Claudio-Gotay v. Becton Dickinson Caribe, Ltd.

          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


                                        -8-
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.

                                   -9-
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,


                                     -10-
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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