                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-1004


EMMETT JOHNSON JAFARI,

                Plaintiff - Appellant,

           v.

THE OLD DOMINION TRANSIT MANAGEMENT COMPANY,              a/k/a   The
Greater Richmond Transit Company (GRTC),

                Defendant – Appellee.

-----------------------------------

SECRETARY OF LABOR; EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

                Amici Supporting Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.   James R. Spencer, Chief
District Judge. (3:08-cv-00629-JRS)


Argued:   December 6, 2011                  Decided:   January 27, 2012


Before TRAXLER,   Chief   Judge,   and     DUNCAN   and   AGEE,   Circuit
Judges.


Reversed in part, affirmed in part, and remanded by unpublished
opinion.   Judge Duncan wrote the opinion, in which Chief Judge
Traxler and Judge Agee joined.


ARGUED: Denise M. Clark, CLARK      LAW GROUP, PLLC, Washington,
D.C., for Appellant.    Charles     Randolph Sullivan, HUNTON &
WILLIAMS, LLP, Richmond, Virginia, for Appellee.   ON BRIEF: P.
David Lopez, General Counsel, Lorraine C. Davis, Acting
Associate General Counsel, Vincent J. Blackwood, Assistant
General Counsel, Barbara L. Sloan, EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C.; M. Patricia Smith, Solicitor of
Labor, Jennifer S. Brand, Associate Solicitor, Paul L. Frieden,
Counsel for Appellate Litigation, Nickole C. Winnett, UNITED
STATES DEPARTMENT OF LABOR, Washington, D.C., for Amici
Supporting Appellant. Sarah E. Bruscia, HUNTON & WILLIAMS, LLP,
Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
DUNCAN, Circuit Judge:

      Appellant          Emmett     Jafari    appeals         from     the   Rule    12(b)(6)

dismissal         of    his    claims      against       his    former       employer,    Old

Dominion Transit Management, a/k/a The Greater Richmond Transit

Company (“GRTC”), for retaliation under the Fair Labor Standards

Act   (“FLSA”),          29    U.S.C.      § 215(a)(3);         for    interference      with

protected rights under the Employee Retirement Income Security

Act   (“ERISA”),          29    U.S.C.      § 1140;      and     for    defamation       under

Virginia law.            For the following reasons, we reverse and remand

in part and affirm in part.



                                              I.

                                              A.

      On February 20, 2006, GRTC hired Jafari as an employee in

its       C-Van        department. 1         The        C-Van     department         provides

transportation to work and daycare facilities for participants

in the Virginia Initiative for Employment not Welfare (“VIEW”)

program      referred          to   GRTC     by       local    Departments      of    Social

Services.         According to Jafari, his employment with GRTC was at-

will, and he “had no supervisory responsibilities, was eligible

      1
       Because the district court dismissed Jafari’s complaint
pursuant to Rule 12(b)(6), we take the allegations included in
his complaint to be true. Novell, Inc. v. Microsoft Corp., 505
F.3d 302, 307 (4th Cir. 2007). This section therefore recounts
the facts relevant to this appeal as alleged by Jafari.


                                                  3
for overtime pay, . . . and possessed the authority to monitor

C-Van drivers.”           J.A. 14.       GRTC disclosed that Jafari’s position

might    require     weekend       work    and     that      GRTC    “provided      employee

benefit plans upon completion of its probationary period, at no

cost to [Jafari].”          Id.

       After    a     brief        training       period,       Jafari        assumed     his

responsibilities            in       the      C-Van           department.               These

responsibilities included the requirement that Jafari be on call

every other weekend.             Jafari claims that, from the beginning, he

performed his job conscientiously and diligently.

       In     December       2006,        GRTC     announced          a    new     employee

compensation plan and “invited employee inquiries on the topic.”

J.A.    15.     Jafari      alleges       that    he    was    not    being    compensated

according to the new plan and that he raised this issue with

GRTC management.           According to Jafari, Kimberly Ackerman, GRTC’s

Director       of    Human        Resources,       acknowledged            that    Jafari’s

compensation        was    below    the    new    plan       rate,   but    she    postponed

discussion of the topic until Jafari’s annual evaluation.                                  At

his    February      2007    evaluation,          however,      Jafari      alleges      that

Ackerman did not increase Jafari’s compensation to “even the

lowest      salary    within       the    Plan’s       pay    grade.”        Id.      Jafari

continued      to    receive       below-grade         compensation        despite    having

received a “near perfect” evaluation in March 2007.                           J.A. 16.



                                              4
        After raising concerns about his compensation, Jafari began

to experience problems at work.                     Specifically, he alleges that

GRTC     “diminish[ed]         his    VIEW     responsibilities”           and     actively

sought complaints about him from VIEW participants.                               J.A. 16.

Jafari also alleges that, in April 2007, GRTC assigned him new

responsibilities        related        to    the    Henrico     Community        Assistance

Ride     Enterprise      (“CARE”)           program     without      affording      him    a

concomitant increase in pay.

       In    October    2007,        GRTC    Chief     Operating     Officer       Eldridge

Coles reported receiving a complaint about Jafari from a VIEW

client.        Specifically,         Coles     stated    that     Jafari    had     told   a

client “if she had something to say, to say it to [his] face.”

J.A. 16.       As a result of this complaint, Jafari was instructed

not to go to a client’s home unless sent by a dispatcher or

supervisor.

       Jafari filed an “official complaint” with GRTC management

about    his    wages    and    “GRTC’s       defamatory      actions”      in     December

2007.       J.A. 17.    According to Jafari, Coles assured Jafari that

the    issues    he     raised       would     be     dealt   with    internally,         and

specifically asked Jafari not to go outside the company with his

concerns.

       Without resolving these concerns, on February 1, 2008, GRTC

fired Jafari.         Jafari was informed of his termination when Coles

called Jafari and Jafari’s supervisor, Sandra Stanley, into his

                                               5
office.      Ackerman joined them shortly after, handing Coles a

sealed envelope as she arrived.                    Coles handed Jafari the letter

and   informed        him,     “[W]e    have        decided       to     terminate     your

employment with GRTC.”              J.A. 20.        When Jafari asked why, Coles

responded,      “[Y]our      supervisory          skills   have    diminished.”            Id.

Coles then stated, “[T]he letter will fully inform you.”                                   Id.

Jafari took the sealed letter and left Coles’s office.                              Ackerman

and Stanley were both present during this conversation.

                                             B.

      Jafari originally filed the action now before us as a Sworn

Motion    for    Judgment      in    the     Circuit       Court       for    the   City    of

Richmond on August 25, 2008.                 As relevant to this appeal, Jafari

alleged that GRTC had retaliated against him in violation of the

FLSA’s antiretaliation provision, that it had violated ERISA by

terminating his employment before his benefits vested, and that

it had defamed him. 2          Jafari’s defamation claims were based upon

(1) Coles’s statement that a VIEW client had complained about

Jafari, (2) statements included in the termination letter Coles

presented to Jafari, and (3) statements made to Jafari during

the   meeting    at    which    he     was    terminated,         in    the    presence     of




      2
       Jafari’s complaint also alleged numerous other causes of
action, the dismissal of which he has not challenged on appeal.


                                              6
“others beyond a door.”                  J.A. 24.           He sought damages of $1

million.

       GRTC removed the case to the United States District Court

for    the    Eastern    District        of   Virginia       on   September         26,    2008,

citing       federal    question     jurisdiction           under      28    U.S.C.       § 1331

based upon Jafari’s claims under the FLSA and ERISA.                                      Jafari

initially      opposed    the    removal,           but   subsequently        withdrew       his

motion to remand on October 17, 2008.

       On October 2, 2010, GRTC filed a motion to dismiss.                                In an

order dated November 26, 2008, the district court granted GTRC’s

Rule 12(b)(6) motion in part and denied it in part.                               With regard

to the three causes of action relevant for our purposes, the

district court first found that Jafari had failed to state a

claim under the FLSA’s antiretaliation provision because, based

upon    its    interpretation        of       our    case    law,      it    held    that     an

employee’s       complaints         to    his        employer     do        not    constitute

protected activity under 29 U.S.C. § 215(a)(3).                               The district

court likewise held that Jafari had not properly alleged facts

sufficient       to    state    a    claim          under    ERISA’s        antiretaliation

provision, 29 U.S.C. § 1140, because he did not claim that GRTC

had terminated him with the specific intent to interfere with

his pension rights.            Next, the district court dismissed Jafari’s

defamation claim based on the termination letter because, even

assuming the letter contained actionable statements, Jafari did

                                               7
not properly allege publication of any statement contained in

the letter, as required by Virginia law.                          It likewise dismissed

Jafari’s defamation claim based on the statements made during

the termination meeting to Jafari about his job performance,

finding     that     the    statements         were       opinions,        and     thus     not

actionable under Virginia law.                    The only claim that survived

GRTC’s motion to dismiss was Jafari’s defamation claim based on

Coles’s statement regarding the alleged VIEW client complaint.

The district court opined that Jafari had properly alleged both

an actionable statement and publication.                            Because no federal

question remained, the district court remanded this surviving

claim to the Circuit Court for the City of Richmond.

     Jafari      filed     a   timely       pro    se     appeal     and     submitted        an

informal     brief.            He     subsequently           retained        counsel         and

participated       in    formal     briefing.           On    the    issue       of    whether

intracompany        complaints        are     protected           activity       within     the

meaning of § 215(a)(3) of the FLSA, Jafari is joined by the

Secretary     of     Labor      and     the       Equal      Employment          Opportunity

Commission as amici curiae.



                                            II.

     On    appeal,       Jafari     advances      three      arguments.           First,     he

argues    that     the   district      court      erred      by    dismissing         his   FLSA

retaliation claim, contending that intracompany complaints may

                                              8
constitute protected activity under the FLSA’s antiretaliation

provision.        Second, Jafari contends that the district court’s

dismissal of his ERISA retaliation claim was improper because

his complaint alleged that GRTC’s termination of his employment

was motivated by discriminatory intent.                 Finally, Jafari asserts

that the district court should not have dismissed his claim for

defamation based on the termination letter because his complaint

properly alleged publication of the statements contained in the

letter.     We address each of these contentions in turn.                  In doing

so, we review the district court’s Rule 12(b)(6) dismissal of

Jafari’s claims de novo.            Robinson v. Am. Honda Motor Co., 551

F.3d 218, 222 (4th Cir. 2009).

                                          A.

     Section       215(a)(3)   of   the       FLSA   makes    it   unlawful   for   a

covered employer to “discharge or in any 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.”                       Jafari contends

that the district court erred by holding that complaining to

one’s     employer    about    an    alleged         FLSA    violation   does    not

constitute “fil[ing] any complaint” within the meaning of the




                                          9
statute.            Contrary to the district court’s assessment, 3 this

circuit        had       not   previously    stated      whether   an     employee’s

complaint lodged within his company--as opposed to a complaint

filed        with    a    court   or   government     agency--may       trigger   the

protection of the FLSA’s antiretaliation provision.

        Drawing upon the reasoning in the Supreme Court’s recent

decision in Kasten v. Saint-Gobain Performance Plastics Corp.,

131 S. Ct. 1325 (2011), and for the reasons explained more fully

in our concurrently filed published opinion, No. 10-1258, Minor

v. Bostwick Laboratories, Inc., we conclude that intracompany

complaints may constitute protected activity within the meaning

of 29 U.S.C. § 215(a)(3).                 As such, we reverse the district

court on this ground.

        In Minor, we first determined that neither Kasten nor our

previous opinion, Ball v. Memphis Bar-B-Q Co., 228 F.3d 360 (4th

Cir.        2000)--in     which   we   addressed   the    FLSA’s   antiretaliation

provision in a different context--was directly controlling.                        We

next reasoned that an inquiry into the plain meaning of the


        3
       The district court held that our unpublished, per curiam
opinion in Whitten v. City of Easely, 62 F. App’x 477 (4th Cir.
2003), was dispositive in this case.    Although it is true that
in Whitten, we stated that “the FLSA’s antiretaliation provision
does not extend to internal complaints,” id. at 480, as an
unpublished   decision,   Whitten   “provides   no   precedential
authority” in this circuit, United States v. Hood, 628 F.3d 669,
672 (4th Cir. 2010).


                                            10
relevant portion of the statute--“filed any complaint”--does not

provide    a     definitive      answer      regarding      whether    intracompany

complaints      constitute       protected      activity.      Having      determined

that the language “filed any complaint” is ambiguous, we then

looked     to      “functional         considerations”          to      guide          our

interpretation of § 215(a)(3).               Kasten, 131 S. Ct. at 1333.                We

recognized      that   the   basic     purpose     of   the   FLSA    is    to    combat

improper       labor   conditions       and     that    Congress      intended         the

antiretaliation provision to provide broad protection for those

who raise concerns about such detrimental conditions.                            Viewing

the statute through this lens, we concluded that reading the

FLSA’s     antiretaliation         provision       to    consider      intracompany

complaints as protected activity best effectuates the statute’s

purpose.       We therefore held that an employee’s complaint to his

employer    may    constitute      “fil[ing]      any    complaint”        within      the

meaning of § 215(a)(3).           We reaffirm that holding here.

     As in Minor, we emphasize here that “the statute requires

fair notice” to employers, and that not every instance of an

employee     “letting      off    steam”      constitutes     the     filing      of     a

complaint within the meaning of § 215(a)(3).                  Kasten, 131 S. Ct.

at 1334.       Thus, the proper standard for the district court to

apply on remand is the test articulated in Kasten, which we

adopted    in     Minor:     whether    an      employee’s    complaint          to    his

employer was “sufficiently clear and detailed for a reasonable

                                           11
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.”           Id. at 1335.

        Because an employee’s intracompany complaint may constitute

protected activity within the meaning of § 215(a)(3), we hold

that the district court erred by dismissing Jafari’s complaint.

Jafari’s allegations that he filed an “official complaint” with

GRTC    management      and    that    GRTC    specifically       asked   him    not    to

raise    his       grievance    outside       the    company     are    sufficient      to

advance his claim past the Rule 12(b)(6) stage.                     J.A. 17.

                                          B.

        Jafari next contends that the district court incorrectly

dismissed his claim that GRTC interfered with his attainment of

rights under his benefit plan in violation of 29 U.S.C. § 1140.

Although      he    makes   this   argument         in   his   formal   brief,   Jafari

failed to raise it in the informal brief he filed with this

court.

        Local Rule 34(b) sets out the procedures a pro se appellant

must follow when filing an appeal in this circuit.                        It requires

that the clerk notify the pro se appellant that he “shall file .

.   .    an    informal       brief,    listing          the   specific   issues       and

supporting facts and arguments raised on appeal.”                         4th Cir. R.

34(b).     The rule clearly provides that “[t]he [c]ourt will limit

its review to the issues raised in the informal brief.”                                Id.

                                          12
Jafari’s failure to include the district court’s dismissal of

his   ERISA    claims      results       in   his    informal       brief   waives       these

claims on appeal.

                                               C.

      Jafari finally contends that the district court erred by

dismissing         his    claim     for       defamation        “related       to     Coles’

statements     about       his     job       performance       as    reflected      in    the

[t]ermination letter.”             Appellant’s Br. 18.              The district court

dismissed this claim on the ground that Jafari failed to allege

publication of any facts in the termination letter, as required

under    Virginia        law.     Jafari       argues    on     appeal      that    “if   the

[c]omplaint        is    viewed   as     a    whole,    the    allegations         that   the

contents      of    the     letter       were       openly     discussed      during      the

[termination]        meeting      [demonstrate         that]    Jafari      alleged      facts

regarding other individuals who could hear the statements beyond

the door, suggesting that individuals who had no supervisory

authority over him could hear the statements.”                           Appellant’s Br.

18-19.     Upon review, we conclude that the complaint does not, in

fact, contain such allegations.                  As such, we affirm the district

court’s dismissal of this claim.




                                               13
      “In Virginia, the elements of libel 4 are (1) publication of

(2)   an   actionable      statement   with    (3)    the     requisite       intent.”

Jordan v. Kollman, 612 S.E. 2d 203, 206 (Va. 2005).                    Publication

requires that the actionable statement be communicated “to some

third person so as to be . . . understood by such person.”

Thalhimer    Bros.    v.    Shaw,   159    S.E.    87,   90    (Va.    1931).      An

actionable statement is one that is both false and defamatory.

Jordan, 612 S.E. 2d at 206.

      Jafari argues that the publication element was fulfilled

when “Coles reiterated . . . allegations in the [t]ermination

[l]etter”     in     the    presence      of      “others     beyond      a    door.”

Appellant’s Br. 18.         As GRTC points out, however, Jafari did not

allege in his complaint that Coles read any of the termination

letter aloud.      The sections of the complaint Jafari directs our

attention to contain allegations that Coles asked Jafari to come

to his office, where the two were joined by two other members of

GRTC management.           As described above, Coles allegedly handed

Jafari a letter and stated, “[W]e have decided to terminate your

employment with GRTC.”          J.A. 20.          The complaint also alleges

that Jafari asked why and Coles responded “‘your supervisory

skills have diminished,’ and then stated ‘the letter will fully


      4
       In Virginia, defamation in written format is typically
termed libel.   Jordan v. Kollman, 612 S.E. 2d 203, 206 (Va.
2005).


                                          14
inform    you.’”       J.A.      20.       The    complaint      elsewhere         contains

similar allegations that Coles made the statement about Jafari’s

supervisory skills, but it never alleges that Coles or any other

GRTC employee read the letter aloud or circulated the letter to

anyone outside of GRTC management.                    Therefore, Jafari’s argument

before us on appeal not only does not address the publication

element the district court found lacking, it mischaracterizes

his complaint.

       Perhaps recognizing this problem, Jafari attempts to recast

his    contention     in   his     reply     brief,     claiming       that       “the   only

statement at issue on appeal is the statement made to Mr. Jafari

about his job performance at the [d]ischarge [m]eeting while

others were outside the door.”               Appellant’s Rep. Br. 13.                To the

contrary,     although     Jafari’s      opening       brief     is   not     a    model    of

clarity, a fair reading shows that Jafari only evinces an intent

to appeal the district court’s decision about the termination

letter.       Tellingly,      in   his     opening      brief,    Jafari      only       makes

arguments about publication, which is the ground on which the

district      court   dismissed        his   defamation        claim     based      on     the

termination letter.           Conversely, the district court dismissed

Jafari’s claim based on Coles’s statement about Jafari’s job

performance on the ground that it was one of opinion, rather

than     an   actionable      statement          of   fact.       That      Jafari        only

addresses publication, and not opinion, in his opening brief

                                             15
makes it clear that he did not properly raise the issue of the

district    court’s      dismissal     of    his   claim   based   upon   Coles’s

statements at that point.            We consider arguments not raised in

an appellant’s opening brief to be waived.                  See, e.g., Yousefi

v.   INS,   260   F.3d    318,   326   (4th    Cir.   2001).       Therefore,   we

decline to address this alternative claim.



                                       III.

      For the foregoing reasons, the judgment of the district

court with regard to Jafari’s claims under 29 U.S.C. § 215(a)(3)

is reversed and remanded for proceedings consistent with this

opinion.     We affirm the district court’s judgment in all other

respects.

                                                               REVERSED IN PART,
                                                               AFFIRMED IN PART,
                                                                    AND REMANDED




                                        16
