IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 6, 2009
No. 07-30990 Charles R. Fulbruge III
Clerk
BRUCE A CASEY; JAMES BARRY BRYAN
Plaintiffs-Appellants
v.
LIVINGSTON PARISH COMMUNICATIONS DISTRICT; RONALD W
COTTON; FRED BANKS
Defendants-Appellees
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:06-CV-341
Before SMITH, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Bruce A. Casey and James Barry Bryan (substituted for Brenda
Vulgamore, who died in April 2007), appeal. Casey and Vulgamore (Plaintiffs)
were employees of the Livingston Parish Communications District (LPCD).
Contested are: (1) the dismissal under Federal Rule of Civil Procedure 12(b)(6)
of Plaintiffs’ claim under 42 U.S.C. § 1983 for termination without notice or a
hearing, in violation of due process; (2) the dismissal with prejudice under Rule
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 07-30990
12(b)(1) of their state-law age-discrimination claim; and the summary judgment
against claims (3) for retaliatory termination, in violation of the Fair Labor
Standards Act (FLSA), 29 U.S.C. § 215(a)(3), and (4) for liquidated damages and
attorney’s fees, pursuant to FLSA § 216(b). At issue is whether: (1) Plaintiffs
had a property interest in their employment; (2) the district court’s error in
dismissing the state-law age-discrimination claims with prejudice was harmless;
(3) Plaintiffs established a cognizable claim of retaliation under the FLSA; and
(4) the district court erred in concluding that Defendants’ error in calculating
overtime pay was made in good faith. AFFIRMED.
I.
The LPCD, a political subdivision of the State of Louisiana, provides
emergency communications services for Livingston Parish. In February 2005,
Casey and Vulgamore began working at the LPCD’s 911 Emergency Call Center.
Casey was a shift supervisor; Vulgamore, a communications officer. Casey
regularly supervised Vulgamore.
Two weeks after Plaintiffs began working for the LPCD, other officers
started complaining to Cotton (LPCD’s director, and a defendant in this action)
that Vulgamore was sleeping on the job. Such conduct was, of course, a danger
to public safety given Vulgamore’s job duties, and the LPCD policy manual listed
it as a cause for disciplinary action.
After receiving several complaints of this sort and conducting an
investigation, Cotton suspended both Vulgamore, for sleeping on the job, and
Casey, for showing favoritism to Vulgamore by allowing her to do so. Cotton
completed an Employee Disciplinary Report for each suspended employee.
Neither Plaintiff disputed the above-described reasons cited for discipline
when given the opportunity to do so in the report’s “Employee Remarks” section.
Only after termination did Plaintiffs contend Vulgamore was not sleeping on
duty, although both conceded she occasionally “shut her eyes” while working.
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No. 07-30990
Plaintiffs were formally terminated in May 2005. They appealed the
decision to the Board of Commissioners, the LPCD’s governing body. Banks
(Chairman of the Board, also a defendant in this action) and the other three
Board members voted to uphold Cotton’s termination decision.
After termination, Casey filed a complaint with the United States
Department of Labor (DOL), alleging the LPCD improperly calculated overtime
pay. Although both Casey and Vulgamore had complained orally to their
superiors during their tenure at the LPCD regarding delays in the payment of
overtime, no written complaint was filed until this point, either internally or
with the DOL.
The DOL found the LPCD had slightly, but in good faith, under-calculated
the overtime pay, and determined Casey and Vulgamore were due $142.86 and
$163.40, respectively. The DOL facilitated a settlement, and the LPCD offered
Plaintiffs compensation in that amount. They refused to accept the funds,
because receipt was contingent on signing a form with the DOL, releasing their
back-wages claim under FLSA § 216(b). Plaintiffs later admitted in their
depositions that the overtime pay owed to them, as calculated and determined
by the DOL, was correct.
On 16 May 2006, Plaintiffs filed this action, seeking their unpaid overtime,
liquidated damages, and attorney’s fees, pursuant to FLSA § 216(b), and
recovery for being terminated in retaliation for their oral requests for overtime
pay, pursuant to FLSA § 215(a)(3). They also filed claims under § 1983, for
being terminated without notice or a hearing, and under the Age Discrimination
in Employment Act (ADEA). On 11 September 2006, they amended their
complaint to add age-discrimination claims under the Louisiana Employment
Discrimination Law (LEDL), and wage-payment claims under Louisiana’s Wage
Payment Law.
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No. 07-30990
Defendants moved to dismiss all claims. On 23 February 2007, the district
court granted Defendants’ Rule 12(b)(6) motion to dismiss the § 1983 claim,
concluding: the LPCD was not a part of the Louisiana State Civil Service
System; therefore, Plaintiffs did not have a property interest in their jobs; and,
without such an interest, there was no deprivation of Constitutional rights and
privileges. It also granted Defendants’ Rule 12(b)(1) motion to dismiss Plaintiffs’
state and federal age-discrimination claims, finding neither claim procedurally
proper. Plaintiffs had not initially filed a complaint with the Equal Employment
Opportunity Commission (EEOC) before filing an action for their ADEA claim,
nor had they given written notice to their employer, as required, before filing the
LEDL claim. Finally, the court dismissed Plaintiffs’ state wage-law claims
against the individual Defendants, because they could only seek recovery against
their employer, the LPCD. The wage claims against the LPCD remained before
the court.
In June 2007, Defendants moved for summary judgment with respect to
all of Plaintiffs’ claims. The district court issued a second ruling on 20
September 2007, dismissing with prejudice the § 1983 and state and federal age-
discrimination claims for the reasons provided in the above-discussed 23
February opinion. Additionally, it granted summary judgment against the
remainder of Plaintiffs’ claims, determining: they had not proved a prima facie
case of retaliation under FLSA § 215(a)(3), because their internal, oral
complaints regarding delay in receiving overtime pay did not constitute
“protected activity” under the FLSA; and, even if they had proved a prima facie
case, the Defendants could show a legitimate, non-discriminatory reason for the
termination, one Plaintiffs could not prove was pre-textual: Vulgamore was
sleeping on the job and Casey, as her supervisor, was aware of this and failed to
take corrective action.
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The district court also concluded that Plaintiffs were entitled to the
overtime pay calculated by the DOL, but were not entitled to liquidated damages
and attorney’s fees under FLSA §216(b) because: per FLSA § 260, it was clear
the overtime miscalculation was made in good faith, therefore, the district court,
in its discretion, could refuse to award liquidated damages; and, because the
LPCD offered Plaintiffs the amount of back wages determined by the DOL to be
due (and agreed by the Plaintiffs to be correct) in January 2006, before Plaintiffs
had retained counsel, they had no cognizable attorney’s-fees claim under the
statute. Finally, it dismissed with prejudice the Louisiana Wage Payment law
claims against the individual Defendants for the reasons stated in the 23
February opinion; and, it refused to exercise supplemental jurisdiction under 28
U.S.C. § 1367, dismissing all pending state-law claims without prejudice.
II.
A district court’s dismissal of claims under Rule 12(b)(6) is reviewed de
novo. E.g., Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). A summary
judgment is also reviewed de novo. E.g., H & A Land Corp. v. City of Kennedale,
480 F.3d 336, 338 (5th Cir. 2007).
A.
Plaintiffs contend, under § 1983, that they were terminated without a
hearing in violation of their due-process rights. Defendants maintain that the
district court properly dismissed the claim on their Rule 12(b)(6) motion. The
district court concluded: the LPCD was not part of the Louisiana State Civil
Service System (LSCSS) because LPCD was neither an instrumentality of the
State under the traditional definition, nor had the Louisiana Legislature
expressly indicated its desire that LPCD be included in the LSCSS. As such,
Plaintiffs had no property interest in their employment that would validate their
§ 1983 claim.
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Article 10, § 1(A) of the Louisiana Constitution states: “The state civil
service is established and includes all persons holding offices and positions of
trust or employment in the employ of the state, or any instrumentality thereof
. . . .” L A. C ONST. art. 10, § 1. If an entity is found to be an instrumentality of
the State, it is constitutionally mandated that its employees be included in the
civil-service system. See Polk v. Edwards, 626 So. 2d 1128, 1147 (La. 1993).
Civil-service employees have a property interest in maintaining their positions,
and, accordingly, cannot be terminated without due process. See AFSCME,
Council #17 v. State ex rel. Dep’t of Health & Hosps., 789 So. 2d 1263, 1267-68
(La. 2001). In Slowinski v. England Economic & Industrial Development
District, 828 So. 2d 520 (La. 2002), the Louisiana Supreme Court identified
several factors used to determine whether an entity is an instrumentality of the
State, including, inter alia: its powers, functions, degree of interrelationship with
the State, geographic scope, and level of autonomy. Id. at 523.
If a political subdivision does not fit this definition, it is not
constitutionally mandated to participate in the LSCSS. It may, however, still
do so if there is clear legislative intent that the entity so participate, regardless
of how local or autonomous the entity might be. Id. at 527. This intent is often
shown by an express declaration that an entity shall be considered an
instrumentality of the State, and, without such declaration, it would be
“unreasonable to assume [the] legislature overlooked it”. Id. at 528.
Essentially for the reasons stated by the district court in its comprehensive
opinion, the LPCD is not an “instrumentality of the state”, because it lacks the
“extensive entanglement” with the State to be so defined under Slowinski. Id.
at 526; Casey v. Livingston Parish Commc’ns Dist., No. 06-341-FJD-DLD (M.D.
La. 23 Feb. 2007) (District Court’s Ruling re: defendants’ motion to dismiss). We
additionally determine that the Louisiana Legislature did not intend the LPCD
to be a part of the LSCSS, as there is no language suggesting such intent in the
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No. 07-30990
statutory authority creating communications districts. (Because we have
determined the LPCD is not an instrumentality of the State, there is no need to
decide whether Plaintiffs’ failure to meet the requirements of Article 10, § 7 of
the Louisiana Constitution–mandating that all classified civil servants take a
competitive exam–prevented them from obtaining permanent classified civil-
service status.)
Accordingly, the district court properly dismissed this claim: without being
a part of the LSCSS, Plaintiffs had no property interest in their jobs and were
not entitled to due process before being terminated. Therefore, their § 1983
claim necessarily fails.
B.
Plaintiffs next contend the district court erroneously dismissed their state
age-discrimination claims with prejudice; and, because the time limitations have
run on those claims, our court should apply equitable tolling to them during the
pendency of their federal claims and additional state administrative proceedings.
Defendants do not contest the district court’s error in dismissing the claims with
prejudice (vice without); rather, they claim this is harmless error in the light of
Plaintiffs’ admission that their state-law age-discrimination claims are time
barred. Moreover, they assert that Plaintiffs’ equitable-tolling contention should
be rejected, as they raise it for the first time on appeal.
The district court dismissed this state-law claim under LEDL, codified in
L A. R EV. S TAT. A NN. §§ 23:312 and 23:323, for failure to follow the procedural
requirements, pursuant to L A. R EV. S TAT. A NN. § 23:303. Under § 23:303(C), a
plaintiff intending to pursue a discrimination claim against his employer must
give written notice of this fact at least 30 days before initiating litigation. See
L A. R EV. S TAT. A NN. § 23:303(C). In its 23 February 2007 order, the district court
concluded: because there was no evidence Plaintiffs followed this procedure,
their claims were premature and must be dismissed.
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No. 07-30990
The district court reaffirmed its dismissal of the state-law age-
discrimination claims in its 20 September 2007 summary-judgment ruling;
however, it erroneously dismissed the claim with prejudice. Nonetheless, as
discussed below, this error was harmless, as the claims were time barred and
could not have been pursued even if the district court had properly dismissed
without prejudice.
Under § 23:303(D), any claim filed under LEDL is subject to a one-year
prescriptive period. L A . R EV. S TAT. A NN. § 23:303(D); see Thompson v. Sysco
Corp., 2008 WL 65582, at *2 (M.D. La. 4 Jan. 2008). The alleged injury occurred
on 24 May 2005, when Plaintiffs were terminated; they did not file their
amended complaint, adding the state-law age discrimination claims, until 11
September 2006. In short, the one-year prescriptive period had run.
As noted, Plaintiffs did not raise equitable tolling in district court.
Generally, contentions not raised in district court are waived. We will consider
an issue raised for the first time on appeal only when it is a purely legal question
and consideration is necessary to avoid a miscarriage of justice. E.g., Langhoff
Props., LLC v. BP Prods. N. Am. Inc., 519 F.3d 256, 261 n.12 (5th Cir. 2008).
Such circumstances are not present in this action. Plaintiffs simply failed to
meet the procedural requirements of pursuing their claim; equitable tolling
should not be used to excuse that failure.
C.
Plaintiffs next contest the summary judgment against their anti-
retaliation claim, pursuant to FLSA § 215(a)(3). Under the familiar burden-
shifting formula, in order to establish a prima facie case of retaliation, a plaintiff
must show: (1) he is engaged in a protected activity; (2) an adverse employment
action occurred; and (3) a causal link existed between the protected activity and
the adverse action. E.g., Pineda v. United Parcel Serv., Inc. 360 F.3d 483, 487
(5th Cir. 2004). Once a prima facie case is established, the burden shifts to the
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No. 07-30990
defendant to prove a legitimate, non-discriminatory purpose for the adverse
employment action. If the defendant meets this burden, it shifts back to the
plaintiff, who must prove that the employer’s stated reason for the adverse
employment action was merely pretextual. Id.
Primarily at issue in district court was whether the first element of the
prima facie case was satisfied. Section 215(a)(3) of the FLSA establishes: it will
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”. 29 U.S.C. § 215(a)(3) (emphasis added). Plaintiffs contended they
were engaged in protected activity because their above-discussed internal, oral
complaints constituted “filing a complaint” under FLSA § 215(a)(3).
The district court, however, agreed with the Defendants and concluded
that those complaints should not be considered protected activity under the
FLSA, because it was inconsistent with its plain language. Further, it held: even
if those complaints qualified as protected activity, Plaintiffs had failed to
establish a prima facie case of retaliation, because there was insufficient
evidence to establish the requisite causal connection between the protected
activity and termination. Moreover, it held: even if a prima facie case had been
established, the claim failed because Defendants effectively rebutted the
presumption of retaliatory intent by articulating a legitimate, non-
discriminatory reason for Plaintiffs’ termination, that could not be shown to be
pretextual–Vulgamore was sleeping on the job; and Casey both knew about, and
condoned, it.
When the district court ruled, our court had not yet addressed the contours
of protected activity under FLSA § 215(a)(3), specifically, what constitutes
“fil[ing] any complaint” under that section. Although the Second Circuit had
previously determined that the statute’s plain language limited the claim to
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No. 07-30990
filing a formal complaint with a government agency, see Lambert v. Genesee
Hosp., 10 F.3d 46, 55 (2d Cir. 1993), the majority interpretation of FLSA §
215(a)(3) was that an informal, internal complaint may constitute protected
activity. See Lambert v. Ackerley, 180 F.3d 997, 1003-05 (9th Cir. 1999) (en
banc); Valerio v. Putnam Assocs. Inc., 173 F.3d 35, 44-45 (1st Cir. 1999); EEOC
v. Romeo Comty. Sch., 976 F.2d 985, 989-90 (6th Cir. 1992); EEOC v. White &
Son Enters., 881 F.2d 1006, 1011 (11th Cir. 1989); Brock v. Richardson, 812 F.2d
121, 123-25 (3d Cir. 1987); Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th
Cir. 1984); Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir. 1975).
Between the district court’s decision and this appeal, our court joined the
majority position. See Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617 (5th Cir.
2008). Hagan adopted the majority rule, which “allows an informal, internal
complaint to constitute protected activity under [FLSA] § 215(a)(3)”. Id. at 626.
Our court noted, however, that this rule came with some “necessary
qualifications”, and that “not all ‘abstract grumblings’ or vague expressions of
discontent are actionable as complaints”. Id. (quoting the district court’s
opinion, Hagan v. Echostar Satellite, L.L.C., 2007 WL 543441, at *4 (S.D. Tex.
16 Feb. 2007)).
In any event, we need not determine on which side of the line between an
actionable and non-actionable complaint Plaintiffs’ comments fall. Essentially
for the reasons stated in the district court’s 20 September summary-judgment
ruling, we hold: even assuming, arguendo, Plaintiffs’ informal complaints were
actionable, rather than mere “vague expressions of discontent”, the district court
properly concluded the claim failed because (1) Plaintiffs did not establish a
causal connection between the protected activity and the adverse employment
action (termination), and (2) even had they done so, Defendants presented a
legitimate, non-discriminatory reason for the firings, one Plaintiffs could not
show was pretextual.
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No. 07-30990
D.
For their final claim, Plaintiffs contend the district court erred in ruling:
the LPCD’s mistake in calculating overtime pay was made in good faith; and,
therefore, they were not entitled to liquidated damages under FLSA § 216(b).
(We, at least, assume this is the Plaintiffs’ contention. Their briefing is wholly
inadequate–one half of a page of conclusory statements and speculative
allegations.) Defendants claim the good-faith ruling was proper. (The district
court additionally denied attorney’s fees under FLSA § 216(b). On appeal,
Plaintiffs have not contested that ruling. Needless to say, issues not raised on
appeal are deemed waived. E.g., United States v. Jimenez, 509 F.3d 682, 693
n.10 (5th Cir. 2007), cert. denied, 128 S. Ct. 2924 (2008).)
Under FLSA § 216(b), an employer who violates FLSA § 207 (the provision
regarding unpaid overtime) shall be liable to affected employees for both the
unpaid overtime and, in some instances, an additional equal amount as
liquidated damages. See 29 U.S.C. § 216(b). Pursuant to FLSA § 260, however,
if an employer can show that the act or omission leading to the unpaid overtime
was made in good faith, the court may, in its discretion, award no liquidated
damages. See 29 U.S.C. § 260.
Essentially for the reasons stated in the district court’s 20 September
summary-judgment ruling, it was not error to rule that the LPCD acted in good
faith when it miscalculated the Plaintiffs’ overtime wages. LPCD officials
provided detailed affidavits explaining how they made the overtime
miscalculation, stating that at no time prior to an audit conducted by the DOL
in the summer of 2005 did they believe the LPCD was in violation of the FLSA.
Additionally, upon this audit, the DOL specifically found the miscalculations to
have been made in good faith. Plaintiffs’ above-referenced conclusory and
speculative statements concerning bad faith are not sufficient to defeat this
ruling.
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No. 07-30990
III.
For the foregoing reasons, the judgment is AFFIRMED.
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