                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 ALLA JOSEPHINE ROSENFIELD, a                     No. 13-15292
 married woman,
                Plaintiff-Appellant,                D.C. No.
                                                 2:11-cv-02327-
                     v.                              NVW

 GLOBALTRANZ ENTERPRISES, INC., a
 Delaware corporation; ANDREW J.                    OPINION
 LETO, an Arizona citizen, husband;
 ANTHONY ALBANESE, a Florida
 citizen, husband,
                Defendants-Appellees.


        Appeal from the United States District Court
                 for the District of Arizona
          Neil V. Wake, District Judge, Presiding

                    Argued and Submitted
          April 16, 2015—San Francisco, California

                   Filed December 14, 2015

    Before: Alex Kozinski and Susan P. Graber, Circuit
        Judges, and Dee V. Benson,* District Judge.


  *
    The Honorable Dee V. Benson, United States District Judge for the
District of Utah, sitting by designation.
2           ROSENFIELD V. GLOBALTRANZ ENTERS.

                    Opinion by Judge Graber;
                    Dissent by Judge Benson


                           SUMMARY**


                             Labor Law

    The panel reversed the district court’s summary judgment
in favor of the employer on an employee’s claim under the
anti-retaliation provision of the Fair Labor Standards Act.

    Applying the “fair notice” test for deciding whether the
employee had “filed any complaint,” the panel considered
whether, pursuant to Kasten v. Saint-Gobain Performance
Plastics Corp., 563 U.S. 1 (2011), the complaint was
“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.” The panel held that a complaining employee’s
position is an important part of the “context” that the fact-
finder must consider, but the panel declined to formulate or
adopt a special bright-line rule to apply when considering
whether a manager has “filed any complaint” within the
meaning of 29 U.S.C. § 215(a)(3).

   The panel held that a jury reasonably could find that the
employee filed a complaint. It therefore reversed the district
court’s summary judgment and remanded for further
proceedings.

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
          ROSENFIELD V. GLOBALTRANZ ENTERS.                  3

    Dissenting, Judge Benson wrote that the FLSA requires
a manager to step outside of his or her role as a manager in
order to file a complaint. He would affirm on the ground that
all of the employee’s actions fell within the ambit of her
managerial duties, and she did not take a position adverse to
that of her employer.


                         COUNSEL

Timothy J. Casey (argued), Schmitt Schneck Smyth Casey &
Even, P.C., Phoenix, Arizona, for Plaintiff-Appellant.

Dinita L. James (argued), Gonzalez Saggio & Harlan LLP,
Phoenix, Arizona, for Defendants-Appellees.

Melissa A. Murphy, Senior Attorney, M. Patricia Smith,
Solicitor of Labor, Jennifer A. Brand, Associate Solicitor, and
Paul L. Frieden, Counsel for Appellate Litigation, United
States Department of Labor, Washington, D.C.; and P. David
Lopez, General Counsel, Jennifer S. Goldstein, Associate
General Counsel, Carolyn L. Wheeler, Assistant General
Counsel, and Susan L. Starr, Attorney, United States Equal
Employment Opportunity Commission, Washington, D.C.,
for Amici Curiae Secretary of Labor and Equal Employment
Opportunity Commission.
4         ROSENFIELD V. GLOBALTRANZ ENTERS.

                          OPINION

GRABER, Circuit Judge:

     In Kasten v. Saint-Gobain Performance Plastics Corp.,
563 U.S. 1, 131 S. Ct. 1325, 1335 (2011), the Supreme Court
established a “fair notice” test for deciding whether an
employee has “filed any complaint” under the anti-retaliation
provision of the Fair Labor Standards Act of 1938 (“FLSA”),
29 U.S.C. § 215(a)(3): “[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.” We
hold that a complaining employee’s position as a manager is
an important part of the “context” that the fact-finder must
consider. A reasonable employer would understand many
actions taken by a non-managerial employee differently than
it would understand the same actions taken by a manager.
But we decline to formulate or adopt a special bright-line rule
to apply when considering whether a manager has “filed any
complaint” within the meaning of § 215(a)(3). We further
hold that, on this record and applying Kasten’s “fair notice”
rule, a jury reasonably could find that Plaintiff Alla Josephine
Rosenfield, a managerial employee, filed such a complaint.
Accordingly, we reverse the district court’s grant of summary
judgment to the employer and remand for further
proceedings.

    FACTUAL AND PROCEDURAL BACKGROUND

    Defendant GlobalTranz Enterprises, Inc., provides
transportation management services in Arizona.               It
“specializes in brokering truckload and supply chain logistics
          ROSENFIELD V. GLOBALTRANZ ENTERS.                   5

and warehousing.” The company operates, among other
things, a call center and a customer service department.

    In April 2010, GlobalTranz hired Plaintiff Alla Rosenfield
as Manager of Human Resources. The company promoted
her later that year to Director of Human Resources and, in
early 2011, to Director of Human Resources and Corporate
Training. Throughout her employment, Plaintiff reported to
her superiors that the company was not compliant with the
FLSA, and she repeatedly sought changes to attain statutory
compliance.

     On May 31, 2011, GlobalTranz fired Plaintiff. She then
filed this action, alleging that GlobalTranz and its executives
had violated the FLSA’s anti-retaliation provision, 29 U.S.C.
§ 215(a)(3), and an Arizona state law. Plaintiff alleges that
GlobalTranz fired her for engaging in protected activity, that
is, for complaining to other managers and to executives that
GlobalTranz was failing to comply with the FLSA.

    The district court granted summary judgment in
Defendants’ favor on the FLSA claim. Even though the
district court recognized that Plaintiff had “advocated
consistently and vigorously on behalf of . . . GlobalTranz’s
employees whose FLSA rights Plaintiff thought were being
violated,” the district court held that she nevertheless was not
entitled to the protections of § 215(a)(3) because she had not
“filed any complaint” for purposes of that provision. Plaintiff
voluntarily dismissed the state-law claim, the court entered a
final judgment, and this timely appeal followed. We have
jurisdiction, James v. Price Stern Sloan, Inc., 283 F.3d 1064
(9th Cir. 2002), and our review is de novo, Solis v.
Washington, 656 F.3d 1079, 1083 (9th Cir. 2011).
6         ROSENFIELD V. GLOBALTRANZ ENTERS.

                       DISCUSSION

    A. The Legal Standard

    The FLSA provides that it is unlawful for an employer

       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, 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). The FLSA defines “employee” as
“any individual employed by an employer” and, in turn,
defines “employ” as including “to suffer or permit to work.”
Id. § 203(e)(1), (g). Although a manager, Plaintiff meets the
broad statutory definition of “employee.” We must next
consider when a manager, as opposed to a non-managerial
employee, has “filed any complaint” under § 215(a)(3).

    “[B]ecause the FLSA is a remedial statute, it must be
interpreted broadly.” Lambert v. Ackerley, 180 F.3d 997,
1003 (9th Cir. 1999) (en banc); see also Navarro v. Encino
Motorcars, LLC, 780 F.3d 1267, 1271 (9th Cir. 2015)
(holding that “we must apply the background rule that the
FLSA is to be construed liberally in favor of employees”
(internal quotation marks and brackets omitted)), petition for
cert. filed, 84 U.S.L.W. 3201 (U.S. Sept. 30, 2015) (No. 15-
415). Moreover, this specific statutory provision broadly
encompasses the filing of “any complaint.” 29 U.S.C.
§ 215(a)(3) (emphasis added); see Kasten, 131 S. Ct. at 1332
          ROSENFIELD V. GLOBALTRANZ ENTERS.                 7

(holding that “the phrase ‘any complaint’ suggests a broad
interpretation”). An expansive anti-retaliation provision is
consistent with “the Act’s basic objective[]” of improving
labor conditions through substantive wage and hour
standards. Kasten, 131 S. Ct. at 1333.

       For weighty practical and other reasons,
       Congress did not seek to secure compliance
       with prescribed standards through continuing
       detailed federal supervision or inspection of
       payrolls.    Rather it chose to rely on
       information and complaints received from
       employees seeking to vindicate rights claimed
       to have been denied. Plainly, effective
       enforcement could thus only be expected if
       employees felt free to approach officials with
       their grievances. . . . [I]t needs no argument
       to show that fear of economic retaliation
       might often operate to induce aggrieved
       employees quietly to accept substandard
       conditions.

Mitchell v. Robert de Mario Jewelry, Inc., 361 U.S. 288, 292
(1960); see also Kasten, 131 S. Ct. at 1333 (discussing this
background and quoting Mitchell); Lambert, 180 F.3d at 1003
(same).

    But the FLSA “also seeks to establish an enforcement
system that is fair to employers.” Kasten, 131 S. Ct. at 1334.
“To do so, the employer must have fair notice that an
employee is making a complaint that could subject the
employer to a later claim of retaliation.” Id.; see also
Lambert, 180 F.3d at 1007 (“Of course, in order to find
protection under § 215(a)(3), an employee must actually
8         ROSENFIELD V. GLOBALTRANZ ENTERS.

communicate a complaint to the employer. . . . [N]ot all
amorphous expressions of discontent related to wages and
hours constitute complaints filed within the meaning of
§ 215(a)(3).”). Whether a complaint has been filed that
provides adequate notice to the employer is a question “to be
resolved as a matter of factual analysis on a case-by-case
basis.” Lambert, 180 F.3d at 1008. And, as we noted at the
outset, the Supreme Court has defined the legal rule that a
fact-finder must apply: “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, 131 S. Ct. at 1335.

    The employee’s job title and responsibilities—in
particular, whether he or she is a manager—form an
important part of that “context.” Generally speaking,
managers are in a different position vis-a-vis the employer
than are other employees because (as relevant here) their
employer expects them to voice work-related concerns and to
suggest changes in policy to their superiors. That may be
particularly true with respect to upper-level managers who are
responsible for ensuring compliance with the FLSA.

    If an entry-level employee reported that someone is
underpaid in violation of the FLSA and requested that the
employee be compensated in compliance with the Act, a
reasonable employer almost certainly would understand that
report as a “complaint” (depending, of course, on all the
circumstances). But if the identical report were made by a
manager tasked with ensuring the company’s compliance
with the FLSA, a reasonable employer almost certainly would
not understand that report as a “complaint” (again, depending
          ROSENFIELD V. GLOBALTRANZ ENTERS.                  9

on all the circumstances). Rather, the employer naturally
would understand the manager’s report as carrying out his or
her duties. In short, when determining whether an employee
has “filed any complaint,” the employee’s role as a manager
often is an important contextual element.

    Before we apply Kasten’s “fair notice” rule to the facts of
this case, though, we must consider the parties’ arguments
concerning our sister circuits’ precedents. In the years before
the Supreme Court decided Kasten, several of our sister
circuits published opinions assessing whether a manager had
filed a complaint for purposes of § 215(a)(3). Hagan v.
Echostar Satellite, L.L.C., 529 F.3d 617, 627–30 (5th Cir.
2008); Claudio-Gotay v. Becton Dickinson Caribe, Ltd.,
375 F.3d 99, 102–03 (1st Cir. 2004); McKenzie v. Renberg’s
Inc., 94 F.3d 1478, 1485–87 (10th Cir. 1996). Those cases
correctly recognized both that a manager may, in some
circumstances, file a complaint under § 215(a)(3) and that an
employee’s managerial position is an important contextual
element that must be considered when assessing whether the
employee has filed a complaint. Hagan, 529 F.3d at 627–28;
Claudio-Gotay, 375 F.3d at 102; McKenzie, 94 F.3d at
1486–87.

    Without the benefit of Kasten’s generalized “fair notice”
rule, our sister circuits adopted a manager-specific legal
standard. With respect to managers, our sister circuits
formulated the rule this way: “In order to engage in protected
activity under § 215(a)(3), the employee must step outside his
or her role of representing the company and either file (or
threaten to file) an action adverse to the employer, actively
assist other employees in asserting FLSA rights, or otherwise
engage in activities that reasonably could be perceived as
directed towards the assertion of rights protected by the
10        ROSENFIELD V. GLOBALTRANZ ENTERS.

FLSA.” McKenzie, 94 F.3d at 1486–87 (footnote omitted);
see Hagan, 529 F.3d at 627–28 (agreeing with McKenzie’s
rule); Claudio-Gotay, 375 F.3d at 102 (same); see also Brush
v. Sears Holdings Corp., 466 F. App’x 781 (11th Cir. 2012)
(unpublished) (applying the rule in a Title VII case); EEOC
v. HBE Corp., 135 F.3d 543 (8th Cir. 1998) (same). The
parties vigorously dispute whether we should adopt that rule.

    We question the parties’ joint assumption, which is shared
by the Secretary of Labor and the Equal Employment
Opportunity Commission, as amici curiae, that the so-called
“manager rule” differs from Kasten’s “fair notice” rule; the
two rules likely are consistent. Compare Kasten, 131 S. Ct.
at 1335 (“[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.” (emphasis
added)), with McKenzie, 94 F.3d at 1486–87 (“[T]he
employee must [take certain actions] or otherwise engage in
activities that reasonably could be perceived as directed
towards the assertion of rights protected by the FLSA.”
(emphasis added) (footnote omitted)). But we find it
unnecessary to weigh in definitively on that question.
Whether the manager rule is broader, narrower, or the same,
the Supreme Court’s opinion in Kasten controls and provides
the legal rule of decision.

    We decline to refine the Supreme Court’s general
formulation of the rule when applied to complaints by a
manager. Because Kasten requires consideration of the
content and context of an alleged FLSA complaint, the
question of fair notice must be resolved on a case-by-case
basis. An employee’s managerial position is only one
consideration, and the Supreme Court’s general rule provides
          ROSENFIELD V. GLOBALTRANZ ENTERS.                 11

adequate guidance for considering that fact. Moreover, an
employee’s status as a “manager” is not entirely binary. A
different perspective on fair notice may apply as between a
first-level manager who is responsible for overseeing day-to-
day operations and a high-level manager who is responsible
for ensuring the company’s compliance with the FLSA.
Refining the general rule to focus on only one specific factual
element may obscure important nuances.

    We solicited the views of the Department of Labor and
the Equal Employment Opportunity Commission because the
views of those agencies are entitled to some weight when
interpreting § 215(a)(3). Kasten, 131 S. Ct. at 1335. The
agencies submitted a helpful joint brief urging us to apply
Kasten’s “fair notice” rule as the rule of decision. Having
found their view persuasive on that point, we turn now to the
task of applying Kasten’s rule to the record in this case.

   B. The Facts

    Because the district court granted summary judgment in
Defendants’ favor, we must accept Plaintiff’s version of the
facts. Id. at 1330. We must assess whether Plaintiff’s
complaints were “sufficiently clear and detailed for a
reasonable employer to understand [them], 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. We hold
that a reasonable jury could find that Plaintiff’s advocacy
reached the requisite degree of formality to constitute
protected activity under § 215(a)(3).

   Throughout her tenure, Plaintiff served as either the
Manager of Human Resources or Director of Human
Resources. Because a person with those titles generally is
12        ROSENFIELD V. GLOBALTRANZ ENTERS.

tasked with employment-related decisions, reports on a
company’s compliance with employment-related statutes
ordinarily would not put the employer on notice that the
manager was filing a complaint within the meaning of
§ 215(a)(3). Critically, however, ensuring compliance with
the FLSA was not Plaintiff’s responsibility. Instead,
Plaintiff’s boss “considered himself solely responsible for
FLSA compliance” and “did not understand, appreciate, or
welcome [Plaintiff’s] bringing to his attention the FLSA
violations.”

    Despite that arrangement, Plaintiff complained orally to
management on at least eight occasions that the company was
not in compliance with the FLSA. She provided copies of the
statute on some occasions, along with specific assertions
concerning misclassification of a large number of employees
and requests for changes in payment of wages for those
employees. Additionally, Plaintiff raised the subject of FLSA
violations in at least 27 weekly and monthly reports to her
superiors.

    Plaintiff’s boss disapproved of Plaintiff’s complaints and
expressed frustration with her actions. In March 2011, he
nevertheless agreed to take some actions aimed at addressing
Plaintiff’s FLSA complaints. But “he made clear to
[Plaintiff] . . . that he did not want or expect [her] to
determine whether the company was actually implementing”
those changes. Plaintiff later discovered that, in her view, the
company was not implementing the changes. On May 26,
2011, she documented the company’s non-compliance with
the FLSA and complained to her boss. Five days later, her
boss fired her.
          ROSENFIELD V. GLOBALTRANZ ENTERS.                   13

    Viewing the evidence in the light most favorable to
Plaintiff, the company understood these interactions to be
complaints on the subject of FLSA compliance. That is, her
superiors actually understood (or reasonably should have
understood) that Plaintiff was asserting rights protected by
the FLSA and was calling for their protection. Because
FLSA compliance was not part of Plaintiff’s job portfolio, her
advocacy for the rights of employees to be paid in accordance
with the FLSA could not reasonably have been understood (if
it was) merely to be a part of Plaintiff’s regular duties.

     Accordingly, we reverse the summary judgment in favor
of Defendants and remand this case for further proceedings.
We do not address Plaintiff’s state-law claim because
Plaintiff abandoned that claim on appeal by stating that she
would not seek to reopen it even if her appeal were
successful. Plaintiff further concedes that she cannot refile
this claim in any other court because it is barred by the statute
of limitations.

    REVERSED and REMANDED.



BENSON, District Judge, dissenting:

    The FLSA provides that it is unlawful for an employer

            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, or
        has testified or is about to testify in any such
14        ROSENFIELD V. GLOBALTRANZ ENTERS.

       proceeding, or has served or is about to serve
       on an industry committee[.]

29 U.S.C. § 215(a)(3). Relying on this provision, the court
below found for the employer because it held that “[a]ll of
[Plaintiff’s] actions ...fell within the ambit of her managerial
duties” and she did not “tak[e] a position adverse to that of
[her employer.]” I would affirm the district court’s judgment
on that ground and hold, consistent with every circuit to have
previously addressed the issue, that the Fair Labor Standards
Act of 1938 (FLSA), 29 U.S.C. § 215(a)(3), requires a
manager to step outside of his or her role as a manager in
order to file a complaint. I therefore disagree with the
majority’s opinion and respectfully dissent.

    In McKenzie v. Renberg’s Inc., the United States Court of
Appeals for the Tenth Circuit became the first appellate court
to announce that to “file any complaint” must necessarily
require something more of managers than lower-level
employees (the “manager rule”). 94 F.3d 1478, 1487 (10th
Cir. 1996). In McKenzie, a personnel director sought
protection under § 215(a)(3) when she was fired after
reporting her FLSA concerns to the company president
regarding the computation of overtime. Id. at 1481. The
Tenth Circuit held that the plaintiff “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.” Id. at 1486
(emphasis in original). The McKenzie court reasoned:
“Despite our expansive interpretation of § 215(a)(3), we have
never held that an employee is insulated from retaliation for
participating in activities which are neither adverse to the
company nor supportive of adverse rights under the statute
           ROSENFIELD V. GLOBALTRANZ ENTERS.                    15

which are asserted against the company.” Id. The Tenth
Circuit further noted that “it is the assertion of statutory rights
(i.e. the advocacy of rights) by taking some action adverse to
the company–whether via formal complaint, providing
testimony in an FLSA proceeding, complaining to superiors
about inadequate pay, or otherwise–that is the hallmark of
protected activity under § 215(a)(3).” Id. (emphasis in
original).

    Following McKenzie, three other circuits–the First, Fifth,
and Sixth–have been presented with the question of how to
apply § 215(a)(3) to managers. All of them adopted the
manager rule. Pettit v. Steppingstone, 429 F. App’x 524, 530
(6th Cir. 2011) (unpublished); Hagan v. Echostar Satellite,
LLC, 529 F.3d 617, 627 (5th Cir. 2008); Claudio-Gotay v.
Becton Dickinson Caribe, Ltd., 375 F.3d 99, 103 (1st Cir.
2004). The majority asserts that other circuits adopted the
manager rule “[w]ithout the benefit of Kasten’s generalized
‘fair notice’ rule . . . [.]” (Maj. op. at 9.) I disagree that
Kasten applies here or that our sister circuits would have
decided differently post-Kasten.

    The sole question at issue in Kasten was whether “‘an oral
complaint of a violation of the Fair Labor Standards Act’ is
‘protected conduct under the [Act’s] anti-retaliation
provision.’” Kasten v. Saint-Gobain Performance Plastics
Corp., 563 U.S. 1, 131 S. Ct. 1325, 1330 (2011) (citations
omitted). The employee in Kasten was not a manager; he
was an hourly manufacturing and production worker–
the quintessential non-managerial employee–who orally
complained to management about the company’s failure to
pay his hourly wage for time spent donning and doffing
protective wear. Id. at 1329–30. In that context, the Supreme
Court determined that oral complaints fell within the scope of
16        ROSENFIELD V. GLOBALTRANZ ENTERS.

the phrase “filed any complaint” under the FLSA. Id. at
1336.

    The Court also noted that an employer “must have fair
notice that an employee is making a complaint that could
subject the employer to a later claim of retaliation.” Id. at
1334. The Court did not opine as to what would constitute
“fair notice” in the context of a complaint by a manager. The
“fair notice” rule was merely instructive as to when an oral
complaint is sufficient to rise to the level of protection from
retaliation under the FLSA. Kasten provides only general
guidance here and leaves undisturbed the well-reasoned
opinions of four sister circuits regarding the specific
application of § 215(a)(3) to managers.

    Furthermore, Kasten supports the application of the
manager rule. In reaching the conclusion that “filed any
complaint” encompassed oral complaints, the Court held that
“the phrase ‘filed any complaint’ contemplates some degree
of formality . . . [.]” Id. at 1334. The Court repeatedly
referenced “oral grievances,” id. at 1333, in connection with
“workplace grievance procedures,” id. at 1334, and
emphasized that including oral complaints in the definition of
“any complaint” allows for the use of “hotlines, interviews,
and other oral methods of receiving complaints,” id. at 1334,
as well as other “desirable informal workplace grievance
procedures.” Id. The examples of oral complaints provided
by the Supreme Court in Kasten contemplate a degree of
formality not found here. Hotlines, interviews, and informal
workplace grievance procedures all alert an employer to a
complaint in a way that comments from a manager–even
“consisten[t] and vigorou[s]” comments like those made by
Plaintiff–do not. The manager rule is consistent with Kasten,
          ROSENFIELD V. GLOBALTRANZ ENTERS.                  17

by requiring a level of formality that shows the complainant
has become adverse to the employer.

    The Supreme Court’s reliance on the relative
disadvantage of employees with respect to their employers
also indicates that Kasten did not address, or intend to
preclude, the application of a manager rule. The Court noted
that an oral complaint procedure is necessary because
workers may “find it difficult to reduce their complaints to
writing, particularly illiterate, less educated, or overworked
workers . . .” and that “these were the workers most in need
of the Act’s help.” Id. at 1333. Such disadvantage is entirely
absent in the context of an upper-level manager like Plaintiff.

    The majority claims to preserve the manager rule but, in
reality, eliminates it. They accomplish this by focusing on
the following language in Kasten:

       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, 131 S. Ct. at 1335.

    The majority uses this sentence from Kasten–a case that
had nothing whatsoever to do with managers–as the basis for
what they claim is a “fair notice” test, that must be applied in
all § 215(a)(3) cases, including cases involving managers.
But there is nothing in Kasten, no matter how long or hard
one looks, to indicate that the Supreme Court was announcing
such an all purpose test, and certainly nothing to suggest the
18         ROSENFIELD V. GLOBALTRANZ ENTERS.

Court was expressing any view at all on a case involving a
manager.

    The majority then, having set up this unsupported test,
claims that it necessarily leads to a jury question in the
present case. In the process, the majority accomplishes its
goal of defining “filing a complaint” in the manner they
prefer, which is to say broadly enough to include the internal
statements of concern over FLSA policy expressed by the
Plaintiff to other managers in the instant case.

     The majority then concludes its analysis by stating:

        We further hold that, on this record and
        applying Kasten’s “fair notice” rule, a jury
        reasonably could find that Plaintiff Alla
        Josephine Rosenfield, a managerial employee,
        filed such a complaint.

(Maj. op. at 4.)

    Given the way the majority set up the issue, it would be
impossible for a jury in the present case not to find that a
complaint had been filed. How could a jury decide otherwise
after being told that “filing any complaint” means “an
assertion of rights protected by the statute and a call for their
protection?” That is precisely what Ms. Rosenfield did. The
majority’s approach defines “filing any complaint” to
encompass the statements of a manager who in any way
expresses a point of view regarding the employer’s
compliance (or non-compliance) with the requirements of the
FLSA.
          ROSENFIELD V. GLOBALTRANZ ENTERS.                   19

    By such reasoning, the majority eliminates altogether the
essence of the manager rule as recognized by our sister
circuits and improperly claims Supreme Court precedent
requires such a result. In doing so, the majority applies
Kasten where it has no application and formulates a jury
question that is nothing more than an interpretation of law.

    Moreover, remarkably, the majority’s opinion results in
a process that gives managers more protection under the Act
than non-managers. There is no way one can read Kasten and
not see that a regular rank-and-file employee must step
outside of her job and become adversarial to her employer in
order to have protected status. A rank-and-file employee’s
complaints and concerns about what the employee perceives
as her employer’s non-compliance with the FLSA will not
satisfy the Act’s requirement of “filing any complaint” until
she effectively conveys her point of view to the company in
a manner that shows she is adverse to the employer.
Comments to co-workers will not suffice. But the majority’s
reasoning allows a manager to be protected simply by
expressing her point of view to other managers, internally,
about what she perceives as the company’s non-compliance
with the FLSA. It is a strange result the majority reaches
which treats upper management better than the rank-and-file
non-management employees for whom the Act’s protections
are primarily designed. See Kasten, 131 S. Ct. at 1333
(finding non-management personnel to be “the workers most
in need of the Act’s help”).

   In dissent, all I ask for, to comply with the statute, is some
showing that Ms. Rosenfield stepped outside of her role as a
manager and did something to become adverse to her
employer, by filing some type of formal adversarial
20        ROSENFIELD V. GLOBALTRANZ ENTERS.

complaint. I find nothing in Kasten that supports the result
reached by the majority.

    Furthermore, the manager rule is supported by the text
and history of the FLSA. The FLSA protects employees who
file any “complaint.” 29 U.S.C. § 215(a)(3). The phrase
“filed any complaint”–in 1938 as now–suggests an
adversarial process. To start a civil or criminal proceeding,
one files a complaint. See Black’s Law Dictionary 380 (3d ed.
1933); see also Kasten, 131 S. Ct. at 1325 (looking to 1938
definitions when interpreting the phrase “filed any
complaint”). Even in a non-legal context, the term
“complaint” connotes adversity.         See Webster’s New
International Dictionary 546 (2d ed. 1934) (defining
“complaint” as “[e]xpression of grief, regret, pain, censure,
grievance, or resentment”). When a manager, as part of his
or her job duties, alerts the company that it may not be in
compliance with the FLSA, one ordinarily would not
understand that report–even if zealously presented–as a
“complaint.” Instead, it would be understood as taking a
position on a matter of company concern in order to further
the company’s interests.

     Consistent with that historic understanding of what it
means to “file any complaint,” and the well-reasoned
opinions of four sister circuits and the Supreme Court in
Kasten, I would affirm the district court’s ruling that there is
nothing alleged in the Plaintiff’s complaint to indicate that
she stepped out of her role as director of human resources to
file a complaint against her employer within the meaning of
the FLSA.
