whether she had read Defendants’

Exhibit 1 before at any time. (Tr. 191). In a filing with the

court prior to trial, Plaintiff said, "Further Plaintiff admits that

she read the document that she notarized but there was no

evidence that Plaintiff approved of such contents of the

document, only that she witnessed that two individuals signed

a private noncompany-related document." (Tr. 193). It is

disingenuous to assert that Defendants’ Exhibit 1 is not

company related when it proposes to exchange a company

Christmas bonus for "a very special and provocatively intimate

evening."

Concerning Defendants’ Exhibit 1, Plaintiff testified as

follows:

l0a

Now, in September of 1989, at that point you

were the personnel director?

At what point?

September of 1989.

Yes, I was.

You weren't an assistant personnel director; you

were the personnel director?

Yes.

And wouldn't it be safe to assume that

everybody in the company knew that?

Yes.

And you were responsible for the Company's

obligations in employment matters, were you

not?

Yes.

And you were responsible regarding matters of

sexual harassment, were you not?

Yes.

It was part of your responsibility, was it not, to

lla

assure that there was a non-hostile work

environmentat the Renberg's stores, was it not?

Yes.

And you were the person that if someone at the

company felt they were a victim of harassment

or a hostile work environment, they were

supposed to come to you and tell you, right?

Yes.

And when they came to you, then you were to

investigate the matter and determine whether or

not they had been harassed?

Yes.

And if they had been harassed, you were to take

care of the discipline on that?

Yes. (Tr. 181-183)

* * *

Down here under the terms of the agreement

under the ‘however’ paragraph it says,

‘However, should Christmas bonuses be paid,

then Brenda Jagels will provide David Childers

with a very special, provocative, intimate

evening, time, place and duration to be

o , 8 *

12a

negotiated.’

Now, does not on its face of that exhibit, that's

exchanging sexual favors for a Christmas

bonus. It's on the face of the document.

That's what it says.

So you agree with me on its face that would be

an illegal agreement under the law. ;

Yes. She was not an employee, but --

It doesn't say that, does it?

No, it doesn't.

It says will pay a Christmas bonus, and if you

get paid a Christmas bonus, basicaily I get you,

right?

That's what it says. (Tr. 195).

* e *

So whether a statement is serious or is a joke, it

can have the same bad effects, can it not?

It could.

And from a third-party standpoint, if they're

13a

offended it doesn't matter whether it's real or

was a joke, does it?

True.

So if you have someone other than Brenda out

here, they could be offended by what they see

happening in this instance, couldn't they?

Yes.

And the mere fact that the parties to the

transaction, who may find it acceptable, that

still could impact another employee, couldn't it?

Yes.

That could create -- be a part of what creates a

hostile work environment for that third

employee.

Yes.

Call her Mary. Mary sees people having these

kinds of agreements, she may believe she had a

sexually charged work environment, may she

not?

Yes.

She's saying I'm not getting ahead, I'm not

14a

getting these Christmas bonuses because I'm

not being signed up for these agreements.

We're not talking about an employee, though, in

this agreement.

You testified that she had been employed and

was an on-call employee at this time.

Yes.

And there is nothing on this agreement that

says, oh, by the way, I'm not an employee of

Renberg's.

No, it does not. (Tr. 186-187)

ve *

But your signature is there, is it not?

Yes, it is.

And everybody knows you're the personnel

director.

Yes, they do.

You don't cease being personnel director when

you notarize something, do you?

e - Sie@ » p>

15a

No.

And looking at that document, does it not

concern you that if some other employee saw

that, it would appear that the personnel director

is endorsing that kind of document that you

yourself believe is improper?

It could.

And you understand that such a document as

this could be very damaging to Renberg's in any

litigation during a sexual harassment or sexual

discrimination?

Yes.

This could put the company at risk.

Yes.

And you don't deny that you signed it?

No, I do not.

You notarized this at work, right?

Yes, I did. (Tr. 189)

l6a

[s there anything on the face of that contract

that would indicate to Bob Renberg that you

didn't read it?

No.

Is there anything on the face of that document

that would indicate to Bob Renberg that that

was a joke?

No.

Do you regreat (sic) that your signature is on

there?

Yes, I do.

Do you believe it was mistake that it was on

there?

I did make a mistake signing it, yes.

Do you have any reason to believe that Bob

Renberg was not upset by this?

No.

The mere passage of time doesn't make it any

less wrong, does it?

No." (Tr. 190-191)

‘

17a

Because of a handwritten date on the top right corner of

a copy of Defendants’ Exhibit | (Plaintiffs Exhibit 13),

Plaintiff asserted at trial that Robert Renberg did not learn of

the guid pro quo sexual favor contract (Defendants' Exhibit 1)

until October 1991, approximately a month after Plaintiffs

discharge. However, the law of this circuit is clear that

after-acquired information that Supports an employee's

discharge may be relevant to uphold the employer's termination

action. In .

Insurance Co,, 864 F.2d 700, 706 (10th Cir. 1988), the court

cited Blalock v, Metals Trades, Inc., 775 F.2d 703, 712 (6th

Cir. 1985), which stated an employer could avoid liability

under Title VII by showing "that the adverse employment

action would have been taken even in the absence of the

impermissible motivation, and that, therefore, the

discriminatory animus was not the cause of the adverse

employmentaction.” See also, O'Driscoll v, Hercules Inc,, 12

F.3d 176, 178-79 (10th Cir. 1994), and Faulkner v, Super Valu

Stores, Inc,, 3 F.3d 1419, 1427 (10th Cir. 1993).

The testimony of Robert Renberg was that he was

genuinely concerned with and could not condone Plaintiffs

participationin Defendants’ Exhibit 1. He testified that it was

also a reason for Plaintiff's discharge. Plaintiff agreed that

Robert Renberg, as president of Renberg's, Inc., could be

expected to be upset over the implications of Defendants’

Exhibit 1 for Renberg’s, Inc. Even if Plaintiff did not read

Defendants’ Exhibit 1, as personnel director it was her job to

supervise such personnel hiring arrangements and she was in

charge of company affirmative action to prevent unlawful

discrimination. Robert Renberg was within his rights as

18a

president of Renberg's, Inc., to discharge Plaintiff because of

her involvement in notarizing Defendants’ Exhibit 1.

For the reasons set forth above, the Defendants’ motion

for judgment as a matter of law pursuant to Fed.R.Civ.P. 50 is

hereby SUSTAINED and the judgment entered herein in favor

of Plaintiff against the Defendants on the 19th day of July,

1994, is set aside. Defendants’ alternative motion for new trial

pursuant to Fed.R.Civ.P. 59 iis, therefore, moot.

Contemporaneous with the filing of this order a separate

judgment is entered in favor of the Defendants, Renberg’s, Inc.

and Robert L. Renberg, and against the Plaintiff, Lori G.

McKenzie.

DATED this day of September, 1994.

ls/ Thomas R. Brett

THOMAS R. BRETT

UNITED STATES DISTRICT JUDGE

19a

APPENDIX B - OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

DATED SEPTEMBER 4, 1996

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

No. 94-5197

LORI G. McKENZIE,

Plaintiff-Appellant,

Vv.

RENBERG'S INC., and ROBERT RENBERG,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Oklahoma

(D.C. No. 92-C-398-B)

James C. Hodges of Eller & Detrich, Tulsa, Oklahoma (Charles

L. Richardson and Brad Smith of Richardson & Stoops, with

him on the brief) for Plaintiff/Appellant.

Larry D. Henry of Arrington, Kihle, Gaberino & Dunn, Tulsa,

20a

Oklahoma (Patrick W. Cipolla, with him on the brief) for

Defendants/Appellees.

Before SEYMOUR, Chief Judge, TACHA and EBEL, Circuit

Judges.

EBEL, Circuit Judge.

Plaintiff Appellant Lori G. McKenzie brought this action

against her former employer, Renberg's Inc., and its president,

Robert Renberg (collectively "defendants"), asserting claims

for retaliatory discharge in violation of the Fair Labor

Standards Act ("FLSA"), 29 U.S.C. § 215(a)(3), and wrongful

discharge in violation of Oklahoma public policy. The district

court dismissed McKenzie's state law wrongful discharge claim

prior to trial under Fed. R. Civ. P. 12(6\6). McKenzie

received a favorable jury verdict on her retaliation claim, but

the district court thereafter entered judgment as a matter of law

for defendants. McKenzie now appeals these two rulings’.

We have jurisdiction under 28 U.S.C. § 1291 and we

affirm’.

* McKenzie also appeals: (1) the district court's refusal to enter

judgment on the emotional distress and punitive damages awarded her by

the jury on the FLSA claim; (2) the reduction of h-- "LSA back pay award;

and (3) the denial of front pay. However, we ed »»t reach those issues.

mr aielenntebniaemetera canard rT te ‘3 eee

2la

We hold that McKenzie did not engage in protected

activity under § 215(a)(3) when, in her capacity as personnel

director, she undertook to advise Renberg's that its wage and

hour policies were in violation of the FLSA.

BACKGROUND

Renberg's, Inc. ("the company") hired McKenzie as a

receptionist in July 1984. She was promoted to Assistant

Personnel Director in October 1984, and in May 1985, she

became the company's Personnel Director. As Personnel

Director, McKenzie was responsible for monitoring compliance

with state and federal equal employment opportunity laws,

wage and hour laws, and other laws regulating the workplace.

In August 1991, a co-worker of McKenzie, Marsha

McElroy, attended a seminar on wage and hour laws and

returned with various informational materials. McElroy gave

these materials to McKenzie, who, after reviewing them,

became concerned that certain employees of the company were

not receiving proper compensation for working overtime.

McKenzie discussed the matter with McElroy, and then

decided to disclose her concerns to the company attorney, Steve

Andrew. McKenzie and McElroy met with Andrew on

September 4, 1991, and later that same day, McKenzie also

discussed the wage and hour problem with Robert Renberg

* The Court also has before it the defendants’ motion for sanctions. We

have considered the arguments therein and hereby deny the motion.

22a

("Renberg"), the company president. Sixteen days later, on

September 20, 1991, McKenzie was terminated by Renberg.

Believing she had been retaliated against for reporting the

company's possible wage and hour violations, McKenzie filed

suit in the United States District Court. In her complaint,

McKenzie asserted an FLSA retaliatory discharge ciaim under

29 U.S.C. § 215(aX(3). This statutory provision makes it

unlawful for an employer to discharge or in any other manner

discriminate against any employee because such employee has

filed any complaint or instituted or caused to be instituted any

proceeding under or related to this chapter, or has testified or

is about to testify in any such proceeding, or has served or is

about to serve on an industry committee.

29 U.S.C. § 215(a)(3).

McKenzie also asserted a state law claim for wrongful

discharge in violation of Oklahoma public policy, see Burk v.

K-Mart Corp,, 770 P.2d 24 (Okla. 1989)*

The district court dismissed the Burk public policy claim

under Fed. R. Civ. P. 12(6\(6). The FLSA retaliation claim

was tried to the jury.

* McKenzie also brought a state law claim for intentional infliction of

emotional distress and a federal claim of sex discrimination under Title VIL

The emotional distress claim was dismissed prior to trial in an order from

which McKenzie does not appeal. McKenzie's Title VII claim apparently

was abandoned prior to trial (see District Court's Pretrial Order, Apit. App.

at 1-2) and therefore we do not address it in this appeal.

23a

The parties vigorousiy disputed the facts at trial.

McKenzie testified that the defendants were not very open to

her concerns about the company's possible FLSA violations.

According to McKenzie's testimony, Andrew seemed not to

understand her concerns and would not examine the seminar

materials she had brought to the September 4, 1991 meeting.

McKenzie testified that at one point in the meeting, Andrew

drew a line on a legal pad-apparently representing the

symbolic line between "right" and "wrong"--and indicated to

McKenzie tha: he was not afraid to cross that line. After the

meeting with Andrew, McKenzie spoke with Renberg.

McKenzie testified that Renberg also seemed indifferent to the

wage and hour problem. She had the impression that Renberg

had already spoken to Andrew about the FLSA issue.

McKenzie testified that after these meetings she began to feel

uneasy and feared for her job.

McKenzie testified that her uneasiness continued during

the next few weeks, as Andrew would not return her repeated

phone calls. On September 20, 1991, Renberg came to

McKenzie's office and fired her. McKenzie testified that

Renberg's only stated reason for firing her was his “loss of

confidence” in her. McKenzie later discovered that she had

been under investigation by an internal security officer since

September 12, 1991, eight days after she first reported the

FLSA violations to Andrew. Renberg testified that he had

personally requested the investigation of McKenzie, and that

McKenzie was the only employee he specifically remembered

ever having asked to be investigated. Finally, McKenzie

testified that she had received no warnings or complaints from

_ 24a

— about her performance, despite a general

company poiicy that required progressive counseling about

performance problems before termination.

The defendants disputed much of McKenzie's testimony at

trial. Andrew testified that the company did not have a

progressive discipline system in place, nor did it have an

employee's manual at the time of McKenzie's discharge. In

addition, the defendants sought to rebut McKenzie's claim of

retaliation by offering evidence that Marsha McElroy, who

attended the FLSA seminar and who also raised the possible

FLSA violations with Andrew, was not terminated.

Renberg denied that McKenzie's discharge was in

retaliation for her protected FLSA activity. Renberg testified

that he fired McKenzie for two legitimate reasons:

(1) for disclosing confidential information in her role as

personnel director’; and,

(2) for notarizing a "contract" between two company

employees for sexual favors.

The "contract," which was entered into by Brenda Jagels,

an on-call sales clerk, and David Childers, a company vice-

president, provided in relevant part as follows:

AREA OF CONTENTION: Renberg's Christmas Bonus

” The alleged breaches of confidentiality involved McKenzie disclosing

the names of company employees suspected of criminal activity and

divulging the impending demotion of a department manager.

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TERMS OF THE AGREEMENT: Should Christmas

bonuses not be paid in their usual manner to the employees

of Renberg's Inc., a company operating in Tulsa,

Oklahoma, then David Childers will provide Brenda Jagels

with the following:

(1) Fendi Parfum 1.4 oz.

(1) Fendi EDT

(1) Fendi Body Lotion or Creme

(1) Erno Laszlo Eye Creme

However, should Christmas bonuses be paid then Brenda

Jagels will provide David Childers with a very special and

provocatively intimate evening; time, place and duration

to be negotiated.

PAYMENT: Made on or before December 25, 1989.

Brenda, this letter is intended to be a binding contract.

Please signify your agreement with the foregoing

provisions by signing below and returning one copy for

my file.

At trial, McKenzie admitted that she had notarized the sex

contract, but stated that she had neither read it nor was aware

of its content when she notarized it. McKenzie also admitted

that she had made a mistake by notarizing the contract.

The trial was conducted in three stages, with the question

of FLSA liability decided first, followed by the jury's

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determination of back pay and compensatory damages, and

finally, of punitive damages. After the liability phase, the jury

concluded that the defendants’ asserted non-retaliatory reasons

for discharging McKenzie were pretextual and returned a

special interrogatory finding that McKenzie was terminated in

retaliation for reporting her belief that Renberg's was in

violation of the Fair Labor Standards Act. After the two

damages phases of the trial, the jury returned verdicts awarding

McKenzie $100,000 in back pay, $175,000 in emotional

distress damages, and $50,000 in punitive damages. The

district court deferred entry of judgment on the jury's verdict

and ordered further briefing from the parties on the question

whether emotional distress and punitive damages were

authorized under the FLSA. On July 15, 1994, the district

court issued its findings of fact and conclusions of law,

pursuant to which the court: (1) reduced McKenzie's back pay

award to $50,983.04; (2) granted McKenzie an additional equal

amount of $50,983.04 as liquidated damages; (3) denied

McKenzie's request for front pay under the equitable doctrine

of "unclean hands"; and (4) (apparently) ruled that emotional

distress and punitive damages were not available under the

FLSA as a matter of law.

After the district court entered a corresponding judgment

in favor of McKenzie, the defendants filed a Motion for

Judgment as a Matter of Law under Fed. R. Civ. P. 50, or in the

alternative, a Motion for New Trial under Fed. R. Civ. P. 59.

The district court granted the Motion for Judgment as a Matter

of Law, and ruled that the Motion for New Trial was moot.

McKenzie now appeals.

8 RS BTR NR gh A EE,

27a

DISCUSSION

I, Motion for Judgment as a Matter of Law

McKenzie first challenges the district court's decision to

grant the defendants judgment as a matter of law on her FLSA

retaliation claim. We review de novo the grant or denial of a

motion for judgment as a matter of law, applying the same

legal standard as the district court.

972 F.2d 317, 317 (10th Cir. 1992). In conducting this review,

we must determine whether, "viewing the evidence in the light

most favorable to the nonmoving party, the evidence and the

inferences to be drawn from it are so clear that reasonable

minds could not differ on the conclusion.” Pytlik vy,

887 F.2d 1371, 1380 (10th Cir.

1989) (quoting Gui i i

Co,, 812 F.2d 1290, 1292 (10th Cir. 1987)). Judgment as a

matter of law may be granted under Fed. R. Civ. P. 50 "only if

the evidence points but one way and is susceptible to no

motion." EDIC vy. United Pac, Ins. Co, 20 F.3d 1070, 1079

(10th Cir. 1994), Applying this standard, we affirm the

judgment of the district court, although we do so on a different

ground than that relied upon below.

The Tenth Circuit applies a "motivating factor" analysis to

Claims of retaliatory discharge under § 215(a\(3) of the FLSA:

“When the ‘immediate cause or motivating factor of a discharge

28a

is the employee's assertion of statutory rights, the discharge is

discriminatory under § 215(a)(3) whether or not other grounds

for discharge exist.’ If retaliation is not the motivating factor,

then the discharge is not unlawful." Marx v. Schnuck Markets,

Inc., 76 F.3d 324, 329 (10th Cir.) (quoting Martin v,

Gingerbread House, Inc,, 977 F.2d 1405, 1408 (10th Cir.

1992)), cert, denied, 116 S. Ct. 2552 (1996). The motivating

factor test is equivalent to a "but for" inquiry--a discharge is

unlawful under § 215(a)(3) "only if it would not have occurred

but for the retaliatory intent." Martin, 977 F.2d at 1408 n.4.

We believe the jury verdict rendered in this case is

dispositive of the retaliation issue. At trial, the jury was

presented with McKenzie's evidence of retaliation, as well as

the defendants’ evidence regarding their asserted non-retaliatory

reasons for the discharge. The trial judge correctly instructed

the jury that McKenzie bore the burden of proving that her

FLSA activity was the "motivating factor" in the termination

decision and that she would not have been discharged "but for" |

the defendants’ retaliatory intent. See Martin, 977 F.2d at 1408

& n.4. In this regard, the jury was told that if it found

McKenzie would have been terminaied regardless of her FLSA

activity, then it was required to find in favor of the defendants.

See Reich v. Davis, 50 F.3d 962, 966 (11th Cir. 1995) (holding

that under the "but for" test, a retaliation Plaintiff cannot

prevail if she "would have suffered exactly the same adverse

action even if [she] had not engaged in FLSA activities").

After being given these instructions, the jury retumed a special

interrogatory finding that McKenzie was terminated because of

her FLSA activity. The jury therefore rejected the defendants’

asserted non-retaliatory reasons and found that unlawful

29a

retaliation was the "but for" cause of McKenzie's discharge

Despite the jury's express finding of retaliatory intent, the

district court granted the defendants’ motion for judgment as a

matter of law. The district court reasoned that because the

defendants would have been justified in discharging McKenzie

for notarizing the sex contract, they could not be heid liable

under the FLSA even if they had unlawfully retaliated against

McKenzie. In the district court's view, the sex contract

[Wihen all of the evidence is viewed in a light favorable to

Plaintiff, and all reasonable inferences are granted thereto,

the evidence is sufficient to submit the issue to the trier of

fact... . However, the evidence regarding Plaintiffs

participationin the written quid pro quo contract for sexual

favors presents a different matter. If this nonpretextual

* In its Findings of Fact and Conclusions of Law, the district court

acknowledged the jury's rejection of the defendants’ asserted non-retalistory

reasons:

Aplt. App. at 27-28 (emphasis added).

30a

reason standing alone would support employment

termination, a judgment as a matter of law is appropriate

even though a factual issue exists regarding alleged

retaliation pursuant to 29 U.S.C. § 215(a)(3).

(Aplt. App. at 37-38.)

Under the district court's approach, the dispositive question

is whether the defendants would have been justified in

terminating McKenzie for notarizing the sex contract. This

approach, however, disregards both the jury's express findings

of fact and the "but for" test of causation. Under the "but for"

standard, only those employees "who would have suffered

exactly the same adverse action even if they had not engaged

in FLSA activities will be unprotected... .” Davis, 50 F.3d at

966 (emphasis added). Thus, the mere existence of a non-

retaliatory motive that would justify an employee's discharge

does not absolve an employer of liability for a retaliatory

employment decision; rather, the employer must actually rely

on that non-retaliatory reason as the sufficient, motivating

reason for the employment decision. As the Supreme Court

recently stated, “proving that the same decision would have

been justified . . . is not the same as proving that the same

decision would have been made.” McKennon vy. Nashville

Banner Pub. Co., 115 S. Ct. 879, 885 (1995) (omission in

original) (quotation omitted). In other words, an employer may

not prevail "by offering a legitimate and sufficient reason for its

decision if that reason did not motivate it at the time of the

decision." Price Waterhouse v. Hopkins, 490 U.S. 228, 252

(1989) (plurality opinion) (involving a mixed-motive situation).

Here, the defendants were given the opportunity at trial to

LAE RNA OIE EEE TENTS EA AF LITT OBE LATOR EAT

3la

persuade the jury that McKenzie was terminated not for

reporting her wage and hour concerns, but for notarizing the

sex contract. The jury, however, was not convinced. The jury

instead found that the "but for" cause of McKenzie's discharge

was her FLSA activity, and that the defendant's asserted "sex

contract" rationale was a pretext. Given these findings of fact,

it is immaterial whether the defendants would have been

justified in discharging McKenzie for notarizing the sex

contract, as the jury concluded she was not actually discharged

for this reason.

The district court erred in another important respect as

well. At trial, McKenzie argued that Renberg was not aware of

the existence of the sex contract until after he terminated her,

and thus could not have relied on the contract in making his

decision. To support her argument, McKenzie offered into

evidence a copy of the sex contract with a handwritten date of

"10/7/91" in the upper right-hand corner--a date approximately

three weeks after McKenzie was terminated. Renberg, on the

other hand, testified that a copy of the document was

discovered and turned over to him sometime prior to

McKenzie's termination .

The district court avoided this potential factual

* In his deposition, Renberg testified that he first was given a copy of

the sex contract sometime between March and September of 1991. At trial,

however, Renberg testified that he first saw the document just a few days

before he fired McKenzie.

32a

complication by invoking the so-called "Summers doctrine."

See generally 864

F.2d 700, 708 (10th Cir. 1988) (holding that an employer may

avoid liability for a discriminatory discharge if, subsequent to

the employee's discharge, the employer discovers evidence of

wrongdoing that would have led to the employee's termination

on lawful and legitimate grounds). In ruling on the defendants

4 motion for judgment as a matter of law, the district court

applied Summers and reasoned that even if Renberg did not

learn of the sex contract until after McKenzie’s discharge,

defendants nevertheless could rely on the sex contract to justify

their termination decision.

While the district court's reasoning may have been

consistent with our precedents at the time, the Summers

doctrine has since been rejected. Shortly after the district

court's decision in this case, the Supreme Court decided

115 S. Ct. 879

(1995). In McKennon, the Court specifically disapproved of

our decision in Summers and held that an employer's after-

acquired evidence of misconduct cannot operate to bar an

employee's discrimination action. See 115 S. Ct. at 885

("The employer could not have been motivated by

knowledge it did not have and it cannot now claim that the

employee was fired for the nondiscriminatory reason.").

Thus, the district court's reliance on Summers was in error.

Cc.

_—_—

Notwithstanding the district court's errors, defendants urge

us to affirm the judgment on two grounds not relied upon

33a

below. "An appellee may defend the judgment won below on

any ground supported by the record." Inre Robinson, 921 F.2d

252, 253 (10th Cir. 1990); see also Uni

29 F.3d 537, 542 n.6 (10th Cir. 1994) (appellate court may

“affirm a district court decision on any grounds for which there

conduct was not protected activity under § 215(aX(3); and (2)

McKenzie failed to present sufficient evidence at trial to

support the jury's finding of retaliation. Because we agree with

the first of these propositions, we need not reach the second.

Defendants argue that McKenzie's act of reporting her

good faith concerns about the company's possible wage and

hour violations was not sufficient to trigger the protections of

§ 215(aX3) .

: tipuleti

repeatedly objected to the form of the protected activity instruction, and

although the court overruled their objections, it did acknowledgeon several

34a

According to defendants, McKenzie was not asserting any

rights under the FLSA but rather was merely performing her

everyday duties as personnel director for the company. Section

215(a)(3) makes it unlawful for an employer to discharge or

in any other manner discriminateagainst any employee because

such employee has filed any complaint or instituted or caused

to be instituted any proceeding under or related to this chapter,

or has testified or is about to testify in any such proceeding, or

has served or is about to serve on an industry committee.

29 U.S.C. § 215(a)(3).

Although this provision specifically lists the types of

activities which are protected from retaliation, we have held

that § 215(a)(3) also protects employees who articulate a good

faith, though unproven, belief that the employer is violating

their rights under the FLSA. Love v, RE/MAX of Am. Inc.,

738 F.2d 383, 387 (10th Cir. 1984). We also have held that

§ 215(a)(3) "applies to the unofficial assertion of rights through

complaints at work." Id,

Despite our expansive interpretation of § 215(aX(3), we

occasions that the issue was preserved for appeal. See, ¢.g,, Jt. 2d Supp.

App. at 510 ("[U]}nderstanding you're very much interested in preserving

that point for purposes of the beyond here, that is for appellate purposes—

and I understand that, and you've raised it . . . ."); id, at 511 ("[C]an't we

stipulate under the theory that I'm submitting it to the jury, certainly

preserving your right to say, Judge, you're wrong . . . ."); id, at 512

("[G]iving you the right to preserve your objection .... and certainly

preserving your right to keep your issue for purposes of appeal alive . . . .").

In light of these statements, we do not deem the argument waived.

35a

have never held that an employee is insulated from retaliation

for participating in activities which are neither adverse to the

company nor supportive of adverse rights under the statute

which are asserted against the company. Indeed, the contrary

conclusion follows directly from our decision in Love, where

we held that in order to be protected under § 215(a)(3), an

employee need not file an official complaint or institute an

FLSA proceeding, so long as the employee makes a "good faith

assertion of [one’s] statutory rights." 738 F.2d at 387

(emphasis added); see also EE

976 F.2d 985, 989 (6th Cir. 1992) (per curiam) ("The Love

Court held that it is the assertion of statutory rights that is the

triggering factor, not the filing of a formal complaint. This

view is in accord with other circuits.") (collecting cases). Thus,

it is the assertion of statutory rights (i¢,, the advocacy of

rights) by taking some action adverse to the company--whethe

via formal complaint, providing testimony in an FLSA

proceeding, complaining to superiors about inadequate pay, or

otherwise--that is the hallmark of protected activity under §

215(aX3).

Here, McKenzie never crossed the line from being an

employee merely performing her job as personnel director to an

employee lodging a personal complaint about the wage and

hour practices of her employer and asserting a right adverse to

the company. McKenzie did not initiate a FLSA claim against

the company on her own behalf or on behalf of anyone else.

Rather, in ‘er capacity as personnel manager, she informed the

company that it was at risk of claims that might be instituted by

others as a result of its alleged FLSA violations. In order to

engage in protected activity under § 215(a)(3), the employee

36a

must step outside his or her role of representing the company

and either file (or threaten to file) an action adverse to the

employer, actively assist other employees in asserting FLSA

rights ,

or otherwise engage in activities that reasonably could be

perceived as directed towards the assertion of rights protected

by the FLSA. Here, McKenzie did none of these things.

Indeed, McKenzie testified that her job responsibilities

included participating in wage and hour issues. There is no

evidence in the record to suggest that McKenzie was asserting

any rights under the FLSA or that she took any action adverse

to the company; rather, the record reflects that McKenzie's

actions in connection with the overtime pay issue were

'' The Tenth Circuit has not addressed whether § 215(a\3) protects

actions taken by an employee on behalf of other employees. in Title VII

cases, the “opposition” clause contained in that statute's antiretaliation

provision, 42 U.S.C. § 2000e-3(a), protects conduct by an employee who

is not the direct victim of a practice made unlawful under Title VII, but

who" opposes" such discrimination against others. Sumner v. United States

Postal Sery,, 899 F.2d 203, 209 (2d Cir. 1990); see e.g. Eichman v.

Indiana State Univ, Bd. of Trustees, 597 F.2d 1104, 1107 (7th Cir. 1979)

(protecting a men who assisted a female co-worker in asserting her right to

be free from sex discrimination); Jones vy. Lyng, 669 F. Supp. 1108, 1121

(D.D.C. 1986) (same). While the FLSA contains no similar “opposition”

clause, we assume, without deciding, that the language of § 215(a)3) is

sufficiently broad to encompass conduct taken on behalf of others. See,

2g. 29 U.S.C. § 215(aX3) (making it unlawful for an employer to retaliate

against an employee “because such employee has filed any complaint or

instituted or cause to be instituted any proceeding under [the FLSA], or has

testified or is about to testify in any such proceeding . . . .") (emphasis

added). Section 215(a)(3) does not explicitly require that the employee's

protected conduct relate to the assertion of his or her own statutory rights.

37a

completely consistent with her duties as personnel director for

the company to evaluate wage and hour issues and to assist

the company in complying with its obligations under the

FLSA. McKenzie therefore lacks an essential ingredient of a

retaliation claim; that is, she did not take a position adverse to

her employer or assert any rights under the FLSA.

Accordingly, McKenzie did not engage in activity protected

under § 215(a)(3), and we affirm the judgment as a matter of

law in favor of the defendants on this alternative ground.

Because this ruling disposes of McKenzie's FLSA retaliation

claim, we need not address McKenzie's arguments regarding

front pay, back pay, or emotional distress and punitive

damages: As McKenzie's liability claim fails, so must her

claims for legal and equitable relief.

B. Dismissal of McKenzie's State Law Wrongful

Discharge Claim.

McKenzie next argues that the district court erred in

dismissing, for failure to state a claim, her state law tort claim

for discharge in violation of Oklahoma public policy. We

review de novo the district court's grant of a motion under Fed.

R. Civ. P. 12(6)(6) for failure to state a claim. Roman v.

Cessna Aircraft Co., 55 F.3d 542, 543 (10th Cir. 1995).

McKenzie's state law claim is predicated upon Burk vy, K-

Mart Corp., 770 P.2d 24 (Okla. 1989). In Burk, the Oklahoma

Supreme Court carved out a narrow exception to the Oklahoma

employment-at-will doctrine by recognizing a tort cause of

action "where an employee is discharged for refusing to act in

violation of an established and well-defined public policy or for

38a

performing an act consistent with a clear and compelling public

policy." 770 P.2d at 29. McKenzie alleges that she was

discharged for reporting her concerns that the company was not

properly paying overtime pay to sales associates and

department managers.

Assuming this allegation is true , McKenzie can prevail

on her Burk claim only if she can show that Oklahoma has a

clearly established public policy regarding maximum work

hours and overtime pay.

McKenzie has not pointed us to any specific Oklahoma

statute establishing a public policy of this sort. Moreover, we

find no Oklahoma constitutional, statutory or decisional law

which would require an employer such as Renberg's, Inc. to

pay overtime compensation to its employees. The absence of

any Oklahoma law on this subject is underscored by the fact

that although the Oklahoma legislature has adopted the federal

standards for minimum wages, see Okla. Stat. tit. 40 § 197.2

(making it unlawful for an employer in Oklahoma to "pay any

employee a wage of less than the current federal minimum

wage for all hours worked"), it has not adopted the FLSA

standards governing maximum hours and overtime, see 29

U.S.C. § 207.

'2 Because we are reviewing the sufficiency of the complaint, we must

accept all well-pleaded allegations in the complaint as true and construe the

allegations in the light most favorable to McKenzie. Doyle y, Oklahoma

Bar Ass'n, 998 F.2d 1559, 1566 (10th Cir. 1993). Thus, we assume that

McKenzie was retaliated against for reporting her good faith belief that

Renberg's was vioiating the FLSA overtime provisions.

Se ee

39a

We also reject McKenzie's argument that the

comprehensive Oklahoma statutory scheme governing the

employer/employee relationship establishes a clear and

compelling public policy mandating the payment of overtime

compensation. Of the entire body of Oklahoma statutory law

governing the employment relationship, McKenzie directs our

attention to only one specific provision mentioning overtime

pay, Okla. Stat. tit. 40 § 165.1. Section 165.1 is the definitions

section of the Oklahoma Protection of Labor Act and defines

the term "wages" as "compensation owed by an employer for

labor or services rendered, including salaries, commissions,

holiday and vacation pay, overtime pay, severance or dismissal

pay, bonuses and other similar advantages agreed upon

between the employer and the employee ... ." Okla. Stat. tit.

40 § 165.1(4) (emphasis added). In light of the Burk court's

admonition that the public policy exception be "tightly

circumscribed" and reserved for violations of "established and

well-defined public policy," 770 P.2d at 29, we believe section

165.1(4)'s passing reference to "overtime pay" is far too slender

a reed upon which to base a public policy tort. Although it

mentions overtime pay, section 165.1(4) does not prescribe a

limit for maximum working hours, nor does it set forth a

specific formula for calculating overtime pay .

> Indeed, in those particular situations where the Oklahoma Legislature

has mandated the payment of overtime to employees, it has provided the

amount by statute. See, ¢.g,, Okla. Stat. tit. 40 § 196.3(A) (requiring “all

workmen employed by or on behalf of any public body engaged in the

construction of public works" to be paid “not less than the prevailing hourly

rate of wages for legal holiday and overtime work”) (emphasis added).

Section 196.263) of the statute defines the "prevailing hourly rate of wages”

as “the wages and fringe benefits determined to be prevailing by the United

40a

The absence of any clearly articu'ated overtime pay policy

in the Oklahoma statutory scheme suggests that the Oklahoma

courts would not entertain a Burk claim founded upon a

discharge for reporting an employer's failure to pay overtime.

Despite the lack of a well-defined state policy, McKenzie

argues that her Burk claim is cognizable because it is

predicated upon a public policy found in a combined regime of

both state and federal law. McKenzie relies on two cases of the

Oklahoma Supreme Court to support this argument, Tate v,

Browning-Ferris, Inc., 833 P.2d 1218 (Okla. 1992), and Todd

vy. Frank's Tong Serv., Inc,, 784 P.2d 47 (Ok:a. 1989). In Tate,

the court held that a Plaintiff who alleged a discriminatory

discharge in violation of the Oklahoma and federal

antidiscriminationstatutes stated a claim under Burk. 833 P.2d

at 1222-25. In Todd, the court upheld a Burk claim where the

Plaintiff alleged that he had been discharged for refusing to

operate a vehicle that did not comply with both state and

federal safety regulations. 784 P.2d at 50.

We believe Tate and Todd are distinguishable from the

case at bar. Unlike the present case, the alleged wrongful

discharges in both Tate and Todd not only violated applicable

federal law, but they also violated a mandate »f state public

policy clearly expressed in the Oklahoma statutes. In Tate, for

instance, the Plaintiff alleged he had been fired because of his

race--an action contrary to both the federal policy expressed in

Title VII, 42 U.S.C. § 2000e et seq,, and the state policy

expressed in the Oklahoma antidiscrimination statute, Okla.

States Department of Labor pursuant to [federal law}.”

4la

Stat. tit. 25 § 1101 et seg, Similarly, in Todd, the Plaintiff

alleged he was unlawfully discharged for refusing to operate an

unsafe vehicle in violation of the federal Surface Transportation

Assistance Act, 49 U.S.C. App. § 2305 (recodified at 49 U.S.C.

§ 31105(a)), and for refusing to operate a vehicle that was not

in compliance with state safety regulations, Okla. Stat. tit. 47

§§ 12-201, 12-301. Here, by contrast, McKenzie cannot direct

our attention to any specific Oklahoma policy or statute

mandating the payment of overtime compensation to private

employees. The most she can do is allege a violation of the

federal FLSA. We therefore affirm the dismissal of

McKenzie's Burk public policy claim .

CONCLUSION

For the foregoing reasons, the judgment of the district

court is AFFIRMED.

'* Defendants alternatively argue that the FLSA preempts any state law

tort claim based on an employer's retaliation against an employee for

making an FLSA complaint. However, because McKenzie has not even

asserted a violation of Oklahoma public policy cognizable under Burk, we

need not reach the constitutional issue of preemption. See Ashwander v.

TVA, 297 U.S. 288, 346-47 (1936) (Brandeis, J., concurring) (noting well-

issues if narrower grounds for decision exist).

42a

APPENDIX C - ORDER OF THE TENTH CIRCUIT

COURT OF APPEALS DENYING REHEARING

DATED OCTOBER 22, 1996

UNITED STATES COURT OF APPEALS

FOP. THE TENTH CIRCUIT

No. 94-5197

LORI G. McKENZIE,

Plaintiff - Appellant,

RENBERG’S, INC., and ROBERT L. RENBERG,

Defendants - Appellees.

ORDER

Entered October 22, 1996

Before SEYMOUR, Chief Judge, TACHA, and EBEL, Circuit

Judges.

This matter comes one for consideration of appellant’s

petition for rehearing.

Upon consideration whereof, the petition for rehearing is

denied by the panel that rendered the decision.

43a

The motion of Society for Human Resource Management

to file an amicus brief in support of appellant’s petition for

rehearing is granted.

Entered for the Court

PATRICK FISHER, Clerk

By:/s/

Trish Carara

Deputy Clerk

44a

APPENDIX D - 29 U.S.C. §203(a)

§ 203. Definitions

“As used in this chapter—

(a) ‘Person’ means an individual, partnership,

association, corporation, business trust, legal representative, or

any organized group of persons.”

45a

APPENDIX E - U.S.C. §203(d)

§ 203. Definitions

“As used in this chapter---

* * >

(d) | ‘Employer’ includes 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.”

46a

APPENDIX F - 29 U.S.C. §216(a)

§ 216. Penalties; civil and criminal liability; injunction

proceedings terminating right of action;

waiver of claims; actions by Secretary to

Labor; limitation of action; savings

provision

“(a) Any person who willfully violates any of the provisions of

section 215 of this title shall upon conviction thereof be subject

to a fine of not more than $10,000, or to imprisonment for not

more than six months, or both. No person shall be imprisoned

under this subsection except for an offense committed after the

conviction of such person for a prior offense under this

subsection.”

47a

APPENDIX G - 29 U.S.C. §216(b)

§ 216. Penalties; civil and criminal liability; injunction

proceedings terminating right of action; waiver of claims;

actions by Secretary of Labor; limitation of actions; savings

provision

“(b) Any employer who violates the provisions of

section 206 or section 207 of this title shall be liable to the

employee or employees affected in the amount of their unpaid

minimum wages, or their unpaid overtime compensation, as the

case may be, and in an additional equal amount as liquidated

damages. Action to recover such liability may be maintained

in any court of competent jurisdiction by any one or more

employees similarly situated. No employee shall be a party

Plaintiff to any such action unless he gives his consent in

writing to become such a party and such consent is filed in the

court in which such action is brought. The court in such action

shall, in addition to any judgment awarded to the Plaintiff, or

Plaintiffs, allow a reasonable attorney’s fee to be paid by the

defendant, and costs of the action. The right provided by this

subsection to bring an action by or on behalf of any employee,

and the right of any employee to become a party Plaintiff to

any such action, shall terminate upon the filing of a complaint

by the Secretary of Labor in an action under section 217 of this

title in which restraint is sought of any further delay in the

payment of unpaid minimum wages, or the amount of unpaid

overtime compensation, as the case may be, owing to such

employee under section 206 or section 207 of this title by an

employer liable therefor under the provisions of this

subsection.”

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.