     Case: 11-11068     Document: 00512031445         Page: 1     Date Filed: 10/24/2012




              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                               Fifth Circuit

                                                                            FILED
                                                                         October 24, 2012
                                       No. 11-11068                        Lyle W. Cayce
                                                                                Clerk

DELINDA “DOLLY” LASATER

                                           Plaintiff - Appellant
v.

TEXAS A&M UNIVERSITY–COMMERCE; DAN JONES; MARY HENDRIX

                                           Defendants - Appellees



                   Appeal from the United States District Court
                    for the Northern District of Texas, Dallas
                                3:10-cv-01018-M


Before DAVIS, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Delinda “Dolly” Lasater (“Lasater ”) brought this suit
under the Fair Labor Standards Act (FLSA) and the Texas Whistleblower Act
alleging Dan Jones, Mary Hendrix, and Texas A&M University–Commerce
(“TAMUC”) terminated her employment because she reported FLSA violations
involving employee compensation time. Lasater appeals the district court’s grant
of summary judgment in favor of the defendants-appellees. Finding no error, we



        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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AFFIRM the grant of summary judgment dismissing Lasater’s claims for the
reasons more fully set forth below.


                                       I.
      This case arises from TAMUC’s termination of Lasater’s employment in
December 2009. From March 2006 to December 2009, Lasater was employed as
the Director of the Office of Financial Aid and Scholarships at TAMUC. Prior
to that, Lasater worked in the Financial Aid Department at Texas A&M
University–Corpus Christi for 17 years.
      In November 2008, Lasater met with Lori Ellison, an outside auditor from
The Texas A&M University System who was conducting a regularly scheduled
audit. During the meeting, Lasater alleges that Ellison asked her if she had any
“concerns” and Lasater told her that “there were some things that were of
concern to me and I felt like I needed to, in good faith, report some things that
I thought were violations, including comp time.” Lasater alleges that in the
course of the conversation with Ellison she discussed a number of problems
related to the university’s employee compensatory time (“comp time”) policy.
First, she was concerned that comp time had to be used before vacation time;
because vacation time would be lost if not taken before the end of the year, this
could in turn cause employees to lose accrued comp time. She also voiced her
concerns that employees in her department had accrued large balances of comp
time and were too busy for Lasater to allow them to timely use their comp time
and still meet the demands of her office. Third, she specifically expressed her
concerns about one of her employees, Diane Lewis, who had been promoted to a
position within the department exempt from the overtime requirements of the


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FLSA and TAMUC had declined Lasater’s request that Lewis be paid for her
accrued comp time after her promotion. Finally, Lasater alleges that she
reported to Ellison her concerns about the operation of TAMUC’s Financial
Services division, including its failure to “draw down” its allotted federal funds
and the fact that it was not performing monthly reconciliations related to federal
funds for financial aid. At the time of the meeting Lasater did not suggest to
Ellison that TAMUC policies regarding comp time violated the FLSA or refer to
any applicable law she believed had been violated.
      Relevant TAMUC policy provides that employees who are not exempt
under the FLSA may earn comp time for working more than forty hours per
week; the policy requires component universities to compensate employees by
giving them time off rather than paying them overtime. TAMUC policy also
provided that administrators who supervise staff were to ensure that no
employee accrue a comp time balance in excess of 240 hours and that, if
necessary, employees were to use comp time before taking vacation time.
Lasater, as a supervisor, had the responsibility for approving, and the authority
to deny, employee leave requests. The policy also states that an employee who
transfers between departments may, upon the department managers’
agreement, be paid for accumulated comp time but no policy required payment
for comp time to an employee promoted within a department. TAMUC policy
additionally provides that inquiries or interpretations of FLSA legal issues
should be directed to the System Human Resources Office or the Office of
General Counsel.
      In December 2008, Ellison reported Lasater’s concerns up the chain of
command to Lasater’s supervisor, Stephanie Holley; Mary Hendrix, Vice


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President for Student Access and Success; and Dan Jones, President of TAMUC.
Lasater alleges that shortly after her conversation with the auditor Holley and
Hendrix demanded to know why she had reported the comp time issue and
began to act colder toward her, harassed her, increased their scrutiny of her, and
forced her to take unqualified employees.
      In May 2009, Holley gave Lasater a favorable evaluation, and in August,
Lasatar received a merit raise. In September 2009, Holley and Hendrix met with
Lasater and discussed their concerns about the need for a training manual, the
role of Lewis, and how Lasater was not “allowing other people into [her] inner
circle.” In early December 2009, Rose Giles, one of Lasater’s subordinates,
approached Holley to discuss her frustration with the fact that she did not feel
Lasater’s staff was properly trained. Holley then spoke with Susan Grove, the
Assistant Director of Scholarships, who alleged that Lasater did not adequately
train her staff, spent most of her time with co-employee Lewis to the exclusion
of all others, repeatedly arrived late, and had a tendency to “lash out.” Grove
stated that she was so distressed by Lasater’s management style that she was
planning to leave the university. On December 15, 2009, Holley and Hendrix
informed Lasater that her employment was terminated.
      The district court granted summary judgment for TAMUC and dismissed
Lasater’s claims under both the FLSA and the Texas Whistleblower Act. Lasater
now appeals from that judgment.


                                       II.
      We review a district court’s grant of summary judgment de novo, viewing
all disputed facts and inferences in the light most favorable to the non-movant.


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Rockwell v. Brown, 664 F.3d 985, 990 (5th Cir. 2011). Summary judgment is
appropriate when there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a).


                                      III.
      Lasater argues first that TAMUC terminated her because she reported
concerns with employee comp time, including TAMUC’s policy requiring the
taking of comp time before vacation time, the large accumulated balances of
employee comp time, and her perceived inability to allow employees to redeem
their comp time in a timely fashion and still meet the demands of her office, as
well as TAMUC’s unwillingness to pay Lewis for her accumulated comp time.
      The FLSA makes it unlawful to “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.” 29 U.S.C. § 215(a)(3) (2006). A retaliation claim under
the FLSA is subject to the McDonnell Douglas analytical framework. Kanida
v. Gulf Coast Med. Pers. LP, 363 F.3d 568, 577 (5th Cir. 2004). Under the FLSA,
“a plaintiff must make a prima facie showing of: (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, LLC,
529 F.3d 617, 624 (5th Cir. 2008). When the plaintiff “meets this burden, the
defendant must then articulate a legitimate, non-discriminatory reason for its
decision. The burden then shifts to the plaintiff to demonstrate that the
proffered reason is a pretext for discrimination.” Id.




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      To demonstrate that she participated in an FLSA protected activity,
Lasater must first demonstrate that she filed a complaint. In order for an
employee’s communication to constitute a “complaint,” the “employer must have
fair notice that an employee is making a complaint that could subject the
employer to a later claim of retaliation” and the “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 [FLSA] and a call
for their protection.” Kasten v. Saint-Gobain Performance Plastics Corp., 131
S.Ct. 1325, 1334-35 (2011). An oral complaint may satisfy this standard. Id. Not
all “abstract grumblings” or vague expressions of discontent are actionable as
complaints. Valerio v. Putnam Assocs. Inc., 173 F.3d 35, 44 (1st Cir. 1999).
Though a plaintiff need not explicitly refer to the FLSA statute itself, the
complaint does need to be framed in terms of potential illegality. See Hagan,
529 F.3d at 626.
      Further, this circuit has recognized that an employee’s communication
does not constitute a complaint unless that employee “somehow steps outside of
his normal job role” so as to make clear to the employer that the employee is
“taking a position adverse to the employer.” Id. at 627-28. Such a requirement
is “eminently sensible for management employees” because a managerial
position “necessarily involves being mindful of the needs and concerns of both
sides and appropriately expressing them.” Id. at 628. Thus, voicing “concerns is
not only not adverse to the company’s interests, it is exactly what the company
expects of a manger.” Id. (emphasis in original). Without such a requirement,
“nearly every activity in the normal course of a manager’s job would be protected
activity.” Id.


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      Illustratively, a personnel director responsible for monitoring compliance
with workplace laws did not engage in protected activity when she discussed her
“concerns about the company’s possible FLSA violations” with the president of
the company. McKenzie v. Renberg’s Inc., 94 F.3d 1478, 1481 (10th Cir. 1996).
The Tenth Circuit found her “job responsibilities” included discussing wage
issues and that assisting the company with FLSA compliance was “completely
consistent with her duties.” Hagan, 529 F.3d at 627 (quoting McKenzie, 94 F.3d
at 1487). It held that it is “the assertion of statutory rights (i.e., the advocacy of
rights) by taking some action adverse to the company . . . that is the hallmark
of protected activity.” Id. (emphasis in original) (quoting McKenzie, 94 F.3d at
1486). Thus because McKenzie “never crossed the line from being an employee
merely performing her job as personnel director to an employee lodging a
personal complaint about the wage and hour practices of her employer and
asserting a right adverse to the company,” her discussion of her FLSA violation
concerns with the president could not reasonably “be perceived as directed
towards the assertion of rights protected by the FLSA.” Id. (emphasis in original)
(quoting McKenzie, 94 F.3d at 1486-87).
      Here Lasater can not demonstrate that her statements about comp time
constituted a complaint as required by the FLSA. Her statements were made
as part of her interaction as a department head with the auditor during a
routine audit. Part of Lasater’s responsibilities as Director of the Office of
Financial Aid and Scholarships included participating in such scheduled audits
and responding to the auditor’s questions. If Lasater had followed TAMUC’s
regulations she would have limited the number of comp hours her subordinates
accumulated. Lasater, as the head of her department, had the obligation and


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the discretion and authority to keep the accumulated comp hours of her
employees below the prescribed level. To the extent that her concern was that
too much employee comp time had accumulated, the ability to eliminate and
limit this accrual of time was strictly in her own hands. Just as in McKenzie,
where the plaintiff did not engage in protected activity because she was merely
performing duties within her job description and so did not take any action
adverse to the company, Lasater’s participation in the audit was also part of her
job description. Relatedly, monitoring compliance and ensuring compliance with
TAMUC’s employee comp time policy, the very thing Lasater expressed
“concerns” about, was also among her own job responsibilities. See McKenzie, 94
F.3d at 1487. As far as Lasater’s complaint that her subordinates could not take
their comp time and still do their work, this again reflects upon her and her
responsibility as a manager. It was incumbent on her to have her department
perform its mission with the employees assigned to her. The record reflects that
she had the authority at various times to hire more employees and for reasons
best known to her she did not do so. Expressing concerns over an employment
issue Lasater had the discretion to resolve does not represent an action adverse
to TAMUC and does not amount to a clear assertion of rights as required by the
statute and jurisprudence. See Katsen, 131 S.Ct. at 1335; Hagan, 529 F.3d at
627-28.
      Moreover, there is no evidence of conduct by Lasater that reasonably could
or should have been construed or understood by the employer as a positive
assertion of rights against TAMUC related to the FLSA. At no time in her
discussion with Ellison did Lasater say anything that would constitute an
informal complaint by Lasater on her own behalf or that of her employees


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                                        No. 11-11068

against her employer. Nothing in her discussions with Ellison touched on
matters outside her duties as department head.1
       Additionally, Lasater’s concerns expressed to the auditor about TAMUC’s
refusal to pay Lewis for her accrued overtime when Lasater promoted her to
assistant director was simply an expression of disagreement about TAMUC
policy and not a complaint of illegality. TAMUC policy providing for the payment
of overtime balances applied to employees who are transferred among
departments of the system but was inapplicable to employees like Lewis who are
promoted within the same department. As a director supervising employees,
Lasater was responsible for knowing and implementing the policies related to
employment matters in her department. Further, pursuant to policy, questions
regarding the FLSA were to be directed to the System Human Resources Office
and interpretations of FLSA issues were to be directed to the Office of General
Counsel.
       Because we find Lasater did not cross the line from employee performing
her job to an employee asserting a right adverse to the company, we need not
address the so-called good faith rule under which an employee’s good faith belief
that the employer has committed a FLSA violation may give rise to protected
activity even though the employer has committed no such violation.
       Lasater has failed to present a genuine issue of material fact that she
lodged a complaint against her employer of a violation of the FLSA and



       1
          Indeed Ellison’s affidavit reflects that her understanding of Lasater’s comments was
that Lasater sought to be advised regarding the proper management of comp time. This
supports the conclusion that Lasater’s comments were not framed in terms of potential
illegality, were not a sufficiently clear assertion of rights, and did not represent her stepping
outside of her role and acting as an advocate.

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therefore has failed to allege that she engaged in any FLSA protected activity.
Thus she has not made out a prima facie case of retaliation and her FLSA claim
must fail.


                                      IV.
      Lasater next argues that the district court erred in dismissing her Texas
Whistleblower claim because she asserts her summary judgment evidence
demonstrated that she reported issues with the university’s treatment of
employee comp time (as discussed above), financial reconciliations, and the
drawing down of federal funds and satisfied the elements of her state law claim.
      The Texas Whistleblower Act (“TWA”) provides that a government entity
may not take an adverse personnel action against an employee who, in good
faith, reports his employer’s violation of law to an appropriate law enforcement
authority. TEX. GOV’T CODE ANN . § 554.002(a) (West 2012). For purposes of a
TWA claim, “good faith” means that (1) the employee believed that the conduct
reported was a violation of law and (2) the employee's belief was reasonable in
light of the employee’s training and experience. City of Elsa v. Gonzalez, 325
S.W.3d 622, 626 (Tex. 2010). With respect to determining whether a public
employee had a good faith belief that the authority to which he reported an
alleged violation of law was an appropriate law enforcement authority, the
question is whether “a reasonably prudent employee in similar circumstances
would have believed that the governmental entity to which he reported was an
appropriate law enforcement authority.” Mullins v. Dall. Indep. Sch. Dist., 357
S.W.3d 182, 190 (Tex. App. 2012). To show causation, a public employee must
demonstrate that she suffered discriminatory conduct by her employer that


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would not have occurred if the employee had not reported the illegal conduct; in
other words, the employee must establish a “but-for” causal nexus between her
report and the employer's prohibited conduct. Alejandro v. Robstown Indep. Sch.
Dist., 131 S.W.3d 663, 667 (Tex. App. 2004).
      Lasater alleges that she in good faith filed a complaint of a violation of the
law because she believed the comp time issues she reported to Ellison were
violations of FLSA and that she had a good faith belief that auditors from The
Texas A&M University System were an appropriate law enforcement authority.
For the reasons discussed above, the record does not support Lasater’s claim that
she made a complaint of her employer’s violation of law under the FLSA.
      In her Texas Whistleblower claim, Lasater also alleges she reported
violations of financial accounting practices that public institutions are required
to follow. Lasater does not explain in any detail how a failure to follow
established reasonable accounting practices amounts to a violation of law that
would trigger a whistleblower claim. Even assuming the evidence supports a
finding that Lasater engaged in whistleblowing, the evidence does not support
a finding that Lasater’s whistleblowing is causally related to Lasater’s
termination.
      The record shows that in May 2009, months after Lasater’s November
2008 discussions with Ellison, Holley conducted an annual evaluation and gave
Lasater a favorable review and in August 2009 Lasater received a merit raise.
Lasater was not terminated until December 2009, after Holley and Hendrix
received unfavorable reports from two of Lasater's subordinates, more than a
year after Lasater’s alleged whistleblowing. In light of the stated reasons for
appellant’s termination and the evidence presented in support thereof, we


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conclude that the evidence fails to establish a “but for” causal nexus between
appellant’s report and appellant’s eventual termination as a matter of law. See
Alejandro, 131 S.W.3d at 668 (finding assistant superintendent failed to
establish “but for” causal nexus between his reporting of misconduct and his
termination when his termination occurred more than ten months after his
report).


                                      V.
      For the above reasons, the judgment of the district court is AFFIRMED.




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