Key Points

  • The Fifth Circuit held that a public official sued in his individual capacity for retaliation under 29 U.S.C. § 215(a)(3) of the Fair Labor Standards Act cannot invoke qualified immunity.
  • Applying Wyatt v. Cole, the court held that the common law did not immunize malicious retaliation when Congress authorized private FLSA retaliation suits in 1977, and that retaliatory discharge is the closest common-law analogue.
  • The court held that Harlow v. Fitzgerald's objective test does not control because every relevant FLSA date preceded the 1982 decision.
  • Relying on Samuel v. Holmes, the court held that immunity would undermine the FLSA's anti-retaliation protection.
  • The court affirmed the denial of the motion to dismiss and did not decide the effect of the FLSA's good-faith provisions, 29 U.S.C. §§ 259 and 260.

A public official sued personally for firing an employee who complained about her pay cannot invoke qualified immunity, the Fifth Circuit held on Oct. 27, allowing a former Texas A&M University academic advisor's retaliation suit against her onetime supervisor to go forward.

Judge Don R. Willett wrote the opinion for a panel that also included Circuit Judges Engelhardt and Douglas. The court affirmed a Southern District of Texas ruling that denied Mark Lawley's motion to dismiss the suit Eva Kristine Stramaski brought under the Fair Labor Standards Act, the 1938 federal wage-and-hour law. The court described the issue as "one of first impression in this circuit."

The ruling means a public official sued under the FLSA's anti-retaliation provision cannot win dismissal on the ground that the law the official allegedly broke was not clearly established. Lawley "remains free to dispute the allegation that he fired Stramaski for asserting her FLSA rights, but he must do so on the merits," Willett wrote. "When Congress authorized private FLSA retaliation suits in 1977, the common law did not immunize malicious retaliation."

Stramaski worked as an academic advisor through the university's Engineering Experiment Station. In 2019, after she took medical leave, she was told she needed another doctor's release or her pay would be late. She insisted on timely pay and was paid on schedule.

Lawley, who headed the Industrial and Systems Engineering department, then called her "aggressive" about the pay issue, sent her home for the day and gave her a "coaching letter" listing alleged performance problems. Stramaski disputed the letter in a memo. Lawley fired her a few days later.

Stramaski sued under 29 U.S.C. § 215(a)(3), which makes it unlawful "to discharge or in any other manner discriminate against any employee" for asserting rights under the Act. She alleged that Lawley acted "knowingly, willfully, and with reckless disregard for the law." In a 2022 decision, the Fifth Circuit held that sovereign immunity did not bar the claim because it ran against Lawley personally rather than the State. Because both sides had assumed qualified immunity applied, the court left that question open and sent it back for full briefing. On remand, a magistrate judge concluded that the defense was unavailable, and the district court adopted that recommendation.

The panel applied Wyatt v. Cole, a 1992 Supreme Court decision. Under Wyatt, a court may read into a statute an immunity its text omits only if the immunity is "so firmly rooted in the common law" and "supported by such strong policy reasons" that "Congress would have specifically so provided had it meant to abolish the doctrine." "Wyatt doesn't presume immunity as the default. It requires an affirmative historical basis," Willett wrote. Lawley satisfied neither condition, the court held, and either failure alone would have defeated the defense.

The court first rejected Stramaski's argument that the FLSA's silence on qualified immunity settled the matter. "If it were only so simple," Willett wrote. He pointed to 42 U.S.C. § 1983, under which officials who deprive individuals of their federal rights "shall be liable." That text contains "no qualified-immunity caveats, carve-outs, or conditions," he wrote. "Yet judges have grafted qualified immunity onto § 1983." The panel said the real question was whether the common law recognized the immunity when Congress acted.

Congress passed the FLSA in 1938, extended it to public employees in 1966 and 1974, and authorized private retaliation suits in 1977. The panel adopted the framing of Judge Costa's concurrence in the 2022 decision, which asked whether a "tradition of immunity" existed "when Congress enacted the [FLSA]'s antiretaliation provision."

The court held that retaliatory discharge was the closest common-law analogue to Stramaski's claim. "She challenges Lawley's motive, not his authority. And at common law, malice or bad faith defeated immunity," Willett wrote. Lawley had argued for a broader comparison to wrongful discharge or to any discretionary personnel decision. The panel rejected that view, writing that the magistrate judge had captured the distinction: "wrongful discharge tells us what happened; retaliation tells us why."

The panel held that Lawley's own sources undercut him. An 1890 treatise he cited protected school officials' discretionary acts, but not acts done "wilfully or maliciously." "On this vital point, none of the authorities that Lawley marshals—state or federal, case or treatise—immunized knowing and willful retaliation against a public employee," Willett wrote. A 2021 law review survey Lawley cited recognized the same limit. "Even under Lawley's account of the common law, malice defeated immunity," Willett wrote.

Lawley also invoked Harlow v. Fitzgerald, the 1982 Supreme Court decision that replaced the subjective good-faith inquiry with the objective clearly-established-law test. The panel held that Harlow came too late to matter. Every relevant FLSA date preceded it, and the Supreme Court reiterated in Wood v. Strickland in 1975 that malice defeated official immunity.

On Wyatt's policy prong, Lawley argued that the threat of litigation would make officials reluctant to make good-faith personnel decisions. The panel relied on its 1998 decision in Samuel v. Holmes, which held qualified immunity unavailable under the False Claims Act's whistleblower provision because immunity "would hardly spur reluctant employees to step forward." Willett wrote that "the FLSA doesn't stand in the way of lawful hiring, firing, or discipline. It forbids retaliation against employees who assert their rights under the Act."

The panel left two briefed issues undecided. It did not decide whether the FLSA's two good-faith provisions independently foreclose immunity, as the magistrate judge had found. It also declined to revisit its 2022 conclusion that Stramaski had not alleged a violation of clearly established law, explaining that it had reached that issue only by assuming the defense applied. "We now squarely hold that it does not," Willett wrote.

The case is No. 25-20348 on appeal. Neither side challenged the earlier dismissal of Stramaski's claims for injunctive and declaratory relief.