Parete v. The Stop & Shop Supermarket LLC
An informal, oral complaint to a supervisor may not qualify as a "protected activity" under the Fair Labor Standards Act. In March 2009, the defendant, Stop & Shop, discovered that a bookkeeper, Josephine Perry, allegedly stole about $140,000. A regional vice president complained that Fernando Parete, who managed 160 to 190 workers, used poor management controls and should not have permitted Perry to work "off the clock," without punching in properly. Parete denied that he knew Perry had worked "off the clock." Parete received a warning and a transfer to another store. In June, Parete allegedly complained to District Manager Cindy Flannery that employees were not paid for all the time worked. An audit discovered that, to meet budget goals, Parete allegedly arranged to pay workers one week early and that the employees believed that they were supposed to work "off the clock" the following week. Parete claimed that another manager had "prepaid" Parete in the past. Parete denied that "prepaying" violated the company's policies. The audit also discovered that Parete used Stop & Shop gift cards to reimburse business expenses. Parete denied that this violated a clearly promulgated policy. Stop & Shop discharged Parete. Parete sued, alleging retaliatory discharge, in violation of the Fair Labor Standards Act, because he was discharged about two months after he complained to Flannery that Stop & Shop did not pay workers for all the time worked. To allege a prima facie case of retaliation under the Fair Labor Standards Act, a plaintiff must allege: 1.) the employer knew the worker participated in a protected activity; 2.) the worker suffered an adverse employment action; and 3.) a causal connection exists between the "protected activity" and adverse employment action. In Lambert v. Genesee Hospital, a 1993 decision, the 2nd Circuit held that an informal, oral complaint to a manager did not qualify as a "protected activity" under the Fair Labor Standards Act. The District Court found that Parete's complaint to his manager about employees allegedly working on their own time did not constitute "protected activity," and it granted Stop & Shop's motion for summary judgment.