PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETER BALL,
Plaintiff-Appellant,

v.

MEMPHIS BAR-B-Q COMPANY,
                                                                      No. 99-1261
INCORPORATED,
Defendant-Appellee.

SECRETARY OF LABOR,
Amicus Curiae.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CA-98-1568-A)

Argued: May 4, 2000

Decided: September 14, 2000

Before WILKINSON, Chief Judge, and
NIEMEYER and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Niemeyer wrote the majority
opinion, in which Chief Judge Wilkinson joined. Judge Michael wrote
a dissenting opinion.

_________________________________________________________________

COUNSEL

ARGUED: Nils George Peterson, Jr., LAW OFFICES OF NILS G.
PETERSON, Arlington, Virginia, for Appellant. Edward Dean Sieger,
Senior Appellate Attorney, UNITED STATES DEPARTMENT OF
LABOR, Washington, D.C., for Amicus Curiae. Douglas Michael
Nabhan, WILLIAMS, MULLEN, CLARK & DOBBINS, Richmond,
Virginia, for Appellee. ON BRIEF: Henry L. Solano, Solicitor of
Labor, Allen H. Feldman, Associate Solicitor for Special Appellate
and Supreme Court Litigation, Nathaniel I. Spiller, Deputy Associate
Solicitor, UNITED STATES DEPARTMENT OF LABOR, Washing-
ton, D.C., for Amicus Curiae.

_________________________________________________________________

OPINION

NIEMEYER, Circuit Judge:

Peter Ball, an employee of Memphis Bar-B-Q Company, Inc., was
discharged from his employment after he told the company's presi-
dent that, if he were deposed in a yet-to-be-filed lawsuit under the
Fair Labor Standards Act that was threatened against the company, he
would not testify to a version of events suggested by the president.
Ball commenced this action under the Fair Labor Standards Act,
alleging that his discharge was retaliatory in that he was "about to tes-
tify" in a "proceeding under or related to" that Act, in violation of 29
U.S.C. § 215(a)(3). The district court granted Memphis Bar-B-Q's
motion to dismiss for failure to state a claim upon which relief could
be granted, finding that the Act's anti-retaliation provision was not
sufficiently broad to protect Ball. For the reasons that follow, we
affirm.

I

During the relevant period, Peter Ball was employed as a manager
of one of Memphis Bar-B-Q's northern Virginia restaurants. While
managing the restaurant, Ball learned that one of the waiters
employed by Memphis Bar-B-Q, Marc Linton, believed that the com-
pany had deprived him of compensation for hours he had worked by
"turning back the clock" on the computerized timekeeping system,
which tracked his hours. Ball also learned that Linton had retained an
attorney and was preparing to file suit against Memphis Bar-B-Q
under the Fair Labor Standards Act ("FLSA" or"the Act"), 29 U.S.C.

                     2
§ 201 et seq. Ball alerted the president of Memphis Bar B-Q, David
Sorin, to Linton's allegations and told Sorin that Linton was going to
file suit against the company.

On or about June 2, 1997, Sorin contacted Ball and, as alleged in
Ball's complaint, "asked him about how he would testify if he were
deposed as part of a lawsuit." Sorin then suggested how Ball might
testify, but Ball indicated to Sorin that he "could not testify to the ver-
sion of events as suggested by Sorin." Sorin and Ball then talked
about the potential lawsuit, discussing what documents might be pro-
duced, who might testify, and what embarrassment to Memphis Bar-
B-Q might result. A few days later, on June 7, 1997, Memphis Bar-
B-Q terminated Ball's employment. Ball alleges in his complaint that
he was discharged because he did not agree to testify as Sorin had
suggested.

Ball filed this action, alleging that his discharge was retaliatory in
violation of § 15 of the FLSA, 29 U.S.C. § 215. In granting Memphis
Bar-B-Q's motion to dismiss filed under Federal Rule of Civil Proce-
dure 12(b)(6), the district court concluded that because Ball's testi-
mony had not been requested in connection with a then-pending
FLSA proceeding, he could not receive the benefit of the testimony
clause of the FLSA's anti-retaliation provision, 29 U.S.C. § 215(a)(3).
See Ball v. Memphis Bar-B-Q Co., 34 F. Supp. 2d 342, 345-46 (E.D.
Va. 1999). This appeal followed.

II

Ball contends that Memphis Bar-B-Q fired him in retaliation for his
anticipated refusal to testify in a threatened lawsuit as his employer
wished, in violation of the anti-retaliation provision of the FLSA, 29
U.S.C. § 215(a)(3). That provision makes it unlawful for an employer
covered by the FLSA

          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.

                     3
Ball argues that the term "proceeding" as used in the testimony clause
of this provision includes not only court proceedings but also proce-
dures through which complaints are processed within a company.
Under such an interpretation, Ball maintains, a proceeding was insti-
tuted in this case when the waiter complained to Ball about the time-
keeping practices of Memphis Bar-B-Q and continued when Ball
passed the complaints on to the company's president. Ball asserts that
a fair reading of his complaint reveals that Memphis Bar-B-Q's presi-
dent "indicated to Ball that Ball was about to testify in a proceeding
for recovery of overtime under [the] FLSA."*

The United States Secretary of Labor, as Amicus Curiae, supports
Ball's appeal, arguing that Ball's complaint states a valid claim under
the FLSA's anti-retaliation provision. The Secretary contends that the
statute's reference to employees who are "about to testify in . . . [a]
proceeding" protects those "who intend or expect to testify in an
impending or anticipated proceeding." (Emphasis added). Both Ball
and the Secretary emphasize that the FLSA's anti-retaliation provi-
sion should be interpreted expansively to effectuate its remedial pur-
poses.

Memphis Bar-B-Q contends that the district court correctly dis-
missed Ball's action because Ball cannot point to a pending proceed-
ing in which he was about to testify. Memphis Bar-B-Q argues that
the term proceeding "naturally assumes the filing of a complaint."
Because no lawsuit was yet filed when Ball was discharged, Memphis
Bar-B-Q maintains, its action in discharging him, even if precipitated
by his anticipated testimony in a contemplated lawsuit, is not covered
by the FLSA's anti-retaliation provision.

The issue framed by the parties' positions is whether Ball's allega-
_________________________________________________________________
*Because Ball did not make a complaint to Memphis Bar-B-Q but
only communicated Linton's complaint to the company's president, he
correctly does not invoke the complaint clause of 29 U.S.C. § 215(a)(3),
relying instead on the testimony clause. We have construed the scope of
similar complaint-clause language in another context. See Rayner v.
Smirl, 873 F.2d 60 (4th Cir. 1989) (interpreting complaint clause in the
Federal Railroad Safety Act, 45 U.S.C. § 441(a) (repealed 1994), to
include intra-corporate complaints).

                    4
tion in his complaint -- that he was terminated because he stated that
he would be unable to testify in the manner suggested by Memphis
Bar-B-Q's president in a yet-to-be-filed lawsuit-- states a claim
under the anti-retaliation provision of the FLSA. Articulated other-
wise, the legal question before us is whether Ball was "discharge[d]
. . . because [he was] about to testify in any . . . proceeding [instituted
under or related to the FLSA]." 29 U.S.C.§ 215(a)(3).

The FLSA was enacted with the purposes of protecting employees
and imposing minimum labor standards upon covered employers,
including the payment of a specified minimum wage and overtime
pay for covered employees. See 29 U.S.C.§§ 202, 206, 207; Mitchell
v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292 (1960). To secure
compliance with the substantive provisions of the FLSA, Congress
"chose to rely on information and complaints received from employ-
ees seeking to vindicate rights claimed to have been denied." Mitch-
ell, 361 U.S. at 292. The anti-retaliation provision facilitates the
enforcement of the FLSA's standards by fostering an environment in
which employees' "fear of economic retaliation" will not cause them
"quietly to accept substandard conditions." Id. We interpret the provi-
sions of the FLSA bearing in mind the Supreme Court's admonition
that the FLSA "must not be interpreted or applied in a narrow, grudg-
ing manner." Tennessee Coal, Iron & R.R. Co. v. Muscoda Local No.
123, 321 U.S. 590, 597 (1944).

While we are instructed to read the FLSA to effect its remedial pur-
poses, the statutory language clearly places limits on the range of
retaliation proscribed by the Act. It prohibits retaliation for testimony
given or about to be given but not for an employee's voicing of a
position on working conditions in opposition to an employer. Con-
gress has crafted such broader anti-retaliation provisions elsewhere,
such as in Title VII of the Civil Rights Act of 1964, which prohibits
employer retaliation because an employee has " opposed any practice
made an unlawful employment practice by this subchapter, or because
he has made a charge, testified, assisted, or participated in any man-
ner in an investigation, proceeding, or hearing under this subchapter."
42 U.S.C. § 2000e-3(a) (emphasis added). But the cause of action for
retaliation under the FLSA is much more circumscribed.

The FLSA proscribes retaliation against an employee because he
has given testimony in a "proceeding" or because he is "about" to give

                     5
testimony in a "proceeding." In either case, the existence of a "pro-
ceeding" is essential to the statutory circumstance. The "about" lan-
guage modifies the giving of testimony, not the existence of a
"proceeding."

Moreover, the "proceeding" necessary for liability under the FLSA
refers to procedures conducted in judicial or administrative tribunals.
Ball suggests that a proceeding exists upon the making of an intra-
company complaint, but the Act clearly does not sweep so broadly.
As used in the Act, "proceeding" is modified by attributes of adminis-
trative or court proceedings; it must be "instituted," and it must pro-
vide for "testimony." See 29 U.S.C.§ 215(a)(3). The term "instituted"
connotes a formality that does not attend an employee's oral com-
plaint to his supervisor. And certainly, even if such an oral complaint
somehow were understood to have instituted a proceeding, such a
proceeding would not include the giving of testimony. Testimony
amounts to statements given under oath or affirmation. See, e.g., Ran-
dom House Dictionary of the English Language 1961 (2d ed. 1987).
By referring to a proceeding that has been "instituted" and in which
"testimony" can be given, Congress signaled its intent to proscribe
retaliatory employment actions taken after formal proceedings have
begun, but not in the context of a complaint made by an employee to
a supervisor about a violation of the FLSA.

In light of Congress' clear intent to limit the scope of retaliation
prohibited by the FLSA, we are constrained to hold that the FLSA's
prohibition against retaliation does not read so broadly as to apply to
the circumstances alleged in Ball's complaint. Even though Ball's
allegations describe morally unacceptable retaliatory conduct, we
would not be faithful to the language of the testimony clause of the
FLSA's anti-retaliation provision if we were to expand its applicabil-
ity to intra-company complaints or to potential testimony in a future-
but-not-yet-filed court proceeding.

Ball and the Secretary both argue that the language of the testi-
mony clause of the FLSA's anti-retaliation provision is sufficiently
ambiguous that we should defer to the Secretary's broader interpreta-
tion of the clause, as evidenced by the Secretary's litigation position
in this and earlier cases. The Secretary takes the position in her brief
that "about to testify in . . . a proceeding" should be interpreted

                     6
broadly to protect employees discriminated against because they "in-
tend or expect to testify in an impending or anticipated proceeding."
Br. of Amicus Curiae at 10 (emphasis added). But the grammatical
structure of the clause does not permit this interpretation. While it is
enough that the testimony be impending or anticipated, it is not
enough that the proceeding be impending or anticipated; it must be
"instituted." We therefore are not persuaded that the interpretation
urged by the Secretary is a reasonable interpretation of the language
of the FLSA's testimony clause. Moreover, litigation positions taken
in briefs, just as agency interpretations of statutes contained in for-
mats such as opinion letters, policy statements, agency manuals, and
enforcement guidelines, are "`entitled to respect' . . . only to the
extent that those interpretations have the `power to persuade.'" Chris-
tensen v. Harris County, 120 S. Ct. 1655, 1662-63 (2000) (quoting
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).

In finding the alleged conduct to be beyond that prohibited by § 15
of the FLSA, we do not condone such conduct. Far from it. If the alle-
gations were proved to be true, such offensive conduct would provide
an example of why Congress found it necessary in other contexts to
enact broader anti-retaliation provisions. See , e.g., 42 U.S.C. § 2000e-
3(a). But this moral judgment does not justify a conclusion -- con-
trary to the plain language of the FLSA -- that Ball's complaint states
a cause of action under the Act.

AFFIRMED

MICHAEL, Circuit Judge, dissenting:

I respectfully dissent because the majority's reading of FLSA's tes-
timony clause is unnecessarily cramped. According to Peter Ball's
complaint, Memphis Bar-B-Q fired him because the company
believed he was about to testify against it in a case soon to be filed
by another employee who was cheated out of overtime pay. The
majority readily acknowledges that "Ball's allegations describe mor-
ally unacceptable retaliatory conduct," ante at 6, but the majority
believes this conduct is beyond the scope of the Act because no "pro-
ceeding" had been "instituted" when Ball was fired. This reading of
section 15(a)(3) of FLSA is too narrow, and it frustrates congressional
purpose.

                     7
Ball's complaint (when taken as true) describes an indisputable
case of retaliatory discharge. From October 1996 through June 7,
1997, Ball was the manager at a Memphis Bar-B-Q restaurant in Vir-
ginia. Ball learned that a waiter was mad at the company because it
had cheated him out of wages and overtime by "turning back the
clock . . . in the computerized timekeeping system." Ball also learned
that the waiter had retained a lawyer and "was preparing to bring suit"
against Memphis for violation of FLSA. Ball reported what he had
learned to Memphis's president, and on June 2, 1997, the president
contacted Ball to discuss the impending lawsuit. The president first
asked Ball how he would testify in a deposition; the president then
suggested how Ball "could testify as part of a lawsuit." Ball
responded, saying that he "could not testify to the version of events
as suggested" by the president. Ball was fired five days later, and he
asserts he was fired for saying that he would testify truthfully in the
waiter's anticipated lawsuit.

The question is whether these facts establish that Ball was "dischar-
ge[d] . . . because [he was] aboutto testify in . . . [a] proceeding [insti-
tuted under FLSA]." 29 U.S.C. § 215(a)(3). The more specific
question is whether Ball's claim fails because the waiter had not filed
his lawsuit (he was preparing to file it) when Ball was fired. The
answer depends on whether section 15(a)(3) is read narrowly or
broadly. The majority reads it very narrowly, holding that "it is not
enough that the proceeding be impending or anticipated; it must be
`instituted.'" Ante at 7 (emphasis in original). This interpretation is
wrong because the words "proceeding [instituted under FLSA]" must
be read in the context of the entire testimony clause. Moreover, the
testimony clause must be broadly construed because FLSA is a reme-
dial statute. As a result, the words in question-- "proceeding [insti-
tuted under FLSA]" -- simply describe the type of case that triggers
the protection of FLSA's testimony clause; they do not require that
a lawsuit actually be filed before retaliation for expected testimony is
outlawed. Thus, if an employee with a FLSA claim is preparing to file
a lawsuit, and the employer fires a second employee because he will
testify against the employer, it is reasonable to say that the second
employee was "discharge[d] . . . because [he was] about to testify in
. . . [a] proceeding [instituted under FLSA]." 29 U.S.C. § 215(a)(3).

The central purpose of FLSA is to achieve certain minimum labor
standards for covered employees. See 29 U.S.C. § 202; Mitchell v.

                     8
Robert De Mario Jewelry, Inc., 361 U.S. 288, 292 (1960). The Act,
for example, provides for the payment of a specified minimum wage,
provides for increased pay for overtime, and outlaws oppressive child
labor. See 29 U.S.C. §§ 206, 207, 212. The Supreme Court has
declared these provisions, along with the rest of FLSA, to be "reme-
dial and humanitarian in purpose." Tennessee Coal, Iron & R.R. Co.
v. Muscoda Local No. 123, 321 U.S. 590, 597 (1944). Employees
themselves are the backbone of FLSA's enforcement scheme. Thus,
"Congress did not seek to secure compliance with[FLSA] standards
through continuing detailed federal supervision," DeMarco, 361 U.S.
at 292; instead, "it chose to rely on information and complaints
received from employees seeking to vindicate rights claimed to have
been denied," id. Congress recognized that "effective enforcement
could . . . only be expected if employees felt free" to register com-
plaints and provide information and testimony. Id. To foster an envi-
ronment in which employees are willing to speak out about violations,
Congress inserted the anti-retaliation provision, section 15(a), that we
interpret today. Because employees who are willing to report, or pro-
vide information about, violations must be protected and because
FLSA is a remedial statute, FLSA "must not be interpreted or applied
in a narrow, grudging manner." Tennessee Coal, Iron & R.R. Co., 321
U.S. at 597 (emphasis added). Because the Supreme Court has recog-
nized that broad coverage is essential to employee protection, the
Court has instructed us to construe FLSA "`liberally to apply to the
furthest reaches consistent with congressional direction.'" Tony &
Susan Alamo Found. v. Secretary of Labor, 471 U.S. 290, 296 (1985)
(quoting Mitchell v. Lublin, McGaughy & Assocs. , 358 U.S. 207, 211
(1959)). Our court has followed that instruction, see, e.g., Roy v.
County of Lexington, 141 F.3d 533, 540 (4th Cir. 1998), at least until
today.

Two FLSA cases applying the canon of broad construction of
remedial statutes, Saffels v. Rice, 40 F.3d 1546 (8th Cir. 1994), and
Brock v. Richardson, 812 F.2d 121 (3d Cir. 1987), are instructive
because they have facts somewhat similar to this case. In Saffels and
Brock the employees were fired because the employer believed that
the employees had reported FLSA violations to the authorities. As it
turned out, the employer was mistaken, and the question was whether
the employees had a claim under section 15(a)(3), which also makes
it unlawful for an employer "to discharge . . . any employee because

                    9
such employee has filed any complaint." 29 U.S.C.§ 215(a)(3). In
Saffels the Eighth Circuit noted that a "broad reading" of section
15(a)(3) was required and held that the employees had a retaliatory
discharge claim, even though they had not made (or filed) a com-
plaint. Saffels v. Rice, 40 F.3d at 1549. Earlier, the Third Circuit in
Brock gave section 15(a)(3) the same broad interpretation, observing
that "the discharge of an employee in the mistaken belief that the
employee had engaged in protected activity creates the same atmo-
sphere of intimidation as does the discharge of an employee who did
in fact complain of FLSA violations." Brock v. Richardson, 812 F.2d
at 125. The Third Circuit went on to hold that "a finding that an
employer retaliated against an employee because the employer
believed the employee complained or engaged in other activity speci-
fied in section 15(a)(3) is sufficient to bring the employer's conduct
within that section." Id. In the case before us, Ball alleges that Mem-
phis fired him because it believed he was about to testify in a FLSA
lawsuit that another employee was preparing to file. This allegation
states a claim under section 15(a)(3)'s testimony clause, even though
the lawsuit was simply anticipated but not filed.

The majority's decision is a hard blow to FLSA's central purpose
of achieving fair labor standards. The decision undermines FLSA's
enforcement scheme by stripping protection from many employees
who witness unfair labor practices. As of today, the testimony clause
does not protect a potential witness from retaliation until a lawsuit has
been filed. Employers thus have free rein to retaliate against employ-
ees who would testify against them, so long as they retaliate before
any lawsuit is filed. This will surely serve to dry up sources of infor-
mation, a result that is directly contrary to Congress's obvious intent.
Moreover, today's decision has negative consequences for our entire
system of dispute resolution. Many FLSA claims involve relatively
small amounts of money and should be settled informally (and
promptly) without litigation. Today's decision will force lawyers to
consider filing suit immediately in order to protect potential witnesses
from retaliation. Congress was not aiming for these results when it
passed FLSA in 1938.

I recognize that the principle of broad construction of remedial stat-
utes does not allow a judge to go beyond reasonable bounds or to
ignore the evident meaning of a statute. See Norman J. Singer, Suther-

                     10
land Statutory Construction § 60.01 (5th ed. 1992). My interpretation
fits within this framework, particularly in light of the Supreme
Court's instruction that FLSA is to be construed"`liberally to apply
to the furthest reaches consistent with congressional direction.'" Tony
& Susan Alamo Found., 471 U.S. at 296 (quoting Mitchell, 358 U.S.
at 211). As a result, it is reasonable to say that when Memphis fired
Ball because he was about to testify in a FLSA suit a company
employee was preparing to file, Ball was fired "because [he was]
about to testify in . . . [a] proceeding[instituted under FLSA]." 29
U.S.C. § 215(a)(3). The majority's contrary reading strips the testi-
mony clause of much of its force.

I would reverse the district court and allow Ball to proceed with his
case.

                    11
