United States Court of Appeals
For the First Circuit
No. 03-1752
EFRAÍN CLAUDIO-GOTAY, EFRAÍN CLAUDIO-CRUZ,
and ELIA M. GOTAY-CRUZ,
Plaintiffs, Appellants,
v.
BECTON DICKINSON CARIBE, LTD.; VÍCTOR PAGÁN, PERSONALLY
AND AS GENERAL MANAGER OF BECTON DICKINSON CARIBE, LTD.;
HIRAM OCASIO, PERSONALLY AND AS MANAGER OF BECTON
DICKINSON CARIBE, LTD.; JOHN DOE; JANE DOE;
INSURANCE COMPANY X & Y,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Selya, Circuit Judge.
Jorge L. M. Cintrón-Pabón, with whom Edgardo R. Jiménez-
Calderín and Jiménez Calderín Law Offices were on brief, for
appellants.
Manuel A. Núñez-Aragunde, with whom Manuel A. Núñez Law
Offices, Martha L. Martínez-Rodríguez, Gloria M. De Corral-
Hernández, and De Corral & De Mier were on brief, for appellees.
July 13, 2004
TORRUELLA, Circuit Judge. Plaintiffs-appellants, Efraín
Claudio-Gotay and his parents (hereinafter jointly referred to as
"Claudio"), filed suit under the Fair Labor Standards Act ("FLSA"),
29 U.S.C. §§ 201-219, the Employee Retirement Income Security Act
("ERISA"), 29 U.S.C. §§ 1001-1461, and Puerto Rico Public Law 80,
29 P.R. Laws Ann. § 185(a), alleging that Claudio was wrongfully
terminated from his employment by defendant-appellee Becton
Dickinson Caribe, Ltd. ("Becton") and that Becton failed to give
Claudio notice of his right to continued medical coverage. The
district court granted summary judgment in favor of Becton.
Claudio appeals. For the reasons stated below, we affirm in part
and reverse in part.
I. Background
Claudio was hired by Becton as a Safety/Environmental &
Process Engineer on September 28, 1998. After a month on the job,
Claudio was informed that his responsibilities included monitoring
the security guards at Becton's Juncos, Puerto Rico plant. This
task included "see[ing] to it that the guards are there, that the
[guards] render the service, and they give the service the contract
specifies." In addition, Claudio was responsible for "approving
the [guards'] invoices for payment."
The security guards at the Juncos plant were hired
through CM Express Service Corp. ("CM Express"), a contractor.
Upon examining the invoices submitted by CM Express, Claudio
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concluded that the security guards were not being properly
compensated for overtime hours worked. Claudio spoke with his
superiors about this potential labor violation and wrote a letter
to Becton explaining the potential violation.
In response to Claudio's letter, Becton held a meeting,
with Becton's lawyer in attendance, and determined that the
security guards were not employees of Becton and, therefore, Becton
was not responsible for ensuring that the guards received overtime
pay. Becton decided that it would inform CM Express of the
potential FLSA violations Claudio had identified. At the
conclusion of the meeting, Claudio's supervisors told him that, in
the meantime, he should approve the invoices. Claudio refused to
do so and was terminated from employment.
II. Standard of review
"We review summary judgment decisions de novo, viewing
the facts in the light most favorable to the nonmoving party." GTE
Wireless, Inc. v. Cellexis Int'l, Inc., 341 F.3d 1, 4 (1st Cir.
2003) (citation omitted). A summary judgment motion should be
granted if "the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law." Fed.
R. Civ. P. 56(c). We may affirm a grant of summary judgment on any
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ground supported by the record. Geffon v. Micrion Corp., 249 F.3d
29, 35 (1st Cir. 2001).
III. Analysis
A. FLSA anti-retaliation provision
Claudio argues that he was wrongfully terminated because
the FLSA makes it "unlawful for any person to discharge or in any
other manner discriminate against any employee because such
employee has filed any complaint" related to the Act. 29 U.S.C.
§ 215(a)(3). The elements of a retaliation claim under the FLSA
require, at a minimum, a showing that (1) the plaintiff engaged in
a statutorily protected activity, and (2) his employer thereafter
subjected him to an adverse employment action (3) as a reprisal for
having engaged in protected activity. Blackie v. Maine, 75 F.3d
716, 722 (1st Cir. 1996). The central issue on appeal is whether
Claudio engaged in a statutorily protected activity that triggers
the protection of 29 U.S.C. § 215(a)(3).
There are two incidents that Claudio contends fall within
the ambit of filing a complaint. The first incident occurred when
Claudio informed Becton, both orally and in writing, that the
guards were not being paid overtime. The second incident occurred
when Claudio refused to sign the invoices even after being told
that Becton was not the employer of the guards.
As to the first incident, other circuits have held, and
we agree, that "it is the assertion of statutory rights . . . by
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taking some action adverse to the company . . . that is the
hallmark of protected activity under § 215(a)(3)." McKenzie v.
Renberg's Inc., 94 F.3d 1478, 1486 (10th Cir. 1996); see also
EEOC v. HBE Corp., 135 F.3d 543, 554 (8th Cir. 1998) (requiring
action adverse to the company in a Title VII retaliation case). To
engage in protected activity, "the employee must step outside his
or her role of representing the company and . . . file . . . an
action adverse to the employer, actively assist other employees in
asserting FLSA rights, or otherwise engage in activities that
reasonably could be perceived as directed towards the assertion of
rights protected by the FLSA." McKenzie, 94 F.3d at 1486. "A
requirement of 'stepping outside' a normal role is satisfied by a
showing that the employee took some action against a . . . policy
. . . and that the action was based on a reasonable belief that the
employer engaged in . . . conduct" contrary to the FLSA. HBE
Corp., 135 F.3d at 554.
In McKenzie, the Tenth Circuit held that a personnel
director did not engage in a protected activity by reporting
overtime violations because her job responsibilities included "wage
and hour issues." McKenzie, 94 F.3d at 1487. In contrast, the
Tenth Circuit held in Conner that a food clerk engaged in a
protected activity by reporting overtime violations because the
employee had "no management responsibilities regarding the
calculation of overtime wages." Conner, 121 F.3d at 1394. In HBE
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Corp., the Eighth Circuit held that a personnel director engaged in
a protected activity when he stepped outside his employment role by
refusing to fire a black employee because the firing was ordered
for patently discriminatory reasons. HBE Corp., 135 F.3d at 554.
When Claudio first informed Becton of the potential
overtime violations, he did so in furtherance of his job
responsibilities. Claudio's job responsibilities included
approving invoices documenting the guards' hours worked and their
corresponding pay. As Claudio's letter to Becton indicates,
Claudio was concerned with protecting Becton, not asserting rights
adverse to Becton. Compare id. The letter stated:
Acceptance of inappropriate conditions
of salary payment by an outside contractor to
their employees is an inappropriate practice
of Becton Dickinson Juncos. Becton Dickinson
Juncos and their representative officers can
[sic] be responsible for this. . . .
. . . .
It is my intention by bringing out this
important issue, [sic] avoid potential
liability of Becton Dickinson Juncos before
any future reclamation related with it.
As in McKenzie, Claudio "never crossed the line from being an
employee merely performing h[is] job . . . to an employee lodging
a personal complaint." McKenzie, 94 F.3d at 1486. When Claudio
first alerted Becton about a potential violation, therefore, he did
not engage in a protected activity for purposes of 29 U.S.C. § 215
(a)(3).
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As to the second incident, we must determine whether
Claudio's refusal to sign the invoices triggers the protection of
29 U.S.C. § 215(a)(3). There is a conflict among the circuits
regarding what actions constitute the filing of a complaint.
See Valerio v. Putnam Assoc., Inc., 173 F.3d 35, 41 (1st Cir. 1999)
(explaining the circuit split). This circuit, although not
requiring an employee to file a formal complaint with a court or
agency to receive FLSA protection, does require an employee to take
action beyond mere "abstract grumblings." Id. at 44. Proceeding
on a case-by-case basis, we analyze the facts to inquire whether
the communications to the employer were sufficient to amount to a
"filing of a complaint" as required by the FLSA. Id. at 45.
Before Claudio refused to sign the invoices, he 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.
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We do not believe Claudio's refusal to sign the invoices
constituted the filing of a complaint. The FLSA anti-retaliation
provision protects an employee's lawful efforts to secure rights
afforded by the FLSA. The FLSA does not, however, provide a
"shield against legitimate employer actions." Blackie, 75 F.3d at
724. Claudio's refusal to sign the invoices occurred after the
whistle had been blown and after corrective actions were being
taken to remedy any FLSA violations. The FLSA was created to
protect an employee who "lodge[s] complaints or suppl[ies]
information to officials regarding allegedly substandard employment
practices and conditions." Valerio, 173 F.3d at 42 (citation
omitted). Claudio's refusal to sign the invoices did neither.
Therefore, Claudio's refusal to sign the invoices did not
constitute the filing of a complaint.
B. Notification of health care coverage
The Consolidated Omnibus Budget Reconciliation Act
("COBRA") requires that employers allow former employees the
opportunity to elect the continuation of their health care coverage
for a period of time, at their own expense, if they are terminated.
See 29 U.S.C. § 1161. When an employee is terminated, the employer
is required to notify the plan administrator within thirty days of
the termination. See id. § 1166(a)(2). The plan administrator is
then required to notify "any qualified beneficiary" of his or her
rights under COBRA within fourteen days of the date on which the
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administrator is notified of the termination. See id. § 1166
(a)(4) & (c).
Claudio alleges that Becton violated 29 U.S.C. § 1166 by
failing to give him timely notice that he could continue his health
care coverage. Claudio was terminated on January 22, 1999. At the
latest, Claudio should have received notification of his rights by
March 4, 1999.
Becton contends that a COBRA notification letter was sent
via certified mail, return receipt requested,1 to Claudio's address
on record on January 27, 1999, and that the mailing of this letter
constituted adequate notice.2
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
1
At oral argument, Becton's counsel stated that the letter was
sent no return receipt requested. The evidence in the record and
Becton's brief states that the letter was sent return receipt
requested.
2
Becton also contends that it sent Claudio a second letter on
March 18, 1999, and personally handed Claudio's friend a third
letter on March 18, 1999. These letters were sent outside the
statutorily mandated time frame for informing Claudio of his COBRA
rights.
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district court erred by relying on this alleged sworn declaration
because, as Becton has conceded on appeal, no such sworn
declaration exists.
There are two items in the record that pertain to COBRA
notification. The first item is a COBRA notification letter dated
January 27, 1999. The second item is a note, not a sworn
affidavit, dated March 18, 1999, from "JLKA" to Claudio stating
that his COBRA letter "was sent certified with acknowledgment of
receipt on January 27 of 1999. The certification number is
093820179. We have never received the acknowledgment." Attached
to the note is United States Postal Service Form 3811, which is a
form that is attached to a piece of mail, signed by the recipient,
and then returned to the sender. There is no signature showing
that this form was ever received by Claudio and there are no
markings on this form showing that it was ever mailed.
This evidence does not compel the conclusion that the
letter was actually mailed; therefore, there is a genuine issue of
material fact regarding whether Claudio was given adequate notice
within the time period required by COBRA. See, e.g., Scott v.
Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1231 (11th Cir. 2002)
(holding that summary judgment is inappropriate where "there is no
evidence that the agent sent out a notice to plaintiff, nor any
evidence that the . . . necessary steps [were taken] to ensure
. . . notification"); Phillips v. Riverside Inc., 796 F. Supp. 403,
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407 (E.D. Ark. 1992) (finding no actual evidence that the COBRA
letter was mailed). We therefore reverse the district court's
grant of summary judgment in favor of Becton on this issue.
C. Claims under Puerto Rico law
The district court declined to exercise supplemental
jurisdiction over Claudio's Puerto Rico law claim after it granted
summary judgment to Becton and dismissed the FLSA claim. Since we
affirm the district court's dismissal of the FLSA claim, we also
affirm the district court's dismissal without prejudice of
Claudio's Puerto Rico law claim. Cf. Rodríguez v. Doral Mortgage
Corp., 57 F.3d 1168, 1177 (1st Cir. 1995) ("As a general principle,
the unfavorable disposition of a plaintiff's federal claims at the
early stages of a suit, well before the commencement of trial, will
trigger the dismissal without prejudice of any supplemental
state-law claims.").
IV. Conclusion
For the forgoing reasons, the judgment of the district
court is affirmed in part and reversed in part. We remand for
proceedings consistent with this opinion. Each party shall bear
its own costs.
Affirmed in part, reversed in part and remanded.
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