Uronis v. Cabot Oil & Gas Corp.

49 F.4th 263

Matthew URONIS, for himself and on behalf of those similarly situated, Appellant

v.CABOT OIL & GAS CORPORATION, a Texas Corporation; Gassearch Drilling Services Corporation, a West Virginia Corporation and subsidiary of Cabot Oil & Gas Corporation

No. 21-1874

United States Court of Appeals, Third Circuit.

Argued: March 30, 2022

Filed: September 14, 2022

Angeli Murthy [ARGUED], Morgan & Morgan, 8151 Peters Road, Suite 4000, Plantation, FL 33324, Counsel for Appellant Matthew Uronis

Christian C. Antkowiak [ARGUED], Amy L. Barrette, Charles H. Cope, Buchanan Ingersoll & Rooney, 501 Grant Street, Union Trust Building, Suite 200, Pittsburgh, PA 15219, Counsel for Appellees Cabot Oil & Gas Corp and Gassearch Drilling Services Corp

Katelyn Poe [ARGUED], United States Department of Labor, Division of Fair Labor Standards, 200 Constitution Avenue, N.W., Washington, DC 20210, Counsel for Amicus Secretary United States Department of Labor

Before: RESTREPO, ROTH, and FUENTES, Circuit Judges.

OPINION OF THE COURT

RESTREPO, Circuit Judge.

Appellant Matthew Uronis asserts that his job application was denied because his prospective employer anticipated that he would soon be filing a consent to join a then-pending putative collective action under the Fair Labor Standards Act ("FLSA").¹

The FLSA prohibits discrimination against an employee because the employee has engaged in protected activity. 29 U.S.C. § 215(a)(3). Protected activity includes having "testified" or being "about to testify" in any FLSA-related proceeding. Id.

In this case we address whether 29 U.S.C. § 215(a)(3), also known as Section 15(a)(3), applies where an employer anticipates an employee will soon file a consent to join an FLSA collective action—but no such "testimony" has yet occurred or been scheduled or subpoenaed.

The District Court concluded that being "about to testify" under Section 15(a)(3) requires being "scheduled" or subpoenaed to do so. On that basis, because Uronis did not plead that he was scheduled to testify, the District Court granted Appellees' motion to dismiss Uronis' complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). It did not explicitly interpret the meaning of "testify" under Section 15(a)(3). But, by concluding that an employee must be scheduled to do so, the District Court impliedly construed "testify" to only include giving evidence as a witness under oath or affirmation.

Applying the guidance from Kasten v. Saint-Gobain Performance Plastics Corporation , 563 U.S. 1, 131 S.Ct. 1325, 179 L.Ed.2d 379 (2011) and Brock v. Richardson , 812 F.2d 121 (3d Cir. 1987), we hold Section 15(a)(3)'s "about to testify" language protects employees from discrimination because of an employer's anticipation that the employee will soon file a consent to join a collective action.

Accordingly, for the reasons that follow, we will reverse the District Court's decision and remand for further proceedings consistent with this opinion.

I.

Uronis is an alleged former employee of Appellee Cabot Oil & Gas Corporation, an oil and natural gas production and exploration company.² On February 22, 2019, Uronis' former co-worker, Michael Messenger, filed a putative FLSA collective action against Cabot and another entity, Carrie's Transport & Rental, LLC, on behalf of himself and other employees similarly situated. See Messenger v. Cabot Oil & Gas Corp. , No. 19-cv-308 (M.D. Pa.). The Messenger action alleged that Cabot and Carrie's jointly employed the employees and failed to pay them overtime pay required under the FLSA.³ Because Uronis was a similarly situated employee who had yet to file a consent to join the collective action as a party plaintiff, he was a putative member of the Messenger action.⁴

In August 2019, Uronis applied for a position with Cabot's subsidiary, Appellee GDS. Cabot and GDS were aware Uronis was a putative member of, and anticipated witness in, the Messenger action, and that he was about to file his consent to join.

On August 23, 2019, Messenger moved to certify the Messenger action as an FLSA collective action. Messenger , No. 19-cv-308, ECF No. 39.⁵ By that date, four other employees had opted in. See id. at ECF Nos. 20, 32, 35, 38.

On August 28, 2019, a GDS manager sent Uronis a text message stating that although Uronis was qualified for the position he applied for—and was in fact more qualified than other candidates being considered—Cabot had declined to hire him or any other putative members of the Messenger action "because of" that lawsuit. App. 73. Specifically, the text stated:

Unfortunately I found out the day after I talked to you that no one who worked for Herb [Swiney, owner of Carrie's] is supposed to be on a Cabot location. Pretty much because of the lawsuit that's going on. I know you're a worker but I can't do anything to get you into gds.

...

Maybe once the lawsuit deal dies out it might be a possibility again. I wish I could get you in, believe me you'd be better than some of the guys we've been interviewing. Also turning a lot down for the same reasons.

Id.

The same day, Uronis signed his consent to join the Messenger collective action. Prior to receiving the text message, Uronis had planned to testify in the Messenger action. But beyond his unspecific allegation that he contacted Messenger about opting in, Uronis does not allege that he informed anyone that he planned to testify before receiving the text message.

Uronis filed his consent to join the Messenger action on September 6, 2019, in which he declared that he was "similarly situated" to Messenger because he had "performed similar duties for [Cabot and Carrie's] as a laborer on Cabot oil well pads and was paid in the same manner[.]" Messenger , No. 19-cv-308, ECF No. 48-1.

Uronis filed the underlying complaint against Cabot and GDS (collectively, "Appellees") on behalf of himself and other similarly situated employees, alleging Appellees violated Section 15(a)(3) of the FLSA when they refused to hire him and others because they were "about to testify" in the Messenger action. In support, Uronis pointed to the text message from GDS.

Appellees moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing, inter alia , that Uronis failed to plead that he had an employment relationship with them or that he engaged in protected activity under Section 15(a)(3).

The District Court granted Appellees' motion to dismiss on the basis that Uronis was not "about to testify" under Section 15(a)(3) because he was not "scheduled" to testify in the Messenger action. App. 12. It reasoned that "the unambiguous meaning" of the phrase "about to testify" in Section 15(a)(3) is that it protects an employee only when he or she "is scheduled to testify in a then-pending FLSA proceeding." Id. (quoting Ball v. Memphis B-B-Q Co. , 34 F. Supp. 2d 342, 345 (E.D. Va. 1999), aff'd , 228 F.3d 360 (4th Cir. 2000) ). It further stated that "[h]ad Congress intended [Section 15(a)(3)] to apply to scenarios in which putative collective action members might potentially testify at some point in the proceeding, it would have said so." Id. at 12–13. "Instead, Section 15 uses the phrase ‘about to testify,’ suggesting some sense of certainty and immediacy as opposed to mere possibility." Id. at 13.

Applying this interpretation, the District Court concluded that Uronis had "alleged no facts whatsoever to support the allegation that he or those similarly situated to him were ‘about to testify’ " because he did not allege he or others "were subpoenaed to testify or that they were told they would be called upon to testify, nor ha[d] he alleged any facts that Defendants had a reason to know that [he] or any others would be testifying." Id. On that basis, it granted Appellees' motion to dismiss. Uronis appealed.

II.

The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291.

This Court reviews a district court's order granting a motion to dismiss for failure to state a claim de novo. Wheeler v. Hampton Twp. , 399 F.3d 238, 242 (3d Cir. 2005). At the motion to dismiss stage, "we accept all well-pleaded allegations in the Complaint as true and draw all reasonable inferences in favor of the non-moving part[y]." M.A. ex rel. E.S. v. State-Operated Sch. Dist. of City of Newark , 344 F.3d 335, 340 (3d Cir. 2003) (citing Bd. of Trustees of Teamsters Local 863 Pension Fund v. Foodtown, Inc. , 296 F.3d 164, 168 (3d Cir. 2002) ). To survive a motion to dismiss, factual allegations "must be enough to raise a right to relief above the speculative level," which "requires more than labels and conclusions." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

III.

The first issue we address is whether the District Court properly concluded that, because Uronis was not scheduled or subpoenaed to testify, Section 15(a)(3) does not protect him from retaliation.

Uronis argues that the District Court's interpretation of the language "about to testify" in Section 15(a)(3) was impermissibly narrow because it precludes a retaliation claim where, as here, anticipated participation in an FLSA action is the employer's explicit reason for discrimination. He emphasizes the purpose of the FLSA is to protect workers, and that courts must broadly construe remedial statutes. He also contends that the District Court's interpretation contravenes Section 15(a)(3)'s purpose by permitting—even incentivizing—employers to race to retaliate against employees before they can file a consent to opt in to a collective action or be scheduled to testify.

Appellees counter that, to obtain Section 15(a)(3) protection, an employee must take an "overt act" to assert FLSA rights and the employer must have fair notice of that overt act. They point out that Uronis did not plead in detail any overt act he took to assert FLSA rights or that they had fair notice of same. Appellees also argue that Uronis' mere status as a putative member of the Messenger collective action...