On November 26, 2012, the US Court of Appeals for the Eighth Circuit issued an opinion in Montgomery v. Havner, affirming the district court's holding that an employee failed to establish a prima facie case of retaliation under the FLSA and upholding the district court's grant of summary judgment in favor of the defendants. The Eighth Circuit concluded that the employee failed to establish a prima facie case of retaliation under the FLSA because no reasonable jury could find that her call to her employer to inquire why her pay was docked by ten minutes constituted filing a complaint under the FLSA.

In October 2010, Montgomery began working for Kyle Havner and office manager, Kathy Havner (Havner), as a paralegal at the Havner Law Firm. Early in Montgomery's employment, she and Havner clashed over attire, personal use of the internet and unauthorized use of the firm's internet access after business hours.

In June 2011, towards the end of the day, Montgomery cleaned her desk to get ready for closing time. Havner observed her not working. Ten minutes later (at 4:55 p.m.), Havner told Montgomery and two other employees they could leave and that she would clock them out. Montgomery later learned that Havner clocked her out at 4:45 p.m. and clocked the other two employees out ten minutes later.

Montgomery called Havner to ask why she had been clocked out at 4:45 p.m. The conversation was civil and Havner agreed to adjust the time entered. Havner called Montgomery soon after to discuss a different issue, a conversation the parties agree became heated. Soon after the heated conversation, Havner terminated Montgomery's employment.

Montgomery sued Havner, Kyle Havner and the Havner Law Firm for retaliation in violation of the FLSA. The district court granted summary judgment, concluding that Montgomery failed to establish a prima facie case of retaliation under the FLSA because no reasonable jury could find Montgomery's call to inquire why she docked Montgomery's pay by ten minutes constituted filing a complaint under the FLSA. Montgomery appealed.

In reaching its conclusion, the court explained that to demonstrate a prima facie case of retaliation under the FLSA, Montgomery would have had to show:

(Ritchie v. St. Louis Jewish Light.)

The court assumed, without deciding, that complaints to private employers (rather than the government) would suffice for purposes of making an FLSA retaliation claim.

The court explained that "to fall within the scope of the anti-retaliation provision, a complaint must be sufficiently clear and detailed for a reasonable employer to understand it" (Kasten v. Saint-Gobain Performance Plastics Corp.).

The court rejected Montgomery's claim that calling to ask why her supervisor docked ten minutes from her time card constituted filing an FLSA complaint and was a statutorily protected activity. Montgomery conceded that the conversation "just ended nicely." Consequently, the court reached its conclusion that no reasonable jury could conclude that Montgomery's discussion with Havner about the ten-minute deduction was a sufficiently clear and detailed FLSA complaint for Havner to reasonably understand it was an FLSA violation allegation.