Retaliation? Make Sure There Is Protected Activity, 1st Circuit Did

Protected activity is not always a simple question as a plaintiff who was terminated for his refusal to sign invoices which reflected improper payments under the FLSA found out. Claudio-Gotay v. Becton Dickinson Caribe, Ltd. (1st Cir. 7/13/04). Since his job as Safety/Environment Process Engineer required him to supervise the contract with the provider of the guard service and the employer's policy required him to report any possible violation of mispayment to their employees, when he first reported the possible problem he was not acting adverse to his employer's interests, the sine qua non for retaliation, at least in the 1st Circuit. After making the report,

Claudio attended a meeting with Becton's management discussing the guards' overtime pay. At the meeting, Becton's lawyer concluded that the guards were not employees of Becton and therefore that Becton was not responsible for paying the guards' overtime. As a preventive measure, however, Becton's management decided to send a letter informing CM Express that it might be violating the FLSA. Claudio, who was present during this meeting, heard the recommendation of the lawyer, was informed that Becton was not responsible for paying the guards overtime, and knew that Becton was taking action nonetheless. Claudio was also specifically directed to approve the invoices.

When he refused he was terminated. His refusal was not protected either. Turning a nice phrase, the Court held it "occurred after the whistle had been blown and after corrective actions were being taken to remedy any FLSA violations." Finding at that stage it was neither complaining or providing information about substandard practices, it was also not protected.



But if retaliation is not always simple, the employer was also reminded that neither is summary judgment. Although prevailing on the FLSA retaliation claim, summary judgment on plaintiff's COBRA claim for failure to send timely notice was reversed.  As the court noted:

The issue in this case is not whether mailing a letter via certified first class mail constitutes adequate notice. Rather, the issue is whether there was evidence, sufficient to require summary judgment, that the letter was mailed. The district court held that there was evidence that the letter was mailed because Becton's custodian of records stated in a sworn declaration that the company complied with COBRA's notice requirements. The district court erred by relying on this alleged sworn declaration because, as Becton has conceded on appeal, no such sworn declaration exists.

Ouch.