In Trigueros v. New Orleans City, 2018 BL 183305, E.D. La., 17-10960, the Court ruled that the plaintiff employee may not move forward with her claim that she was fired in retaliation for commenting on her lack of overtime pay on Facebook, because comments to a general audience of friends and acquaintances do not qualify as complaints directed to an employer, and even if they were, her specific post mostly focused on a co-worker’s behavior and did not clearly make an assertion of her right to overtime wages.
From February 2015 to January 2017, Plaintiff Jennifer Trigueros was employed by Defendants New Orleans City (“City”) and Coroner Jeffrey Rouse (“Rouse”) as a death investigator. The position of death investigator was classified as exempt from overtime and Plaintiff was not paid overtime even though she was often required to work more than 40 hours per week. Plaintiff alleged that Defendants misclassified her job position and that she was entitled to overtime wages. Plaintiff further alleged that she was terminated from her position because she complained about the lack of overtime wages on Facebook. Plaintiff brought claims for overtime wages and damages due to retaliatory termination under the FLSA.
Defendant New Orleans City answered the complaint generally denying Plaintiff’s allegations. City also asserted the following defenses: failure to state a claim, prescription, and failure to mitigate. Defendants filed a 12(b)(6) motion on December 22, 2017. The Court denied the motion and allowed Plaintiff to amend her complaint to add sufficient facts. Plaintiff amended her complaint in April 2018. Defendants renewed their motion to dismiss.
Defendant Rouse filed a motion to dismiss for failure to state a claim. Defendant argued that Plaintiff has not alleged a protected activity under the FLSA, specifically, posting to Facebook is not a protected activity because it does not qualify as “filing a complaint” under the FLSA. Defendant alleged that Plaintiff did not file a formal complaint with her employer and that her Facebook post does not qualify as an informal complaint. Defendant noted that Plaintiff’s Facebook post was not directed at her employer and did not allege any unlawful behavior. Additionally, Facebook is not a recognized forum for protected activity under the FLSA. Therefore, Defendant argued, Plaintiff’s FLSA claims should be dismissed because she cannot sustain a claim for retaliation.
Plaintiff responded that her FLSA retaliation claim should not be dismissed because at the motion to dismiss stage the court must assume her allegations that she engaged in protected activity to be true.
Under the FLSA, an employer may not
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, 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) . To make a retaliation claim under the FLSA a plaintiff must show “(1) participation in protected activity under the FLSA; (2) an adverse employment action; and (3) a causal link between the activity and the adverse action.” Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617 , 624 (5th Cir. 2008). “If [Plaintiff] cannot prove that he was engaged in protected activity under Section 215(a)(3) , then he cannot make out a viable [retaliation] claim under the FLSA.” Id . An informal, internal complaint may constitute filing a complaint and thus be a protected activity. Id. at 625-26 (listing examples where employees communicated an alleged violation of law to their employer). “[H]owever, not all ‘abstract grumblings’ or vague expressions of discontent are actionable as complaints.” Id. at 626 . “To fall within the scope of the antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable 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.” Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1 , 14 , 131 S. Ct. 1325 , 179 L. Ed. 2d 379 (2011).
Here, Plaintiff’s Facebook post did not qualify as a protected activity under the FLSA. First, while Plaintiff’s post may be categorized as a complaint, it fails to meet the requirements here because it was not a complaint directed in any way at her employer. The post was to a personal social media page. While some of these pages, depending on privacy settings, may be viewed by the public, the general audience of a social media post is friends and acquaintances. Though an employee may be connected to coworkers and her employer on a social media site, the Court had not found an example of a social media post qualifying as a complaint to an employer or protected activity under the FLSA.
Second, even if Plaintiff’s social media post was somehow a communication to her employer it is not “an assertion of rights . . . and a call for their protection.” The majority of Plaintiff’s complaint was focused on the unfair and/or inconsiderate behavior of a coworker. It is not until the very end of the post that Plaintiff mentions, as an aside, that she did not receive overtime pay. Nowhere in the post does Plaintiff claim she is legally entitled to overtime pay or even argue that she should be receiving overtime pay. Therefore, the content of this post was not sufficiently clear or detailed to qualify as a protected activity.