Edwards v. AH Cornell and Son, Inc.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 09-3198

SHIRLEY EDWARDS,

Appellant
v.

A.H. CORNELL AND SON, INC.,
d/b/a AH Cornells;
MELISSA CLOSTERMAN;
SCOTT A. CORNELL

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-09-cv-01184)
District Judge: Honorable J. Curtis Joyner

Argued April 13, 2010
Before: FISHER, HARDIMAN and
COWEN, Circuit Judges.

(Filed: June 24, 2010)
Ari R. Karpf
Justin L. Swidler (Argued)
Karpf, Karpf & Virant
3070 Bristol Pike
Building 2, Suite 231
Bensalem, PA 19020
Counsel for Appellant

Christie M. Flamm
Walter H. Flamm, Jr. (Argued)
Flamm Walton
794 Penllyn Pike
Blue Bell, PA 19422
Counsel for Appellees

Eric C. Lund (Argued)
Plan Benefits Security Division
Nathaniel I. Spiller
Office of the Solicitor
United States Department of Labor
Room N-4611
200 Constitution Avenue, N.W.
Washington, DC 20210
Counsel for Amicus Curiae,
Secretary of Labor

OPINION OF THE COURT

2
FISHER, Circuit Judge.

Shirley Edwards filed suit against her employer, A.H.
Cornell and Son, Inc. (“A.H. Cornell”), and supervisors, Scott
A. Cornell and Melissa J. Closterman, claiming that she was
terminated in violation of Section 510 of the Employee
Retirement Income Security Act of 1974 (“ERISA”) and state
common law after complaining to management about alleged
ERISA violations. The defendants filed a Rule 12(b)(6) motion
to dismiss, and the District Court granted the motion, holding
that Edwards’s complaints were not part of an “inquiry or
proceeding” and thus not protected under Section 510. On
appeal, we are presented with a single issue of first impression
for this Court: whether the anti-retaliation provision of Section
510 of ERISA, 29 U.S.C. § 1140, protects an employee’s
unsolicited internal complaints to management. Four federal
Courts of Appeals have ruled on this issue: the Fifth and Ninth
Circuits have held in the affirmative, and the Second and Fourth
Circuits have held in the negative. We agree with the latter, and
hold that unsolicited internal complaints are not protected.

3
 I.

A.1

Defendant A.H. Cornell is a family-owned company that
provides commercial and residential construction services. In
March 2006, A.H. Cornell hired Plaintiff Edwards to serve as its
Director of Human Resources and to establish a human
resources department. Defendant Cornell, an A.H. Cornell
executive, oversaw the terms and conditions of Edwards’s
employment, and Defendant Closterman, who managed the
company’s daily operations, acted as Edwards’s supervisor.
Edwards was employed by A.H. Cornell for a total of nearly
three years. As an employee, Edwards participated in the
company’s group health insurance plan, which was governed by
ERISA.

Edwards claims that she discovered, during the last
weeks of her employment, that A.H. Cornell was engaged in
several ERISA violations: the company was allegedly
administering the group health plan on a discriminatory basis,
misrepresenting to some employees the cost of group health
coverage in an effort to dissuade employees from opting into
benefits, and enrolling non-citizens in its ERISA plans by
providing false social security numbers and other fraudulent

1
Because Edwards appeals from a Federal Rule of Civil
Procedure 12(b)(6) motion to dismiss, the facts pled by Edwards
in her complaint are assumed to be true. See Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).

4
information to insurance carriers. Edwards alleges that she
“objected to and/or complained to” A.H. Cornell’s management
about these ERISA violations and was terminated on or around
February 11, 2009, as a result. (App. at 26, ¶ 33.) According to
Edwards, Closterman was directly responsible for her
termination, and Cornell participated.

B.

On March 18, 2009, Edwards filed a complaint in the
United States District Court for the Eastern District of
Pennsylvania against A.H. Cornell, Cornell, and Closterman,
asserting an anti-retaliation claim under Section 510 of ERISA
and common law wrongful discharge. On May 18, 2009, the
defendants filed a motion to dismiss the complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6), arguing that Edwards
had not engaged in a protected activity under Section 510.

The District Court granted the motion to dismiss on
July 23, 2009. After examining the circuit split on this issue, the
District Court determined that the Second Circuit’s analysis in
Nicolaou v. Horizon Media, Inc., 402 F.3d 325 (2d Cir. 2005)
(per curiam), was persuasive and held that Edwards failed to
state a claim upon which relief could be granted because her
alleged objections and/or complaints to management were not
part of an “inquiry or proceeding”:

“Plaintiff does not allege that anyone requested
information from her or initiated contact with her
in any way regarding the alleged ERISA
violations. Nor does she allege that she was

5
 involved in any type of formal or informal
gathering of information. She states merely that
she objected to or complained about certain
conduct by Defendants.”

(App. at 13-14 (citations omitted).) Having dismissed
Edwards’s ERISA claim, the District Court declined to exercise
supplemental jurisdiction over Edwards’s state law claim for
wrongful discharge.

Edwards timely appealed, and the Secretary of Labor
filed a brief as amicus curiae in support of Edwards’s position.

II.

The District Court had jurisdiction under 28 U.S.C.
§ 1331, and we have jurisdiction pursuant to 28 U.S.C. § 1291.
“We review de novo the District Court’s dismissal of an action
under Rule 12(b)(6).” Nationwide Life Ins. Co. v.
Commonwealth Land Title Ins. Co., 579 F.3d 304, 307 (3d Cir.
2009) (emphasis omitted). Pursuant to Ashcroft v. Iqbal, 129 S.
Ct. 1937 (2009), district courts must conduct a two-part analysis
when presented with a motion to dismiss. Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). “First, the factual
and legal elements of a claim should be separated.” Id. “The
District Court must accept all of the complaint’s well-pleaded
facts as true, but may disregard any legal conclusions.” Id. at
210-11. “Second, a District Court must then determine whether
the facts alleged in the complaint are sufficient to show that the
plaintiff has a ‘plausible claim for relief.’” Id. at 211 (quoting
Iqbal, 129 S. Ct. at 1950).

6
 III.

The sole issue on appeal is whether the District Court
erred in holding that unsolicited internal complaints are not
protected activities under the anti-retaliation provision of
Section 510 of ERISA, 29 U.S.C. § 1140.2 We will affirm.

A. Background

“ERISA is a comprehensive statute designed to promote
the interests of employees and their beneficiaries in employee

2
Edwards also contends, citing a single district court
opinion, that she is protected under a separate clause of Section
510, which provides,

“It shall be unlawful for any person to discharge
. . . a participant or beneficiary for exercising any
right to which he is entitled under the provisions
of an employee benefit plan, [or] this subchapter,
. . . or for the purpose of interfering with the
attainment of any right to which such participant
may become entitled under the plan, [or] this
subchapter[.]”

29 U.S.C. § 1140. (See also Edwards Br. at 15-16.) Since
Edwards failed to raise this argument in the District Court, it is
waived. See DIRECTV Inc. v. Seijas, 508 F.3d 123, 125 n.1 (3d
Cir. 2007) (“It is well established that arguments not raised
before the District Court are waived on appeal.”).

7
benefit plans.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 90
(1983). “The statute imposes participation, funding, and vesting
requirements on pension plans. It also sets various uniform
standards, including rules concerning reporting, disclosure, and
fiduciary responsibility, for both pension and welfare plans.” Id.
at 91. As part of this system, “Congress included various
safeguards to preclude abuse and ‘to completely secure the
rights and expectations brought into being by this landmark
reform legislation.’” Ingersoll-Rand Co. v. McClendon, 498
U.S. 133, 137 (1990) (quoting S. Rep. No. 93-127, at 36
(1973)). One such safeguard is ERISA’s anti-retaliation or
“whistleblower” provision, which provides as follows:

“It shall be unlawful for any person to discharge,
fine, suspend, expel, or discriminate against any
person because he has given information or has
testified or is about to testify in any inquiry or
proceeding relating to this chapter or the Welfare
and Pension Plans Disclosure Act.”

29 U.S.C. § 1140. Put simply, the purpose of the provision is to
“proscribe[] interference with rights protected by ERISA.”
Ingersoll-Rand Co., 498 U.S. at 137.

B. The Circuit Split

The federal Courts of Appeals are split on whether
Section 510 encompasses unsolicited internal complaints. The
Fifth and Ninth Circuits have held in the affirmative, see
Anderson v. Elec. Data Sys. Corp., 11 F.3d 1311 (5th Cir. 1994),
and Hashimoto v. Bank of Hawaii, 999 F.2d 408 (9th Cir. 1993),

8
while the Second and Fourth Circuits have held in the negative,
see Nicolaou, 402 F.3d 325, and King v. Marriott Int’l Inc., 337
F.3d 421 (4th Cir. 2003).

The Ninth and Fifth Circuits were the first circuits to
consider the issue. In each case, the plaintiff employee filed a
complaint under state law alleging wrongful discharge for
complaining to supervisors about alleged ERISA violations.3
Hashimoto, 999 F.2d at 409-10; Anderson, 11 F.3d at 1312-13.
Finding that Section 510 of ERISA already provided employees
with a remedy, the Ninth Circuit held that the employee’s state
law claim was completely preempted by ERISA and remanded
the case to allow the state claim to be re-characterized as a
federal cause of action. Hashimoto, 999 F.2d at 411-12. The
court explained that the failure of Section 510 to protect internal
complaints would, in practice, inhibit the effectiveness of the
anti-retaliation provision:

“The normal first step in giving information or
testifying in any way that might tempt an
employer to discharge one would be to present the
problem first to the responsible managers of the
ERISA plan. If one is then discharged for raising
the problem, the process of giving information or
testifying is interrupted at its start: the

3
The employee in Anderson also claimed that he was
discharged for refusing to commit acts in violation of ERISA.
11 F.3d at 1312-13.

9
 anticipatory discharge discourages the whistle
blower before the whistle is blown.”

Id. at 411. Shortly thereafter, the Fifth Circuit arrived at the
same conclusion in Anderson, holding that a state law claim for
wrongful discharge was preempted by ERISA in part “because
the cause of action would conflict with the enforcement
provisions of §§ 502(a) and 510 of ERISA.” 11 F.3d at 1314.
The court further explained, in broad terms, “[the employee’s]
claim falls squarely within the ambit of ERISA § 510[,]” which
“addresses discharges for exercising ERISA rights or for the
purpose of interfering with the attainment of ERISA rights, as
well as discharges for providing information or testimony
relating to ERISA.” Id. (quotations and citations omitted).

Faced with the same issue, the Fourth Circuit has since
drawn the opposite conclusion, holding that an employee’s state
law wrongful discharge claim is not preempted by ERISA
because Section 510 does not protect unsolicited internal
complaints. King, 337 F.3d at 427-28. Focusing on “the proper
scope of the phrase ‘inquiry or proceeding,’” the court
analogized Section 510 to the anti-retaliation provision in the
Fair Labor Standards Act (FLSA)4 :

4
Section 15(a)(3) of the FLSA provides that it is 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

10
 “In the instant case, as well, the use of the phrase
‘testified or is about to testify’ does suggest that
the phrase ‘inquir[ies] or proceeding[s]’
referenced in section 510 is limited to the legal or
administrative, or at least to something more
formal than written or oral complaints made to a
supervisor. The phrase ‘given information’ does
no more than insure that even the provision of
n o n -te stim o n i a l i n f o r m a t io n ( s u c h a s
incriminating documents) in an inquiry or
proceeding would be covered. And, here as well
[], the anti-retaliation provision in section 510 is
much narrower than the equivalent [in Title
VII.]5 ”

instituted any proceeding under or related to this
chapter, or has testified or is about to testify in
any such proceeding, or has served or is about to
serve on an industry committee[.]”

29 U.S.C. § 215(a)(3). In Ball v. Memphis Bar-B-Q Co., Inc.,
228 F.3d 360 (4th Cir. 2000), the Fourth Circuit held that
Section 15(a)(3) does not protect internal complaints. Id. at 364.
This is the minority view. See note 8, infra.
5
Section 704(a) of Title VII provides,

“It shall be an unlawful employment practice for
an employer to discriminate against any of his
employees . . . because he has opposed any

11
Id. at 427 (first and second alterations in original; footnote 5
supplied). The Fourth Circuit found that the Ninth and Fifth
Circuit decisions in Hashimoto and Anderson, respectively, were
not persuasive. According to the court, the Ninth Circuit in
Hashimoto improperly “reject[ed] the most compelling
interpretation of the statutory language for a ‘fair’
interpretation,” and the Fifth Circuit in Anderson “merely
recited section 510 without even addressing the facial
inapplicability of section 510 to intra-office complaints.” Id. at
428.

The sole federal Court of Appeals to address this issue in
the context that we are presented with here – where an employee
actually brings suit under Section 510 of ERISA itself – is the
Second Circuit in Nicolaou. 402 F.3d at 327. Unlike the Fourth
Circuit in King, the Second Circuit found that Section 510 of
ERISA is “unambiguously broader in scope” than its counterpart
in the FLSA. Id. at 328. Nevertheless, the court held that
unsolicited internal complaints are not protected activities.
First, the court explained that internal complaints could not fall
under the term “proceeding” because “proceeding” “refers to the
progression of a lawsuit or other business before a court,

practice made an unlawful employment practice
by this subchapter, or because he has made a
charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing
under this subchapter.”

42 U.S.C. § 2000e-3(a).

12
agency, or other official body[.]” Id. at 329. Second, the court
held that, for an internal complaint to constitute an “inquiry,” the
employee would need to “demonstrate that she was contacted to
meet with [management] in order to give information about the
alleged [ERISA violation.]” Id. In other words, the employee’s
complaint would need to have been solicited.6

C. The Plain Meaning of Section 510

We begin our analysis of ERISA’s anti-retaliation
provision “with an examination of ERISA’s statutory language
because ‘absent a clearly expressed legislative intention to the
contrary, that language must ordinarily be regarded as
conclusive.’” Wolk v. Unum Life Ins. of Am., 186 F.3d 352, 355
(3d Cir. 1999) (quoting Kaiser Aluminum & Chem. Corp. v.
Bonjorno, 494 U.S. 827, 835 (1990)) (other quotations and
citations omitted). Therefore, “the first step is to determine
whether [Section 510] has a plain and unambiguous meaning.”
Dobrek v. Phelan, 419 F.3d 259, 263 (3d Cir. 2005). Words or
provisions are ambiguous when “‘they are reasonably
susceptible of different interpretations.’” Id. at 264 (quoting
Nat’l R.R. Passenger Corp. v. Atchison Topeka & Santa Fe Ry.
Co., 470 U.S. 451, 473 n.27 (1985)). If there is an ambiguity,
we look to “the surrounding words and provisions and also to
the words in context.” Id.

6
Although its analysis was more nuanced with regard to
the term “inquiry,” the Nicolaou court did not view its holding
to be in conflict with the Fourth Circuit’s decision in King. See
Nicolaou, 402 F.3d at 330.

13
 To reiterate, Section 510 of ERISA provides as follows:

“It shall be unlawful for any person to discharge,
fine, suspend, expel, or discriminate against any
person because he has given information or has
testified or is about to testify in any inquiry or
proceeding relating to this chapter or the Welfare
and Pension Plans Disclosure Act.”

29 U.S.C. § 1140. Since Edwards has undoubtably “given
information” by objecting and/or complaining to management,
at issue in this appeal is whether or not Edwards did so in any
“inquiry or proceeding.” The Secretary of Labor argues, in its
brief as amicus curiae, that “[b]roadly but naturally construed,
‘any inquiry or proceeding’ encompasses plan participants’
complaints to management or plan officials about wrongdoing,
and the process by which that information is considered,
however informal.” (Secretary Br. at 16.) We disagree.

An “inquiry” is generally defined as “[a] request for
information.” Black’s Law Dictionary 864 (9th ed. 2009).
Here, Edwards does not allege that anyone approached her
requesting information regarding a potential ERISA violation.
Rather, she made her complaint voluntarily, of her own accord.
Under these circumstances, the information that Edwards
relayed to management was not part of an inquiry under the
term’s plain meaning.

On appeal, Edwards argues that her objections and/or
complaints were themselves the inquiry. We disagree.
Edwards’s complaints were statements regarding potential

14
ERISA violations, not questions seeking information.
Furthermore, because § 1140 protects employees that have
“given information,” not employees that have “received
information,” a plain reading of the provision indicates that
“inquiry” includes only inquiries made of an employee, not
inquiries made by an employee. The fact that Edwards’s
complaints may have eventually “culminat[ed]” in an inquiry,
(see Secretary Br. at 17), underscores the fact that the
complaints themselves, without more, do not constitute an
inquiry.

Neither is Edwards’s conduct encompassed by the term
“proceeding.” A “proceeding” is commonly defined as “[t]he
regular and orderly progression of a lawsuit” or the “procedural
means for seeking redress from a tribunal or agency.” Black’s
Law Dictionary 1324 (9th ed. 2009). Here, there is no
suggestion that any such formal action has occurred.7

In so holding, we follow the Fourth Circuit’s opinion in
King. As the King court noted, even beyond the plain meaning
of “inquiry” and “proceeding,” the phrase “testified or is about
to testify” implies that the phrase “inquiry or proceeding” is
limited to more formal actions. See King, 337 F.3d at 427. Not
all anti-retaliation statutes are so limited. In drafting § 1140,

7
As it is not necessary for the disposition of this case, we
decline to elaborate on the level of formality required for
protection under Section 510. At the very least, the provision
would protect information given in legal and administrative
proceedings.

15
Congress could have used broad language similar to that present
in the anti-retaliation provision in Section 704(a) of Title VII,
which extends broad protection to employees that have
“opposed any practice made an unlawful employment practice
by [Title VII.]” 42 U.S.C. § 2000e-3(a). Congress declined to
do so, and, like the court in King, we find this choice to be
persuasive. See King, 337 F.3d at 427. Finally, we agree with
the Fourth Circuit that the Ninth and Fifth Circuit opinions in
Hashimoto and Anderson, respectively, are not compelling.
Neither court examined the statutory language of Section 510 in
detail: the Fifth Circuit gave the issue cursory treatment, see
Anderson, 11 F.3d at 1314, and the Ninth Circuit appeared to
focus its analysis on the adoption of a “fair” interpretation, see
Hashimoto, 999 F.2d at 411. See also King, 337 F.3d at 428.

Edwards and the Secretary argue that we should give
Section 510 a broader reading because ERISA is a remedial
statute. This connection is lacking. Although ERISA “should
be liberally construed in favor of protecting the participants in
employee benefit plans,” see IUE AFL-CIO Pension Fund v.
Barker & Williamson, Inc., 788 F.2d 118, 127 (3d Cir. 1986),
this does not entitle us to ignore clear statutory language. See
Wolk, 186 F.3d at 355 (“[A]bsent a clearly expressed legislative
intention to the contrary, [ERISA’s statutory] language must
ordinarily be regarded as conclusive.” (quotations and citations
omitted)). If Section 510 were ambiguous, we would construe
the provision in favor of plan participants. However, as
discussed above, we find the provision’s plain meaning to be
clear.

16
 Likewise, Edwards and the Secretary argue that Section
510 deserves a broader reading because the failure to protect
unsolicited internal complaints would undermine the provision’s
purpose, as “it would permit an employer to terminate an
employee upon the employee first notifying the employer of the
ERISA violation[.]” (Edwards Br. at 14.) This contention must
also fail. Presented as we are with clear statuary language, we
do not need to speculate as to Congress’s intent. It suffices to
note that, had Congress been concerned with such a scenario,
Congress could have used broad language mirroring the anti-
retaliation provision of Title VII. Congress chose not to do so.

D. Analogous Third Circuit Precedent

Contrary to the assertions of Edwards and the Secretary,
the conclusion that Section 510 of ERISA does not protect
unsolicited internal complaints does not conflict with our prior
case law regarding anti-retaliation statutes. Edwards and the
Secretary cite two opinions to that effect: Brock v. Richardson,
812 F.2d 121 (3d Cir. 1987), which addresses the scope of
Section 15(a)(3) of the FLSA, and Passaic Valley Sewerage
Commissioners v. United States Department of Labor, 992 F.2d
474 (3d Cir. 1993), which addresses the scope of Section 507(a)
of the Clean Water Act (CWA). Neither case is controlling
here.

Brock is distinguishable because it concerned a different
issue in the context of a different statute. We examined in
Brock whether “an employer’s [mistaken] belief that an
employee has engaged in protected activity is sufficient to
trigger application” of the anti-retaliation provision of the

17
FLSA, and held in the affirmative. 812 F.2d at 123. We did not
address whether Section 15(a)(3) of the FLSA protects internal
complaints. There is a circuit split on this issue, which we have
not yet joined.8

Even if we had held in Brock that internal complaints are
protected under the FLSA, that conclusion would not be
dispositive here. Section 15(a)(3) of the FLSA and Section 510
of ERISA are not identical. Section 15(a)(3) of the FLSA

8
The First, Fifth, Sixth, Eighth, Ninth, Tenth, and
Eleventh Circuits have held that internal complaints are
protected under the FLSA. See Hagan v. Echostar Satellite,
L.L.C., 529 F.3d 617, 626 (5th Cir. 2008); Lambert v. Ackerley,
180 F.3d 997, 1004 (9th Cir. 1999) (en banc); Valerio v. Putnam
Assocs. Inc., 173 F.3d 35, 41 (1st Cir. 1999); E.E.O.C. v. Romeo
Cmty. Sch., 976 F.2d 985, 989 (6th Cir. 1992); E.E.O.C. v.
White & Son Enters., 881 F.2d 1006, 1011 (11th Cir. 1989);
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). The Second and Fourth Circuits have held to
the contrary. See Ball, 228 F.3d at 364; Lambert v. Genesee
Hosp., 10 F.3d 46, 55 (2d Cir. 1993). Finally, the Seventh
Circuit has taken a middle approach. See Kasten v.
Saint-Gobain Performance Plastics Corp., 570 F.3d 834, 838,
840 (7th Cir. 2009) (holding that written, but not oral, internal
complaints are protected based on the inclusion of the verb
“filed”), cert. granted, - - - S. Ct. - - - -, 2010 WL 128339 (U.S.
Mar. 22, 2010) (No. 09-834). We have cited the majority
approach with approval in dicta. See Brock, 812 F.2d at 124.

18
extends broadly to persons that have “filed any complaint,”
without explicitly stating the level of formality required. 29
U.S.C. § 215(a)(3). Section 510 of ERISA, in contrast, extends
only to persons that have “given information or [] testified” in
an “inquiry or proceeding.” 29 U.S.C. § 1140. The word
“complaint” is not even used. Therefore, the conclusion that
internal complaints are protected under the FLSA does not
require a parallel conclusion under ERISA’s distinct statutory
language.

Passaic Valley provides a closer comparison. In Passaic
Valley, we examined, as here, whether intracorporate complaints
are protected under Section 507(a) of the CWA. 992 F.2d at
477. Section 507(a) provides as follows:

“No person shall fire, or in any other way
discriminate against, or cause to be fired or
discriminated against, any employee or any
authorized representative of employees by reason
of the fact that such employee or representative
has filed, instituted, or caused to be filed or
instituted any proceeding under this chapter, or
has testified or is about to testify in any
proceeding resulting from the administration or
enforcement of the provisions of this chapter.”

33 U.S.C. § 1367(a). We held in Passaic Valley that the term
“proceeding” within Section 507(a) is ambiguous: “The term
may reasonably be invoked to encompass a range of complaint
activity of varying degrees of formal legal status.” 992 F.2d at
478. Accordingly, we gave Chevron deference to the Secretary

19
of Labor’s Final Decision and Order and held that intracorporate
allegations are protected under the CWA. Id. at 478-80.

Although it might appear so at first glance, Passaic
Valley is not dispositive here for a couple of reasons, not the
least of which is that Passaic Valley addresses Section 507(a) of
the CWA, not Section 510 of ERISA. First, to preclude an
expansive use of our holding, we did not state in Passaic Valley
that the term “proceeding” is necessarily ambiguous in all anti-
retaliation provisions. Rather, we expressly stated that the term
“proceeding” is ambiguous “within § 507(a) of the Clean Water
Act[.]” Id. at 478 (emphasis added). In so holding, we avoided
the rote application of Passaic Valley in other contexts, such as
that of Section 510 of ERISA.

Second, we gave Chevron deference in Passaic Valley to
the Secretary of Labor’s “reasonably permissive construction”
that “all good faith intracorporate allegations are fully protected
from retaliation under § 507(a)[.]” Id. at 480. Contrary to the
Secretary’s suggestion here, we do not likewise owe Chevron
deference to the Secretary’s allegedly consistent reading of
Section 510. Although the Department of Labor is the federal
agency in charge of overseeing ERISA, see Mack Boring &
Parts v. Meeker Sharkey Moffitt, Actuarial Consultants, 930
F.2d 267, 276 (3d Cir. 1991), we do not apply Chevron
deference to “agency litigat[ion] positions that are wholly
unsupported by regulations, ruling, or administrative practice,”
Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988).
In Passaic Valley, we relied on the Secretary’s Final Decision
and Order. 992 F.2d at 477. Here, in contrast, the Secretary has

20
not pointed to any regulations, rulings, or other material in
support of its position.

Therefore, rather than base our holding on our prior case
law regarding Section 507(a) of the CWA, we will ground our
decision in the plain meaning of Section 510 of ERISA itself.

IV.

In summary, we agree with the Fourth Circuit’s decision
in King that unsolicited internal complaints are not protected
under Section 510 of ERISA, 29 U.S.C. § 1140, based on a plain
reading of that provision’s terms. We will accordingly affirm
the order of the District Court.9

9
In light of our disposition, we decline to address A.H.
Cornell’s additional arguments that Edwards cannot maintain a
claim against Cornell and Closterman because they “merely
served as the company’s agents,” (A.H. Cornell Br. at 7), and
that, regardless of the outcome of this appeal, the allegations in
Edwards’s complaint fail to satisfy the pleading requirements
articulated by the Supreme Court in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007).

21
COWEN, Circuit Judge, dissenting

Unlike the Court, I conclude that ERISA’s anti-retaliation
provision does indeed protect “an employee’s unsolicited
internal complaints to management.” Accordingly, I must
respectfully dissent.
The majority is obviously correct that the statutory
interpretation process must begin with the actual language of
Section 510. Specifically, the statutory language at issue is
generally regarded as conclusive, at least in the absence of a
clearly expressed legislative intention to the contrary. See, e.g.,
Wolk v. UNUM Life Ins. of Am., 186 F.3d 352, 355 (3d Cir.
1999). I further agree with the majority that “the first step is to
determine whether [Section 510] has a plain and unambiguous
meaning.” Dobrek v. Phelan, 419 F.3d 259, 263 (3d Cir. 2005)
(citing Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002)).
I, however, believe that the statutory language used in this anti-
retaliation provision is ambiguous. In fact, as explained below, I
find it highly doubtful that Congress could have ever intended
for its anti-retaliation provision to apply in the manner suggested
by the majority, in particular because the majority’s
interpretation leaves totally unprotected a certain category of
conduct (as well as the employees who may engage in such
conduct) that this remedial statutory provision was enacted to
protect in the first place. See, e.g., Disabled in Action of Pa. v.
Southeastern Pa. Transp. Auth., 539 F.3d 199, 210 (3d Cir.
2008) (stating that we “avoid constructions that produce ‘odd’ or
‘absurd results’ or that are ‘inconsistent with common sense’”
(quoting Public Citizen v. U.S. Dep’t of Justice, 491 U.S. 440,
454 (1989); 2A N. Singer, Sutherland Statutes and Statutory
Construction § 45:12, at 92 (6th ed. 2000))).

Initially, the majority does acknowledge at least some of
the broad considerations underlying ERISA and its anti-
retaliation provision, but it generally fails to give these various
considerations the weight they deserve. Accordingly, the
majority recognizes that ERISA, as a remedial statute, “should
be liberally construed in favor of protecting the participants in
employee benefit plans.” IUE AFL-CIO Pension Fund v. Barker
& Williamson, Inc., 788 F.2d 118, 127 (3d Cir. 1986) (citations
omitted). It likewise states that: (1) ERISA is a comprehensive
statute designed to promote the interests of employees and their
beneficiaries, see, e.g., Shaw v. Delta Air Lines, Inc., 463 U.S.
85, 90 (1983); (2) the statute imposes different standards and
requirements with respect to the operation of the plans
themselves; id. at 91; (3) Congress similarly included various
safeguards in order to deter abuse and “‘to completely secure the
rights and expectations brought into being by this landmark
reform legislation,’” Ingersoll-Rand Co. v. McClendon, 498
U.S. 133, 137 (1990) (quoting S. Rep. No. 93-127, at 36 (1973));
and (4) Section 510, designed to eliminate interference with the
rights protected by ERISA, represents one of these critical
statutory safeguards, id. I further note that “Congress viewed
this section as a crucial part of ERISA because, without it,
employers would be able to circumvent the provision of
promised benefits.” Id. at 143 (citing S. Rep. No. 93-127, at 35-
36; H.R. Rep. No. 93-533, at 17 (1973)). In other words, this
anti-retaliation provision plays a very important and even
essential role in the proper implementation of the whole ERISA
scheme because it actually “‘helps to make [ERISA’s] promises
credible.’” Inter-Modal Rail Employees Ass’n v. Atchison,
Topeka & Santa Fe Ry. Co., 520 U.S. 510, 515 (1997) (quoting
Heath v. Varity Corp., 71 F.3d 256, 258 (7th Cir. 1995)).

Far from liberally construing this remedial legislation in
favor of the very persons it was designed to protect, the majority
adopts an ultimately unsustainable interpretation. At least at
times, it appears to follow the very narrow approach adopted by
the Fourth Circuit in King v. Marriott International, Inc., 337
F.3d 421 (4th Cir. 2003), as opposed to the more moderate
position taken by the Second Circuit in Nicolaou v. Horizon
Media, Inc., 402 F.3d 325 (2d Cir. 2005) (per curiam).
However, even the Second Circuit disagreed with the Fourth
Circuit’s belief “that Congress’s use of the phrase ‘testify or
about to testify’ dictates” the conclusion “that Section 510
protects those who engage in ‘something more formal than
written or oral complaints made to a supervisor.’” Id. at 330 n.3
(quoting King, 337 F.3d at 427). The Nicolaou court quite
properly read this “reference to testimony” language as “wholly
irrelevant to our understanding of the language ‘given

2
information . . . in any inquiry or proceeding.’” Id.

More broadly, I acknowledge that the Fifth Circuit did not
examine this issue in any real detail in its ruling in Anderson v.
Electronic Data Systems Corp., 11 F.3d 1311 (5th Cir. 1994).
On the other hand, the majority itself quotes the Ninth Circuit’s
reasonable and ultimately persuasive explanation for why it
concluded in Hashimoto v. Bank of Hawaii, 999 F.2d 408 (9th
Cir. 1993), that Section 510 does, in fact, encompass internal
workplace complaints. It bears repeating here:

. . . . The normal first step in giving information or
testifying in any way that might tempt an employer
to discharge one would be to present the problem
first to the responsible managers of the ERISA
plan. If one is then discharged for raising the
problem, the process of giving information or
testifying is interrupted at its start: the anticipatory
discharge discourages the whistle blower before
the whistle is blown.

Id. at 411. Like the Ninth Circuit, I find it difficult to believe
that Congress could have ever intended to exclude from the
protection of its remedial anti-retaliation provision employees
who are terminated because they bring an ERISA-related
problem to the attention of their superiors.

Likewise, the majority’s narrow interpretation of the
specific term “inquiry” appears questionable at best. In addition
to leaving the crucial “first step” unprotected, the Second
Circuit’s whole “inquiry” standard could be difficult to apply
and even unworkable in certain circumstances. Certain conduct
may clearly constitute an “inquiry,” such as the plaintiff’s
alleged activities in Nicolaou itself, which included contacting
her employer’s outside attorney regarding an alleged
underfunding problem and then, after the lawyer conducted an
inquiry of his own and evidently at the request of the lawyer,
meeting with both him and the president of the company.
Nicolaou, 402 F.3d at 326-27, 329-30. On the other hand, an
internal workplace complaint would quite naturally constitute a

3
preliminary step before a formal or informal inquiry is launched
(and such a complaint may even have been necessary to trigger
the investigation in the first place). However, where does one
draw the line between such an initial step, which the Second
Circuit and majority have held is not protected by the statutory
provision, and otherwise “protected” statements purportedly
made as part of some sort of inquiry? For instance, suppose an
employee like Edwards complains to her superior, the superior
asks some follow-up questions, and the employee responds to
these questions. Are the informal responses to some impromptu
questions to be regarded as protected because they evidently
were made as part of an “inquiry?” In turn, why should such
responses be protected while, at the same time, an employer is
essentially permitted (and perhaps, in essence, encouraged) to
fire an employee immediately after she makes an informal
complaint instead of conducting an investigation of some sort?

In addition, the majority goes on to hold that Section 510
only protects employees who give information as part of the
inquiry, as opposed to those individuals who actually conduct the
inquiry and thereby “received information.” Admittedly, the
Second Circuit in Nicolaou did deal with a plaintiff who had,
inter alia, been invited to attend a meeting with both the
president and outside counsel and stated her opinion that a
401(k) plan was underfunded. Id. Nevertheless, the majority’s
approach appears to be highly questionable at best insofar as it
leaves an entire class of employees, who, given their
responsibility to conduct potentially sensitive and damaging
investigations into possible ERISA violations and related
matters, would need protection from retaliation even more than
employees who merely answers some questions.

Even though these various considerations clearly weigh in
favor of the more expansive interpretation offered by the Fifth
and Ninth Circuits, Edwards, and the Secretary, I might still be
inclined to agree with the majority’s ultimate result here based
on the language actually used in the statutory provision.
Nevertheless, analogous Third Circuit decisions clearly indicate
that the language in Section 510 is ambiguous and that this Court
should, in turn, interpret such language as encompassing internal

4
workplace complaints.

As a general matter, I recognize that the case law
addressed different statutes using different statutory language,
and these decisions accordingly do not represent technically
binding precedents at this juncture. The fact that Congress has
chosen to use different terms in different anti-retaliation
provisions should also not be overlooked. Accordingly, I do not
suggest that Section 510 should be interpreted as broadly as its
Title VII counterpart, which, among other things, expressly
covers employees who have “opposed any practice made an
unlawful employment practice by [Title VII.]” 42 U.S.C. §
2000e-3(a). Nevertheless, this Court obviously should strive to
treat relatively similar statutory provisions, contained in similar
remedial federal statutes, in a clear and consistent fashion. In
any case, as highlighted below, at least some of the terms used in
Section 510 are actually more expansive than the equivalent
terms contained in other anti-retaliation provisions.

I start with a case that actually held that the term
“proceeding” is ambiguous and gave Chevron deference to the
Secretary’s formal determination that intracorporate complaints
are, in fact, protected activities: Passaic Valley Sewerage
Commissioners v. United States Department of Labor, 992 F.2d
474 (3d Cir. 1993).

The Passaic Valley Court held that the statutory term
“proceeding,” which is contained in both the CWA provision
and its ERISA counterpart, is “ambiguous” because it “may
reasonably be invoked to encompass a range of complaint
activity of varying degrees of formal legal status.” Id. at 478. It
then added “that the [CWA’s] purpose and legislative history
allow, and even necessitate, extension of the term ‘proceeding’
to intracorporate complaints.” Id. In other words, the protection
provided by the section “would be largely hollow if it were
restricted to the point of filing a formal complaint with the
appropriate external law enforcement agency.” Id. “Employees
should not be discouraged from the normal route of pursuing
internal remedies before going public with their good faith
allegations.” Id. Instead, they should be encouraged to notify

5
management of their observations before any formal
investigations and litigation are initiated, thereby providing
management with the opportunity to correct, justify, or clarify
policies or otherwise facilitate prompt remediation and
compliance. Id. at 478-79. Furthermore, an employee’s non-
frivolous complaint should not have to be guaranteed to
withstand the scrutiny of review before meriting legal protection
“for the obvious reason that such a standard would chill
employee initiatives in bringing to light perceived discrepancies
in the workings of their agencies.” Id. at 479. In addition, the
Court in Passaic Valley observed that “the whistle-blower
provision of the Clean Water Act mirrors that of several other
federal environmental, safety and energy statutes,” which have
also been broadly construed in the case law. Id. (footnote
omitted) Therefore, “[a]lthough the present case is the first to
present us with this issue in the context of the Clean Water Act,
the weight of other circuits’ precedent reviewing analogous
statutes concurs with the Secretary’s own broad inclusion of
intracorporate complaints within the protective scope of the
statute.” Id. at 480.

This reasoning clearly supports interpreting Section 510,
which is generally analogous to the anti-retaliation section of the
CWA, as encompassing internal workplace complaints. In turn,
I have no choice but to reject the majority’s efforts to minimize
and distinguish this prior ruling.1

In particular, its assertion that the Passaic Valley Court
attempted to avoid any “rote application” of its holding
overlooks the crucial fact that the Court itself turned to other
anti-retaliation provisions in its analysis of the CWA section.
For instance, it noted that the anti-retaliation provision in the
FLSA is among the statutory provisions that have been
expansively construed “to lend broad protective coverage to
internal complainants.” Id. at 479. In any case, I do not believe

1
I do, however, agree with the majority’s finding that we
do not owe Chevron deference to the Secretary’s reading of Section
510.

6
that following the example set in Passaic Valley by carefully
taking into account a prior Third Circuit opinion represents any
kind of “rote” exercise.

Furthermore, the CWA provision expressly prohibits
discrimination against any employee who has “filed, instituted,
or caused to be filed or instituted any proceeding under this
chapter, or has testified or is about to testify in any proceeding
resulting from the administration or enforcement of the
provisions of this chapter.” 33 U.S.C. § 1367(a). At least on the
surface, this “filed” and “instituted” language evidently
contemplates something more formal than, inter alia, an
unsolicited internal complaint to one’s superiors. Therefore, I
find that Section 510, with its “given information” and “inquiry”
language, appears to be even broader than its environmental
counterpart, addressed (and broadly construed) in Passaic
Valley.

In addition, the Court’s ruling in Brock v. Richardson,
812 F.2d 121 (3d Cir. 1987), provides yet further support for
concluding that Section 510 protects unsolicited internal
complaints.

Initially, the majority is correct that Brock addressed the
question of whether the anti-retaliation provision of the FLSA is
triggered by an employer’s ultimately mistaken belief that an
employee has engaged in otherwise protected activity under the
statute. Id. at 122-25. In answering this question in the
affirmative, the Court in Brock quite appropriately turned to the
same kind of broad policy considerations discussed in Passaic
Valley. Id. at 123-25. For instance, it noted that Congress,
instead of seeking to secure compliance through detailed and
ongoing governmental supervision of employer payrolls, put in
place a system relying on information and complaints from the
employees itself. Id. at 124. “Thus, the [Supreme] Court has
made clear that the key to interpreting the anti-retaliation
provision is the need to prevent employees’ ‘fear of economic
retaliation’ for voicing grievances about substandard
conditions.’” Id. (quoting Mitchell v. Robert DeMario Jewelry,
Inc., 361 U.S. 288, 292 (1960)). Significantly, the Brock Court

7
even indicated a willingness to go beyond the bare language of
the statutory provision itself, stating that “courts interpreting the
anti-retaliation provision have looked to its animating spirit in
applying it to activities that might not have been explicitly
covered by the language.” Id. As an example, it turned to the
Tenth Circuit’s ruling in Love v. RE/MAX of America, Inc., 738
F.2d 383 (10th Cir. 1984), which applied the anti-retaliation
provision “to protect employees who have protested Fair Labor
Standards Act violations to their employers.” 2 Brock, 812 F.2d
at 387 (citing Love, 738 F.2d at 387).

The majority points out that the anti-retaliation provision
in the FLSA differs from the ERISA counterpart. I agree, but
the differences here actually weigh against the interpretation
offered by the majority. Just like the anti-retaliation provision in
the CWA, the FLSA provides that it is unlawful to discharge or
discriminate against an employee because he or she “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, or has served or is about
to serve on an industry committee.” 29 U.S.C. § 215(a)(3) As
previously noted with respect to Passaic Valley, this language
arguably contemplates some sort of formal filing. See, e.g., Ball
v. Memphis Bar-B-Q Co., 228 F.3d 360, 364 (4th Cir. 2000)
(finding that FLSA does not protect intra-company complaints
because, among other things, the term “proceeding” was
“modified by attributes of administrative or court proceedings,”
the term “instituted” indicates “a formality that does not attend
an employee’s oral complaint to his supervisor,” and “testimony”
consists of “statements given under oath or affirmation”
(citations omitted)). On the other hand, Section 510 refers to an
“inquiry,” as opposed to merely a “proceeding,” as well as
“giv[ing] information,” in contrast to mere “testimony.” As even
the majority recognizes, the Second Circuit accordingly observed
that “the plain language of ERISA Section 510” is

2
It is significant that the Passaic Valley Court also relied on
Love in its analysis of the CWA’s anti-retaliation provision.
Passaic Valley, 992 F.2d at 479.

8
“unambiguously broader in scope than Section 15(a)(3) of
FLSA.” Nicolaou, 402 F.3d at 328.

In the end, I am unable to agree with the majority’s ruling
here in light of the statutory language at issue, the expansive
purposes and principles underpinning ERISA and its anti-
retaliation provision, and (especially) prior decisions 3 by this
very Court broadly interpreting similar anti-retaliation statutes in
other federal statutes. I accordingly would reverse the ruling of
the District Court and remand for further proceedings.

3
In addition to the rulings in Passiac Valley and Brock, I
further note that this Court adopted a somewhat similar approach
to the False Claims Act’s anti-retaliation provision in Hutchins v.
Wilentz, Goldman & Spitzer, 253 F.3d 176 (3d Cir. 2001). The
Hutchins Court noted, inter alia, that protected activities “can
include internal reporting and investigation of an employer’s false
or fraudulent claims.” Id. at 187 (citing United States ex rel.
Yesudian v. Howard Univ., 153 F.3d 731, 742 (D.C. Cir. 1998)).

9