IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _________________________ No. 09-1237 _________________________ LAURIE BELL-HOLCOMBE, Plaintiff-Appellant, v. KI, LLC & KIVA, LLC, Defendants-Appellees. _______________________________________ On Appeal from the United States District Court for the Eastern District of Virginia _______________________________________ BRIEF FOR THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT ______________________________________ JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street N.E., 5th Floor Washington, D.C. 20507 (202) 663-4721 barbara.sloan@eeoc.gov TABLE OF CONTENTS Page STATEMENT OF INTEREST . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE 1. Proceedings Below. . . . . . . . . . . . . . . . . . . . . . . . . . 2 2. Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 3. District Court's Decision. . . . . . . . . . . . . . . . . . . . . 3 ARGUMENT SECTION 15(a)(3) OF THE FLSA, WHICH ALSO APPLIES TO THE EPA, PROTECTS AN EMPLOYEE WHO MAKES INTERNAL COMPLAINTS TO HER EMPLOYER ALLEGING VIOLATIONS OF THE EPA. . . . . . . . . . . . . . . . . . . . . 5 A. Section 15(a)(3) Covers Internal Complaints . . . . . . . . . 5 B. This Court's Precedent Does Not Preclude A Holding That Employers May Not Retaliate Against Employees Who Complain To Them About Sex-Based Disparities In Pay. . . 17 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 CERTIFICATE OF COMPLIANCE. . . . . . . . . . . . . . . . . . . . . . . . 22 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Page(s) Bailey v. United States, 516 U.S. 137 (1995). . . . . . . . . . . . . . . . . . . . . . . . 14 Ball v. Memphis Bar-B-Q Co., 228 F.3d 360 (4th Cir. 2000). . . . . . . . . . . . . . . . . . passim Barrentine v. Arkansas-Best Freight System, 450 U.S. 728 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . 8 Boateng v. Terminex International Co., Ltd Partnership, No.07-617, 2007 WL 2572403 (E.D. Va. Sept. 4, 2007) (unpublished). . . . . . . . . . . . 5, 20 Brennan v. Maxey's Yamaha, 513 F.2d 179 (8th Cir. 1975). . . . . . . . . . . . . . . . . . . . . 11 Brock v. Richardson, 812 F.2d 121 (3d Cir. 1987). . . . . . . . . . . . . . . . . . . . 9, 11 Burlington Northern & Santa Fe Ry Co. v. White, 548 U.S. 53 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . 16 Clean Harbors Environmental Services v. Herman, 146 F.3d 12 (1st Cir. 1998). . . . . . . . . . . . . . . . . . . . 12 Collins v. Pond Creek Mining Co., 468 F.3d 213 (4th Cir. 2006). . . . . . . . . . . . . . . . . . . . 20 Corning Glass Works v. Brennan, 417 U.S. 188 (1974). . . . . . . . . . . . . . . . . . . . . . . . 6, 8-9 Darveau v. Detecon, 515 F.3d 334 (4th Cir. 2008). . . . . . . . . . . . . . . . . . 9-10, 16 Duncan v. Walker, 533 U.S. 167 (2001). . . . . . . . . . . . . . . . . . . . . . . . . .14 EEOC v. Romeo Community School District, 976 F.2d 985 (6th Cr. 1992). . . . . . . . . . . . . . . . . . . . . .10 EEOC v. White & Son Enterprises, 881 F.2d 1006 (11th Cir. 1989). . . . . . . . . . . . . . . . . . 10-11 Gomez-Perez v. Potter, 128 S. Ct. 1931 (2008). . . . . . . . . . . . . . . . . . . . . . . . 16 Hagan v. Echostar Satellite, LLC, 529 F.3d 617 (5th Cir. 2008). . . . . . . . . . . . . . . . . . . . 10 Haile-Iyanu v. Central Parking System of VA, Inc., No.06-2171, 2007 WL 1954325 (D.D.C. July 5, 2007) (unpublished). . . . . . . . . . . . . . . . . . 14 Jafari v. Old Dominion Transit Management Co., No. 08-629, 2008 WL 5102010 (E.D. Va. Nov. 28, 2008), on appeal, No. 09-1004 (4th Cir.). . . . . . . . . . . . . . . . 2, 12 Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505 (10th Cir. 1985). . . . . . . . . . . . . . . . . . 12 Lambert v. Ackerley, 180 F.3d 997 (9th Cir. 1999) (en banc). . . . . . . . . . 10, 13-14, 16 Lambert v. Genesee Hospital, 10 F.3d 46 (2d Cir. 1993). . . . . . . . . . . . . . . . . . . .6, 12-13 Love v. RE/MAX of America, 738 F.2d 383 (10th Cir. 1984). . . . . . . . . . . . . . . . . . . . 11 MacKowiak v. University Nuclear Systems, 735 F.2d 1159 (9th Cir. 1984). . . . . . . . . . . . . . . . . . . . 12 Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288 (1960). . . . . . . . . . . . . . . . . . . . . . . . 9 Passaic Valley Sewerage Commissioners v. Dep't of Labor, 992 F.2d 474 (3d Cir. 1993). . . . . . . . . . . . . . . . . . . . . . 12 Rayner v. Smirl, 873 F.2d 60 (4th Cir. 1989). . . . . . . . . . . . . . . . . . passim Robinson v. Shell Oil Co., 519 U.S. 337 (1997). . . . . . . . . . . . . . . . . . . . . . . . . .14 Saffels v. Rice, 40 F.3d 1546 (8th Cir. 1994). . . . . . . . . . . . . . . . . . . . 11 Schultz v. Capital International Security, Inc., 466 F.3d 298 (4th Cir. 2006). . . . . . . . . . . . . . . . . . . . 8-9 Tennessee Coal, Iron & Railroad v. Muscoda Local No. 123, 321 U.S. 590 (1944). . . . . . . . . . . . . . . . . . . . . . . . 9-10 Usery v. Charleston County School District, 558 F.2d 1169 (4th Cir. 1977). . . . . . . . . . . . . . . . . . . . . .6 Valerio v. Putnam Associates, Inc., 173 F.3d 35 (1st Cir. 1999). . . . . . . . . . . . . . . . . . 10, 13-15 Whitten v. City of Easley, No. 02-1445, 2003 WL 1826672, (4th Cir. Apr. 9, 2003) (unpublished). . . . . . . . . . . .3, 17, 19-20 STATUTES, REGULATIONS and RULES Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.. . . . . . . . . . . . . . . . . . . . passim 42 U.S.C. 2000e-3(a). . . . . . . . . . . . . . . . . . . . . . passim Equal Pay Act of 1963, 29 U.S.C. 206(d). . . . . . . . . . . . . . . . . . . . . . . . passim Fair Labor Standards Act, 29 U.S.C. §§201 et. seq. . . . . . . . . . . . . . . . . . . . . .passim 29 U.S.C. § 215(a)(3). . . . . . . . . . . . . . . . . . . . . . passim 45 U.S.C. § 441 (1980). . . . . . . . . . . . . . . . . . . . . . . . passim Pub. L. 110-53 § 1521, 121 Stat. 226, 444-45, codified at 49 U.S.C. § 20109 (2008). . . . . . . . . . . . . . . . . .7 OTHER AUTHORITY EEOC Compliance Manual § 8-I(A) & n.12, found at http://www.eeoc.gov/policy/docs/retal.html. . . . . . . . . . . . . . . . 12 IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _________________________ No. 09-1237 ________________________ LAURIE BELL-HOLCOMBE, Plaintiff-Appellant, v. KI, LLC & KIVA, LLC, Defendants-Appellees. _______________________________________ On Appeal from the United States District Court for the Eastern District of Virginia _______________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT ______________________________________ STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress with the interpretation and enforcement of the Equal Pay Act, 29 U.S.C. § 206(d) ("EPA"), which is incorporated in the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. ("FLSA"), and is covered by section 15(a)(3) of the FLSA, 29 U.S.C. § 215(a)(3), the FLSA's anti-retaliation provision. Because protection against retaliation is crucial to effective enforcement of the EPA, the Commission has an interest in the proper interpretation of section 15(a)(3). In this case, the district court held that section 15(a)(3) does not protect an employee from retaliation if she complains to her employer about unlawful wage discrimination but does not lodge a formal complaint with a court or administrative agency. This ruling, unless reversed by this Court, could seriously impede enforcement of the EPA. We therefore offer our views to this Court.<1> STATEMENT OF THE ISSUE Whether section 15(a)(3) of the FLSA and EPA protects an employee who complains to her employer about perceived violations of the EPA. STATEMENT OF THE CASE 1. Proceedings Below This is an appeal from a judgment dismissing Plaintiff's suit under the Equal Pay Act. Plaintiff filed suit in state court alleging that defendants violated the EPA by paying her lower wages than male employees performing equal work and by firing her because she complained about the pay disparity. District court docket number ("R")1 (Removal petition, exhibit 1). Defendants removed the case to federal court (R1) and moved to dismiss the retaliation claim under Federal Rule of Civil Procedure 12(b)(6). After the district court granted the motion to dismiss (R16, 17, 21), plaintiff voluntarily dismissed her substantive EPA claim. R21. The district court entered judgment on February 2, 2009, and the plaintiff filed a timely notice of appeal. R26, 29 (amended notice). 2. Facts Laurie Bell-Holcombe worked as an electronics technician for defendants Ki LLC and Kiva LLC from 2002 until she was terminated in 2006. See R16 (Order at 2-3); R7(Affidavit ¶4). She alleges that, although she performed her work in "an exemplary manner," she was paid substantially less than similarly situated male employees for substantially equal work. Order at 3. She also alleges that she complained repeatedly, both orally and in writing, about the unequal pay. Id. Two weeks after submitting her last written complaint, she was terminated. Id. She filed suit, alleging inter alia that her termination was in retaliation for complaining about her pay. 3. District Court's Decision The district court granted defendants' motion to dismiss the retaliation claim, stating that the "Fourth Circuit has consistently held that FLSA protection does not apply to an employee's internal complaint to the employer." Order at 5 (citing Ball v. Memphis Bar-B-Q Co., 228 F.3d 360, 364 (4th Cir. 2000); Whitten v. City of Easley, 62 Fed. App'x 477, 480 (4th Cir. 2003) (unpublished)). According to the court, because "'filing' a complaint or 'instituting' a proceeding under the FLSA contemplates some form of official procedure, an internal complaint does not initiate the protection of § 215(a)(3)." Order at 6, 7. Further, the court reasoned, because Congress "chose" to omit from the FLSA an "'opposition' clause" such as the one in Title VII, 42 U.S.C. § 2000e-3, which clearly applies to internal complaints, "it stands to reason that Congress' intent was for § 215(a)(3) to cover a more narrow range of employee activities than are covered [by Title VII]." Order at 6. The court rejected plaintiff's argument that the statutory language was ambiguous because the provision protects "any" complaint and because, unless "filing a complaint" were read to encompass more than formal filings, the subsequent phrase "instituted . . . a proceeding" would be redundant. In the court's view, the language of the provision is "plain" and is plainly limited to formal or official filings. Order at 7. The court added that, while other circuits may take a more liberal approach, the Fourth Circuit has "narrowly construed the anti- retaliation provision in order to follow Congress' intent to limit the scope of retaliation prohibited by the FLSA." Id. at 8. The court acknowledged that, in Rayner v. Smirl, 873 F.2d 60 (4th Cir. 1989), the Fourth Circuit held that, in light of the legislative history and comprehensive remedial scheme of the Federal Rail Safety Act ("FRSA"), an identically-worded anti-retaliation provision in that statute should be interpreted "broad[ly]" to protect whistleblowers who filed internal safety complaints. Order at 9. However, the court noted, the Eastern District of Virginia "rejected an argument that the FLSA should be interpreted like the FRSA," stating that the "reasons for the decision in Rayner were specific to railroad and safety legislation and were therefore not helpful in the FLSA context." Order at 9-10 (citing Boateng v. Terminex Int'l Co. Ltd P'ship, No. 07-617, 2007 WL 2572403, at *3 (E.D. Va. Sept. 4, 2007) (unpublished)). ARGUMENT SECTION 15(a)(3) OF THE FLSA, WHICH ALSO APPLIES TO THE EQUAL PAY ACT, PROTECTS AN EMPLOYEE WHO MAKES AN INTERNAL COMPLAINT TO HER EMPLOYER ALLEGING VIOLATIONS OF THE EPA. The district court erred in holding that an employer does not violate the anti- retaliation provision of the Fair Labor Standards Act and Equal Pay Act when it fires an employee because she has complained to the employer about perceived sex-based wage discrimination. As virtually every appellate court that has addressed the issue has concluded, the FLSA and EPA prohibit employers from retaliating against employees for making internal or external wage complaints. This Court reached the same conclusion in interpreting identical language in another statute. The district court's contrary decision is not compelled by either the language of the provision or the case law of this Circuit, nor does the decision make good sense as a matter of policy. A. Section 15(a)(3) Covers Internal Complaints. The Equal Pay Act prohibits employers from paying employees of one sex less than employees of the opposite sex in the same establishment for doing substantially equal work unless the employer can establish one of four affirmative defenses justifying the pay disparity. See 29 U.S.C. § 206(d). The Equal Pay Act is not a free-standing statute but rather one subsection of the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201 et seq., added by amendment in 1963. See Corning Glass Works v. Brennan, 417 U.S. 188, 190 (1974); Usery v. Charleston County School Dist., 558 F.2d 1169, 1170 (4th Cir. 1977). Because the EPA is part of the FLSA, other sections of the FLSA, including section 15(a)(3), the anti-retaliation provision at issue here, also apply to the EPA. See Lambert v. Genesee Hosp., 10 F.3d 46, 55 (2d Cir. 1993). In pertinent part, section 15(a)(3) makes it unlawful for an employer to discharge or otherwise discriminate against an employee because the employee has "filed any complaint" (the "complaint clause") or "instituted or caused to be instituted any proceeding under or related to this chapter" or "has testified or is about to testify in such proceeding" (the "testimony clause"). 29 U.S.C. § 215(a)(3). The question in this case is whether an employer violates the law when it fires an employee because she has complained internally to the employer about gender-based wage disparities even if she has not also filed a formal complaint in court or with an administrative agency. This Court should hold that such action is unlawful. This Court has already interpreted the same language in another statute's anti-retaliation provision and held that it applies to internal as well as external complaints. Specifically, in Rayner v. Smirl, 873 F.2d 60, 63 (4th Cir. 1989), this Court rejected an argument that the anti-retaliation provision of the Federal Railroad Safety Act of 1980, 45 U.S.C. § 441(a)(1) ("FRSA"), did not apply to "intra-corporate complaints." See id. at 64.<2> The Court noted that the statute should be interpreted broadly to effectuate its purpose of promoting rail safety. The Court also explained that, by including the anti-retaliation provision in the statute, Congress's intent was to protect all employees who report safety violations: they should not "'be forced to choose between their lives and their livelihoods.'" Id. (quoting legislative history). In light of this intent, the Court reasoned, the "distinction between intra-corporate complaints and those made to outside agencies" was "an artificial one." Because both draw attention to potential safety problems, both are "within the contemplation" of the provision. Id. Likewise here, this Court should interpret the identical language in section 15(a)(3) of the FLSA and EPA to encompass both "intra-corporate complaints" and complaints "made to outside agencies." Because both draw attention to potential violations of the law, both should be considered within the contemplation of the provision. Indeed, this Court suggested as much in Ball v. Memphis Bar-B- Q, 228 F.3d 360, 363 n.* (4th Cir. 2000), where, in discussing the "testimony clause" of section 15(a)(3), the Court noted that Rayner had already construed "the scope of similar complaint-clause language" to encompass internal as well as external complaints. This interpretation of section 15(a)(3) accords with and advances the purposes of the underlying statutes as well as the provision itself. "The principal congressional purpose in enacting the Fair Labor Standards Act of 1938 was to protect all covered workers from substandard wages and oppressive working hours, 'labor conditions [that are] detrimental to the maintenance of the minimum standard of living necessary for health, efficiency and general well-being of workers.'" Barrentine v. Arkansas-Best Freight Sys., 450 U.S. 728, 739 (1981) (quoting 29 U.S.C. § 202(a)). The EPA in turn was designed "to remedy what was perceived to be a serious and endemic problem of employment discrimination in private industry - the fact that the wage structure of 'many segments of American industry has been based on an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman even though his duties are the same.'" Corning Glass Works, 417 U.S. at 195 (citing legislative history). Because these laws are "remedial and humanitarian in purpose," they should be "broadly interpreted and applied to effectuate [their] goals." Schultz v. Capital Int'l Security, Inc., 466 F.3d 298, 304 (4th Cir. 2006) (FLSA); Corning Glass Works, 417 U.S. at 208 (EPA). Section 15(a)(3) "is a central component of the [FLSA's] complaint-based enforcement mechanism." Darveau v. Detecon, 515 F.3d 334, 340 (4th Cir. 2008). "To secure [employer] compliance with the substantive provisions of the FLSA, Congress 'chose to rely on information and complaints received from employees seeking to vindicate rights claimed to have been denied.'" Ball, 228 F.3d at 363 (quoting Mitchell v. Robert De Mario Jewelry, 361 U.S. 288, 292 (1960)). At the same time, however, Congress realized that "fear of economic retaliation might often operate to induce aggrieved employees quietly to accept substandard conditions." Mitchell, 361 U.S. at 292. To address that concern, Congress added section 15(a)(3) to prevent employers from punishing employees who seek to vindicate rights guaranteed under the statute. See id. (adding that goal was to "foster a climate in which compliance with the substantive provisions of the Act would be enhanced"); see also Brock v. Richardson, 812 F.2d 121, 124 (3d Cir. 1987) (noting that Mitchell makes clear that "key" to interpreting § 15(a)(3) is "the need to prevent employees' 'fear of economic retaliation' for voicing grievances about substandard conditions"). As this Court has recognized, to effectuate its purpose, section 15(a)(3) "'"must not be interpreted or applied in a narrow, grudging manner."'" Darveau, 515 F.3d at 340 (quoting Ball, 228 F.3d at 364 (quoting Tennessee Coal, Iron & R.R. v. Muscoda Local No. 123, 321 U.S. 590, 597 (1944))). Because the purpose is to encourage, not discourage, employees from coming forward to complain about perceived violations of either the EPA or the FLSA, any interpretation of the provision that chills such activity would undermine not only Congress's prescribed compliance mechanism but also the substantive rights conferred by the FLSA and the EPA. Interpreting section 15(a)(3) to allow employers to fire employees who lodge internal wage complaints would have precisely that effect. This Court should therefore interpret the provision, as it did section 441 of the FRSA, to encompass internal as well as external employee complaints. Such a ruling would be consistent with the rulings of virtually every other federal appellate court that has addressed the issue: eight other circuits have concluded that section 15(a)(3) protects employees who complain internally to the employer. See Hagan v. Echostar Satellite LLC, 529 F.3d 617, 625-26 (5th Cir. 2008) (holding that informal, internal complaint constitutes protected activity under § 15(a)(3) "because it better captures the anti-retaliation goals of that section"); Lambert v. Ackerley, 180 F.3d 997, 1004 (9th Cir. 1999) (§ 15(a)(3) protects "employees who complain about violations to their employers") (en banc); Valerio v. Putnam Assocs., 173 F.3d 35, 41 (1st Cir. 1999) (§ 15(a)(3) protects employee who has filed complaint with employer); EEOC v. Romeo Comm'y Sch. Dist., 976 F.2d 985, 989-90 (6th Cir. 1992) (provision protects employees who make unofficial wage complaints to their supervisors); EEOC v. White & Son Enterps., 881 F.2d 1006, 1011 (11th Cir. 1989) (employees' unofficial internal complaints to their supervisor about unequal pay constituted assertion of rights protected under EPA); Love v. RE/MAX of Am., 738 F.2d 383, 387 (10th Cir. 1984) (EPA's anti-retaliation provision "applies to the unofficial assertion of rights through complaints at work"); see also Brennan v. Maxey's Yamaha, 513 F.2d 179, 181 (8th Cir. 1975) (employee protected under § 15(a)(3) for complaining to employer about returning back wages following employer's settlement with the Wage and Hour Division). Cf. Saffels v. Rice, 40 F.3d 1546, 1549 (8th Cir. 1994) (in holding that § 15(a)(3) precludes firing employee based on mistaken belief he has complained about wage violation, noting that courts interpreting § 15(a)(3) "have looked to its animating spirit" - "foster[ing] an environment in which employees are unfettered in their decision to voice grievances without fear of economic retaliation"); Brock v. Richardson, 812 F.2d at 124 (same, analogizing to cases construing § 15(a)(3) to encompass internal complaints). These Courts reason that a broad construction of the provision effectuates its purposes of encouraging employee complaints and fostering compliance with the substantive provisions of the underlying statutes. See, e.g., White & Sons, 881 F.2d at 1011 (reasoning that the purpose of § 15(a)(3) will be promoted by "a broad construction" of the provision to include complaints to the employer). Both the Commission and the Secretary of Labor likewise interpret section 15(a)(3) to protect employees who complain to their employers that they are being paid less than they are entitled to under the law. See EEOC Compliance Manual § 8-I(A) & n.12 (treating EPA retaliation like Title VII, the ADEA and ADA), found at http://www.eeoc.gov/policy/docs/retal.html; see also Jafari v. Old Dominion Transit Mgt Co., No. 09-1004 (4th Cir. joint DOL-EEOC amicus brief filed Mar. 11, 2009) (urging that position).<3> The principal exception is Lambert v. Genesee Hospital, 10 F.3d 46, 55 (2d Cir. 1993). In Genesee Hospital, the Second Circuit concluded that the "plain language of [section 215(a)(3)] limits the cause of action to retaliation for filing formal complaints . . . but does not encompass complaints made to a supervisor." Id. at 55 (language is "plain and unambiguous"). The court contrasted the language in section 15(a)(3) with that in Title VII's anti-retaliation provision, where a clause prohibiting retaliation against employees who oppose unlawful practices has been read to include complaints to the employer (id.), suggesting that the difference was intentional. The court did not attempt to explain why Congress would choose to permit employers to retaliate against employees who complain internally about EPA violations but not Title VII violations; it simply concluded that the result flowed directly from the statutory language. On the contrary, the language of section 15(a)(3) contains a number of ambiguities that permit it to be read to encompass both internal and external complaints. The provision refers to "any complaint," which suggests that it extends to internal as well as external complaints. See Ackerley, 180 F.3d at 1004 ("If 'any complaint' means 'any complaint,' then the provision extends to complaints made to employers."). Had Congress intended to limit the cause of action to retaliation for filing a formal complaint, it easily could have said so. "By failing to specify that the filing of any complaint need be with a court or an agency, and by using the word 'any,' Congress left open the possibility that it intended 'complaint' to relate to less formal expressions of protest . . . conveyed to an employer." Valerio, 173 F.3d at 41. In addition, the definition of the word "file" is "sufficiently elastic to encompass an internal complaint made to a private employer with the expectation the employer will place it on file among the employer's official records." Id. at 41- 42; see also Ackerley, 180 F.3d. at 1004 (noting that, since the word "file" in the employment setting is often used to include filing complaints or grievances with employers, it is "reasonable" to assume that Congress intended the word in § 15(a)(3) to include the filing of such complaints). Moreover, if the phrase "filed any complaint" included "only the filing of in- court or in-agency complaints," it would render the next phrase - "instituted or caused to be instituted any proceeding under or related to this chapter" - "surplusage" since such proceedings are typically initiated by the filing of an in- court or in-agency complaint. See Valerio, 173 F.3d at 42 ("one would wonder why the additional language . . . was inserted"). It is well-settled that courts should "assume that Congress used two terms because it intended each term to have a particular, nonsuperfluous meaning." Bailey v. United States, 516 U.S. 137, 146 (1995); see also Duncan v. Walker, 533 U.S. 167, 174 (2001) (noting that Court is "reluctant to treat statutory terms as surplusage in any setting"; a statute should be construed if possible so that "no clause, sentence, or word shall be superfluous, void, or insignificant"). In contrast, "the inclusion of informal complaints creates a meaningful distinction between the ['filed a complaint' and 'instituted any proceeding' clauses] of the FLSA's anti-retaliation provision." Haile-Iyanu v. Central Parking Sys., No. 06-2171, 2007 WL 1954325 at *4 (D.D.C. July 5, 2007) (unpublished). Because the language of the provision is ambiguous, this Court should resolve the ambiguity by reference to the statutory purpose. See Robinson v. Shell Oil Co., 519 U.S. 337, 345-46 (1997). As noted above, that clearly supports an interpretation that treats both internal and external complaints as protected activity since both promote compliance with the underlying statutes and both increase the likelihood that employees will be paid in accordance with the law. Cf. Rayner, 873 F.2d at 64 (noting distinction is "artificial"). In contrast, reading the provision to exclude complaints to an employer would have the "bizarre effect" both of "discouraging early settlement attempts" - since employers would be free to penalize employees who sought to resolve wage disputes informally before going to court - and "creating an incentive for the employer to fire an employee as soon as possible after learning the employee believed he was being treated illegally." Valerio, 173 F.3d at 43. It is inconceivable that Congress intended such a result. In holding, to the contrary, that defendants did not violate the law even if they fired plaintiff for complaining about disparities in her pay, the district court relied in part on what it viewed as the "plain language" of the provision. Order at 5-6, 7. As noted above, however, the language is susceptible to more than one interpretation, and, under the better reading, the challenged conduct would be unlawful. The district court also stated that "the limited scope of the language of § 15(a)(3) is highlighted by a comparison with the anti-retaliation prohibition in Title VII," 42 U.S.C. § 2000e-3, which contains an "opposition" clause that clearly encompasses internal complaints. Order at 6. The court stated, "Because Congress chose not to include an 'opposition' clause in § 215(a)(3), it stands to reason that Congress' intent was for § 215(a)(3) to cover a more narrow range of employee activities than are covered by the anti-retaliation clause of Title VII." Id. There is, however, no reason to assume that Congress intentionally "chose" to omit an opposition clause from § 15(a)(3). The FLSA was drafted over seventy years ago, when statutes were shorter and less detailed, and were written in more general and simpler terms. Ackerley, 180 F.3d at 1005. "The fact that Congress decided to include a more detailed anti-retaliation provision more than a generation later, when it drafted Title VII, tells us little about what Congress meant at the time it drafted the comparable provision in the FLSA." Id. See also Gomez-Perez v. Potter, 128 S. Ct. 1931, 1940 (2008) (in rejecting argument that, because earlier private-sector portion of ADEA contained anti-retaliation provision, Court should presume that Congress acted "intentionally and purposely" in omitting such a provision in federal-sector portion of statute, stating that "[n]egative implications raised by disparate provisions are strongest in those instances in which the relevant statutory provisions were considered simultaneously when the language raising the implication was inserted") (citation omitted). Furthermore, although the FLSA and Title VII "seek to combat separate workplace problems, the purpose of their retaliation provisions is one and the same - namely, to secure their substantive protections 'by preventing an employer from interfering (through retaliation) with an employee's efforts to secure or advance enforcement of the Act's basic guarantees.'" Darveau, 515 F.3d at 343 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006)). Allowing an employer to fire an employee if she complains to the employer about wage discrimination would clearly interfere with the employee's "efforts to secure or advance enforcement of the basic guarantees" of both the EPA and Title VII. Because such a result is not compelled by the language of section 15(a)(3), we urge this Court to hold that the plaintiff engaged in protected activity when she complained verbally and in writing to her employer about the disparity between her pay and that of her male colleagues. B. This Court's Precedent Does Not Preclude A Holding That Employers May Not Retaliate Against Employees Who Complain To Them About Sex- Based Disparities In Pay. In rejecting plaintiff's claim that defendants violated § 15(a)(3) by discharging her for complaining verbally and in writing about discriminatory pay, the district court asserted that this Court "has consistently held that FLSA protection does not apply to an employee's internal complaint to the employer." Order at 5 (citing Ball v. Memphis Bar-B-Q, 228 F.3d 360 (4th Cir. 2000), and Whitten v. City of Easley, 62 Fed. App'x 477, 480 (4th Cir. Apr. 9, 2003)) (per curiam) (unpublished). We disagree. This Court's precedent does not preclude a ruling in this case that, consistent with Rayner as well as the vast majority of other circuits, plaintiff's internal complaints are protected by the complaint clause in § 15(a)(3). The leading Fourth Circuit decision discussing the scope of section 15(a)(3) is Ball. But Ball does not address the entire anti-retaliation provision. Its holding is limited to the "testimony clause," which prohibits discrimination because the employee "has testified or is about to testify" in any proceeding under or related to the EPA or FLSA (29 U.S.C. § 215(a)(3)). 228 F.3d at 365. The holding does not extend to the "complaint clause," which is what is at issue here. See 228 F.3d at 363 n.* (noting that plaintiff did not rely on the "complaint clause"). The plaintiff in Ball was fired shortly after informing his supervisor that if another individual filed suit under the FLSA and he were called as a witness, he would not testify as his supervisor was proposing but rather would tell the truth. He argued that this conduct was protected because he was "about to testify" in a proceeding under the section. Rejecting that argument, the Ball Court reasoned that, consistent with the statutory language, the relevant "proceeding" must be an existing proceeding, rather than one that had not yet been "instituted." 228 F.3d at 364. The Court added that the "testimony clause" does not prohibit retaliation "for an employee's voicing of a position on working conditions in opposition to an employer." Id. The Court specified, however, that it was interpreting only the "FLSA's testimony clause," adding that the circuit had already "construed the scope of similar complaint-clause language" in Rayner. Id. at 365 & 363 n.*. This reference to Rayner strongly suggests that the Court assumed that, since Rayner held that both internal and external complaints were protected under the complaint clause of the FRSA's anti-retaliation provision, they should likewise be protected under the similar clause in the FLSA. Contrary to the district court's reading of Ball, therefore, the case actually supports the Commission's reading of § 15(a)(3). We recognize that the same cannot be said for the other case the district court relied on - Whitten v. City of Easley. The plaintiff in Whitten was terminated after complaining to management that he was not being paid for "on- call" time. 62 Fed. App'x at 480. Without specifying whether the complaint was verbal or written, the panel rejected his retaliation claim, stating that the Court had "expressly held that the FLSA's anti-retaliation provision does not extend to internal complaints." Id. To support this statement, the panel quoted the following language from Ball: "We would be unfaithful to the language of the testimony clause of the FLSA's anti-retaliation provision if we were to expand its applicability to intra-company complaints . . ." Id. (quoting Ball, 228 F.3d at 364) (emphasis added). The Whitten panel did not mention Rayner. Notwithstanding Whitten, this Court should join the other circuits in holding that internal complaints constitute protected activity under section 15(a)(3). The Court should do so for three reasons. First, Whitten's holding is premised on a faulty reading of Ball. From the quotation, it is clear that Ball made no pronouncements about the correct interpretation of the "FLSA's anti-retaliation provision" as a whole but simply held that internal complaints are not protected by the "testimony clause." Whitten therefore overstates the import of the case. Second, since the decision does not mention Rayner, it is not clear that the panel considered the ruling there in interpreting section 15(a)(3) or that it would have reached the same result had it done so. Third, and significantly, Whitten is an unpublished per curiam decision and, so, is not binding precedent. See Collins v. Pond Creek Mining Co., 468 F.3d 213, 219 (4th Cir. 2006) (noting that Court "ordinarily do[es] not accord precedential value to [its] unpublished decisions"); see also Local Rule 32.1 (citing to unpublished decisions is "disfavored"). Instead, as an unpublished decision, it is "entitled only to the weight [it] generate[s] by the persuasiveness of [its] reasoning." Id. Because Whitten misreads Ball and fails to mention Rayner, the Court should afford it little or no weight. The district court did mention but did not follow Rayner, finding it inapposite. The court opined that the "reasons" for the decision there "were specific to railroad and safety legislation and were therefore not helpful in the FLSA context." Order at 9-10 (citing Boateng v. Terminex Int'l Co. Ltd P'ship, No. 07-617, 2007 WL 2572403 (E.D. Va. Sept. 4, 2007) (unpublished)). This view does not withstand scrutiny. The FRSA post-dated passage of the FLSA, the EPA, and even Title VII by several decades. If Congress intended the FRSA but not the FLSA to protect internal as well as external complaints, it logically would not have used the same language in the two anti-retaliation provisions. Rather, it would have modeled the provision after the anti-retaliation provision in Title VII, for example, which contains an explicit opposition clause. It follows, then, that Congress intended both the FLSA and the FRSA to protect employees who make complaints to their employers. The enforcement schemes of both statutes depend on employees' willingness to come forward to report statutory violations; the distinction between internal and external complaints is no less "artificial" under the EPA and FLSA than under the FRSA. We therefore urge the Court to hold that plaintiff and others like her who complain to their employers about their pay are protected against retaliation by section 15(a)(3). Any other ruling would seriously undermine enforcement of the EPA and FLSA. CONCLUSION For the foregoing reasons, the decision of the district court should be reversed. Respectfully submitted, JAMES L. LEE Deputy General Counsel VINCENT J. BLACKWOOD Acting Associate General Counsel /s/ Barbara L. Sloan BARBARA L. SLOAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street N.E., 5th Floor Washington, D.C. 20507 (202) 663-4721 FAX (202) 663-6090 barbara.sloan@eeoc.gov CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation of Federal Rule of Appellate Procedure 32(a)(7)(B) because it contains 5044 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). I further certify that this brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of Rule 32(a)(6) because it has been prepared in a proportionally spaced typeface using Times New Roman font, 14 point type. Dated: May 13, 2009 /s/ Barbara L. Sloan Barbara L. Sloan CERTIFICATE OF SERVICE I certify that on May 13, 2009, I electronically filed the foregoing brief with the Clerk of Court using the CM/ECF system, which will then send notice of such filing to the following individuals: James H. Shoemaker, Jr. PATTEN, WORNOM, HATTEN & DIAMONDSTEIN, L.C. 12350 Jefferson Avenue, Suite 300 Newport News, VA 23602 jshoemaker@pwhd.com Scott W. Kezman Anna Richardson Smith KAUFMAN & CANOLES, P.C. 150 West Main Street, Suite 2100 Norfolk, VA 23510 swkezman@kaufcan.com arsmith@kaufcan.com I further certify that on May 13, 2009, I e-mailed the foregoing brief to the above-listed individuals. /s/ Barbara L. Sloan Barbara L. Sloan *********************************************************************** <> <1> The EEOC and the Secretary of Labor recently filed a joint amicus brief in Jafari v. Old Dominion Transit Management Co., No. 09-1004 (4th Cir. brief filed Mar. 11, 2009), a case raising the same issue under the Fair Labor Standards Act. The Secretary of Labor is charged with enforcing the Fair labor Standards Act as well as other labor-related statutes. <2> Section 441 prohibited an employer from retaliating against an employee because he has "filed any complaint or instituted or caused to be instituted any proceeding under or related to the enforcement of the Federal railroad safety laws" or has "testified or is about to testify in any such proceeding." 45 U.S.C. § 441(a) (1980). The only differences between that provision and § 15(a)(3)of the FLSA are that § 15(a)(3) refers to proceedings under or related to "this chapter," i.e., the FLSA, and contains a final clause, not relevant here, protecting an employee who "has served or is about to serve on an industry committee." 29 U.S.C. § 215(a)(3). The FRSA's anti-retaliation provision was amended in 2007; inter alia, the amendments transferred authority to implement the retaliation protections for railroad carrier employees to the Secretary of Labor. See Pub. L. 110-53 § 1521, 121 Stat. 226, 444-45 (codified at 49 U.S.C. § 20109 (2008)). <3> Courts construing similar provisions in other statutes, like this Court in Rayner, have likewise held that they encompass internal as well as external complaints. See, e.g., Clean Harbors Env'l Servs. v. Herman, 146 F.3d 12, 19-21 (1st Cir. 1998) (Safety Transportation Assistance Act protects internal complaints); Passaic Valley Sewerage Comm'rs v. DOL, 992 F.2d 474, 478 (3d Cir. 1993) (Clean Water Act's employee protection provision protects employees who complain to their employers); Kansas Gas & Elec. Co. v. Brock, 780 F.2d 1505, 1510-12 (10th Cir. 1985) (pre-1992 amended Energy Reorganization Act whistleblower provision covers internal complaints); MacKowiak v. University Nuclear Sys., 735 F.2d 1159, 1163 (9th Cir. 1984) (same).