## Facts

- Gary Colvin worked for Volusion, Inc.
- Colvin alleged that his supervisor told him he would have to begin using paid time off (PTO) to attend medical appointments.
- Colvin alleged he was the only salaried employee subjected to that PTO requirement and that he had not previously been required to use accrued leave time for medical appointments.
- Colvin alleged he often worked extra hours that exceeded the time he was out for medical appointments and that he typically worked more than 40 hours per week without overtime pay.
- Colvin complained to his supervisor that Volusion was violating the Fair Labor Standards Act (FLSA), alleging he was treated as exempt despite working more than 40 hours with no additional compensation and challenging the PTO requirement as inconsistent with treatment of salaried employees.
- Five days after Colvin made his complaint, Volusion terminated his employment.
- Colvin sued and included an FLSA retaliation claim (along with other statutory theories).
- Volusion moved to dismiss under Rule 12(b)(6), arguing Colvin failed to plead a prima facie case of FLSA retaliation because his complaint was not protected activity and he did not plausibly allege causation.

## Issues

1. Whether Colvin’s internal complaint to his supervisor about overtime/exempt classification and the PTO requirement plausibly alleged “protected activity” under the FLSA’s anti-retaliation provision.
2. Whether Colvin plausibly alleged a causal link between his internal complaint and his termination where the firing occurred five days after the complaint.

## Decision

- The court recommended denying Volusion’s motion to dismiss the FLSA retaliation claim because Colvin plausibly alleged he engaged in protected activity.
- The court also found Colvin plausibly alleged causation at the pleading stage based on the very short temporal gap (five days) between the complaint and termination.

## Legal Principles

- To plead FLSA retaliation, a plaintiff must allege (1) engagement in protected activity, (2) an adverse employment action, and (3) a causal link between the two.
- A complaint can constitute protected activity when the employee communicates opposition to conduct the employee reasonably believes violates the FLSA; the complaint need not ultimately be correct on the merits to be protected.
- At the Rule 12(b)(6) stage, the court accepts well-pleaded factual allegations as true and asks whether they state a plausible claim for relief.
- Close temporal proximity between protected activity and termination can support a plausible inference of causation at the pleading stage.

## Conclusion

Colvin alleged he complained internally about FLSA-related wage-and-hour practices and was fired five days later. The court concluded those allegations plausibly satisfied the protected-activity and causation elements of an FLSA retaliation claim and recommended that the motion to dismiss be denied so the retaliation claim could proceed.


Colvin v. Volusion, Inc., 2017 WL 2805010 (2017)