UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1004
EMMETT JOHNSON JAFARI,
Plaintiff - Appellant,
v.
THE OLD DOMINION TRANSIT MANAGEMENT COMPANY, a/k/a The
Greater Richmond Transit Company (GRTC),
Defendant – Appellee.
-----------------------------------
SECRETARY OF LABOR; EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Amici Supporting Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, Chief
District Judge. (3:08-cv-00629-JRS)
Argued: December 6, 2011 Decided: January 27, 2012
Before TRAXLER, Chief Judge, and DUNCAN and AGEE, Circuit
Judges.
Reversed in part, affirmed in part, and remanded by unpublished
opinion. Judge Duncan wrote the opinion, in which Chief Judge
Traxler and Judge Agee joined.
ARGUED: Denise M. Clark, CLARK LAW GROUP, PLLC, Washington,
D.C., for Appellant. Charles Randolph Sullivan, HUNTON &
WILLIAMS, LLP, Richmond, Virginia, for Appellee. ON BRIEF: P.
David Lopez, General Counsel, Lorraine C. Davis, Acting
Associate General Counsel, Vincent J. Blackwood, Assistant
General Counsel, Barbara L. Sloan, EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C.; M. Patricia Smith, Solicitor of
Labor, Jennifer S. Brand, Associate Solicitor, Paul L. Frieden,
Counsel for Appellate Litigation, Nickole C. Winnett, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for Amici
Supporting Appellant. Sarah E. Bruscia, HUNTON & WILLIAMS, LLP,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
DUNCAN, Circuit Judge:
Appellant Emmett Jafari appeals from the Rule 12(b)(6)
dismissal of his claims against his former employer, Old
Dominion Transit Management, a/k/a The Greater Richmond Transit
Company (“GRTC”), for retaliation under the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. § 215(a)(3); for interference with
protected rights under the Employee Retirement Income Security
Act (“ERISA”), 29 U.S.C. § 1140; and for defamation under
Virginia law. For the following reasons, we reverse and remand
in part and affirm in part.
I.
A.
On February 20, 2006, GRTC hired Jafari as an employee in
its C-Van department. 1 The C-Van department provides
transportation to work and daycare facilities for participants
in the Virginia Initiative for Employment not Welfare (“VIEW”)
program referred to GRTC by local Departments of Social
Services. According to Jafari, his employment with GRTC was at-
will, and he “had no supervisory responsibilities, was eligible
1
Because the district court dismissed Jafari’s complaint
pursuant to Rule 12(b)(6), we take the allegations included in
his complaint to be true. Novell, Inc. v. Microsoft Corp., 505
F.3d 302, 307 (4th Cir. 2007). This section therefore recounts
the facts relevant to this appeal as alleged by Jafari.
3
for overtime pay, . . . and possessed the authority to monitor
C-Van drivers.” J.A. 14. GRTC disclosed that Jafari’s position
might require weekend work and that GRTC “provided employee
benefit plans upon completion of its probationary period, at no
cost to [Jafari].” Id.
After a brief training period, Jafari assumed his
responsibilities in the C-Van department. These
responsibilities included the requirement that Jafari be on call
every other weekend. Jafari claims that, from the beginning, he
performed his job conscientiously and diligently.
In December 2006, GRTC announced a new employee
compensation plan and “invited employee inquiries on the topic.”
J.A. 15. Jafari alleges that he was not being compensated
according to the new plan and that he raised this issue with
GRTC management. According to Jafari, Kimberly Ackerman, GRTC’s
Director of Human Resources, acknowledged that Jafari’s
compensation was below the new plan rate, but she postponed
discussion of the topic until Jafari’s annual evaluation. At
his February 2007 evaluation, however, Jafari alleges that
Ackerman did not increase Jafari’s compensation to “even the
lowest salary within the Plan’s pay grade.” Id. Jafari
continued to receive below-grade compensation despite having
received a “near perfect” evaluation in March 2007. J.A. 16.
4
After raising concerns about his compensation, Jafari began
to experience problems at work. Specifically, he alleges that
GRTC “diminish[ed] his VIEW responsibilities” and actively
sought complaints about him from VIEW participants. J.A. 16.
Jafari also alleges that, in April 2007, GRTC assigned him new
responsibilities related to the Henrico Community Assistance
Ride Enterprise (“CARE”) program without affording him a
concomitant increase in pay.
In October 2007, GRTC Chief Operating Officer Eldridge
Coles reported receiving a complaint about Jafari from a VIEW
client. Specifically, Coles stated that Jafari had told a
client “if she had something to say, to say it to [his] face.”
J.A. 16. As a result of this complaint, Jafari was instructed
not to go to a client’s home unless sent by a dispatcher or
supervisor.
Jafari filed an “official complaint” with GRTC management
about his wages and “GRTC’s defamatory actions” in December
2007. J.A. 17. According to Jafari, Coles assured Jafari that
the issues he raised would be dealt with internally, and
specifically asked Jafari not to go outside the company with his
concerns.
Without resolving these concerns, on February 1, 2008, GRTC
fired Jafari. Jafari was informed of his termination when Coles
called Jafari and Jafari’s supervisor, Sandra Stanley, into his
5
office. Ackerman joined them shortly after, handing Coles a
sealed envelope as she arrived. Coles handed Jafari the letter
and informed him, “[W]e have decided to terminate your
employment with GRTC.” J.A. 20. When Jafari asked why, Coles
responded, “[Y]our supervisory skills have diminished.” Id.
Coles then stated, “[T]he letter will fully inform you.” Id.
Jafari took the sealed letter and left Coles’s office. Ackerman
and Stanley were both present during this conversation.
B.
Jafari originally filed the action now before us as a Sworn
Motion for Judgment in the Circuit Court for the City of
Richmond on August 25, 2008. As relevant to this appeal, Jafari
alleged that GRTC had retaliated against him in violation of the
FLSA’s antiretaliation provision, that it had violated ERISA by
terminating his employment before his benefits vested, and that
it had defamed him. 2 Jafari’s defamation claims were based upon
(1) Coles’s statement that a VIEW client had complained about
Jafari, (2) statements included in the termination letter Coles
presented to Jafari, and (3) statements made to Jafari during
the meeting at which he was terminated, in the presence of
2
Jafari’s complaint also alleged numerous other causes of
action, the dismissal of which he has not challenged on appeal.
6
“others beyond a door.” J.A. 24. He sought damages of $1
million.
GRTC removed the case to the United States District Court
for the Eastern District of Virginia on September 26, 2008,
citing federal question jurisdiction under 28 U.S.C. § 1331
based upon Jafari’s claims under the FLSA and ERISA. Jafari
initially opposed the removal, but subsequently withdrew his
motion to remand on October 17, 2008.
On October 2, 2010, GRTC filed a motion to dismiss. In an
order dated November 26, 2008, the district court granted GTRC’s
Rule 12(b)(6) motion in part and denied it in part. With regard
to the three causes of action relevant for our purposes, the
district court first found that Jafari had failed to state a
claim under the FLSA’s antiretaliation provision because, based
upon its interpretation of our case law, it held that an
employee’s complaints to his employer do not constitute
protected activity under 29 U.S.C. § 215(a)(3). The district
court likewise held that Jafari had not properly alleged facts
sufficient to state a claim under ERISA’s antiretaliation
provision, 29 U.S.C. § 1140, because he did not claim that GRTC
had terminated him with the specific intent to interfere with
his pension rights. Next, the district court dismissed Jafari’s
defamation claim based on the termination letter because, even
assuming the letter contained actionable statements, Jafari did
7
not properly allege publication of any statement contained in
the letter, as required by Virginia law. It likewise dismissed
Jafari’s defamation claim based on the statements made during
the termination meeting to Jafari about his job performance,
finding that the statements were opinions, and thus not
actionable under Virginia law. The only claim that survived
GRTC’s motion to dismiss was Jafari’s defamation claim based on
Coles’s statement regarding the alleged VIEW client complaint.
The district court opined that Jafari had properly alleged both
an actionable statement and publication. Because no federal
question remained, the district court remanded this surviving
claim to the Circuit Court for the City of Richmond.
Jafari filed a timely pro se appeal and submitted an
informal brief. He subsequently retained counsel and
participated in formal briefing. On the issue of whether
intracompany complaints are protected activity within the
meaning of § 215(a)(3) of the FLSA, Jafari is joined by the
Secretary of Labor and the Equal Employment Opportunity
Commission as amici curiae.
II.
On appeal, Jafari advances three arguments. First, he
argues that the district court erred by dismissing his FLSA
retaliation claim, contending that intracompany complaints may
8
constitute protected activity under the FLSA’s antiretaliation
provision. Second, Jafari contends that the district court’s
dismissal of his ERISA retaliation claim was improper because
his complaint alleged that GRTC’s termination of his employment
was motivated by discriminatory intent. Finally, Jafari asserts
that the district court should not have dismissed his claim for
defamation based on the termination letter because his complaint
properly alleged publication of the statements contained in the
letter. We address each of these contentions in turn. In doing
so, we review the district court’s Rule 12(b)(6) dismissal of
Jafari’s claims de novo. Robinson v. Am. Honda Motor Co., 551
F.3d 218, 222 (4th Cir. 2009).
A.
Section 215(a)(3) of the FLSA makes it unlawful for a
covered employer to “discharge or in any 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.” Jafari contends
that the district court erred by holding that complaining to
one’s employer about an alleged FLSA violation does not
constitute “fil[ing] any complaint” within the meaning of the
9
statute. Contrary to the district court’s assessment, 3 this
circuit had not previously stated whether an employee’s
complaint lodged within his company--as opposed to a complaint
filed with a court or government agency--may trigger the
protection of the FLSA’s antiretaliation provision.
Drawing upon the reasoning in the Supreme Court’s recent
decision in Kasten v. Saint-Gobain Performance Plastics Corp.,
131 S. Ct. 1325 (2011), and for the reasons explained more fully
in our concurrently filed published opinion, No. 10-1258, Minor
v. Bostwick Laboratories, Inc., we conclude that intracompany
complaints may constitute protected activity within the meaning
of 29 U.S.C. § 215(a)(3). As such, we reverse the district
court on this ground.
In Minor, we first determined that neither Kasten nor our
previous opinion, Ball v. Memphis Bar-B-Q Co., 228 F.3d 360 (4th
Cir. 2000)--in which we addressed the FLSA’s antiretaliation
provision in a different context--was directly controlling. We
next reasoned that an inquiry into the plain meaning of the
3
The district court held that our unpublished, per curiam
opinion in Whitten v. City of Easely, 62 F. App’x 477 (4th Cir.
2003), was dispositive in this case. Although it is true that
in Whitten, we stated that “the FLSA’s antiretaliation provision
does not extend to internal complaints,” id. at 480, as an
unpublished decision, Whitten “provides no precedential
authority” in this circuit, United States v. Hood, 628 F.3d 669,
672 (4th Cir. 2010).
10
relevant portion of the statute--“filed any complaint”--does not
provide a definitive answer regarding whether intracompany
complaints constitute protected activity. Having determined
that the language “filed any complaint” is ambiguous, we then
looked to “functional considerations” to guide our
interpretation of § 215(a)(3). Kasten, 131 S. Ct. at 1333. We
recognized that the basic purpose of the FLSA is to combat
improper labor conditions and that Congress intended the
antiretaliation provision to provide broad protection for those
who raise concerns about such detrimental conditions. Viewing
the statute through this lens, we concluded that reading the
FLSA’s antiretaliation provision to consider intracompany
complaints as protected activity best effectuates the statute’s
purpose. We therefore held that an employee’s complaint to his
employer may constitute “fil[ing] any complaint” within the
meaning of § 215(a)(3). We reaffirm that holding here.
As in Minor, we emphasize here that “the statute requires
fair notice” to employers, and that not every instance of an
employee “letting off steam” constitutes the filing of a
complaint within the meaning of § 215(a)(3). Kasten, 131 S. Ct.
at 1334. Thus, the proper standard for the district court to
apply on remand is the test articulated in Kasten, which we
adopted in Minor: whether an employee’s complaint to his
employer was “sufficiently clear and detailed for a reasonable
11
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. at 1335.
Because an employee’s intracompany complaint may constitute
protected activity within the meaning of § 215(a)(3), we hold
that the district court erred by dismissing Jafari’s complaint.
Jafari’s allegations that he filed an “official complaint” with
GRTC management and that GRTC specifically asked him not to
raise his grievance outside the company are sufficient to
advance his claim past the Rule 12(b)(6) stage. J.A. 17.
B.
Jafari next contends that the district court incorrectly
dismissed his claim that GRTC interfered with his attainment of
rights under his benefit plan in violation of 29 U.S.C. § 1140.
Although he makes this argument in his formal brief, Jafari
failed to raise it in the informal brief he filed with this
court.
Local Rule 34(b) sets out the procedures a pro se appellant
must follow when filing an appeal in this circuit. It requires
that the clerk notify the pro se appellant that he “shall file .
. . an informal brief, listing the specific issues and
supporting facts and arguments raised on appeal.” 4th Cir. R.
34(b). The rule clearly provides that “[t]he [c]ourt will limit
its review to the issues raised in the informal brief.” Id.
12
Jafari’s failure to include the district court’s dismissal of
his ERISA claims results in his informal brief waives these
claims on appeal.
C.
Jafari finally contends that the district court erred by
dismissing his claim for defamation “related to Coles’
statements about his job performance as reflected in the
[t]ermination letter.” Appellant’s Br. 18. The district court
dismissed this claim on the ground that Jafari failed to allege
publication of any facts in the termination letter, as required
under Virginia law. Jafari argues on appeal that “if the
[c]omplaint is viewed as a whole, the allegations that the
contents of the letter were openly discussed during the
[termination] meeting [demonstrate that] Jafari alleged facts
regarding other individuals who could hear the statements beyond
the door, suggesting that individuals who had no supervisory
authority over him could hear the statements.” Appellant’s Br.
18-19. Upon review, we conclude that the complaint does not, in
fact, contain such allegations. As such, we affirm the district
court’s dismissal of this claim.
13
“In Virginia, the elements of libel 4 are (1) publication of
(2) an actionable statement with (3) the requisite intent.”
Jordan v. Kollman, 612 S.E. 2d 203, 206 (Va. 2005). Publication
requires that the actionable statement be communicated “to some
third person so as to be . . . understood by such person.”
Thalhimer Bros. v. Shaw, 159 S.E. 87, 90 (Va. 1931). An
actionable statement is one that is both false and defamatory.
Jordan, 612 S.E. 2d at 206.
Jafari argues that the publication element was fulfilled
when “Coles reiterated . . . allegations in the [t]ermination
[l]etter” in the presence of “others beyond a door.”
Appellant’s Br. 18. As GRTC points out, however, Jafari did not
allege in his complaint that Coles read any of the termination
letter aloud. The sections of the complaint Jafari directs our
attention to contain allegations that Coles asked Jafari to come
to his office, where the two were joined by two other members of
GRTC management. As described above, Coles allegedly handed
Jafari a letter and stated, “[W]e have decided to terminate your
employment with GRTC.” J.A. 20. The complaint also alleges
that Jafari asked why and Coles responded “‘your supervisory
skills have diminished,’ and then stated ‘the letter will fully
4
In Virginia, defamation in written format is typically
termed libel. Jordan v. Kollman, 612 S.E. 2d 203, 206 (Va.
2005).
14
inform you.’” J.A. 20. The complaint elsewhere contains
similar allegations that Coles made the statement about Jafari’s
supervisory skills, but it never alleges that Coles or any other
GRTC employee read the letter aloud or circulated the letter to
anyone outside of GRTC management. Therefore, Jafari’s argument
before us on appeal not only does not address the publication
element the district court found lacking, it mischaracterizes
his complaint.
Perhaps recognizing this problem, Jafari attempts to recast
his contention in his reply brief, claiming that “the only
statement at issue on appeal is the statement made to Mr. Jafari
about his job performance at the [d]ischarge [m]eeting while
others were outside the door.” Appellant’s Rep. Br. 13. To the
contrary, although Jafari’s opening brief is not a model of
clarity, a fair reading shows that Jafari only evinces an intent
to appeal the district court’s decision about the termination
letter. Tellingly, in his opening brief, Jafari only makes
arguments about publication, which is the ground on which the
district court dismissed his defamation claim based on the
termination letter. Conversely, the district court dismissed
Jafari’s claim based on Coles’s statement about Jafari’s job
performance on the ground that it was one of opinion, rather
than an actionable statement of fact. That Jafari only
addresses publication, and not opinion, in his opening brief
15
makes it clear that he did not properly raise the issue of the
district court’s dismissal of his claim based upon Coles’s
statements at that point. We consider arguments not raised in
an appellant’s opening brief to be waived. See, e.g., Yousefi
v. INS, 260 F.3d 318, 326 (4th Cir. 2001). Therefore, we
decline to address this alternative claim.
III.
For the foregoing reasons, the judgment of the district
court with regard to Jafari’s claims under 29 U.S.C. § 215(a)(3)
is reversed and remanded for proceedings consistent with this
opinion. We affirm the district court’s judgment in all other
respects.
REVERSED IN PART,
AFFIRMED IN PART,
AND REMANDED
16