Judges: Sykes
Filed: Aug. 27, 2018
Latest Update: Mar. 03, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 18-1103 JENNIFER SLOAN, Plaintiff-Appellant, v. AMERICAN BRAIN TUMOR ASSOCIATION, Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 17 C 6509 — Robert W. Gettleman, Judge. _ ARGUED MAY 15, 2018 — DECIDED AUGUST 27, 2018 _ Before EASTERBROOK, SYKES, and BARRETT, Circuit Judges. SYKES, Circuit Judge. Jennifer Sloan sued her former em- ployer, the America
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 18-1103 JENNIFER SLOAN, Plaintiff-Appellant, v. AMERICAN BRAIN TUMOR ASSOCIATION, Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 17 C 6509 — Robert W. Gettleman, Judge. _ ARGUED MAY 15, 2018 — DECIDED AUGUST 27, 2018 _ Before EASTERBROOK, SYKES, and BARRETT, Circuit Judges. SYKES, Circuit Judge. Jennifer Sloan sued her former em- ployer, the American..
More
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1103
JENNIFER SLOAN,
Plaintiff-Appellant,
v.
AMERICAN BRAIN TUMOR ASSOCIATION,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 17 C 6509 — Robert W. Gettleman, Judge.
____________________
ARGUED MAY 15, 2018 — DECIDED AUGUST 27, 2018
____________________
Before EASTERBROOK, SYKES, and BARRETT, Circuit Judges.
SYKES, Circuit Judge. Jennifer Sloan sued her former em-
ployer, the American Brain Tumor Association (“the Associa-
tion”), for unlawful retaliation in violation of the Fair Labor
Standards Act (“FLSA” or “the Act”), 29 U.S.C. §§ 201 et seq.
The district judge dismissed the complaint and we affirm.
Sloan’s allegations, even generously construed, do not
remotely support a claim that the Association retaliated
against her for asserting rights protected by the Act.
2 No. 18-1103
I. Background
This case comes to us from a dismissal on the pleadings,
see FED. R. CIV. P. 12(b)(6), so we recount the facts as alleged
in the complaint and the documents described in it, giving
Sloan the benefit of all reasonable inferences in her favor,
Deppe v. NCAA,
893 F.3d 498, 499 (7th Cir. 2018).
Sloan began working for the American Brain Tumor As-
sociation in September 2014. She had early success, receiving
multiple merit raises and strong performance reviews. In
February 2016 she was promoted to the position of Director
of Corporate and Community Engagement, making her an
exempt salaried employee under the FLSA. 29 U.S.C. § 213.
Soon after her promotion, Sloan’s relationship with
Elizabeth Wilson, the president and CEO of the Association,
began to deteriorate. Wilson became confrontational, unfair-
ly criticized Sloan, and antagonized her in front of col-
leagues. The simmering friction boiled over on February 23,
2017, when Wilson arranged a meeting with Sloan to “air her
own personal grievances.” One such grievance was that
Sloan “bring[s] [her] personal problems to work.” Sloan told
Wilson that she was “uncomfortable being attacked this
way.” She also complained that the Association did not have
a human-resources department to help resolve the conflict.
Wilson sent Sloan home for the day.
The next morning Wilson informed Sloan that she was
suspended for six days without pay. Sloan vehemently
objected. She again commented on the lack of a human-
resources department and stated, “I don’t even know if you
can do this.” Wilson replied: “I’m the President [and] CEO[;]
I can do whatever I want.”
No. 18-1103 3
On Saturday, February 25, Sloan emailed four members
of the Association’s Board of Directors. The first paragraph
of her email stated: “I’m not sure if you’re aware of the
disciplinary action Elizabeth [Wilson] threatened against me
yesterday[,] but it is my understanding that it is against
federal law. I am reaching out to you in hopes that the Board
will investigate this further.” In the second paragraph, Sloan
said she was “taking a huge risk” by contacting the Board
directly but that it was necessary in “the absence of any HR.”
The final two paragraphs attacked Wilson’s leadership of the
Association.
Sloan did not receive an immediate response from the
Board. In the meantime, she hired Attorney John Madden,
and on March 2, 2017, he emailed a four-page letter to the
Board, explaining that he had “been retained by Ms. Jennifer
Sloan for advice and representation regarding recent em-
ployment actions taken against her in the workplace and
potential legal claims arising from her employment.” 1 He
reiterated Sloan’s “objections to the actions of Ms. Wilson,
her belief in the illegal nature of the actions and discipline,
and [her concern] about the lack of Human Resource per-
sonnel with whom she could address Ms. Wilson’s conduct.”
He also warned that if Wilson repeated her false comments
about Sloan to others, he “would consider such repetition by
Ms. Wilson to be actionable defamation.” The letter conclud-
ed with a request to “preserve the professional reputation of
1 Sloan did not attach her email or attorney’s letter to the complaint. But
she mentions them in the complaint and copies were submitted to the
district court in connection with the dismissal motion, so they were
properly considered in resolving the motion. Domanus v. Locke Lord LLP,
847 F.3d 469, 481 (7th Cir. 2017).
4 No. 18-1103
Ms. Sloan” by “facilitat[ing] an exit for her that is in keeping
with her status as a Director of Corporate & Community
Engagement.”
The following day a Board member forwarded the letter
to Wilson, who immediately sent an email to the entire staff
stating: “Effective immediately, Jennifer Sloan is no longer
employed by the [Association].”
Sloan responded with this lawsuit alleging that she was
fired in violation of the FLSA’s antiretaliation provision,
which makes it unlawful to discharge an employee “because
such employee has filed any complaint … under or related
to [the FLSA].” 29 U.S.C. § 215(a)(3). The Association moved
to dismiss the complaint for failure to state a claim. The
judge granted the motion, holding that Sloan’s complaints to
the Board had nothing to do with rights protected by the
FLSA, which regulates minimum wages and maximum
hours. As such, a reasonable employer would not be on
notice that she was asserting rights protected by the Act.
II. Discussion
We review the dismissal order de novo. Tagami v. City of
Chicago,
875 F.3d 375, 377 (7th Cir. 2017). A complaint must
“state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly,
550 U.S. 544, 570 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal,
556 U.S. 662, 678 (2009).
The FLSA requires employers to pay minimum wages
and overtime compensation to nonexempt—i.e., hourly—
employees. See 29 U.S.C. §§ 206–207. The Act also makes it
No. 18-1103 5
unlawful for an employer to “discharge or in any other
manner discriminate against any employee because such
employee has filed any complaint or instituted or caused to
be instituted any proceeding under or related to [the
FLSA].” § 215(a)(3). To state a retaliation claim under this
provision, a plaintiff must plausibly allege that he engaged
in activity protected under the Act, his employer took an
adverse employment action against him, and a causal link
exists between the two. Kasten v. Saint-Gobain Performance
Plastics Corp.,
703 F.3d 966, 972 (7th Cir. 2012).
Sloan’s claim founders on the first element. Her com-
plaints to the Board—that is, her email and the letter from
her attorney—can qualify as “protected activity” under the
Act only if “a reasonable employer in [the Association’s]
circumstances and armed with its knowledge of the relevant
context would have had fair notice of [her] assertion of rights
protected by the FLSA.”
Id. at 976.
Neither the email nor the letter refers to the FLSA. That’s
not necessarily fatal; still, a complaint must “be sufficiently
clear and detailed for a reasonable employer to understand
it, in light of both content and context, as an assertion of
rights protected by the statute and a call for their protec-
tion.” Kasten v. Saint-Gobain Performance Plastics Corp.,
563 U.S. 1, 14 (2011). The rights protected by the FLSA are
those found in the statute’s wage-and-hours provisions. See
Sapperstein v. Hager,
188 F.3d 852, 857 (7th Cir. 1999). To
repeat, these provisions require employers to pay a mini-
mum wage and overtime compensation to all nonexempt
employees. See 29 U.S.C. §§ 206–207.
Sloan was an exempt employee. Indeed, her complaint
expressly alleges as much. She insists nonetheless that her
6 No. 18-1103
email and her attorney’s letter were enough to put a reason-
able employer on notice that she was complaining about a
violation of her rights under the Act. We cannot see how—
and not only because she was an exempt employee. Her
email contained only a highly generalized protest that
Wilson’s “disciplinary action” was “against federal law” and
asked the Board to investigate. The attorney’s letter merely
mentioned Sloan’s belief in the “illegal nature of the actions
and discipline,” which is far too vague to notify a reasonable
employer of a suspected violation of FLSA rights.
The email and letter attacked the substantive basis for
Sloan’s suspension, criticized Wilson’s leadership, and
protested the absence of a human-resources department. The
attorney’s letter added an overture to negotiate a favorable
exit from the company. Read in context, these complaints to
the Board expressed Sloan’s frustrations with Wilson and the
Association, but no reasonable employer would recognize
them as assertions of FLSA-protected rights. See
Kasten,
563 U.S. at 14 (distinguishing between an employee who “is
in fact making a complaint about an Act violation or [is] just
letting off steam”); Valerio v. Putnam Assocs., Inc.,
173 F.3d 35,
44 (1st Cir. 1999) (“[N]ot all abstract grumblings will suffice
to constitute the filing of a complaint with one’s employer.”).
Sloan argues that the email and letter, when considered
in the context of her unpaid suspension, would be recog-
nizable as a complaint that the suspension violated 29 C.F.R.
§ 541.602(b)(5). That rule addresses how to determine if an
employee is an exempt salaried employee and generally
permits disciplinary suspensions without pay. Sloan’s com-
plaints neither referred to her wages or hours, nor chal-
lenged her classification as an exempt employee.
No. 18-1103 7
Sloan also makes a weak attempt to analogize her case to
others in which a generalized complaint about the legality of
an employment practice qualified as protected conduct
under the Act. But in every case she cites, the employee’s
complaint, though general, was readily recognizable as an
objection that a particular employment practice regarding
wages or hours was illegal. See
Kasten, 703 F.3d at 969 (in-
volving an employee’s complaint that the time clock location
was illegal); Starnes v. Wallace,
849 F.3d 627, 632 (5th Cir.
2017) (involving an employee’s assertion that the employer
was “violating the law” by not paying another employee for
overtime or travel time); EEOC v. Romeo Cmty. Sch.,
976 F.2d
985, 989 (6th Cir. 1992) (involving an employee’s complaint
that paying higher wages to male employees was “breaking
some sort of law”). That is not the case here.
Finally, Sloan’s complaint fails for a second and entirely
independent reason. For her conduct to be protected, she
must have held a good-faith belief that her suspension
violated the FLSA.
Sapperstein, 188 F.3d at 857. And that
belief must be objectively reasonable. See Lord v. High Voltage
Software, Inc.,
839 F.3d 556, 563 (7th Cir. 2016) (applying the
objectively reasonable standard in a Title VII retaliation
case); Spiteri v. AT&T Holdings, Inc.,
40 F. Supp. 3d 869, 876–
77 (E.D. Mich. 2014) (collecting cases that apply the objec-
tively reasonable standard to an FLSA retaliation claim).
Sloan’s allegations do not plausibly support an inference that
she held a good-faith belief that her disciplinary suspension
violated her rights under the FLSA. Nor has she identified
any colorable legal basis for such a belief.
AFFIRMED.