Tuesday, June 3, 2008, 5:02 PM

Retaliation for Informal Activity

Robin Hagan, a field service manager in Houston for satellite television company Echostar, expressed concerns when the company announced a new schedule for service technicians including the small group he supervised. Although there was no guarantee of overtime work, some of the group wanted to know if the change was "legal," and Hagan referred them to the HR manager but didn't stay around to hear the discussion. Five days later, Hagan's immediate supervisor met with him to discuss his poor work performance, also criticizing the way Hagan had explained the schedule change to his technicians. The next day, Hagan was fired. The reason given was poor performance, but the HR manager, who was also present for the meeting, took Hagan to task for his handling of the schedule adjustment. Although the only reason on the termination notice was "lack of work performance," Echostar later added insubordination as a contributing factor.

Hagan sued, claiming only that he had been the victim of retaliation for engaging in protected activity. After a four-day trial, the jury was hopelessly deadlocked and a mistrial was declared. The trial judge then granted Echostar's motion for a judgment as a matter of law and dismissed Hagan's claims; he appealed to the US Court of Appeals for the Fifth Circuit.

The issue before the court was simple: whether or not Hagan's conduct constituted "filing a complaint" under the Fair Labor Standards Act so as to confer protected status on him. Since the trial judge had used three alternative tests in making that determination, the appellate court addressed each:

1. The Informal Complaint Rule. Even an informal internal complaint may constitute protected activity. Although "abstract grumblings" or "vague expressions of discontent" are not enough to meet this standard, any informal complaint which concerns some believed violation of the law is enough. But since Hagan didn't think the change was illegal, his conduct wasn't protected.

2. "Stepping Outside the Role." As a manager, Hagan was not concerned with alleged FLSA violations unless he was advocating the rights of those who had those issues. Passing along a complaint is the sort of thing managers do, and Hagan neither acted as a spokesperson or actively took any position at all.

3. "Good Faith." Hagan didn't express any belief that Echostar was in violation of the law. Under some circumstances, a reasonable belief in that regard may earn statutory protection even if the belief turns out to be wrong. Hagan failed that test, and the Fifth Circuit found it unnecessary to discuss the subject at all.

In short: While the Fifth Circuit joined the majority of US appellate jurisdictions in accepting the notion of informal internal complaints as protected activity, Hagan lost anyway because nothing he did rose to the level required for a retaliation claim.

Robin Hagan v. Echostar Satellite, L.L.C. & Echosphere L.L.C...

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