Petition for Writ of Certiorari — Edwards v. A.H. Cornell & Son, Inc.

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Supreme Court, U.S.

FILED

No. 10-1 9-132 NuY 30 2010

————

IN TIOFFICE OF THE CLERK

Supreme Court of the United States

SHIRLEY EDWARDS,

Petitioner,

A.H. CORNELL AND SON, INC., D/B/A AH CORNELLS;

MELISSA CLOSTERMAN; SCOTT A. CORNELL,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

Ari Karpf Kevin K. Russell

KARPF, KARPF & VIKANT Counsel of Record

3070 Bristol Pike Amy Howe

Building 2, Suite 231 HOWE & RUSSELL, P.C.

Bensalem, PA 19021 7272 Wisconsin Ave.

Suite 300

Pamela S. Karlan Bethesda, MD 20814

Jeffrey L. Fisher (301) 941-1913

STANFORD LAW SCHOOL krussell@howerussell.com

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

WILSON-EPES'PRINTING CO., INC. — (202) 789-0096 — WasninGron, D.C. 20002

QUESTION PRESENTED

Does the anti-retaliation provision of the

Employee Retirement Income Security Act, 29 U.S.C.

§ 1140, permit an employer to discharge an employee

for making unsolicited internal complaints regarding

violations of the statute?

TABLE OF CONTENTS

A i

TABLE OF AUTHORITIES ......................... eee cemewetoes IV

PETITION FOR A WRIT OF CERTIORARI .............. ]

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RELEVANT STATUTORY PROVISIONS............... Ss J

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REASONS FOR GRANTING THE WRIT................... 7

I. The Decision Below Adds To A _ Firmly

Entrenched Conflict Among The Courts Of

Neen nee eee rere. csenscescocceessccsvercsscees 8

Il. This Case Presents An Important And

Recurring Issue Under ERISA............................ 14

Ill. ERISA’s Anti-Retaliation Provision Protects

Unsolicited Internal Reports Of Possible

Tee cn en cawesstansecvocnes 17

A. Nothing In The Text Of Section 510

Precludes Protection For Unsolicited

STS 18

1. An “Inquiry” Encompasses’ An

Internal Complaint. ........................2.0000+ 18

2. An “Inquiry” Includes An Employee-

Initiated Communication........................ 19

B. The Third Circuit’s Rule Contravenes

The Purpose Of ERISA’s Anti-Retaliation

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TABLE OF AUTHORITIES

Cases

Aetna Health Inc. v. Davila,

ne ee ccc cuaucssuawresdonvudeesiees 17

Anderson v. Elec. Data Sys., Corp.,

13 F.26. 1333 (oth Cir. 1904)..............<..2....... 8,9, 14

Beneficial Nat'l Bank v. Anderson,

5 BR. Reg —___: RSRRE Renate nv Pe eer 8

Burlington N. & Santa Fe Ry. Co. v. White,

Se erly Ce I ina nicnuccenencsciavasanvecevaceseecsivenssns 7, 42

CBOCS W., Inc. v. Humphries,

ee, ac ccgudondeibanosdmuctacisers 7

( 4tizens ’ Bank v. Parker,

ne rt a hc ells 20

City of Edmonds v. Oxford House, Inc.,

ee ee oe oiee re heer dese cuchicuvaicen 20

Crawford v. Metro. Gov’t of Nashville &

Davidson County, Tenn.,

Re ee, Pe I voicecccncacocacacecesascivesssvecrscciens 7, 22

Dunn v. Elco Enter.,

No. 05-71801, 2006 WL 1195867

(E.D. Mich. May 4, 2006)....................cccscssesceee 10, 15

Electro-Mech. Corp. v. Ogan,

D P.O BES (Ge Cir, TODS) «on evcvnscccecccnecssnccssrasssncceess 19

Ello v. Singh,

531 F. Supp. 2d 552 (S.D.N.Y. 2007) .................... 15

FMC Corp. v. Holliday,

Oe ee ee Nay ce isac incense se sarsamreeeoenen 16

Garcia v. United States,

ee a as 19

Hashimoto v. Bank of Hawan,

989 F.2d 406 (Sth Cir. 1993)..........:.........00..0.: 8,9, 14

Ingersoll-Rand Co. v. McClendon,

WE osnieseininccdcncevnsosccncccktedsonsscaneses ty A

Inter-Modal Rail Employees Ass'n v. Atchison,

Topeka, Santa Fe Ry. Co.,

ee te We NE Fic ccsis ceca cnnnscsvescedscndecccsseenascecsneens 16

Jackson v. Birmingham Bd. Of Educ.,

Se re I ccc tncns dates nvebecdvevasconsicansicgouicnsan 7

Jorgensen v. Prudential Ins. Co. of Am.,

S62.F. Supp. 255 (D.N.J. LOOSE) .......c0cceccsncccssecsosess 15

King v. Marriott Int’l, 337 F.3d 421

DE NN I as occceachenescshuececstscavedceanscsvessaunion passim

Klein v. Banknorth Group, Inc.,

Te W. CP. Dee CRD. VE. TB 7) onc cence cv cncscececvencsace 15

McClendon v. Hewlett-Packard, Co.,

No. CV-05-087-S-BLW, 2005 WL 1421395

EP, I UIE Th, FID ovo sccenecesecscneceosecacssducensaves 8

McLean v. Carlson Cos., Inc.,

777 F. Supp. 1480 (D. Minn. 1991) ....................... 15

McSharry v. Unumprovident Corp.,

237 F. Supp. 2d 875 (E.D. Tenn. 2002)........... 10, 15

Momchilov v. Mcllvaine Trucking Int'l, Inc.,

No. 5:09CV1322, 2010 WL 1254216 (Mar. 24,

I asada beaded centeadunean 14

Nicolaou v. Horizon Media, Inc.,

402 F.3d 325 (2d Cir. 2005) (per curiam)....... passim

NLRB v. Scrivener,

Oe ee Oe oocs avi canvvnnsenedacudacecemdises 7, 2

Robinson v. Shell Oil Co.,

ee oc eaieg uaa cueeva eas 8

Rogers v. Tyson Foods, Inc.,

Pe ae FED © FRE CAD, DO) cos cceccsscvscccsasvonsessoesesencns 8

Shaw v. Delta Air Lines, Inc.,

acs ca copuccasaseisdnsatateddnéasvavsivass 2

Simons v. Midwest Tel. Sales & Serv. Inc.,

462 F. Supp. 2d 1004 (D. Minn. 2006).................. 15

United States v. Mead Corp.,

I es cs scivedvacaseneseaeavsdcssevseceevans 23

Varity Corp. v. Howe,

ss nscideasednkbutunsbensaaansvsserncenenss 19

Statutes

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SSE See oe ne ea 21

OP EM RED By ansninnenecnsassatseinessaavonesacostunssessgs 1U

Cee nn a osc cecadinensenwases 10

Employee Retirement Income Security Act,

Be Ps, WE COPE BE BG, coc ceccccessesnsaseccsescassesse passim

I Oe is sce suascsacesdnsssseendavieebainaceacas 15

Pe IED ssa ccscsonccoscasedaciudusanyeroness 13, 20

29 U.S.C. § 110R(aX3) ...................- pajueeln kei 13, 20

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NE Ae I inc ivnsichsanetanusecessianisuavecsivanes 13, 20

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Oe re re avon ainsi esc bats avstantensns 2

Be TIAA, BPE O I D cecscccvcnsavicnsrsanses CaN Sern Ne 17

a ee os hans kien ketenes 2

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Oe Wr Oe I oicaeinchids xcvuecnraonanateassnennenevaseuns 10, 23

Se i eee passim

re ined ecient snes aro 10

29 U.S.C. § 1855(b)......... RoR RAO ROM aa CR A 10

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DS USC. § USGI) 0... .secrscorsncccrereesssveeserescrnssessenenses 10

ates ee irene scant cee Sr aeae eee are 10

Other Authorities

Department of Labor, Description of Employee

Benefits Security Administration,

available at http://www.dol.gov/ebsa/

CRE ME TE AGI ovis svccncncvnsnsipecscoonsctscvenssones 15

Depariment of Labor, Employee Benefits

Security Administration, Private Pension

Plan Bulletin, June 2010,

available at http://www.dol.gov/ebsa/PDF/

2007pensionplanbulletin.PDF............................... 15

EE.Pe. PROD. PEO, Doe CE OTE) ov cicscnscccccsccccsesccccccsscvens. 24

MERRIAM WEBSTER’S COLLEGIATE DICTIONARY

aa tiie ewniviees 19

Report of the Congressional Budget Office (Mar.

18, 2010),

available at http://www.cbo.gov/ftpdocs/

113xx/doc11355/hr4872. pdf ..............cccceceeeeeeeeeeeeees 15

Vill

Understanding the Financial Condition of the

Pension Insurance Program,

available at http://www.pbgce.gov/media/key-

resources-for-the-press/content/

racer a dead lavecieedethsasawedanvaasuatans 25

PETITION FOR A WRIT OF CERTIORARI

Petitioner Shirley Edwards respectfully petitions

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Third Circuit.

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-

30a) is reported at 610 F.3d 217. The district court’s

opinion (Pet. App. 31a-41a) is unpublished.

JURISDICTION

The court of appeals entered judgment on June

24, 2010. Pet. App. la. The court denied a timely

petition for rehearing and rehearing en banc on July

26, 2010. Pet. App. 42a-43a. Justice Alito extended

the time for filing the petition until November 30,

2010. No. 10A370. This Court. has jurisdiction

pursuant to 28 U.S.C. § 1254(1).

RELEVANT STATUTORY PROVISIONS

Section 510 of the Employee Retirement Income

Security Act, 29 U.S.C. § 1140, provides in relevant

part:

It shail be unlawful for any person to

discharge, fine, suspend, __ expel, or

discriminate against any person because he

has given information or has testified or is

about to testify in any inquiry or proceeding

relating to this chapter or the Welfare and

Pension Plans Disclosure Act.

STATEMENT OF THE CASE

Petitioner Shirley Edwards was terminated by

her employer for complaining that certain company

practices violated the Employee Retirement Income

Security Act (ERISA). The Third Circuit upheld the

dismissal of her claim under ERISA’s anti-retaliation

provision, holding — in acknowledged conflict with the

decisions of other circuits — that the statute does not

protect unsolicited internal complaints.

1. Statutory Framework. ERISA is a

“comprehensive statute designed to promote the

interests of employees and their beneficiaries in

employee benefit plans.” Shaw v. Delta Air Lines,

Inc., 463 U.S. 85, 90 (1983). The statute “imposes

participation, funding, and vesting requirements” on

pension plans, and sets uniform standards for

“reporting, disclosure, and fiduciary responsibility”

for pension and other employee benefit plans. Id. at

91.

In passing ERISA, Congress included a detailed

enforcement scheme “to preclude abuse and ‘to

completely secure the rights and expectations”

established by the statute. Ingersoll-Rand Co. v.

McClendon, 498 U.S. 133, 137 (1990) (citation

omitted). Among other things, the statute authorizes

the Department of Labor to conduct investigations

into possible ERISA violations and bring enforcement

actions. 29 U.S.C. §§ 1132, 1134. It also allows civil

actions by plan participants, beneficiaries, and

fiduciaries to remedy and deter violations. 29 U.S.C.

§ 1132(a)(1)-(4), (a)(9).

Congress regarded ERISA’s §anti-retaliation

provision, Section 510 of the Act, as a “crucial part” of

the statute’s enforcement regime. Ingersoll-Rand

Co., 498 U.S. at 143. The provision makes it

“unlawful for any person to discharge, fine, expel, or

discriminate against any person because he has given

information or has testified or is about to testify in

any inquiry or proceeding relating to” ERISA. 29

U.S.C. § 1140.

2. Factual Background. In March 2006,

respondent A.H. Cornell and Son, Inc. hired

petitioner Shirley Edwards to serve as its Director of

Human Resources. Pet. App. 3a. A few years later,

Edwards came to believe that the company was

violating ERISA by, among _ other _ things,

administering its group health plan on a

discriminatory basis, not offering health benefits to

some employees and misrepresenting the cost of

health insurance to others to dissuade them from

opting into the plan. Jd.

Petitioner complained of the ERISA violations to

the company’s owners and managers. In response,

respondents terminated her. Pet. App. 3a.

3. Procedural History. Edwards brought suit

in the Eastern District of Pennsylvania, alleging that

respondents violated Section 510 of ERISA by

terminating her in retaliation for her “inquirlies,]

objections, opposition, and/or. complaints about

ERISA violations” at the company. First Amended

Complaint 7 39. Respondents moved to dismiss,

asserting that Section 510 does not apply when an

employee complains to a company’s. owners or

management rather than to an external entity. Pet.

App. 33a.

a. Relying on the Second Circuit’s analysis in

Nico:aou v. Horizon Media, Inc., 402 F.3d 325 (2d Cir.

2005) (per curiam), the district court held that

Section 510 does not protect employees who raise

allegations of ERISA violations within their company

unless the employer solicits the information. Pet.

App 40a-4la. Because Edwards had brought her

complaints to respondents on her own initiative, the

district court dismissed the complaint for failure to

state a claim. Pet. App. 41a.

b. Edwards appealed to the Third Circuit. At

the outset, the panel recognized that the courts of

appeals are divided on the question “whether the

anti-retaliation provision of Section 510 of ERISA, 29

U.S.C. § 1140, protects an employee’s unsolicited

internal complaints to management.” Pet. App. 2a.

“Four federal Courts of Appeals have ruled on this

issue,” the court observed. Jd. “[T)he Fifth and

Ninth Circuits have held in the affirmative, and the

Second and Fourth Circuits have held in _ the

negative.” Jd. In a divided decision, the panel

“agree(d] with the latter, and [held] that unsolicited

internal complaints are not protected.” Id.

The majority began its analysis by recognizing

that “Edwards has undoubtedly ‘given information’

by objecting and/or complaining to management.”

Pet. App. 12a. The critical question was “whether or

not Edwards did so in any ‘inquiry or proceeding”

relating to ERISA. Jd. The majority held that she

did not.

The court construed the term “inquiry” narrowly

to include only a an externally-initiated “request for

information.” Pet. App. 12a. Thus, the court held,

the information Edwards provided her supervisors

was not part of an inquiry because she volunteered

the information rather than providing it in response

to a question. Id. The court also rejected Edwards’

assertion that her communications were themselves

protected inquiries. “[A] plain reading of the

provision indicates that ‘inquiry’ includes only

inquiries made of an employee, not inquiries made by

an employee.” Pet. App. 13a.

The court further held that, in any event, ERISA

protects only statements made in the course of a

formal proceeding, like a lawsuit or agency

investigation. The word “proceeding,” the court

observed, implies a “formal action” before a “tribunal

or agency.” Pet. App. 13a. And although the word

“inquiry” might seem broader, the Third Circuit

agreed with the Fourth that “the phrase ‘testified or

is about to testify’ implies that the phrase ‘inquiry or

proceeding’ is limited to more formal actions.” Id.

The majority recognized that the Fifth and Ninth

Circuits had reached the opposite conclusion. Pet.

App. 7a., But in its view, the reasoning of those

decisions was “not compelling.” Pet. App. 14a. The

Third Circuit also acknowledged that its holding

conflicted with the interpretation of the Department

of Labor, which construes Section 510 to protect

unsolicited internal complaints. Pet. App. 12a. But

the panel declined to defer to that interpretation

because it found the meaning of the _ statutory

language clear. Pet. App. 14a-15a.

For the same reason, the court refused to

examine whether its holding was consistent with the

statute’s protective purposes. Pet. App. 14a. The

majority did not dispute that under _ its

interpretation, the statute “would permit § an

employer to terminate an employee upon _ the

employee first notifying the employer of an ERISA

violation.” Pet. App. 14a-15a (citation omitted). But

if Congress had intended to prevent that result, the

court asserted, it would have used different language.

Pet. App. 15a.

c. Judge Cowen dissented. He rejected the

majority’s conclusion that the statutory language

unambiguously precluded protection for employee-

initiated internal complaints, particularly in light of

the court’s obligation to read the statute in light of its

purposes and to avoid absurd results. Pet. App. 19a-

20a. The word “inquiry,” he explained, is a broad

term and could be read to encompass employee

complaints as the “crucial ‘first step” of many

investigations. Pet. App. 22a-23a. It was “highly

doubtful,” he observed, “that Congress could have

ever intended” to “leave[] totally unprotected” the

very conduct “this remedial statutory provision was

enacted to protect in the first place.” Pet. App. 20a.

To hold otherwise, he pointed out, required

concluding that Congress “essentially permitted (and

perhaps, in essence, encouraged) [an employer] to fire

an employee immediately after she makes an

informal complaint.” Pet. App. 23a. He found this

result particularly untenable as applied to certain

employees who, “given their responsibility to conduct

potentially sensitive and damaging investigations

into possible ERISA violations and related matters,

would need protection from retaliation even more

than employees who merely answer[] some

questions.” Pet. App. 24a.

Judge Cowen further observed that the

majority’s rule is ultimately “unworkabie.” Pet. App.

23a. “[Wlhere does one draw the line,” he asked,

between an unprotected initial complaint and a

protected statement “purportedly made as part of

some sort of inquiry?” Jd. Suppose, for example, “an

employee like Edwards complains to her superior, the

superior asks some follow-up questions, and the

employee responds to these questions.” Jd. Congress

could not have intended, Judge Cowen argued, to

protect those responses but not the initial complaint.

Id.

d. Edwards filed a timely petition for rehearing

en banc, which the Third Circuit denied. Pet. App.

42a-43a.

REASONS FOR GRANTING THE WRIT

As the Third Circuit acknowledged, the courts of

appeals are deeply divided over whether and how

ERISA’s anti-retaliation provision applies in a

frequently recurring circumstance: — unsolicited

compiaints to company management. ‘Two circuits

(as well as the agency charged with ERISA’s

administration), construe Section 510 to cover all

such complaints. Three others read the provision

more narrowly, although even these circuits disagree

with one another about when, if ever, statements to

company management fall within the scope of the

provision.

An anti-retaliation provision cannot perform its

critical function in the midst of such uncertainty.

Indeed, this Court has repeatedly granted certiorari

to resolve similar circuit conflicts regarding the

existence or scope of federal anti-retaliation

protections. Sce, e.g., Crawford v. Metro. Gov’t of

Nashville & Davidson County, Tenn., 129 S. Ct. 846,

850 (2009); CBOCS W., Inc. v. Humphries, 553 U.S.

442, 445 (2008); Burlington N. & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 56-57 (2006); Jackson v.

Birmingham Bd. of Educ., 544 U.S. 167, 172-73

(2005); Robinson v. Shell Oil Co., 519 U.S. 337, 340

(1997). It should follow the same course in this case.

I. The Decision Below Adds To A Firmly

Entrenched Conflict Among The Courts

Of Appeals.

The circuits are intractably divided over whether

Section 510 encompasses’ unsolicited internal

complaints regarding potential ERISA violations.

The question arises and has important consequences

in two contexts: suits brought directly under Section

510 and suits in which defendants attempt to remove

state wrongful discharge claims to federal court on

the ground that ERISA completely pre-empts the

state law claim by providing an alternative federal

cause of action.’ Five courts of appeals have

' Although defendants may assert pre-emption defenses in

state court, they may not remove the case to federal court unless

ERISA “completely pre-empts” state law by “provid[ing] the

exclusive cause of action for the claim asserted.” Beneficial

Nat’ Bank v. Anderson, 539 U.S. 1, 8 (2003); see also King v

Marriott Int’, 337 F.3d 421, 425 (4th Cir. 2003); Rogers v

Foods, Inc., 308 F.3d 785, 788 (7th Cir. 2002) (collecting

authorities). Thus, to decide whether state wrongful discharge

claims were completely pre-empted so as to support removal to

federal court, the Fourth, Fifth, and Ninth Circuits have been

required to determine whether allegations in a state complaint

established a claim under Section 510. See, e.g., King, 337 F.3d

at 425; Anderson v. Elec. Data Sys., Corp., 11 F.3d. 1311, 1315

(5th Cir. 1994); Hashimoto v. Bank of Hawaii, 999 F.2d 408, 412

(9th Cir. 1993). Because determining the scope of Section 510

was necessary to these decisions, these cases control suits

within these circuits brought directly under Section 510 as well.

See, e.g., McClendon v. Hewlett-Packard, Co., No. CV-05-087-S-

BLW, 2005 WL 1421395, at *5 (D. Idaho June 9, 2005) (“The

considered this issue in one of these two contexts:

two circuits, as well as the Department of Labor,

construe Section 510 to protect unsolicited internal

complaints, while three other circuits do not.

1. The Ninth Circuit was the first to construe

Section 510 to protect unsolicited internal

complaints. Hashimoto v. Bank of Hawai, 999 F.2d

408 (9th Cir. 1993). Like petitioner in this case, the

plaintiff in Hashimoto was terminated after she

brought potential ERISA violations to the attention

of her supervisors and objected when directed to

engage in conduct that would violate ERISA. /d. at

409-10. The Ninth Circuit held that the plaintiffs

complaints constituted “givling] information” within

the protection of Section 510. Jd. at 411. The court

reasoned that “[t]he normal first step in giving

information” about an ERISA violation “would be to

present the problem first to the responsible managers

of the ERISA plan.” Jd. If an employee is “then

discharged for raising the problem, the process of

giving information or testifying is interrupted at its

start: the anticipatory discharge discourages the

whistle blower before the whistle is blown.” Jd.

The Fifth Circuit reached the same conclusion in

Anderson v. Electronic Data Systems, Corp., 11 F.3d.

1311 (5th Cir. 1994). The plaintiff in that case — an

employee responsible for administering pension plan

Ninth Circuit could not have concluded that ERISA [complete]

preemption applied without the determination that the former

employee was qualified to assert ERISA participation

protection. Thus, the pertinent Hashimoto language is not

dictum, but controlling precedent.”).

investments — was discharged after he objected to

participating in ERISA violations and reported his

concerns to company management. Id. at 1312-13.

On appeal, the Fifth Circuit noted ERISA’s broad

prohibition on retaliation and held that the plaintiffs

claim fell “squarely within the ambit of ERISA

[Section] 510.” Id. at 1314 (citations omitted).

A number of district courts in other circuits have

adopted the same interpretation.’

So has the Department of Labor, the agency

responsible for administering and enforcing Title I of

ERISA“ See DOL C.A. Br. 5-6; DOL Br., Nicolaou v.

Horizon Media, Inc., available at 2004 WI. 3525515.

As the Department explained in its brief to the Third

Circuit in this case, “[blroadly but naturally

construed, ‘any inquiry or proceeding’ encompasses

plan participants’ complaints to management or plan

officials about wrongdoing, and the process by which

that information is considered, however informal.”

2 See, e.g., Dunn v. Elco Enter., No. 05-71801, 2006 WL

1195867, at *5 (E.D. Mich. May 4, 2006); McSharry v

Unumprovident Corp., 237 F. Supp. 2d 875, 880-81 (E.D. Tenn.

2002)

> See 29 U.S.C. §§ 1132(a), 1135-36. In that role, the

Secretary of Labor “may prescribe such regulations as he finds

necessary or appropriate to carry out” Title | of ERISA. dd.

§ 1135. The Department also administers or enforces numerous

other statutes containing anti-retaliation provisions. See, e.g,

18 U.S.C. § 1514A(a)-(b) (Sarbanes-Oxley Act); 29 U.S.C.

§ 215(a)(3) (Fair Labor Standards Act); id. § 660(c)

(Occupational Safety and Health Act); id. § 1855(a)-(b) (Migrant

and Seasonal Agricultural Worker Protection Act); 33 U.S.C.

§ 1367(a)-(b) (Clean Water Act); 49 U.S.C. §31105 (Surface

Transportation Assistance Act).

DOL C.A. Br. 16 (citations omitted). Otherwise,

“employers could readily manipulate the applicability

of section 510 by postponing proceedings’ or

disregarding complaints, and even if formal

proceedings were finally instituted, the whistleblower

who serves as the catalyst for the proceedings would

be wholly unprotected.” DOL C.A. Br. 10.

2. “Faced with the same issue, the Fourth

Circuit has . . . drawn the opposite conclusion,”

holding that Section 510 does not protect unsolicited

internal complaints. Pet. App. 8a-9a (citing King v.

Marriot Int’, Inc., 337 F.3d 421, 427-28 (4th Cir.

2003)). The plaintiff in King was a human resources

manager who was discharged after she complained

about, and refused to participate in, a plan to

“transfer millions of dollars from [her employer's]

medical plan into its general corporate reserve

account.” 337 F.3d at 423. King raised her objections

to her supervisor and also requested an opinion letter

from one of the company’s in-house attorneys. /d.

The Fourth Circuit held that Section 510

provided King no protection because it covers only

statements made in the course of a “legal or [an]

administrative,” process, “or at least something more

formal than written or oral complaints made to a

supervisor.” /d. at 427. The court did not dispute

that the word “inquiry” can be read more broadly, but

concluded that the statute’s additional “use of the

phrase ‘testified or is about to testify’. . . suggestl|s]

that the phrase ‘inquirlies] or proceeding[s]” is

limited to formal proceedings. Id. The court

likewise recognized that the phrase “given

information” was broader than “testified” but

construed it as_ referring to “non-testimonial

information,” such as “incriminating documents,”

turned over during a formal inquiry or proceeding.

Id. The Fourth Circuit acknowledged that it was

creating a split with the Fifth and Ninth Circuits, but

it regarded those courts’ decisions as “unpersuasive.”

Id. at 428.

In Nicolaou v. Horizon Media, 402 F.3d 325 (2d

Cir. 2005) (per curiam), the Second Circuit likewise

held that an employee-initiated internal complaint

falls outside the protection of Section 510, but

adopted a different rationale. Nicolaou was an

employee-fiduciary who discovered that her employer

was underfunding its ERISA-covered pension plan.

Id. at 326. Within days after she reported this

violation during a face-to-face meeting with the

company’s outside counsel and its president, she

became the subject of “a campaign of retaliation” that

culminated in her discharge. Id. at 329.

The Second Circuit agreed with the Fourth

Circuit that an unsolicited internal complaint is not

part of a “proceeding” because that term “refers to the

progression of a lawsuit or other business before a

court, agency, or other official body.” 402 F.3d at 329.

But it disagreed with the Fourth Circuit’s conclusion

hat an “inquiry” must be a formal proceeding as well.

Id. at 330 n.3. “Whatever level ot formality is implied

by the term ‘proceeding’. . . the use of the somewhat

less formal term ‘inquiry’ in ERISA is indicative of an

intent to ensure protection for those involved in the

informal gathering of information.” Jd. at 328-29

(quoting DOL Br.). Thus, the court held, “the proper

focus is not on the formality or informality of the

circumstances under which an _ individual gives

information.” Jd. at 330. The “plain meaning of

‘inquiry,” the court held, extends the statute’s

protection to “those involved in the informal

gathering of information.” Id. at 328-29.

That insight did not, however, lead the Second

Circuit to conclude that Nicolaou had stated a claim

simply because she complained to her supervisors

about an ERISA violation. aving construed the

word “inquiry” to “refer{] broadly to any request for

information,” 402 F.3d at 329, the court remanded to

allow Nicolaou to “demonstrate that she was

contacted to meet with [management] in order to give

information” about possible ERISA violations. Jd. at

330.

In a concurring opinion, Judge Pooler explained

that limiting Section 510 to complaints made in the

course of a formal proceeding would run contrary to

ERISA’s requirement that plan fiduciaries, like

Nicolaou, investigate and take action to correct plan

violations upon pain of personal liability. 402 F.3d at

330-31 (citing 29 U.S.C. §§ 1104(a)(1), 1105(a)(3),

1109(a)). Moreover, in light of that duty, she believed

that an “inquiry” must include not only

investigations initiated by an employer or outside

entity, but also inquimes conducted by fiduciaries.

Id. at 332.

In this case, the Third Circuit “agree[d] with the

Fourth Circuit’s decision in Aing” that a “plain

reading” of Section 510 precludes protection for

unsolicited internal complaints. Pet. App. 18a-19a.

Like that court, the Third Circuit decided that “the

phrase ‘testified or is about to testify’ implies that the

phrase ‘inquiry or proceeding’ is limited to more

formal actions.” Pet. App. 13a. But it also agreed

with the Second Circuit that “a plain reading of the

provision indicates that ‘inquiry’ includes only

inquiries made of an employee, not inquiries made by

an employee” or other employee-initiated complaints.

Id. Because petitioner’s objections were both

informal and unsolicited, it held that Section 510 did

not apply to this case. Id.

3. This case is an ideal vehicle for restoring

uniformity to the law. The scope of Section 510’s

protection is squarely presented by the facts of this

case: petitioner would have prevailed in the Fifth or

Ninth Circuit, but would have lost in the Second and

Fourth Circuits, based on a disagreement among

these courts regarding the meaning of Section 510.

Moreover, the scope of that provision was the sole

question presented on appeal and was thoroughly

considered with the benefit of extensive briefing by

both the parties and the Department of Labor. Pet.

App. 5a.

II. This Case Presents An Important And

Recurring Issue Under ERISA.

Whether ERISA’s = anti-retaliation provision

applies to unsolicited internal complaints is an

important and recurring question.

1. As the longstanding and growing circuit

conflict demonstrates, the scope of Sectien 510’s

protection is frequently litigated in the lower courts.‘

* See, e.g., Nicolaou v. Horizon Media, Inc., 402 F.3d 325

(4th Cir. 2003); Anderson v. Elec. Data Sys. Corp., 11 F.3d 1311,

1315 (5th Cir. 1994); Hashimoto v. Bank of Hawaii, 999 F.2d

408, 411-12 (9th Cir. 1993); Momchilov v. Mcllvaine Trucking

That is hardly surprising given that the statute

applies to pension and benefit plans that cover over

150 million people. Eighty-six million actively

participate in ERISA pension plans® and almost

seventy percent of Americans who have health

insurance receive it through an ERISA-governed

plan.’

ERISA’s protections thus remain vital to the

effective provision of American retirement security

and medical benefits. And the Act’s anti-retaliation

provision is essential to the statute’s effectiveness,

helping “to make [ERISA’s] promises credible” by

protecting the individuals who are often best situated

Int'l, Inc., No. 5:09CV1322, 2010 WL 1254216 (Mar. 24, 2010

N.D. Ohio); Ello v. Singh, 531 F. Supp. 2d 552, 573 (S.D.N.Y

2007); Simons v. Midwest Tel. Sales & Serv. Inc., 462 F. Supp

2d 1004, 1008 (D. Minn. 2006); Dunn v. Elco Enter., No. 05-711,

2006 WL 1195867 (May 4, 2006 E.D. Mich.); McSharry v

Unumprovident Corp., 237 F. Supp. 2d 875, 878-79 (E.D. Tenn

2002); Klein v. Banknorth Group, Inc., 977 F. Supp. 302, 304-

305 (D. Vt. 1997); Jorgensen v. Prudential Ins. Co. of Am., 852

F. Supp. 255, 262-63 (D.N.J. 1994); McLean v. Carlson Cos.,

Inc., 777 F. Supp. 1480, 1483-84 (D. Minn. 1991).

° Department of Labor, Description of Employee Benefits

Security Administration, available at http://www.dol.gov/

ebsa/OEManual/main. html; see also 29 U.S.C. § 1001(a) (finding

that ERISA plans directly affect “the continued well-being and

security of millions of employees and their dependents”)

® Department of Labor, Employee Benefits Security

Administration, Private Pension Plan Bulletin, p. 3, June 2010,

available at http://www.dol.gov/ebsa/PDF/2007pensionplan

bulletin.PDF.

’ See Report of the Congressional Budget Office 7, Table 2

(Mar. 18, 2010), available at http://www.cbo.gov/ftpdocs/

113xx/doc11355/hr4872.pdf.

to identify and bring to light violations that can

threaten the rights of thousands of workers and even

the viability of an employer’s benefit plan. See Inter-

Modal Rail Employees Ass’n v. Atchison, Topeka,

Santa Fe Ry. Co., 520 U.S. 510, 515 (1997); see also

Ingersoll-Rand Co v. McClendon, 498 U.S. 133, 143

(1990).

2. The inconsistent application of this critical

component of ERISA’s enforcement regime is

untenable. Congress intended ERISA to replace a

“patchwork scheme of regulation” by the states. FMC

Corp. v. Holliday, 498 U.S. 52, 60 (1990) (citation

omitted). Yet at present, employees are protected

against retaliation for any unsolicited internal

complaint in twelve states. In eight states, Section

510 applies only if the employee raises objections in a

formal proceeding, such as a complaint to the

Department of Labor or a lawsuit. And in two others,

workers must show that they responded to an

employer’s questions and are not protected if they

initiate an inquiry themselves.

Employees need to know whether they can safely

bring their concerns to the attention of the company

or, instead, must file a formal complaint with the

Department of Labor or initiate litigation in order to

secure legal protection against retaliation. The

question is particularly important to plan fiduciaries,

who have an obligation under ERISA to take action

to correct any violation they discover. See 29 U.S.C.

§ 1109.

At the same time, varying interpretations of

ERISA subject employers — particularly those

operating national or regional employee benefit plans

— to inconsistent rules, in conflict with Congress’s

intent to establish “a uniform regulatory regime over

employee benefit plans.” Aetna Health Inc. v. Davila,

542 U.S. 200, 208 (2004).

Congress plainly did not intend to provide

employees of the same firm dramatically different

protection depending on whether they worked in the

company’s office in Los Angeles, New York, or

Philadelphia. Nor did Congress intend to subject

employers to varying standards of liability depending

on the circuit in which they are sued. Yet, the

existing division may encourage forum shopping to

achieve precisely that result under ERISA’s

permissive venue provision. 29 U.S.C. § 1132(e)(2)

(permitting plaintiffs to file suit “in the district where

the plan is administered, where the breach took

place, or where a defendant resides or may be

found”).

III. ERISA’s Anti-Retaliation Provision

Protects Unsolicited Internal Reports Of

Possible ERISA Violations.

Certiorari is also warranted because the decision

below conflicts with the text and manifest purposes of

ERISA. “[E]ffective enforcement” of a statute like

ERISA can “only be expected if employees felel] free

to approach officials with their grievances.”

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.

53, 67 (2006) (citation omitted). Accordingly, this

Court has interpreted the text of analogous anti-

retaliation provisions consistent with Congress’s

intent to ensure that employees are “completely free

from coercion against reporting” unlawful practices.

NLRB v. Scrivener, 405 U.S. 117, 121 (1972) (citation

omitted). In this case, the Third Circuit made no

pretense that its interpretation could be reconciled

with these principles. It held instead that the plain

text of Section 510 required it to construe the

provision in a manner that is ineffective to prevent

even the most egregious employer retaliation. But

that conclusion was wrong. In fact, the language

easily permits, and the statutes’ purposes demand,

protection for all employees who make complaints

regarding ERISA violations to their employers.

A. Nothing In The Text Of Section 510

Precludes Protection For Unsolicited

Internal Complaints.

The language of Section 510 is broad and

encompassing. The statute protects not only

employees who “testify” in ERISA “proceedings,” but

also those who “give[] information” in “any inquiry”

relating to an ERISA violation. 29 U.S.C. § 1140.

The terms “information” and “inquiry” are expansive.

An individual can “givie] information” through any

number of methods — from having a face-to-face

discussion to submitting formal complaint

documents. The term “inquiry” is similarly sweeping.

Accordingly, while an “inquiry” would certainly

encompass formal proceedings or employer-initiated

investigations, ordinary usage does not cabin the

term to such a narrow meaning.

1. An “Inquiry” Encompasses An Internal

Complaint.

The Third and Fourth Circuits have nonetheless

construed the term “inquiry” as limited to “formal

actions.” Pet. App. 13a; King, 337 F.3d at 427. These

courts assert that the phrase “inquiry or proceeding”

must be interpreted in light of its proximity to the

phrase “testified or is about to testify,” which

“connote(s}] a formality that does not attend” to

“intra-company complaints.” King, 337 F.3d at 427;

see also Pet. App. 13a.

As the Second Circuit rightly observed, precisely

the opposite inference arises from Congress’s

inclusion of the broad and_ colloquial words

“information” and “inquiry,” in addition to the more

specific terms “proceeding” and “testimony.”

Nicolaou, 402 F.3d at 330 n.3. A statute must be

read to “give the nouns their separate, normal

meanings.” Garcia v. United States, 469 U.S. 70, 73

(1984) (citation omitted). And in this case,

“proceeding” — the narrower term — by itself

encompasses a formal legal and administrative

process. Lest it be rendered surplusage, the word

“inquiry” must refer to something else.

Nor does the word “inquiry” naturally connote

formality. Quite to the contrary, “the plain meaning

of ‘inquiry” extends to an “informal gathering of

information” as well as to more formal proceedings.

Nicolaou, 402 F.3d at 328-29. See, e.g., MERRIAM

WEBSTER’S COLLEGIATE DICTIONARY at 646 (11th ed.

2001) (defining “inquiry” as an “examination into

facts or principles”); cf also Varity Corp. v. Howe,

516 U.S. 489, 506 (1996) (referring to informal

“employee inquiries” to plan fiduciaries); Electro-

Mech. Corp. v. Ogan, 9 F.3d 445, 451 (6th Cir. 1993)

(“ERISA imposes a duty upon fiduciaries to respond

promptly and adequately to employee-initiated

inquiries regarding the plan or any of its terms.”)

(emphasis added).

2. An “Inquiry” Includes An Employee-

Initiated Communication.

Even setting aside formality, the Third Circuit

also held that an “inquiry” must be initiated by

someone other than the employee herself, thereby

excluding from protection unsolicited complaints.

Pet. App. 13a. But that conclusion finds no support

in the text of Section 510. Furthermore, it would lead

to difficult line-drawing and absurd results Congress

could not have intended.

By its terms, Section 510 applies to “any inquiry”

related to a possible ERISA violation. 29 U.S.C.

§ 1140 (emphasis added). As this Court has

explained, the modifier “any” “excludes selection or

distinction.” Citizens’ Bank v. Parker, 192 U.S. 73,

81 (1904). When Congress uses the word “any” it

“declares the [statutory phrase it modifies] without

limitation.” Id.; see also City of Edmonds v. Oxford

House, Inc., 514 U.S. 725, 739 (1995) (Thomas, J.,

dissenting) (finding it “difficult to imagine what

broader terms Congress could have used” than the

term “any”). By inserting “any” before the term

“inquiry,” Congress thus confirmed that Section 510

would protect the full range of potential inquiries

relating to ERISA.

This includes cases in which an employee

conveys information in the course of conducting her

own inquiry into possible ERISA violations. As in

this case, it is not uncommon that employees with

plan-related responsibilities may come to suspect

that the plan is not being operated in accordance

with ERISA’s' mandates. Indeed, employee-

fiduciaries have a statutory obligation to monitor

plan compliance, investigate possible violations, and

take remedial action. 29 U.S.C. §§ 1104(a)(1),

1105(a)(3), 1109(a). When they fulfill those

responsibilities by alerting their employer of

questionable practices in the course of attempting to

determine the plan’s compliance with the law, they

have “given information . . . in an[} inquiry...

relating to” ERISA, within’ any _ reasonable

construction of those words. 29 U.S.C. § 1140.

The statute’s language likewise encompasses

employee complaints that could cause the employer

to initiate an inquiry. In NLRB v. Scrivener, 405

U.S. 117 (1972), this Court considered a similar

question under the National Labor Relations Act

(NLRA). The NLRA prohibits retaliation against an

employee because he has “filed charges or given

testimony under this Act.” 29 U.S.C. §158. In

Scrivener, a union filed a charge with the National

Labor Relations Board, which sent an investigator to

take statements from several employees, whom the

employer then promptly fired.

Although the terminated employees had not filed

any charges, and although they had not yet given any

testimony, this Court held that the statute protected

their conduct. 405 U.S. at 121-25. “The Act’s

reference . .. to an employee who ‘has filed charges or

given testimony[]’ could be read strictly and confined

in its reach to formal charges and formal testimony,”

the Court acknowledged. Jd. at 122. But “[iJt can

also be read more broadly.” Jd. “[T]Jextual analysis

alone” revealed “an intent on the part of Congress to

afford broad rather than narrow protection to the

employee,” consistent with the statute’s “purpose and

objective.” Jd. Accordingly, the Court rejected the

court of appeals’ conclusion that the word “testimony”

did not encompass “preliminary preparations for

giving testimony,” such as providing information to

an investigator. Id. at 121.

So, too, ERISA’s protection for those who “give

information in any inquiry” can and should be

construed to extend to the entirety of the inquiry

process, including essential preliminary steps such as

providing information regarding the need for an

investigation.

c. The court of appeals’ contrary narrow

construction of “inquiry”. leads to absurd results

Congress could not have intended.

For one thing, the decision below calls into

question whether complaints to the Department of

Labor are protected. If “a plain reading” of the word

“inquiry” necessarily “includes only inquiries made of

an employee,” as the Third Circuit held, Pet. App.

13a (emphasis added), it does not encompass an

employee’s unsolicited complaint to an_ outside

agency, even one charged with enforcing the statute.

But even assuming the court of appeals would

somehow find a way to protect complaints to the

Government but not to an employer, many anomalies

would nonetheless remain. The protection that

ERISA affords cannot sensibly turn on whether an

employee provides information in response to a

question or on her own initiative. Cf Crawford v.

Metro. Gov't of Nashville & Davidson County, Tenn.,

129 S. Ct. 846, 851 (2009) (describing as “freakish” a

rule “protecting an employee who reports

discrimination on her own initiative but not one who

reports the same discrimination in the same words

when her boss asks a question”). Nor could Congress

have intended the statute’s protections to depend on

whether a supervisor responds to a complaint with a

follow-up question or instead fires the complainant

on the spot.

Moreover, the arbitrary distinctions the Third

Circuit’s decision draws would be entirely too difficult

to administer in practice. Congress would not have

contemplated that juries would spend their time

deciding whether a worker was fired for her initial

complaint or for answering a follow-up question; or

whether a supervisor (lawfully) fired the employee for

lodging an initial complaint with the company, or

instead (unlawfully) terminated her for repeating her

complaint to the Government.®

B. The Third Circuit’s Rule Contravenes

The Purpose Of ERISA’s Anti-

Retaliation Provision.

In fact, limiting the protections of Section 510 to

solicited or external complaints would frustrate the

basic purposes of ERISA’s anti-retaliation provision

by providing perverse incentives for both employers

and employees.

By excluding’ protection for — unsolicited

complaints, the majority’s rule in this case would

“permit[] (and perhaps, in essence, encourage[])”

supervisors to “fire an employee immediately after

she makes an informal complaint instead of

conducting an investigation.” Pet. App. 23a (Cowen,

J., dissenting). This may be particularly true when

the supervisor receiving the complaint, and

terminating the employee, is responsible for the

8 To the extent the Court finds the text ambiguous, it

should defer to the Department of Labor’s interpretation. The

Department — which has primary enforcement and regulatory

authority under Title I of ERISA, see 29 U.S.C. §§ 1132, 1135-36

— has construed Section 510 to protect employee-initiated

internal complaints. See DOL C.A. Br. 5-6; DOL Br., Nicolaou

v. Horizon Media, Inc., 2004 WL 3525515. That consistent

position warrants deference. See generally United States v.

Mead Corp., 533 U.S. 218 (2001); see also id. at 256-57 (Scalia,

J., dissenting).

violation and risks termination himself if the

violation comes to light.

Employees like petitioner are often a company’s

best resource for preventing and remedying breaches

of ERISA because they have direct knowledge of the

company’s practices. The decision here, however,

may often prevent a company’s upper management or

owners from learning of problems at an early stage

when they may be more readily and inexpensively

remedied. That frustrates the statute’s general

intent to prevent violations and encourage voluntary

compliance. See H.R. Rep. No. 93-533, at 17 (1974).

Moreover, by construing Section 510 to protect

only complaints made outside the company, the

decision below encourages workers to file complaints

with the Department of Labor or to proceed directly

to court. But complaining to the Department of

Labor can be ineffective, as the Department of Labor

“simply does not have the resources to monitor all

alleged ERISA violations.”. DOL C.A. Br. 22.

Moreover, even when undertaken, a Department of

Labor investigation imposes significant expense on

employers, creates friction within the workplace, and

can often delay resolution of ERISA disputes that

could be been resolved internally. In these respects,

private lawsuits are even worse, imposing great

expense and delay to resolve ERISA disputes that

often could have been easily resolved through a

simple conversation with the employer.

Worse yet, the decision below inevitably will

discourage many employees from reporting ERISA

violations at all, to the detriment of plan participants

and their families and, ultimately, the larger

community.®

+ + + + +

Stripped of any pretense that its narrow

construction of ERISA’s anti-retaliation provision is

the only one permitted by the text of the statute, the

Third Circuit’s interpretation of Section 510 quickly

collapses under the weight of common sense and

congressional purpose. This Court should not permit

that error to continue to propagate among the

circuits.

® Left undiscovered, serious ERISA violations can

jeopardize the very solvency of pension and benefit plans,

imposing significant costs on other plans through increased

insurance premiums to the Pension Benefits Guaranty

Corporation (PBGC), the federal agency that insures ERISA

defined-benefit pensions. And while the PBGC typically relies

on insurance-premium revenue and not tax revenues to

guarantee underfunded pensions, PBGC recognizes some

potential for a taxpayer-funded bailout. See Understanding the

Financial Condition of the Pension Insurance Program,

available at http://(www.pbgc.gov/media/key-resources-for-the-

press/content/page15247.html.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,

Ari Karpf Kevin K. Russell

KARPF, KARPF & VIRANT Counsel of Record

3070 Bristol Pike Amy Howe

Building 2, Suite 231 HOWE & RUSSELL, P.C.

Bensalem, PA 19021 7272 Wisconsin Ave.

Suite 300

Pamela S. Karlan Bethesda, MD 20814

Jeffrey L. Fisher (301) 941-1913

STANFORD LAW SCHOOL = krussel]/@howerussell.com

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

November 30, 2010

APPENDIX

APPENDIX A

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 09-3198

SHIRLEY EDWARDS, Appellant

A.H. CORNELL AND SON, INC., D/B/A AH

CORNELLS;. MELISSA CLOSTERMAN; SCOTT A.

CORNELL

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(District Court No. 09-cv-1184)

District Judge: The Honorable J. Curtis Joyner

Argued April 13, 2010

Before: FISHER, HARDIMAN, and COWEN,

Circuit Judges

(Filed: June 24, 2010)

Justin L. Swidler (Argued)

Bensalem, PA

Counsel for Appellant

Walter H. Flamm, Jr. (Argued)

Blue Bell, PA

Counsel for Appellees

Eric C. Lund (Argued)

Washington, D.C.

Counsel for Amicus Curiae, Secretary of Labor

OPINION OF THE COURT

FISHER, Circuit Judge.

Shirley Edwards filed suit against her employer,

A.H. Cornell and Son, Inc. (“A.H. Cornell”), and

supervisors, Scott A. Cornell and Melissa J.

Closterman, claiming that she was terminated in

violation of Section 510 of the Employee Retirement

Income Security Act of 1974 (“ERISA”) and _ state

common law after complaining to management about

alleged ERISA violations. The defendants filed a Rule

12(b)(6) motion to dismiss, and the District Court

granted the motion, holding that Edwards’s complaints

were not part of an “inquiry or proceeding” and thus not

protected under Section 510. On appeal, we are

presented with a single issue of first impression for this

Court: whether the anti-retaliation provision of Section

510 of ERISA, 29 U.S.C. § 1140, protects an employee’s

unsolicited internal complaints to management. Four

federal Courts of Appeals have ruled on this issue: the

Fifth and Ninth Circuits have held in the affirmative,

and the Second and Fourth Circuits have held in the

negative. We agree with the latter, and hold that

unsolicited internal complaints are not protected.

A,}

Defendant A.H. Cornell is a family-owned

company that provides commercial and residential

| Because Edwards appeals from a Federal Rule of Civil

Procedure 12(b)(6) motion to dismiss, the facts pled by Edwards

in her complaint are assumed to be true. See Fowler v. UPMC

Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).

construction services. In March 2006, A.H. Cornell

hired Plaintiff Edwards to serve as its Director of

Human Resources and to establish a human resources

department. Defendant Cornell, an A.H. Cornell

executive, oversaw the terms and conditions of

Edwards’s employment, and Defendant Closterman,

who managed the company’s daily operations, acted as

Edwards’s supervisor. Edwards was employed by A.H.

Cornell for a total of nearly three years. As an

employee, Edwards participated in the company’s

group health insurance plan, which was governed by

ERISA.

Edwards claims that she discovered, during the last

weeks of her employment, that A.H. Cornell was

engaged in several ERISA violations: the company was

allegedly administering the group health plan on a

discriminatory basis, misrepresenting to some

employees the cost of group health coverage in an effort

to dissuade employees from opting into benefits, and

enrolling non-citizens in its ERISA plans by providing

false social security numbers and other fraudulent

information to insurance carriers. Edwards alleges

that she “objected to and/or complained to” A.H.

Cornell’s management about these ERISA violations

and was terminated on or around February 11, 2009, as

a result. (App. at 26, 9 33.) According to Edwards,

Closterman was. directly responsible for her

termination, and Cornell participated.

On March 18, 2009, Edwards filed a complaint in

the United States District Court for the Eastern

District of Pennsylvania against A.H. Cornell, Cornell,

and Closterman, asserting an anti-retaliation claim

under Section 510 of ERISA and common law wrongful

discharge. On May 18, 2009, the defendants filed a

motion to dismiss the complaint pursuant to Federal

Rule of Civil Procedure 12(b)(6), arguing that Edwards

had not engaged in a protected activity under Section

510.

The District Court granted the motion to dismiss

on July 23, 2009. After examining the circuit split on

this issue, the District Court determined that the

Second Circuit’s analysis in Nicolaou v. Horizon

Media, Inc., 402 F.3d 325 (2d Cir. 2005) (per curiam),

was persuasive and held that Edwards failed to state

a claim upon which relief could be granted because

her alleged objections and/or complaints’ to

management were not part of an “inquiry or

proceeding”:

“Plaintiff does not allege that anyone

requested information from her or initiated

contact with her in any way regarding the

alleged ERISA violations. Nor does she allege

that she was involved in any type of formal or

informal gathering of information. She states

merely that she objected to or complained

about certain conduct by Defendants.”

(App. at 13-14 (citations omitted).) Having dismissed

Edwards’s ERISA claim, the District Court declined

to exercise supplemental jurisdiction over Edwards’s

state law claim for wrongful discharge.

Edwards timely appealed, and the Secretary of

Labor filed a brief as amicus curiae in support of

Edwards’s position.

The District Court had jurisdiction under 28

U.S.C. § 1331, and we have jurisdiction pursuant to

28 U.S.C. § 1291. “We review de novo the District

Court’s dismissal of an action under Rule 12(b)(6).”

Nationwide Life Ins. Co. v. Commonwealth Land Title

Ins. Co., 579 F.3d 304, 307 (3d Cir. 2009) (emphasis

omitted). Pursuant to Ashcroft v. Iqbal, --- U.S. ----,

129 S. Ct. 1937, 173 L.Ed.2d 868 (2009), district

courts must conduct a two-part analysis when

presented with a motion to dismiss. Fowler v. UPMC

Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). “First,

the factual and legal elements of a claim should be

separated.” Id. “The District Court must accept all of

the complaint’s well-pleaded facts as true, but may

disregard any legal conclusions.” Jd. at 210-11.

“Second, a District Court must then determine

whether the facts alleged in the complaint are

sufficient to show that the plaintiff has a ‘plausible

claim for relief.” Jd. at 211 (quoting /gbal, 129 S. Ct.

at 1950).

III.

The sole issue on appeal is whether the District

Court erred in holding that unsolicited internal

complaints are not protected activities under the anti-

retaliation provision of Section 510 of ERISA, 29

U.S.C. § 1140.2 We will affirm.

Edwards also contends, citing a single district court

opinion, that she is protected under a separate clause of Section

510, which provides,

“It shall be unlawful for any person to discharge ... a

articipant or beneficiary for exercising anv right to

y ;

A. Background

“ERISA is a comprehensive statute designed to

promote the interests of employees and_ their

beneficiaries in employee benefit plans.” Shaw uv.

Delta Air Lines, Inc., 463 U.S. 85, 90, 103 S. Ct. 2890,

77 L.Ed.2d 490 (1983). “The statute imposes

participation, funding, and vesting requirements on

pension plans. It also sets various uniform

standards, including rules concerning reporting,

disclosure, and fiduciary responsibility, for both

pension and welfare plans.” Jd. at 91, 103 S. Ct.

2890. As part of this system, “Congress included

various safeguards to preclude abuse and ‘to

completely secure the rights and expectations brought

into being by this landmark reform legislation.”

Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 137,

111 S. Ct. 478, 112 L.Ed.2d 474 (1990) (quoting S.

Rep. No. 93-127, at 36 (1973), 1974 U.S.C.C.A.LN.

4838). One such safeguard is ERISA’s anti-

retaliation or “whistleblower” provision, which

provides as follows:

which he is entitled under the provisions of an employee

benefit plan, lor] this subchapter, ... or for the purpose of

interfering with the attainment of any right to which

such participant may become entitled under the plan,

lor] this subchapter[.]”

29 U.S.C. § 1140. (See also Edwards Br. at 15-16.) Since

Edwards failed to raise this argument in the District Court, it is

waived. See DIRECTV Ince. v. Seijas, 508 F.3d 123, 125 n. 1 (3d

Cir. 2007) (“It is well established that arguments not raised

before the District Court are waived on appeal.”).

“It shall be unlawful for any person to

discharge, fine, suspend, expel, or discriminate

against any person because he has given

information or has testified or is about to testify

in any inquiry or proceeding relating to this

chapter or the Welfare and Pension Plans

Disclosure Act.”

29 U.S.C. § 1140. Put simply, the purpose of the

provision is to “proscribe[ ] interference with rights

protected by ERISA.” Ingersoll-Rand Co., 498 U.S. at

137, 1118S. Ct. 478.

B. The Circuit Split

The federal Courts of Appeals are split on whether

Section 510 encompasses’ unsolicited internal

complaints. The Fifth and Ninth Circuits have held in

the affirmative, see Anderson v. Elec. Data Sys. Corp.,

11 F.3d 1311 (5th Cir. 1994), and Hashimoto v. Bank

of Hawai, 999 F.2d 408 (9th Cir. 1993), while the

Second and Fourth Circuits have held in the negative,

see Nicolaou, 402 F.3d 325, and King v. Marriott Int'l

Inc., 337 F.3d 421 (4th Cir. 2003).

The Ninth and Fifth Circuits were the first circuits

to consider the issue. In each case, the plaintiff

employee filed a complaint under state law alleging

wrongful discharge for complaining to supervisors

about alleged ERISA violations.* Hashimoto, 999 F.2d

at 409-10; Anderson, 11 F.3d at 1312-13. Finding that

Section 510 of ERISA already provided employees with

3 The employee in Anderson also claimed that he was

discharged for refusing to commit acts in violation of ERISA. 11

F.3d at 1312-13.

a remedy, the Ninth Circuit held that the employee’s

state law claim was completely preempted by ERISA

and remanded the case to allow the state claim to be

re-characterized as aé_ federal cause of action.

Hashimoto, 999 F.2d at 411-12. The court explained

that the failure of Section 510 to protect internal

complaints would, in practice, inhibit the effectiveness

of the anti-retaliation provision:

“The normal first step in giving information or

testifying in any way that might tempt an

employer to discharge one would be to present

the problem first to the responsible managers of

the ERISA plan. If one is then discharged for

raising the problem, the process of giving

information or testifying is interrupted at its

start: the anticipatory discharge discourages

the whistle blower before the whistle is blown.”

Id. at 411. Shortly thereafter, the Fifth Circuit arrived

at the same conclusion in Anderson, holding that a

state law claim for wrongful discharge was preempted

by ERISA in part “because the cause of action would

conflict with the enforcement provisions of §§ 502(a)

and 510 of ERISA.” 11 F.3d at 1314. The court

further explained, in broad terms, “[the employee's]

claim falls squarely within the ambit of ERISA §

510[,]” which “addresses discharges for exercising

ERISA rights or for the purpose of interfering with the

attainment of ERISA rights, as well as discharges for

providing information or testimony relating to

ERISA.” Jd. (quotations and citations omitted).

Faced with the same issue, the Fourth Circuit has

since drawn the opposite conclusion, holding that an

employee’s state law wrongful discharge claim is not

preempted by ERISA because Section 510 does not

protect unsolicited internal complaints. King, 337

F.3d at 427-28. Focusing on “the proper scope of the

phrase ‘inquiry or proceeding,” the court analogized

Section 510 to the anti-retaliation provision in the Fair

Labor Standards Act (FLSA)*:

“In the instant case, as well, the use of the

phrase ‘testified or is about to testify’ does

suggest that the phrase ‘inquirlies] or

proceeding[s]’ referenced in section 510 is

limited to the legal or administrative, or at

least to something more formal than written or

oral complaints made to a supervisor. The

phrase ‘given information’ does no more than

insure that even the _ provision of non-

testimonial information (such as incriminating

documents) in an inquiry or proceeding would

be covered. And, here as well [ ], the anti-

retaliation provision in section 510 is much

narrower than the equivalent [in Title VII.]°”

4 Section 15(a)(3) of the FLSA provides that it is unlawful

for any person

“to discharge or tn 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

committeel.]”

29 U.S.C. § 215(a)(3). In Ball v. Memphis Bar-B-Q'Co., Inc., 228

F.3d 360 (4th Cir. 2000), the Fourth Circuit held that Section

15(a)(3) does not protect internal complaints. /d. at 364. This is

the minority view. See note 8, infra.

5 Section 704(a) of Title VII provides,

10a

Id. at 427 (first and second alterations in original;

footnote 5 supplied). The Fourth Circuit found that the

Ninth and Fifth Circuit decisions in Hashimoto and

Anderson, respectively, were not persuasive. According

to the court, the Ninth Circuit in Hashimoto improperly

“reject[ed] the most compelling interpretation of the

statutory language for a ‘fair’ interpretation,” and the

Fifth Circuit in Anderson “merely recited section 510

without even addressing the facial inapplicability of

section 510 to intra-office complaints.” Id. at 428.

The sole federal Court of Appeals to address this

issue in the context that we are presented with here —

where an employee actually brings suit under Section

510 of ERISA itself — is the Second Circuit in Nicolaou.

402 F.3d at 327. Unlike the Fourth Circuit in King,

the Second Circuit found that Section 510 of ERISA is

“unambiguously broader in scope” than its counterpart

in the FLSA. Jd. at 328. Nevertheless, the court held

that unsolicited internal complaints are not protected

activities. First, the court explained that internal

complaints could not fall under the term “proceeding”

because “proceeding” “refers to the progression of a

lawsuit or other business before a court, agency, or

other official body[.]” Jd. at 329. Second, the court

held that, for an internal complaint to constitute an

“It shall be an unlawful employment practice for an

employer to discriminate against any of his employees ...

because he has opposed any practice made an unlawful

employment practice by this subchapter, or because he

has made a charge, testified, assisted, or participated in

any manner in an investigation, proceeding, or hearing

under this subchapter.”

42 U.S.C. § 2000e-3(a).

lla

“inquiry,” the employee would need to “demonstrate

that she was contacted to meet with [management] in

order to give information about the alleged [ERISA

violation.!” Jd. In other words, the employee’s

complaint would need to have been solicited.®

C. The Plain Meaning of Section 510

We begin our analysis of ERISA’s anti-retaliation

‘provision “with an examination of ERISA’s statutory

language because ‘absent a clearly expressed

legislative intention to the contrary, that language

must ordinarily be regarded as conclusive.” Wolk uv.

Unum Life Ins. of Am., 186 F.3d 352, 355 (3d Cir.

1999) (quoting Kaiser Aluminum & Chem. Corp. v.

Bonjorno, 494 U.S. 827, 835, 110 S. Ct. 1570, 108

L.Ed.2d 842 (1990)) (other quotations and citations

omitted). Therefore, “the first step is to determine

whether [Section 510] has a plain and unambiguous

meaning.” Dobrek v. Phelan, 419 F.3d 259, 263 (3d

Cir. 2005). Words or provisions are ambiguous when

“they are reasonably susceptible of different

interpretations.” Jd. at 264 (quoting Natl R.R.

Passenger Corp. v. Atchison Topeka & Santa Fe Ry.

Co., 470 U.S. 451, 473 n. 27, 105 S. Ct. 1441, 84

L.Ed.2d 432 (1985)). If there is an ambiguity, we look

to “the surrounding words and provisions and also to

the words in context.” 7d.

To reiterate, Section 510 of ERISA provides as

follows:

6 Although its analysis was more nuanced with regard to

the term “inquiry,” the Nicolaou court did not view its holding to

be in conflict with the Fourth Circuit’s decision in King. See

Nicolaou, 402 F.3d at 330.

12a

“It shall be unlawful for any person to

discharge, fine, suspend, expel, or discriminate

against any person because he has given

information or has testified or is about to

testify in any inquiry or proceeding relating to

this chapter or the Welfare and Pension Plans

Disclosure Act.”

29 U.S.C. § 1140. Since Edwards has undoubtedly

“given information” by objecting and/or complaining

to management, at issue in this appeal is whether or

not Edwards did so in any “inquiry or proceeding.”

The Secretary of Labor argues, in its brief as amicus

curiae, that “[blroadly but naturaily construed, ‘any

inquiry or proceeding’ encompasses plan participants’

complaints to management or plan officials about

wrongdoing, and the _ process by which _ that

information is considered, however informal.”

(Secretary Br. at 16.) We disagree.

An “inquiry” is generally defined as “[a] request

for information.” Black’s Law Dictionary 864 (9th

ed.2009). Here, Edwards does not allege that anyone

approached her requesting information regarding a

potential ERISA violation. Rather, she made her

complaint voluntarily, of her own accord. Under

these circumstances, the information that Edwards

relayed to management was not part of an inquiry

under the term’s plain meaning.

On appeal, Edwards argues that her objections

and/or complaints were themselves the inquiry. We

disagree. Edwards’s complaints were statements

regarding potential ERISA violations, not questions

seeking information. Furthermore, because § 1140

protects employees that have “given information,” not

l3a

employees that have “received information,” a plain

reading of the provision indicates that “inquiry”

includes only inquiries made of an employee, not

inquiries made by an employee. The fact that

Edwards’s complaints may have eventually

“culminatled]” in an inquiry, (see Secretary Br. at 17),

underscores the fact that the complaints themselves,

without more, do not constitute an inquiry.

Neither is Edwards’s conduct encompassed by the

term “proceeding.” A “proceeding” is commonly

defined as “[t]he regular and orderly progression of a

lawsuit” or the “procedural means for seeking redress

from a tribunal or agency.” Black’s Law Dictionary

1324 (9th ed. 2009). Here, there is no suggestion that

any such formal action has occurred.’

In so holding, we follow the Fourth Circuit’s

opinion in King. As the King court noted, even

beyond the plain meaning of “inquiry” and

“proceeding,” the phrase “testified or is about to

testify” implies that the phrase “inquiry or

proceeding” is limited to more formal actions. See

King, 337 F.3d at 427. Not all anti-retaliation

statutes are so limited. In drafting § 1140, Congress

could have used broad language similar to that

present in the anti-retaliation provision in Section

704(a) of Title VII, which extends broad protection to

employees that have “opposed any practice made an

unlawful employment practice by [Title VII.]” 42

’ As it is not necessary for the disposition of this case, we

decline to elaborate on the level of formality required for

protection under Section 510. At the very least, the provision

would protect information given in legal and administrative

proceedings.

l4a

U.S.C. § 2000e-3(a). Congress declined to do so, and,

like the court in King, we find this choice to be

persuasive. See King, 337 F.3d at 427. Finally, we

agree with the Fourth Circuit that the Ninth and

Fifth Circuit opinions in Hashimoto and Anderson,

respectively, sre not compelling. Neither court

examined the statutory language of Section 510 in

detail: the Fifth Circuit gave the issue cursory

treatment, see Anderson, 11 F.3d at 1314, and the

Ninth Circuit appeared to focus its analysis on the

adoption of a “fair” interpretation, see Hashimoto, 999

F.2d at 411. See also King, 337 F.3d at 428.

Edwards and the Secretary argue that we should

give Section 510 a broader reading because ERISA is

a remedial statute. This connection is lacking.

Although ERISA “should be liberally construed in

favor of protecting the participants in employee

benefit plans,” see IUE AFL-CIO Pension Fund uv.

Barker & Williamson, Inc., 788 F.2d 118, 127 (3d Cir.

1986), this does not entitle us to ignore clear

statutory language. See Wolk, 186 F.3d at 355

(“[A]bsent a clearly expressed legislative intention to

the contrary, [ERISA’s statutory] language must

ordinarily be regarded as conclusive.” (quotations and

citations omitted)). If Section 510 were ambiguous,

we would construe the provision in favor of plan

participants. However, as discussed above, we find

the provision’s plain meaning to be clear.

Likewise, Edwards and the Secretary argue that

Section 510 deserves a broader reading because the

failure to protect unsolicited internal complaints

would undermine the provision’s purpose, as “it would

permit an employer to terminate an employee upon

15a

the employee first notifying the employer of the

ERISA violation[.]” (Edwards Br. at 14.) This

contention must also fail. Presented as we are with

clear statuary language, we do not need to speculate

as to Congress’s intent. It suffices to note that, had

Congress been concerned with such a_ scenario,

Congress could have used broad language mirroring

the anti-retaliation provision of Title VII. Congress

chose not to do so.

D. Analogous Third Circuit Precedent

Contrary to the assertions of Edwards and the

Secretary, the conclusion that Section 510 of ERISA

does not protect unsolicited internal complaints does

not conflict with our prior case law regarding anti-

retaliation statutes. Edwards and the Secretary cite

two opinions to that effect: Brock v. Richardson, 812

F.2d 121 (3d Cir. 1987), which addresses the scope of

Section 15(a)(3) of the FLSA, and Passaic Valley

Sewerage Commissioners v. United States Department

of Labor, 992 F.2d 474 (3d Cir. 1993), which

addresses the scope of Section 507(a) of the Clean

Water Act (CWA). Neither case is controlling here.

Brock is distinguishable because it concerned a

different issue in the context of a different statute.

We examined in Brock whether “an employer’s

[mistaken] belief that an employee has engaged in

protected activity is sufficient to trigger application”

of the anti-retaliation provision of the FLSA, and held

in the affirmative. 812 F.2d at 123. We did not

address whether Section 15(a)(3) of the FLSA protects

internal complaints. There is a circuit split on this

16a

issue, which we have not yet joined.®

Even if we had held in Brock that internal

complaints are protected under the FLSA, that

conclusion would not be dispositive here. Section

15(a)(3) of the FLSA and Section 510 of ERISA are

not identical. Section 15(a)(3) of the FLSA extends

broadly to persons that have “filed any complaint,”

without explicitly stating the level of formality

required. 29 U.S.C. § 215(a)(3). Section 510 of

ERISA, in contrast, extends only to persons that have

“siven information or [ ] testified” in an “inquiry or

proceeding.” 29 U.S.C. § 1140. The word “complaint”

is not even used. Therefore, the conclusion that

internal complaints are protected under the FLSA

does not require a parallel conclusion under ERISA’s

distinct statutory language.

8 The First, Fifth, Sixth, Eighth, Ninth, Tenth, and

Eleventh Circuits have held that internal complaints are

protected under the FLSA. See Hagan v. Echostar Satellite,

L.L.C., 529 F.3d 6*7, 626 (5th Cir. 2008); Lambert v. Ackerley,

180 F.3d 997, 1004 (9th Cir. 1999) (en banc); Valerio v. Putnam

Assocs. Inc., 173 F.3d 35, 41 (1st Cir. 1999); E.E.0.C. v. Romeo

Cmty. Sch., 976 F.2d 985, 989 (6th Cir. 1992); E.#.0.C. v. White &

Son Enters., 881 F.2d 1006, 1011 (llth Cir. 1989); Love uv.

RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir. 1984);

Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir.

1975). The Second and Fourth Circuits have held to the contrary.

See Ball, 228 F.3d at 364; Lambert v. Genesee Hosp., 10 F.3d 46,

55 (2d Cir. 1993). Finally, the Seventh Circuit has taken a

middle approach. See Kasten v. Saint-Gobain Performance

Plastics Corp., 570 F.3d 834, 838, 840 (7th Cir. 2009) (holding

that written, but not oral, internal complaints are protected based

on the inclusion of the verb “filed”), cert. granted, --- U.S. ----, 130

S. Ct. 1890, 176 L.Ed.2d 361 (2010). We have cited the majority

approach with approval in dicta. See Brock, 812 F.2d at 124.

l7a

Passaic Valley provides a closer comparison. In

Passaic Valley, we examined, as here, whether

intracorporate complaints are protected under Section

507(a) of the CWA. 992 F.2d at 477. Section 507(a)

provides as follows:

“No person shall fire, or in any other way

discriminate against, or cause to be fired or

discriminated against, any employee or any

authorized representative of employees by

reason of the fact that such employee or

representative has filed, instituted, or caused

to be filed or instituted any proceeding under

this chapter, or has testified or is about to

testify in any proceeding resulting from the

administration or enforcement of _ the

provisions of this chapter.”

33 U.S.C. § 1367(a). We held in Passaic Valley that

the term “proceeding” within Section 507(a) is

ambiguous: “The term may reasonably be invoked to

encompass a range of complaint activity of varying

degrees of formal legal status.” 992 F.2d at 478.

Accordingly, we gave Chevron deference to the

Secretary of Labor’s Final Decision and Order and

held that intracorporate allegations are protected

under the CWA. 7d. at 478-80.

Although it might appear so at first glance,

Passaic Valley is not dispositive here for a couple of

reasons, not the least of which is that Passaic Valley

addresses Section 507(a) of the CWA, not Section 510

of ERISA. First, to preclude an expansive use of our

holding, we did not state in Passaic Valley that the

term “proceeding” is necessarily ambiguous in all

anti-retaliation provisions. Rather, we _ expressly

18a

stated that the term “proceeding” is ambiguous

“within § 507(a) of the Clean Water Act[.|” Jd. at 478

(emphasis added). In so holding, we avoided the rote

application of Passaic Valley in other contexts, such

as that of Section 510 of ERISA.

Second, we gave Chevron deference in Passaic

Valley to the Secretary of Labor’s “reasonably

permissive construction” that “all good faith

intracorporate allegations are fully protected from

retaliation under § 507(a)[.)” Jd. at 480. Contrary to

the Secretary’s suggestion here, we do not likewise

owe Chevron deference to the Secretary’s allegedly

consistent reading of Section 510. Although the

Department of Labor is the federal agency in charge

of overseeing ERISA, see Mack Boring & Parts uv.

Meeker Sharkey Moffitt, Actuarial Consultants, 930

F.2d 267, 276 (3d Cir. 1991), we do not apply Chevron

deference to “agency litigat{ion] positions that are

wholly unsupported by regulations, ruling, or

administrative practice,” Bowen v. Georgetown Univ.

Hosp., 488 U.S. 204, 212, 109 S. Ct. 468, 102 L.Ed.2d

493 (1988). In Passaic Valley, we relied on the

Secretary’s Final Decision and Order. 992 F.2d at

477. Here, in contrast, the Secretary has not pointed

to any regulations, rulings, or other material in

support of its position.

Therefore, rather than base our holding on our

prior case law regarding Section 507(a) of the CWA,

we will ground our decision in the plain meaning of

Section 510 of ERISA itself.

IV.

In summary, we agree with the Fourth Circuit’s

19a

decision in King that unsolicited internal complaints

are not protected under Section 510 of ERISA, 29

U.S.C. § 1140, based on a plain reading of that

provision’s terms. We will accordingly affirm the

order of the District Court.’

COWEN, Circuit Judge, dissenting.

Unlike the Court, I conclude that ERISA’s anti-

retaliation provision does indeed protect “an employee's

unsolicited internal complaints to management.”

Accordingly, I must respectfully dissent.

The majority is obviously correct that the statutory

interpretation process must begin with the actual

language of Section 510. Specifically, the statutory

language at issue is generally regarded as conclusive, at

least in the absence of a clearly expressed legislative

intention to the contrary. See, e.g., Wolk v. UNUM Life

Ins. of Am., 186 F.3d 352, 355 (3d Cir. 1999). I further

agree with the majority that “the first step is to

determine whether [Section 510] has a plain and

unambiguous meaning.” Dobrek v. Phelan, 419 F.3d

259, 263 (3d Cir. 2005) (citing Barnhart v. Sigmon Coal

Co., 534 U.S. 438, 450, 122 S. Ct. 941, 151 L.Ed.2d 908

(2002)). I, however, believe that the statutory language

used in this anti-retaliation provision is ambiguous. In

i) In light of our disposition, we decline to address A.H.

Cornell’s additional arguments that Edwards cannot maintain a

claim against Cornell and Closterman because they “merely

served as the company’s agents,” (A.H. Cornell Br. at 7), and that,

regardless of the outcome of this appeal, the allegations in

Edwards’s complaint fail to satisfy the pleading requirements

articulated by the Supreme Court in Bell Atlantic Corp. uv.

Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L.Ed.2d 929 (2007).

20a

fact, as explained below, I find it highly doubtful that

Congress could have ever intended for its anti-

retaliation provision to apply in the manner suggested

by the majority, in particular because the majority’s

interpretation leaves totally unprotected a certain

category of conduct (as well as the employees who may

engage in such conduct) that this remedial statutory

provision was enacted to protect in the first place. See,

e.g., Disabled in Action of Pa. v. Southeastern Pa.

Transp. Auth., 539 F.3d 199, 210 (3d Cir. 2008) (stating

that we “avoid constructions that produce ‘odd’ or

‘absurd results’ or that are ‘inconsistent with common

sense” (quoting Public Citizen v. U.S. Dep’t of Justice,

491 U.S. 440, 454, 109 S. Ct. 2558, 105 L.Ed.2d 377

(1989); 2A N. Singer, Sutherland Statutes and

Statutory Construction § 45:12, at 92 (6th ed. 2000))).

Initially, the majority does acknowledge at least

some of the broad considerations underlying ERISA

and its anti-retaliation provision, but it generally fails

to give these various considerations the weight they

deserve. Accordingly, the majority recognizes that

ERISA, as a remedial statute, “should be liberally

construed in favor of protecting the participants in

employee benefit plans.” JUE AFL-CIO Pension Fund

uv. Barker & Williamson, Inc., 788 F.2d 118, 127 (3d Cir.

1986) (citations omitted). It likewise states that: (1)

ERISA is a comprehensive statute designed to promote

the interests of employees and their beneficiaries, see,

e.g., Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90, 103

S. Ct. 2890, 77 L.Ed.2d 490 (1983); (2) the statute

imposes different standards and requirements with

respect to the operation of the plans themselves; id. at

91, 103 S. Ct. 2890; (3) Congress similarly included

various safeguards in order to deter abuse and “to

2la

completely secure the rights and expectations brought

into being by this landmark reform legislation,”

Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 137,

111 S. Ct. 478, 112 L.Ed.2d 474 (1990) (quoting S.Rep.

No. 93-127, at 36 (1973)); and (4) Section 510, designed

to eliminate interference with the rights protected by

ERISA, represents one of these critical statutory

safeguards, id. I further note that “Congress viewed

this section as a crucial part of ERISA because, without

it, employers would be able to circumvent the provision

of promised benefits.” Jd. at 143, 111 S. Ct. 478 (citing

S. Rep. No. 93-127, at 35-36; H.R. Rep. No. 93-533, at

17 (1973)). In other words, this anti-retaliation

provision plays a very important and even essential role

in the proper implementation of the whole ERISA

scheme because it actually “helps to make (ERISA’s]

promises credible.” Inter-Modal Rail Employees Ass’n

v. Atchison, Topeka & Santa Fe Ry. Co., 520 U.S. 510,

515, 117 S. Ct. 1513, 137 L.Ed.2d 763 (1997) (quoting

Heath v. Varity Corp., 71 F.3d 256, 258 (7th Cir. 1995)).

Far from liberally construing this remedial

legislation in favor of the very persons it was designed

to protect, the majority adopts an_ ultimately

unsustainable interpretation. At least at times, it

appears to follow the very narrow approach adopted by

the Fourth Circuit in King v. Marriott International,

Inc., 337 F.3d 421 (4th Cir. 2003), as opposed to the

more moderate position taken by the Second Circuit in

Nicolaou v. Horizon Media, Inc., 402 F.3d 325 (2d Cir.

2005) (per curiam). However, even the Second Circuit

disagreed with the Fourth Circuit’s belief “that

Congress’s use of the phrase ‘testify or about to testify’

dictates” the conclusion “that Section 510 protects those

who engage in ‘something more formal than written or

22a

oral complaints made to a supervisor.” J/d. at 330 n. 3

(quoting King, 337 F.3d at 427). The Nicolaou court

quite properly read this “reference to. testimony”

language as “wholly irrelevant to our understanding of

the language ‘given information .. . in any inquiry or

proceeding.” Id.

More broadly, I acknowledge that the Fifth Circuit

did not examine this issue in any real detail in its

ruling in Anderson v. Electronic Data Systems Corp., 11

F.3d 1311 (5th Cir. 1994). On the other hand, the

majority itself quotes the Ninth Circuit’s reasonable

and ultimately persuasive explanation for why _ it

concluded in Hashimoto v. Bank of Hawaii, 999 F.2d

408 (9th Cir. 1993), that Section 510 does, in fact,

encompass internal workplace complaints. It bears

repeating here:

.... The normal first step in giving information

or testifying in any way that might tempt an

employer to discharge one would be to present

the problem first to the responsible managers of

the ERISA plan. If one is then discharged for

raising the problem, the process of giving

information or testifying is interrupted at its

start: the anticipatory discharge discourages the

whistle blower before the whistle is blown.

Id. at 411. Like the Ninth Circuit, I find it difficult to

believe that Congress could have ever intended to

exclude from the protection of its remedial anti-

retaliation provision employees who are terminated

because they bring an ERISA-related problem to the

attention of their superiors.

Likewise, the majority’s narrow interpretation of the

specific term “inquiry” appears questionable at best. In

23a

addition to leaving the crucial “first step” unprotected,

the Second Circuit’s whole “inquiry” standard could be

difficult to apply and even unworkable in certain

circumstances. Certain: conduct may clearly constitute

an “inquiry,” such as the plaintiffs alleged activities in

Nicolaou itself, which included contacting her employer's

outside attorney regarding an alleged underfunding

problem and then, after the lawyer conducted an inquiry

of his own and evidently at the request of the lawyer,

meeting with both him and the president of the

company. Nicolaou, 402 F.3d at 326-27, 329-30. On the

other hand, an internal workplace complaint would quite

naturally constitute a preliminary step before a formal

or informal inquiry is launched (and such a complaint

may even have been necessary to trigger the

investigation in the first place). However, where does

one draw the line between such an initial step, which the

Second Circuit and majority have held is not protected

by the statutory provision, and otherwise “protected”

statements purportedly made as part of some sort of

inquiry? For instance, suppose an employee like

Edwards complains to her superior, the superior asks

some follow-up questions, and the employee responds to

these questions. Are the informal responses to some

impromptu. questions to be regarded as_ protected

because they evidently were made as part of an

“inquiry?” In turn, why should such responses be

protected while, at the same time, an employer is

essentially permitted (and perhaps, in_ essence,

enceuraged) to fire an employee immediately after she

makes an informal complaint instead of conducting an

investigation of some sort?

In addition, the majority goes on to hold that

Section 510 only protects employees who give

24a

information as part of the inquiry, as opposed to those

individuals who actually conduct the inquiry and

thereby “received information.” Admittedly, the Second

Circuit in Nicolaou did deal with a plaintiff who had,

inter alia, been invited to attend a meeting with both

the president and outside counsel and stated her

opinion that a 401(k) plan was underfunded. /d.

Nevertheless, the majority’s approach appears to be

highly questionable at best insofar as it leaves an entire

class of employees, who, given their responsibility to

conduct potentially sensitive and damaging

investigations into possible ERISA violations and

related matters, would need protection from retaliation

even more than employees who merely answers some

questions.

Even though these various considerations clearly

weigh in favor of the more expansive interpretation

offered by the Fifth and Ninth Circuits, Edwards, and

the Secretary, I might still be inclined to agree with the

majority’s ultimate result here based on the language

actually used in the statutory provision. Nevertheless,

analogous Third Circuit decisions clearly indicate that

the language in Section 510 is ambiguous and that this

Court should, in turn, interpret such language as

encompassing internal workplace complaints.

As a general matter, I recognize that the case law

addressed different statutes using different statutory

language, and these decisions accordingly do _ not

represent technically binding precedents at _ this

juncture. The fact that Congress has chosen to use

different terms in different anti-retaliation provisions

should also not be overlooked. Accordingly, I do not

suggest that Section 510 should be interpreted as

25a

broadly as its Title VII counterpart, which, among other

things, expressly covers employees who have “opposed

any practice made an unlawful employment practice by

(Title VII.]” 42 U.S.C. § 2000e-3(a). Nevertheless, this

Court obviously should strive to treat relatively similar

statutory provisions, contained in similar remedial

federal statutes, in a clear and consistent fashion. In

any case, as highlighted below, at least some of the

terms used in Section 510 are actually more expansive

than the equivalent terms contained in other anti-

retaliation provisions.

I start with a case that actually held that the term

“proceeding” is ambiguous and gave Chevron deference

to the Secretary's formal determination — that

intracorporate complaints are, in fact, protected

activities: Passaic Valley Sewerage Commissioners uv.

United States Department of Labor, 992 F.2d 474 (3d

Cir. 1993).

The Passaic Valley Court held that the statutory

term “proceeding,” which is contained in both the CWA

provision and its ERISA counterpart, is “ambiguous”

because it “may reasonably be invoked to encompass a

range of complaint activity of varying degrees of formal

legal status.” Jd. at 478. It then added “that the

[CWA’s] purpose and legislative history allow, and even

necessitate, extension of the term ‘proceeding’ to

intracorporate complaints.” Jd. In other words, the

protection provided by the section “would be largely

hollow if it were restricted to the point of filing a formal

complaint with the appropriate’ external law

enforcement agency.” Jd. “Employees should not be

discouraged from the normal route of pursuing internal

remedies before going public with their good faith

26a

allegations.” Id. Instead, they should be encouraged to

notify management of their observations before any

formal investigations and litigation are _ initiated,

thereby providing management with the opportunity to

correct, justify, or clanfy policies or otherwise facilitate

prompt remediation and compliance. Jd. at 478-79.

Furthermore, an employee’s non-frivolous complaint

should not have to be guaranteed to withstand the

scrutiny of review before meriting legal protection “for

the obvious reason that such a standard would chill

employee initiatives in bringing to lght perceived

discrepancies in the workings of their agencies.” Jd. at

479. In addition, the Court in Passaic Valley observed

that “the whistle-blower provision of the Clean Water

Act mirrors that of several other federal environmental,

safety and energy statutes,” which have also been

broadly construed in the case law. Id. (footnote omitted)

Therefore, “[a]lthough the present case is the first to

present us with this issue in the context of the Clean

Water Act, the weight of other circuits’ precedent

reviewing analogous. statutes concurs with the

Secretary’s own broad inclusion of intracorporate

complaints within the protective scope of the statute.”

Id. at 480.

This reasoning clearly supports interpreting Section

510, which is generally analogous to the anti-retaliation

section of the CWA, as encompassing internal

workplace complaints. In turn, I have no choice but to

reject the majority’s efforts to minimize and distinguish

this prior ruling.'®

10 | do, however, agree with the majority’s finding that we

do not owe Chevron deference to the Secretary’s reading of

Section 510.

27a

In particular, its assertion that the Passaic Valley

Court attempted to avoid any “rote application” of its

holding overlooks the crucial fact that the Court itself

turned to other anti-retaliation provisions in _ its

analysis of the CWA section. For instance, it noted that

the anti-retaliation provision in the FLSA is among the

statutory provisions that have been expansively

construed “to lend broad protective coverage to internal

complainants.” Jd. at 479. In any case, I do not believe

that following the example set in Passaic Valley by

carefully taking into account a prior Third Circuit

opinion represents any kind of “rote” exercise. .

Furthermore, the CWA _ provision’ expressly

prohibits discrimination against any employee who has

“filed, instituted, or caused to be filed or instituted any

proceeding under this chapter, or has testified or is

about to testify in any proceeding resulting from the

administration or enforcement of the provisions of this

chapter.” 33 U.S.C. § 1367(a). At least on the surface,

this “filed” and “instituted” language evidently

contemplates something more formal than, inter alia,

an unsolicited internal complaint to one’s superiors.

Therefore, I find that Section 510, with its “given

information” and “inquiry” language, appears to be

even broader than its environmental counterpart,

addressed (and broadly construed) in Passaic Valley.

In addition, the Court’s ruling in Brock ov.

Richardson, 812 F.2d 121 (3d Cir. 1987), provides yet

further support for concluding that Section 510 protects

unsolicited internal complaints.

Initially, the majority is correct that Brock

addressed the question of whether the anti-retaliation

provision of the FLSA is triggered by an employer's

28a

ultimately mistaken belief that an employee has

engaged in otherwise protected activity under the

statute. Jd. at 122-25. In answering this question in

the affirmative, the Court in Brock quite appropriately

turned to the same kind of broad policy considerations

discussed in Passaic Valley. Id. at 123-25. For instance,

it noted that Congress, instead of seeking to secure

compliance through detailed and ongoing governmental

supervision of employer payrolls, put in place a system

relying on information and complaints from _ the

employees itself. Jd. at 124. “Thus, the [Supreme]

Court has made clear that the key to interpreting the

anti-retaliation provision is the need to prevent

employees’ ‘fear of economic retaliation’ for voicing

grievances about substandard conditions.” Jd. (quoting

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

292, 80S. Ct. 332, 4 L.Ed.2d 323 (1960)). Significantly,

the Brock Court even indicated a willingness to go

beyond the bare language of the statutory provision

itself, stating that “courts interpreting the anti-

retaliation provision have looked to its animating spirit

in applying it to activities that might not have been

explicitly covered by the language.” Jd. As an example,

it turned to the Tenth Circuit’s ruling in Love uv.

RE/MAX of America, Inc., 738 F.2d 383 (10th Cir.

1984), which applied the anti-retaliation provision “to

protect employees who have protested Fair Labor

Standards Act violations to their employers.”"' Brock,

812 F.2d at 125 (citing Love, 738 F.2d at 387).

The majority points out that the anti-retaliation

11 «It is significant that the Passaic Valley Court also relied

on Love in its analysis of the CWA’s anti-retaliation provision.

Passaic Valley, 992 F.2d at 479.

29a

provision in the FLSA differs from the ERISA

counterpart. I agree, but the differences here actually

weigh against the interpretation offered by the

majority. Just like the anti-retaliation provision in the

CWA, the FLSA provides that it is unlawful to

discharge or discriminate against an employee because

he or she “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). As

previously noted with respect to Passaic Valley, this

language arguably contemplates some sort of formal

filing. See, e.g., Ball v. Memphis Bar-B-Q Co., 228 F.3d

360, 364 (4th Cir. 2000) (finding that FLSA does not

protect intra-company complaints because, among other

things, the term “proceeding” was “modified by

attributes of administrative or court proceedings,” the

term “instituted” indicates “a formality that does not

attend an employee’s oral complaint to his supervisor,”

and “testimony” consists of “statements given under

oath or affirmation” (citations omitted)). On the other

hand, Section 510 refers to an “inquiry,” as opposed to

merely a “proceeding,” as well as “giv[ing] information,”

in contrast to mere “testimony.” As even the majority

recognizes, the Second Circuit accordingly observed

that “the plain language of ERISA Section 510” is

“unambiguously broader in scope than Section 15(a)(3)

of FLSA.” Nicolaou, 402 F.3d at 328.

In the end, I am unable to agree with the majority’s

ruling here in light of the statutory language at issue,

the expansive purposes and principles underpinning

ERISA and its anti-retaliation provision, and (especially)

30a

prior decisions” by this very Court broadly interpreting

similar anti-retaliation statutes in other federal statutes.

I accordingly would reverse the ruling of the District

Court and remand (for _ further proceedings.

12 In addition to the rulings in Passaic Valley and Brock, I

further note that this Court adopted a somewhat similar

approach to the False Claims Act’s anti-retaliation provision in

Hutchins v. Wilentz, Goldman & Spitzer, 253 F.3d 176 (3d Cir.

2001). The Hutchins Court noted, inter alia, that protected

activities “can include internal reporting and investigation of an

employer’s false or fraudulent claims.” Jd. at 187 (citing United

States ex rel. Yesudian v. Howard Univ., 153 F.3d 731, 742 (D.C.

Cir. 1998)).

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APPENDIX B

UNITED STATES DISTRICT COURT,

E.D. PENNSYLVANIA

Shirley EDWARDS, Plaintiff

A.H. CORNELL AND SON, INC., et al., Defendants.

No. 09-cv-1184. July 23, 2009.

MEMORANDUM AND ORDER

JOYNER, District Judge.

Presently before the Court are Defendants’ Motion

to Dismiss Plaintiffs Amended Complaint and

Plaintiffs Response thereto. For the reasons set forth

below, Defendants’ Motion to Dismiss is granted.

I. BACKGROUND

Plaintiff Shirley Edwards is a former employee of

Defendant A.H. Cornell and Son, Inc.' Defendant A.H.

Cornell and Son, Inc. (“A.H. Cornell”) is a

Pennsylvania corporation that performs contracting

; The facts are presented in the light most favorable to

the Plaintiffs. Phillips v. County of Allegheny, 515 F.3d 224, 233

(3d Cir. 2008).

32a

and construction services. Defendant Melissa J.

Closterman (“Closterman”) manages or oversees daily

operations at A.H. Cornell, including oversight of

Plaintiff while she was employed by A.H. Cornell.

Plaintiff alleges that Closterman was “directly

responsible for terminating Plaintiff.” Defendant Scott

A. Cornell (“Cornell”) is an executive of A.H. Cornell

and was responsible for overseeing the terms and

conditions of Plaintiffs employment. Plaintiff alleges

that Cornell “participated in the termination of

Plaintiffs employment.”

According to Plaintiffs Amended Complaint,’ in or

around February, 2006, Defendants hired Plaintiff to

establish a human resources department at A.H.

Cornell. Plaintiff asserts that while she was employed

by Defendants, she learned that Closterman was

“engaging in unlawful acts.” Plaintiff further asserts

that Closterman requested that Plaintiff engage in

these allegedly unlawful acts.

Specifically, Plaintiff asserts that an employee of

A.H. Cornell, who sustained a work-related injury

continued to collect worker’s compensation insurance

for being out of work after the employee had returned

to work. Plaintiff claims this employee used a false

social security number and information to obtain

worker’ss compensation in the first place. Plaintiff

alleges that Closterman directed Plaintiff to make

false statements to Defendants’ worker’s compensation

carrier regarding the injured employee. Plaintiff also

alleges that in the last several weeks of her

employment, Closterman directed Plaintiff to provide

false information to a disability insurance carrier.

Plaintiff filed an Amended Complaint on June 2, 2009.

33a

Plaintiff further asserts that Defendants had a

group health insurance plan, governed by ERISA, that

“was being administered illegally within Defendant

and on a discriminatory basis.” Specifically, Plaintiff

alleges that Closterman lied to “many employees”

about what their contributions would be in order to

dissuade employees from opting into the benefits and

also did not offer certain employees health benefits at

all. Plaintiff avers that Defendants, through

Closterman, withheld and concealed required group

plan information from employees and “unlawfully

enroll[ed) non-citizens in the ERISA-qualifying life,

disability and/or group health plan.”

Plaintiff alleges that she “objected to participating

in a scheme to commit criminal fraud as _ to

Defendants’ disabilty insurance carrier, worker's

compensation insurance carrier, and health insurance

carrier.” She further states that she “was directed to

commit and/or to participate” in the fraud in close

proximity to her termination, which was on February

11, 2009.

Plaintiffs Complaint asserts two Counts: (1)

Violations of ERISA-Section 510, 29 U.S.C. § 1140

(Retaliation) and (2) Common-Law Wrongful

Discharge. Plaintiff bases her section 510 claim on the

allegation that Defendants terminated her for

“objectling] to and/or complainling] to Defendants’

management or owners” about Defendants’ alleged

ERISA violations. She asserts that her actions were

protected activity under ERISA and thus_ her

termination violated the retaliation provision in

ERISA, section 510. Defendants have filed a Motion to

Dismiss Plaintiffs Amended Complaint.

34a

Il. STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure

12(b)(6), in response to a pleading, a Defendant may file

a motion asserting that the Plaintiffs complaint “[fails]

to state a claim upon which relief can be granted.” In

analyzing a Rule 12(b)(6) motion to dismiss, we “accept

all factual allegations as true, construe the complaint in

the light most favorable to the plaintiff, and determine

whether, under any reasonable reading of the

complaint, the plaintiff may be entitled to relief.”

Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d

Cir. 2008) (citations omitted). “To survive a motion to

dismiss, a civil plaintiff must allege facts that ‘raise a

right to relief above the speculative level... .” Jd. at

232 (quoting Bell Atl. Corp. v. Twombley, 550 U.S. 544,

127 S. Ct. 1955, 1965, 167 L.Ed.2d 929 (2007)). In other

words, the plaintiff must provide “enough facts to raise

a reasonable expectation that discovery will reveal

evidence of the necessary element{s]” of a particular

cause of action. Id. at 234. This “requires more than

labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Twombley,

127 S. Ct. at 1964-65. In ruling on a Rule 12(b)(6)

motion to dismiss, the court may consider documents

“integral to or explicitly relied upon in the complaint.”

In re Rockefeller Sec. Lit., 184 F.3d 280, 287 (3d Cir.

1999).

III. DISCUSSION

A. ERISA-Section 510, 29 U.S.C. § 1140

ERISA, section 510, codified at 29 U.S.C. § 1140,

provides in relevant part:

35a

It shall be unlawful for any person to discharge

. . or discriminate against any person because

he has given information or has testified or is

about to testify in any inquiry or proceeding

relating to [ERISA] or the Welfare and Pension

Plans Disclosure Act ....

29 U.S.C. § 1140 (2006 & Supp. 2008). Section 510 has

been referred to as ERISA’s “anti-retaliation”

provision, or “whistleblower” provision because it

prohibits retaliation against a person who has

participated in certain protected activity under section

510. See, e.g., Hashimoto v. Bank of Hawaii, 999 F.2d

408, 327 (9th Cir. 1993); King v. Marriott

International, 337 F.3d 421, 427 (4th Cir. 2003).

Specifically, section 510 makes it unlawful to retaliate

against a person for giving information, testifying, or

being about to testify in an “inquiry or proceeding”

relating to ERISA or certain other statutory

provisions. 29 U.S.C. § 1140.

Defendants’ Motion to Dismiss asserts, inter alia,

that Plaintiff has failed to allege conduct that is

protected under the anti-retaliation provisions of

ERISA, section 510. The Third Circuit has not yet

addressed the scope of ERISA’s anti-retaliation

provision and, more specicially [sic], whether internal

workplace complaints are protected activity under

section 510. Only four circuits-the Ninth, the Fifth,

the Fourth, and the Second-have considered this issue,

all with outcomes resolutions.

The Ninth Circuit was the first to consider the

scope of ERISA’s anti-retaliation provision § in

Hashimoto v. Bank of Hawaii, 999 F.2d 408 (9th Cir.

1993). There, the Court found that the statute was

36a

“clearly meant to protect whistle blowers.” Hashimoto,

999 F.2d at 411. Thus, the Court reasoned, the

language “has given information or has testified in any

inquiry or proceeding relating to [ERISA]” could be

“fairly construed” to include “[t]he normal first step” of

“[present[ing] the problem to the responsible managers

of the ERISA plan.” Jd. Because discharging a person

for raising the problem in the first place would

“discourage[ ] the whistle blower before the whistle is

blown,” the Ninth Circuit held that meking informal,

workplace complaints to managers regarding potential

ERISA violations is protected activity under section

510. Id.

The Fifth Circuit next addressed the issue in

Anderson vu. Electronic Data Systems Corporation, 111

F.3d 1311 (5th Cir. 1994), within the context of

determining whether ERISA preempted a plaintiffs

state wrongful discharge action. In Anderson, after

reciting the language of section 510, the Fifth Circuit

disregarded the language “inquiry or proceeding” and

found broadly that the retaliation provision “prohibits

the discharge or other adverse treament of any person

because he has given information or testimony relating

to ERISA.” [sic] 111 F.3d at 1315. Thus, the Court

held that “a refusal to commit violations of ERISA and

reporting such violations to management” was

protected activity that fell within the ambit of the

enforcement provisions of ERISA section 510. Jd. at

1314.

In King v. Marriott International, 337 F.3d 421

(4th Cir. 2003), the Fourth Circuit analyzed the scope

of the anti-retaliation provision in section 510 and

came to a result opposite that of the Ninth and Fifth

37a

Circuits. Reasoning that the anti-retaliation provision

in section 510 is narrower than that of Title VII of the

Civil Rights Act of 1964, the King Court found that the

phrase “testified or is about to testify” suggests that

the phrase “inquiries or proceedings” is limited to legal

or administrative inquiries or proceedings, “or at least

to something more formal than written or oral

complaints made to a supervisor.” 337 F.3d at 427.

The Court held, therefore, that. filing internal

complaints with supervisors, co-workers, or an

employer’s attorney is not protected activity under

section 510 because filing such complaints does not

rise to the level of testifying or being about to testify in

a proceeding of any kind, nor is it giving information

in such a proceeding. Id. at 428.

The Second Circuit most recently took up the issue

in Nicolaou v. Horizon Media Incorporated, 402 F.3d

325 (2d Cir. 2005). In WNicolauou [sic], the Court

compared the language of section 510 to the retaliation

provisions of both the Fair Labor Standards Act

(“FLSA”) and Title VII.* 402 F.3d at 327-29. It found

3 Section 704(a) of Title VII, codified at 42 U.S.C. § 2000e

3(a) provides broadly that:

It shall be an unlawful employment practice for an

employer to discriminate against any oi his

employees... because he has opposed any practice made

an unlawful employment practice by this subchapter, or

because he has made a charge, testified, assisted, or

participated in any manner in an_e investigation,

proceeding, or hearing under this subchapter.

By contrast, section 15(a)(3) of the FLSA, codified at 29 U.S.C. §

215(aX(3), provides protection against retaliation for a more

narrow scope of conduct, stating that it shall be unlawful

to discharge or in any other manner discriminate against

any employee because such employee has filed any

38a

that use of the term “inquiry” in ERISA implies

something less formal and unambiguously broader

than use of the term “proceeding” in the FLSA. fd. at

328. The Second Circuit then looked to the dictionary

definitions of the terms “proceeding” and “inquiry.” Id.

at 329. Citing the Black’s Law Dictionary definition of

“inquiry” as “a request for information” and the

Webster’s Third New International Dictionary

definition as “the act or an instance of seeking truth,

information, or knowledge about something” or “a

request for information,” the Court found that an

“informal gathering of information thus falls within

the plain meaning of ‘inquiry” and is, therefore

protected activity under section 510. Jd. (internal

citations omitted). The Court concluded that “the

proper focus is not on the formality or informality of

the circumstances under which an individual gives

information, but rather on whether the circumstances

can fairly be deemed to constitute an ‘inquiry.” Id. at

330. The Court thus held that if the defendant

company’s attorney contacted the plaintiff to meet

with the president of the defendant company in order

to provide information regarding alleged ERISA

violations at a meeting initiated by the attorney, her

actions would be protected under section 510 because

that meeting would fall within the definition of an

complaint or instituted or caused te 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 testify in any such

proceeding ....

39a

“inquiry,” regardless that it was not formal or

external. Id.

Looking to the Second and Fourth Circuits,

Defendants move to dismiss Plaintiffs Amended

Complaint agserting that the conduct for which

Plaintiff was allegedly terminated does not constitute

“giving information or testifying in an inquiry or

proceeding related to ERISA” as required by ERISA,

section 510, because her objections or complaints were

not part of a formal or informal inquiry or proceeding.‘

In response, Plaintiff argues that informal workplace

objections and complaints to management are

protected activity under ERISA. Plaintiff draws

support from the Second, Ninth and Fifth Circuits.°

4 Defendants further move to dismiss based on the

assertion that Plaintiff failed to allege that Defendants had a

specific intent to violate ERISA. Additionally, Defendants argue

that even if Plaintiff did properly allege a retaliation claim under

section 510, the claim should be dismissed against Closterman

and Cornell because they were not Plaintiffs employer but were

merely employees of Plaintiffs employer and thus not subject to

section 510. Because we find that Plaintiffs alleged conduct does

not constitute the giving of information, testifying, or being about

to testify in an inquiry or proceeding, we need not reach

Defendants’ alternative grounds for dismissal.

5 Plaintiff also cites to Jorgensen v. Prudential Ins. Co. of

America, 852 F. Supp. 255 (D.N.J. 1994). In Jorgensen, within

the context of determining whether ERISA preempted a

Plaintiffs state law claims, the Court found that the plaintiff

“‘hald] not given information or testified in an inquiry or

proceeding relating to ERISA, as required by ERISA § 510.” 852

F. Supp. at 262-63. Rather than finding that the plaintiff's

alleged complaints to his supervisors were, therefore, not

protected under section 510, the Court stated that the Ninth

Circuit in Hashimoto had “extended ERISA whistleblower

protections to include the ‘first step’ of raising the problem to the

employee’s superiors.” Jorgensen, 852 F. Supp. at 263.

40a

Upon consideration of the statutory language in

the relevant provision, this Court finds the Second

Circuit’s analysis in Nicolaou to be persuasive. Thus,

we agree that the proper inquiry is whether the

Plaintiffs alleged objections and complaints to

management in the present case were given as part of

an inquiry. S-e Nicolaou, 402 F.3d at 330. After

reviewing the a.:egations in the Amended Complaint,

we find that they were not. Plaintiff alleges that she

“objected to and/or complained to Defendants’

management or owners” about Defendants’ alleged

ERISA violations. Plaintiff does not allege that

anyone requested information from her or initiated

contact with her in any way regarding the alleged

ERISA violations. Compare with Nicclaou, 402 F.3d

at 330 (finding conduct protected under section 510

where a meeting to discuss alleged ERISA violations

was initiated by the defendant’s attorney as part of the

attorney’s inquiry into the alleged ERISA violations).

Nor does she allege that she was involved in any type

of formal or informal gathering of information. See

Nicolaou, 402 F.3d at 330 (finding that the

information gathering of information falls within the

meaning of “inquiry” and is thus covered under section

510). She states merely that she objected to or

complained about certain conduct by Defendants.

Thus, viewing the facts in the light most favorable to

the non-moving party, Plaintiff has failed to properly

6 The Plaintiff nas not in any way alleged that she was

part of a proceeding or that she gave testimony or was about to

give testimony at an inquiry or proceeding. Thus, the only

relevant inquiry is whether she gave information as part of an

inquiry.

4la

allege any conduct that would fall within the ambit of

the retaliation provision in section 510. Defendants’

Motion is, therefore, granted.

B. Common-Law Wrongful Discharge

Having dismissed Plaintiffs only federal claim, the

Court declines to exercise supplemental jurisdiction

over Plaintiffs remaining state law claim. See 28

U.S.C. § 1367.

CONCLUSION

For the foregoing reasons, Defendants’ Motion to

Dismiss is GRANTED as to Plaintiffs ERISA, section

510 claim. As we decline to exercise supplemental

jurisdiction, Plaintiffs common-law wrongful

discharge claim is DISMISSED with leave to Plaintiff

to re-file it in state court. An appropriate order follows.

ORDER

AND NOW, this 23rd day of July, 2009, it is

hereby ORDERED Defendants’ Motion to Dismiss is

GRANTED as to Plaintiffs ERISA, section 510 claim.

Furthermore, the Court declines to exercise

supplemental jurisdiction. Plaintiffs common-law

wrongful discharge claim is, therefore, DISMISSED

with leave to Plaintiff to re-file it in the appropriate

state court.

42a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 09-3198

SHIRLEY EDWARDS, Appellant

Vie

A.H. CORNELL AND SON, INC., D/B/A AH

CORNELLS; MELISSA CLOSTERMAN; SCOTT A.

CORNELL

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-09-cv-01184)

District Judge: Honorable J. Curtis Joyner

SUR PETITION FOR REHEARING WITH

SUGGESTION FOR REHEARING EN BANC

Present: McKEE, Chief Judge; SLOVITER, SCIRICA,

RENDELL, BARRY, AMBRO, FUENTES, SMITH,

FISHER, CHAGARES, JORDAN, HARDIMAN,

GREENAWAY, VANASKIE and COWEN’, Circuit

Judges.

Judge Cowen’s vote is limited to panel rehearing only.

43a

The petition for rehearing filed by Appellant

having been submitted to all judges who participated

in the decision of this court, and to all the other

available circuit judges in active service, and a

majority of the judges who concurred in the decision

not having asked fur rehearing, and a majority of the

circuit judges of the circuit in regular active service

not having voted for rehearing by the court en banc,

the petition for rehearing is hereby DENIED.

BY THE COURT:

/s/ D. Michael Fisher

Circuit Judge

Dated: July 26, 2010

DWB icc:

Justin L. Swidler, Esq.

Christie M. Flamm, Esq.

Walter H. Flamm, Jr., Esq.

Eric C. Lund, Esq.

Nathaniel I. Spiller, Esq.

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.