Matthew Uronis v. Cabot Oil & Gas Corp ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 21-1874
___________
MATTHEW URONIS, for himself and on behalf of those
similarly situated,
Appellant
v.
CABOT OIL & GAS CORPORATION, a Texas Corporation;
GASSEARCH DRILLING SERVICES CORPORATION, a
West Virginia Corporation and subsidiary of Cabot Oil & Gas
Corporation
_______________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 3-19-cv-01557)
District Judge: Honorable Malachy E. Mannion
______________
Argued: March 30, 2022
Before: RESTREPO, ROTH, and FUENTES, Circuit Judges.
(Filed: September 14, 2022)
Angeli Murthy [ARGUED]
Morgan & Morgan
8151 Peters Road
Suite 4000
Plantation, FL 33324
Counsel for Appellant Matthew Uronis
Christian C. Antkowiak [ARGUED]
Amy L. Barrette
Charles H. Cope
Buchanan Ingersoll & Rooney
501 Grant Street
Union Trust Building
Suite 200
Pittsburgh, PA 15219
Counsel for Appellees Cabot Oil & Gas Corp and
Gassearch Drilling Services Corp
Katelyn Poe [ARGUED]
United States Department of Labor
Division of Fair Labor Standards
200 Constitution Avenue, N.W.
Washington, DC 20210
Counsel for Amicus Secretary United States Department of
Labor
_________________
2
OPINION OF THE COURT
_________________
RESTREPO, Circuit Judge.
Appellant Matthew Uronis asserts that his job
application was denied because his prospective employer
anticipated that he would soon be filing a consent to join a then-
pending putative collective action under the Fair Labor
Standards Act (“FLSA”).1
The FLSA prohibits discrimination against an employee
because the employee has engaged in protected activity. 29
1
The District Court stated that “case law [ ] suggests that a job
applicant cannot bring an FLSA claim for retaliation against a
prospective employer,” but it declined to reach that issue. App.
7. We do not reach that issue today, either. Because we are
remanding, we leave it to the District Court’s judgment
whether to consider the application of the FSLA to prospective
employees. Uronis asserts that his alleged former employer,
Cabot Oil & Gas Corporation, discriminated against him when
he applied for a position with Gassearch Drilling Services
Corporation (“GDS”), Cabot’s wholly owned subsidiary, by
directing GDS not to hire Uronis due to his status as an
anticipated member of a putative collective action pending
against Cabot for alleged FLSA violations. It is this alleged
discriminatory act by Cabot, Uronis’ alleged former employer,
that brings Uronis’ claim within the FLSA for purposes of our
decision today.
3
U.S.C. § 215(a)(3). Protected activity includes having
“testified” or being “about to testify” in any FLSA-related
proceeding. Id.In this case we address whether 29 U.S.C. § 215(a)(3),
also known as Section 15(a)(3), applies where an employer
anticipates an employee will soon file a consent to join an
FLSA collective action—but no such “testimony” has yet
occurred or been scheduled or subpoenaed.
The District Court concluded that being “about to
testify” under Section 15(a)(3) requires being “scheduled” or
subpoenaed to do so. On that basis, because Uronis did not
plead that he was scheduled to testify, the District Court
granted Appellees’ motion to dismiss Uronis’ complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). It did
not explicitly interpret the meaning of “testify” under Section
15(a)(3). But, by concluding that an employee must be
scheduled to do so, the District Court impliedly construed
“testify” to only include giving evidence as a witness under
oath or affirmation.
Applying the guidance from Kasten v. Saint-Gobain
Performance Plastics Corporation, 563 U.S. 1 (2011) and
Brock v. Richardson, 812 F.2d 121 (3d Cir. 1987), we hold
Section 15(a)(3)’s “about to testify” language protects
employees from discrimination because of an employer’s
anticipation that the employee will soon file a consent to join a
collective action.
Accordingly, for the reasons that follow, we will reverse
the District Court’s decision and remand for further
proceedings consistent with this opinion.
4
I.
Uronis is an alleged former employee of Appellee
Cabot Oil & Gas Corporation, an oil and natural gas production
and exploration company.2 On February 22, 2019, Uronis’
former co-worker, Michael Messenger, filed a putative FLSA
collective action against Cabot and another entity, Carrie’s
Transport & Rental, LLC, on behalf of himself and other
employees similarly situated. See Messenger v. Cabot Oil &
Gas Corp., No. 19-cv-308 (M.D. Pa.). The Messenger action
alleged that Cabot and Carrie’s jointly employed the
employees and failed to pay them overtime pay required under
the FLSA.3 Because Uronis was a similarly situated employee
who had yet to file a consent to join the collective action as a
party plaintiff, he was a putative member of the Messenger
action.4
2
Whether Uronis was previously employed by Cabot was a
disputed fact before the District Court. See n.3, infra.
3
Uronis was originally hired by Carrie’s, but contends (like
Messenger does in Messenger) that he was jointly employed
by Cabot and Carrie’s. Cabot and GDS dispute that Uronis was
ever an employee of Cabot’s, but the District Court did not
reach that fact-intensive issue as it dismissed the case at the
pleading stage.
4
FLSA collective actions are brought by one or more
employees under Section 16(b) of the statute on behalf of
themselves and “similarly situated” employees. “Similarly
situated” employees become part of the action if they file a
written consent to join. See 29 U.S.C. 216(b).
5
In August 2019, Uronis applied for a position with
Cabot’s subsidiary, Appellee GDS. Cabot and GDS were
aware Uronis was a putative member of, and anticipated
witness in, the Messenger action, and that he was about to file
his consent to join.
On August 23, 2019, Messenger moved to certify the
Messenger action as an FLSA collective action. Messenger,
No. 19-cv-308, ECF No. 39.5 By that date, four other
employees had opted in. See id. at ECF Nos. 20, 32, 35, 38.
On August 28, 2019, a GDS manager sent Uronis a text
message stating that although Uronis was qualified for the
position he applied for—and was in fact more qualified than
other candidates being considered—Cabot had declined to hire
him or any other putative members of the Messenger action
“because of” that lawsuit. App. 73. Specifically, the text
stated:
Unfortunately I found out the day after I talked to you
that no one who worked for Herb [Swiney, owner of
Carrie’s] is supposed to be on a Cabot location. Pretty
much because of the lawsuit that’s going on. I know
you’re a worker but I can’t do anything to get you into
gds.
...
5
The “certification” process in an FLSA collective action only
results in notice to potential plaintiffs, rather than the creation
of a class. See Genesis Healthcare Corp. v. Symczyk, 569 U.S.
66, 75 (2013).
6
Maybe once the lawsuit deal dies out it might be a
possibility again. I wish I could get you in, believe me
you’d be better than some of the guys we’ve been
interviewing. Also turning a lot down for the same
reasons.
Id.The same day, Uronis signed his consent to join the
Messenger collective action. Prior to receiving the text
message, Uronis had planned to testify in the Messenger
action. But beyond his unspecific allegation that he contacted
Messenger about opting in, Uronis does not allege that he
informed anyone that he planned to testify before receiving the
text message.
Uronis filed his consent to join the Messenger action on
September 6, 2019, in which he declared that he was “similarly
situated” to Messenger because he had “performed similar
duties for [Cabot and Carrie’s] as a laborer on Cabot oil well
pads and was paid in the same manner[.]” Messenger, No. 19-
cv-308, ECF No. 48-1.
Uronis filed the underlying complaint against Cabot and
GDS (collectively, “Appellees”) on behalf of himself and other
similarly situated employees, alleging Appellees violated
Section 15(a)(3) of the FLSA when they refused to hire him
and others because they were “about to testify” in the
Messenger action. In support, Uronis pointed to the text
message from GDS.
Appellees moved to dismiss under Federal Rule of Civil
Procedure 12(b)(6), arguing, inter alia, that Uronis failed to
7
plead that he had an employment relationship with them or that
he engaged in protected activity under Section 15(a)(3).
The District Court granted Appellees’ motion to dismiss
on the basis that Uronis was not “about to testify” under
Section 15(a)(3) because he was not “scheduled” to testify in
the Messenger action. App. 12. It reasoned that “the
unambiguous meaning” of the phrase “about to testify” in
Section 15(a)(3) is that it protects an employee only when he
or she “is scheduled to testify in a then-pending FLSA
proceeding.” Id. (quoting Ball v. Memphis B-B-Q Co., 34 F.
Supp. 2d 342, 345 (E.D. Va. 1999), aff’d, 228 F.3d 360 (4th
Cir. 2000). It further stated that “[h]ad Congress intended
[Section 15(a)(3)] to apply to scenarios in which putative
collective action members might potentially testify at some
point in the proceeding, it would have said so.” Id. at 12–13.
“Instead, Section 15 uses the phrase ‘about to testify,’
suggesting some sense of certainty and immediacy as opposed
to mere possibility.” Id. at 13.
Applying this interpretation, the District Court
concluded that Uronis had “alleged no facts whatsoever to
support the allegation that he or those similarly situated to him
were ‘about to testify’” because he did not allege he or others
“were subpoenaed to testify or that they were told they would
be called upon to testify, nor ha[d] he alleged any facts that
Defendants had a reason to know that [he] or any others would
be testifying.” Id. On that basis, it granted Appellees’ motion
to dismiss. Uronis appealed.
8
II.
The District Court had jurisdiction pursuant to 28
U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291.
This Court reviews a district court’s order granting a
motion to dismiss for failure to state a claim de novo. Wheeler
v. Hampton Twp., 399 F.3d 238, 242 (3d Cir. 2005). At the
motion to dismiss stage, “we accept all well-pleaded
allegations in the Complaint as true and draw all reasonable
inferences in favor of the non-moving part[y].” M.A. ex rel.
E.S. v. State-Operated Sch. Dist. of City of Newark, 344 F.3d
335, 340 (3d Cir. 2003) (citing Bd. of Trustees of Teamsters
Local 863 Pension Fund v. Foodtown, Inc., 296 F.3d 164, 168
(3d Cir. 2002)). To survive a motion to dismiss, factual
allegations “must be enough to raise a right to relief above the
speculative level,” which “requires more than labels and
conclusions.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007).
III.
The first issue we address is whether the District Court
properly concluded that, because Uronis was not scheduled or
subpoenaed to testify, Section 15(a)(3) does not protect him
from retaliation.
Uronis argues that the District Court’s interpretation of
the language “about to testify” in Section 15(a)(3) was
impermissibly narrow because it precludes a retaliation claim
where, as here, anticipated participation in an FLSA action is
the employer’s explicit reason for discrimination. He
9
emphasizes the purpose of the FLSA is to protect workers, and
that courts must broadly construe remedial statutes. He also
contends that the District Court’s interpretation contravenes
Section 15(a)(3)’s purpose by permitting—even
incentivizing—employers to race to retaliate against
employees before they can file a consent to opt in to a
collective action or be scheduled to testify.
Appellees counter that, to obtain Section 15(a)(3)
protection, an employee must take an “overt act” to assert
FLSA rights and the employer must have fair notice of that
overt act. They point out that Uronis did not plead in detail any
overt act he took to assert FLSA rights or that they had fair
notice of same. Appellees also argue that Uronis’ mere status
as a putative member of the Messenger collective action cannot
be sufficient to trigger Section 15(a)(3) protection. They
further contend that it would be unfair for employers to be
subject to Section 15(a)(3) liability for any adverse
employment decision made about an employee who just
happens to be a putative member of a collective action.
A.
We begin with the statute, and its purpose. The FLSA
establishes certain minimum wage, maximum hours, and other
working conditions to protect workers. See 29 U.S.C. § 201 et
seq. To further this purpose “Congress . . . chose to rely on
information and complaints received from employees seeking
to vindicate rights claimed to have been denied.” Mitchell v.
Robert DeMario Jewelry, Inc., 361 U.S. 288, 292 (1960).
Accordingly, Congress included in the FLSA an antiretaliation
provision (at Section 15(a)(3)) to encourage employees to
assert their rights without “fear of economic retaliation [which]
10
might often operate to induce aggrieved employees to quietly
accept substandard conditions.” Brock, 812 F.2d at 124(quoting Mitchell, 361 U.S. at 292).
Section 15(a)(3) protects an employee from retaliation
because of engaging in a protected activity, which includes
having “testified” or being “about to testify” in any FLSA-
related proceeding. 29 U.S.C. § 215(a)(3). Specifically, it
provides:
[I]t shall be unlawful for any person . . . to discharge or
in any other manner discriminate against any employee
because such employee has filed any complaint or
instituted or caused to be instituted any proceeding
under or related to this chapter, or has testified or is
about to testify in any such proceeding . . . .
Id.As a remedial statute, the FLSA—including Section
15(a)(3)—is broadly construed, and “must not be interpreted
or applied in a narrow, grudging manner.” Brock, 812 F.2d at
124 (citation omitted); see also Kasten, 563 U.S. at 7 (“The
[FLSA] protects employees who have ‘filed any complaint,’ 29
U.S.C. § 215(a)(3), and interpretation of this phrase ‘depends
upon reading the whole statutory text, considering the purpose
and context of the statute, and consulting any precedents or
authorities that inform the analysis[.]’” (quoting Dolan v.
Postal Serv., 546 U.S. 481, 486 (2006)). Accordingly, courts,
including the United States Supreme Court and this Court,
have interpreted Section 15(a)(3) to protect employees
engaging in activities not spelled out in the statute.
11
B.
The breadth of protected conduct under Section 15(a)(3)
is shown in the Supreme Court’s decision in Kasten. The
Kasten Court held that an oral (as opposed to written)
complaint of an FLSA violation is protected conduct under
Section 15(a)(3). See 563 U.S. at 7, 17. It noted that while
Section 15(a)(3) refers to a complaint that has been “filed,” the
word “filed” has different relevant dictionary meanings in
different contexts, and some “definitions [ ] permit the use of
the word ‘file’ in conjunction with oral material.” Id. at 7. It
further noted that “legislators, administrators, and judges have
all sometimes used the word ‘file’ in conjunction with oral
statements.” Id. at 8. Determining that “the text, taken alone,
cannot provide a conclusive answer to our interpretive
question[,]” id. at 11, the Court then considered Congressional
intent. See id. at 11–13.
Emphasizing the broad, remedial purpose of the FLSA,
the Kasten Court expressed concern that many employees were
not likely to make written complaints as readily as oral ones.
See id. Thus, it reasoned, to limit the scope of Section 15(a)(3)
to the filing of written complaints would foul Congress’ intent
by “prevent[ing] Government agencies from using hotlines,
interviews, and other oral methods of receiving complaints”
and “discourag[ing] the use of desirable informal workplace
grievance procedures to secure compliance with the [FLSA].”
Id. at 13.
The Court also noted in Kasten that it had interpreted an
analogous provision in the National Labor Relations Act
(“NLRA”) to protect conduct not explicitly listed. See id. at
13. “Given the need for effective enforcement of the [NLRA]”,
12
the Court “has broadly interpreted the language of the NLRA’s
antiretaliation provision—‘filed charges or given testimony,’
29 U.S.C. § 158(a)(4)—as protecting workers who neither
filed charges nor were ‘called formally to testify’ but simply
‘participate[d] in a [National Labor Relations] Board
investigation.’” Id. (quoting NLRB v. Scrivener, 405 U.S. 117,
123 (1972)). The Court explained that “[t]he similar
enforcement needs of [the FLSA] argue for an interpretation of
the word ‘complaint’ that would provide ‘broad rather than
narrow protection to the employee[.]’” Id. (citation omitted).
For those reasons, it held that an oral complaint was protected
activity under Section 15(a)(3). See Kasten, 563 U.S. at 17.
Similarly, this Court has broadly interpreted protected
conduct under Section 15(a)(3). In Brock, we considered
whether Section 15(a)(3) applied where an employer fired an
employee it believed had filed a complaint with the
Department of Labor—but the employee had not actually done
so. See 812 F.2d at 122. The employer contended that its mere
belief that an employee had engaged in protected activity was
not sufficient for Section 15(a)(3) protection. See id. at 123. It
argued that, to state a prima facie retaliation claim, the
employee must have “engaged in one of the specified overt acts
[in Section 15(a)(3)] and that the employer was aware of the
act.” Id. Because the employee did not actually file a
complaint, in the employer’s view, the employee had not
engaged in protected activity—and the employer could
retaliate without Section 15(a)(3) liability. See id.We began our analysis in Brock by emphasizing that the
FLSA is a “humanitarian and remedial” statute, and that
enforcement of its substantive provisions is dependent on “a
workplace environment conducive to employee reporting.” Id.13
at 123–24. Therefore, the guiding principle of interpreting
Section 15(a)(3) is to prevent a fear of retaliation from chilling
employees’ assertion of FLSA rights. Id. at 124. Reviewing
relevant precedent, we observed that courts interpreting
Section 15(a)(3) have done so in accordance with this
principle—and have interpreted it to cover situations not
explicitly described in the statute.6 We emphasized that, in
these cases, “the employee’s activities were considered
necessary to the effective assertion of employees’ rights under
the [FLSA], and thus entitled to protection.” Id.Applying that framework, this Court interpreted Section
15(a)(3) to prohibit discrimination based on an employer’s
perception that an employee had engaged in protected
activity—regardless of whether that perception was mistaken.
See id. at 125. Even though the statute could be narrowly read
to not include retaliation based on perception, such retaliation
“creates the same atmosphere of intimidation” as does
6
See Brock, 812 F.2d at 124 (citing Love v. RE/MAX of Am.,
Inc., 738 F.2d 383, 387 (10th Cir. 1984) (noting Section
15(a)(3) protects employees who make internal complaints to
employer); Marshall v. Parking Co. of Am., 670 F.2d 141, 143
(10th Cir. 1982) (per curiam) (Section 15(a)(3) protects
employees who have refused to release back pay claims or
return back pay awards to their employers); Brennan v.
Maxey’s Yamaha, Inc., 513 F.2d 179, 180–83 (8th Cir. 1975)
(same); Daniel v. Winn-Dixie Atlanta, Inc., 611 F. Supp. 57,
58–59 (N.D. Ga. 1985) (Section 15(a)(3) protects employees
who have consulted with the Department of Labor about
whether certain timekeeping practices complied with the
FLSA)).
14
discrimination based on situations explicitly listed in Section
15(a)(3). Id. at 125.7 Such an atmosphere of intimidation is
particularly repugnant to the purpose of the FLSA in the
context of collective actions.
C.
FLSA collective actions, brought by one or more
employees on behalf of themselves and those “similarly
situated”, are central to effective enforcement of the statute.
See Halle v. West Penn Allegheny Health Sys. Inc., 842 F.3d
7Other courts have interpreted Section 15(a)(3) similarly. See
Lambert v. Ackerley, 180 F.3d 997, 1003–04 (9th Cir. 1999)
(citing Brock and other authorities to conclude that the statute’s
context and purpose require that Section 15(a)(3) protect
internal complaints); Saffels v. Rice, 40 F.3d 1546, 1548–49
(8th Cir. 1994) (adopting Brock’s interpretation of Section
15(a)(3) as protecting perceived protected activity); EEOC v.
White & Son Enters., 881 F.2d 1006, 1011–12 (11th Cir. 1989)
(interpreting Section 15(a)(3) broadly to protect informal
complaints, though not explicitly listed in the statute, to
effectuate the intended purpose of the provision); Brock v.
Casey Truck Sales, Inc., 839 F.2d 872, 879 (2d Cir. 1988)
(citing Brock to hold that employees who refused to repudiate
their rights under the FLSA were protected from retaliation);
see also Crowley v. Pace Suburban Bus Div. of Reg’l Transp.
Auth., 938 F.2d 797, 798 n.3 (7th Cir. 1991) (interpreting
Section 15(a)(3) to protect refusal to attend a meeting that
would not be paid because the statute has been “construed
broadly to include retaliation by the employer for an
employee’s assertion of rights protected under the FLSA”).
15
215, 223 (3d Cir. 2016). “By permitting employees to proceed
collectively, the FLSA provides employees the advantages of
pooling resources and lowering individual costs so that those
with relatively small claims may pursue relief where individual
litigation might otherwise be cost-prohibitive.” Id.Additionally, the collective action mechanism “yields
efficiencies for the judicial system through resolution in one
proceeding of common issues arising from the same allegedly
wrongful activity affecting numerous individuals.” Id. “When
a named plaintiff files a complaint containing FLSA collective
action allegations, the mere presence of the allegations does
not automatically give rise to the kind of aggregate litigation
provided for in Rule 23.” Id. at 224. Rather, similarly situated
employees must affirmatively opt in to join the collective
action. Id.
Accordingly, the enforcement mechanism of the
collective action depends on employees being—and feeling—
protected from retaliation for joining (or being anticipated to
join.) See Brock, 812 F.2d at 224. If employers can retaliate
against an employee because the employer believes the
employee has or will soon file a consent to join an FLSA
collective action, this enforcement mechanism—and employee
protection—will be gutted.
D.
Of course, Section 15(a)(3) is not a per se bar against
any adverse employment action against an employee who is or
might soon be a collective action member. Rather, it bars
discrimination because of protected activity. In understanding
this distinction, Kasten is instructive.
16
The Kasten Court, in holding that oral complaints are
protected activity, also concluded that Section 15(a)(3) liability
“requires fair notice.” Kasten, 563 U.S. at 14. It reasoned the
language “‘filed any complaint’ contemplates some degree of
formality, certainly to the point where the recipient has been
given fair notice that a grievance has been lodged and does, or
should, reasonably understand the matter as part of its business
concerns.” Id. Accordingly, it concluded that, to qualify as
protected activity, “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 protection.” Id. “But we also
believe that a fair notice requirement does not necessarily mean
that notice must be in writing.” Id. It is also worth noting that
the Kasten Court’s concern about notice revolved around the
issue before it: oral complaints which an employee may make
based on a fleeting feeling and might not be in earnest or may
lack specificity. See id. at 13–14.
Importantly, Kasten emphasized the codependency of
(1) fair notice of protected activity and (2) discrimination
“because of” protected activity. See id. at 14. Specifically, it
stated: “the statute prohibits employers from discriminating
against an employee ‘because such employee has filed any
complaint.’ And it is difficult to see how an employer who
does not (or should not) know an employee has made a
complaint could discriminate because of that complaint.” Id.
(internal citation omitted). Thus, where an employer retaliates
against an employee because it believed (rightly or wrongly)
that the employee engaged in protected activity, the employer
necessarily had notice—and Section 15(a)(3) applies.
17
IV.
Having set forth the statutory landscape and teachings
of Kasten and Brock, we turn to the issues before us. Distilled
down, the threshold issues are whether (A) filing a consent to
join a collective action qualifies as testimony under Section
15(a)(3); and (B) an employee is “about to testify” where an
employer anticipates the employee will soon testify, such as in
a pending action. See §§ IV(A)–(B), supra. Because we
answer both in the affirmative, we also address (C) Appellees’
overt act argument. See § IV(C), supra.
A.
While it appears that no court has directly addressed
whether filing a consent to join an FLSA collective action
constitutes testimony under Section 15(a)(3), district courts
have interpreted the term “testify” broadly. See Goins v.
Newark Hous. Auth., No. 15-cv-2195, 2019 WL 1417850, at
*15 (D.N.J. Mar. 29, 2019) (concluding employee testified
under Section 15(a)(3) when the employee “act[ed] as a
witness” during a Department of Labor investigation by
submitting a sworn statement pertaining to overtime pay);
Bowen v. M. Caratan, Inc., 142 F. Supp. 3d 1007, 1021–23
(E.D. Cal. 2015) (employee was “about to testify” under
Section 15(a)(3) when Department investigator identified the
employee as someone who could potentially provide
information to the Department during a Department
investigation). These interpretations comport with the
teachings of Kasten and Brock that Section 15(a)(3) be broadly
18
construed to prohibit discrimination that chills employees’
assertion of FLSA rights.8
Here, the District Court did not explicitly interpret the
meaning of “testify.” But, by requiring that an employee be
scheduled or subpoenaed to testify to be protected under
Section 15(a)(3), it implied that to “testify” only includes
giving evidence as a witness under oath or affirmation. That
narrow interpretation is not consistent with the FLSA’s
purpose, or with Kasten and Brock.
The reasoning of Kasten and Brock compel the
conclusion that to “testify” under Section 15(a)(3) includes the
filing of an informational statement with a government entity.
A consent to join a collective action is just that: it is an
informational statement (that an employee is similarly situated
to the named plaintiff with respect to the alleged FLSA
violation) made to a government entity (the court).
Accordingly, we hold that an employee testifies under Section
8
These broad interpretations also comport with the ordinary
meaning of the term “testify.” See Testify, BLACK’S LAW
DICTIONARY (11th ed. 2019) (to “give evidence” or “bear
witness”); Testify, MERRIAM-WEBSTER'S ONLINE
DICTIONARY, https://www.merriam-
webster.com/dictionary/testify (last visited Aug. 11, 2022) (“to
make a solemn declaration under oath for the purpose of
establishing a fact (as in a court), to make a statement based on
personal knowledge or belief: bear witness, or to serve as
evidence or proof.”); see also Kasten, 563 U.S. at 7–8 (looking
at dictionary definitions in interpreting term “filed” in Section
15(a)(3)).
19
15(a)(3) when the employee files a consent to join an FLSA
collective action.
B.
We next turn to whether an employee is “about to
testify” under Section 15(a)(3) where an employer anticipates
that the employee will soon testify.
In contravention of the principles laid out in Kasten and
Brock, the District Court adopted the reasoning and narrow
interpretation of the Eastern District of Virginia’s decision in
Ball, 34 F. Supp. 2d at 342. In Ball, the plaintiff brought a
Section 15(a)(3) claim alleging defendant fired him after
discovering that he would testify against defendant in an FLSA
lawsuit that was being threatened—but had not yet been
filed—by another of defendant’s employees. Id. at 343. The
Ball defendant moved to dismiss, arguing that plaintiff failed
to plead he was “‘about to testify’ in an FLSA proceeding, as
he fail[ed] even to allege that such a proceeding ever existed.”
Id.In interpreting “about to testify”, both the Ball court and
the District Court here cited a dictionary definition of the term
“about,” which they paraphrased as “relatively certain and near
in time,” to conclude that “the unambiguous meaning” of
“about to testify” is that it protects an employee only when the
employee “is scheduled to testify in a then-pending FLSA
proceeding.” App. 12 (citing Ball, 34 F. Supp. 2d at 345). The
Ball court concluded that the plaintiff failed to state a claim
because he was not scheduled or subpoenaed to testify, and for
the additional reason that no FLSA action was then pending.
See 34 F. Supp. 2d at 345–46. Although the Messenger action
20
was already pending, the District Court adopted Ball’s
scheduling requirement.
Applying that requirement, the District Court noted
Uronis had “alleged no facts whatsoever to support the
allegation that he or those similarly situated to him were ‘about
to testify’” because he did not allege he or others “were
subpoenaed to testify or that they were told they would be
called upon to testify, nor has he alleged any facts that
Defendants had a reason to know that Uronis or any others
would be testifying.” App. 13. It emphasized that Uronis had
not even filed a consent to join when the alleged discrimination
occurred. On that basis, it dismissed his complaint.
Other courts, with reasoning more faithful to Kasten and
Brock, have broadly construed “about to testify” to include
testimony that is impending or anticipated, but has not been
scheduled or subpoenaed.9 These decisions broadly construing
9
See Hinsdale v. City of Liberal, 19 F. App’x 749, 756 (10th
Cir. 2001) (concluding employee who had decided to testify in
FLSA lawsuit was “about to testify”); Bowen, 142 F. Supp. 3d
at 1022 (holding employee was about to testify under Section
15(a)(3) when Department of Labor investigator identified the
employee as someone who could potentially provide
information to the Department during a Department
investigation); French v. Oxygen Plus Corp., No. 3:13-cv-
00577, 2015 WL 1467175, at *2 (M.D. Tenn. Mar. 30, 2015)
(holding employee was “about to testify” where employee’s
emails were attached to FLSA complaint, and thus employee’s
name would eventually be disclosed as a person with
knowledge relevant to suit); Perez v. Fatima/Zahra, Inc., No.
14-cv-2337, 2014 WL 2154092, at *2 (N.D. Cal. May 22,
21
“about to” comport with dictionary definitions of the term
“about,” which, in its temporal sense, includes activity that is
“reasonably close to, almost, on the verge of,” or “intending to
do something or close to doing something very soon.”10
Broad interpretations of “about to” also comport with
the mandate to broadly interpret Section 15(a)(3) to prevent a
fear of retaliation from chilling employees’ assertion of FLSA
rights. See Brock, 812 F.2d at 124. Interpreting Section
15(a)(3) so narrowly as to require testimony to be scheduled or
subpoenaed to qualify for protection does not. Retaliation
because of an employee’s anticipated decision to file a consent
to join a collective action “creates the same atmosphere of
intimidation” as does discrimination based on an employee
being scheduled or subpoenaed to testify. See id. at 125.
Accordingly, the enforcement needs of the FLSA argue for an
interpretation of “about to testify” that would provide broad
rather than narrow protection to the employee. See Kasten, 563
2014) (concluding employer likely violated Section 15(a)(3)
by threatening employees in anticipation of their cooperation
with a pending Department investigation).
10
See About, MERRIAM-WEBSTER'S ONLINE DICTIONARY,
https://www.merriamwebster.com/dictionary/about (last
visited Aug. 11, 2022); About To Do Something, OXFORD FREE
ENGLISH DICTIONARY,
https://www.lexico.com/en/definition/about (last visited Aug.
11, 2022); see also Ball, 34 F. Supp. 2d at 345 (“‘near in time
. . . almost, or nearly’”) (quoting ABOUT, BLACK’S LAW
DICTIONARY 7 (5th ed.1979)); see also Kasten, 563 U.S. at 7–
8 (looking at dictionary definitions in interpreting term “filed”
in Section 15(a)(3)).
22
U.S. at 13. For these reasons, we hold that an employee who
intends to soon file a consent to join a then-pending FLSA
collective action is “about to testify” under Section 15(a)(3).
Here, Uronis pleaded that Appellees were aware he was
“a putative collective member” of and “a witness” in the
Messenger action before he filed his consent to join, and that,
prior to applying for a job at GDS, he planned to testify in
Messenger. App. 72. Uronis further alleged that GDS (via text
message) explicitly informed him that it was rejecting his job
application “because of” the Messenger action. Id. at 73.
Based on these allegations—particularly those regarding the
text message—Appellees declined to hire Uronis and his
former co-workers because of the then-pending Messenger
action. It is plausible that they did so because they anticipated
Uronis and his former co-workers would soon file consents to
join the putative collective action, or otherwise provide
evidence relating to it. Accordingly, Uronis adequately
pleaded he was “about to testify” under Section 15(a)(3).
23
C.
We now turn to Appellees’ contention that the District
Court’s decision should be affirmed because Uronis did not
allege that he took an overt act that fairly put them on notice
that he was about to testify with regard to the Messenger action.
This argument misses the mark—in part by conflating notice
with causation.
As detailed above, in holding that oral complaints are
protected activity, the Kasten Court concluded that Section
15(a)(3) liability “requires fair notice.” Kasten, 563 U.S. at 14.
But in doing so it questioned whether discrimination that
violates Section 15(a)(3) could even exist without fair notice.
See id. (“[T]he statute prohibits employers from discriminating
against an employee ‘because such employee has filed any
complaint.’ And it is difficult to see how an employer who
does not (or should not) know an employee has made a
complaint could discriminate because of that complaint.”)
(internal citation omitted). Moreover, interpreting Section
15(a)(3) to protect activity that an employer anticipates—even
mistakenly, see Brock, 812 F.2d at 124–25, necessarily
considers the employer’s awareness or perception as part of the
causation element of a Section 15(a)(3) claim—as opposed to
the protected activity element.
Uronis adequately pleaded that Appellees had fair
notice that he engaged in protected activity. Taking Uronis’
allegations as true, Appellees explicitly declined to hire him
“because of” the Messenger action. See App. 73. Based on his
allegations, it is plausible that Appellees discriminated against
Uronis based on their anticipation that he would file a consent
to join the collective action, or otherwise give relevant
24
testimony. Retaliating against an employee based on such a
perception violates Section 15(a)(3). See Brock, 812 F.2d at124–25 (finding that employer violated Section 15(a)(3) by
retaliating based on mistaken perception that employee had
filed an FLSA complaint). Moreover, unlike the solely oral
complaint deemed sufficient in Kasten, see 563 U.S. at 14–17,
Appellees had knowledge arising from the then-pending
Messenger lawsuit.
This does not, as Appellees fear, mean that an employer
can never make an adverse employment decision regarding an
employee that is a putative member of a collective action.
Rather, it means they cannot do so for the mere reason that the
employee is a putative member who may join the action or
otherwise exercise rights under the FLSA.
V.
For the reasons above, we will reverse the order of the
District Court dismissing Uronis’ complaint, and remand for
proceedings consistent with this opinion.
25