Mooren et al v. Systems Studies and Simulations Inc et al
Filing
143
MEMORANDUM OPINION and ORDER for reasons stated within {127] Gary Rigney's Motion for Summary Judgment is GRANTED and the claims against him are DISMISSED WITH PREJUDICE.; S3 and Smith's motion for summary judgment, 128 , is GRANTED as to the claims brought by Elizabeth Foster and Denise Mooren, and these claims against them are DISMISSED WITH PREJUDICE; S3 and Smith's motion against Katrina Matthews is GRANTED solely as to the FLSA claim against S3 and Smith and the Title VII claim against Smith; Matthews may proceed on her Title VII, Section 1981, and FCA retaliation claims against S3 and her Section 1981 and FCA retaliation claims against Smith. Signed by Judge Abdul K Kallon on 08/18/2017. (KBB)
FILED
2017 Aug-18 PM 04:14
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
DENISE MOOREN, et al.,
Plaintiffs,
vs.
SYSTEM STUDIES &
SIMULATION, INC., et al.,
Defendants.
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Civil Action Number
5:12-cv-00230-AKK
MEMORANDUM OPINION AND ORDER
Denise Mooren, Elizabeth Foster, and Katrina Matthews bring this action
against System Studies & Simulation, Inc. (S3), Jan Smith (S3’s owner and CEO),
and Gary Rigney (a lawyer who was in private practice and represented S3 as
general counsel). Doc. 118. Collectively, plaintiffs allege that S3 unlawfully
terminated their employment in violation of the anti-retaliation provisions of the
False Claims Act, 31 U.S.C. § 3730(h), as amended, and 42 U.S.C. §§ 1981 and
1981a. Doc. 118. Mooren also brings a claim under the anti-retaliation provisions
in 41 C.F.R. 60-1.32, Title VII of the Civil Rights Act of 1964, the Vietnam Era
Veterans’ Readjustment Assistance Act of 1974, Section 503 of the Rehabilitation
Act of 1973, and Title I of the Americans with Disabilities Act of 1990. Finally,
plaintiffs allege violations of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq.,
for failure to pay overtime (Foster) and for retaliation (Mooren and Matthews).
1
In their separate motions for summary judgment, Rigney asserts that he is
not employee and that the claims against him are due to be dismissed, and S3 and
Smith argue that the plaintiffs cannot prove that they engaged in a protected
activity or that they suffered an adverse action, and that Foster and Matthews
cannot establish a violation of the FLSA. Docs. 127; 128 at 10, 25–27. For the
reasons stated below, except for Matthews’ Title VII, Section 1981, and FCA
retaliation claims against S3 and Smith (1981 and FCA only), the motions are due
to be granted.
I.
STANDARD OF REVIEW FOR SUMMARY JUDGMENT
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” “Rule 56[]
mandates the entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) (alteration in original). The moving party bears the initial burden of proving
the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to
the nonmoving party, who is required to “go beyond the pleadings” to establish
that there is a “genuine issue for trial.” Id. at 324 (citation and internal quotation
2
marks omitted). A dispute about a material fact is genuine “if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The court must construe the evidence and all reasonable inferences arising
from it in the light most favorable to the non-moving party. Adickes v. S. H. Kress
& Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255 (all
justifiable inferences must be drawn in the non-moving party’s favor). Any factual
disputes will be resolved in the non-moving party’s favor when sufficient
competent evidence supports the non-moving party’s version of the disputed facts.
See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir. 2002) (a court is
not required to resolve disputes in the non-moving party’s favor when that party’s
version of events is supported by insufficient evidence). However, “mere
conclusions and unsupported factual allegations are legally insufficient to defeat a
summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.
2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560,
1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla’ of evidence supporting the
opposing party’s position will not suffice; there must be enough of a showing that
the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573,
1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252)).
3
II.
FACTUAL BACKGROUND
Smith is the owner and CEO of S3. Doc. 137-8 at 4. As a government
contractor, S3 is required to maintain an accounting system that complies with the
Defense Contract Audit Agency. 48 C.F.R. § 16.01-3(a)(3). To meet its
obligations, during the relevant period, S3 used Deltek’s Costpoint financial
accounting package and Cognos software package to prepare human resources
reports and to gather information to respond to various governmental audits. Doc.
131-1 at 11.
S3 hired Mooren as a Senior Accountant in 2007. Doc. 131-5 at 98–100.
Mooren’s duties included reconciling S3’s invoices, preparing S3’s annual
incurred cost submissions, and preparing reports using Costpoint and Cognos. Doc.
131-1 at 7–8.
S3 hired Foster as a payroll administrator in 2009. Doc. 131-4 at 7. Foster’s
duties included processing labor and payroll using Costpoint and paying various
state and local payroll taxes. Id. at 8.
S3 hired Matthews as Human Resources Manager in 2011. Doc. 131-5 at 98–
100. S3 maintains that it hired Matthews based on Matthews’ claimed experience
in Equal Employment Opportunity reporting, and that it learned subsequently that
Matthews lacked this relevant and essential experience.
4
Shortly after Matthews started at S3, she discovered that the Office of Federal
Contract Compliance (OFCCP) intended to audit S3’s compensation data for its
2010 affirmative action plan (AAP). Doc. 137-2 at 37. To prepare for the audit, S3
engaged DYAS, a consulting firm, to aid Matthews in preparing S3’s response. Id.
Also, S3 assigned Foster to assist Matthews in pulling the data from Costpoint and
Cognos to respond to the OFCCP. While gathering the data, Foster and Matthews
discovered purported evidence of pay discrimination and wrongdoing. First, based
on the updates in the general labor categories for employees with no corresponding
notes in the employee personnel files, Foster and Matthews concluded that S3 had
improperly changed the labor categories. Doc. 131-4 at 33. Second, Foster and
Matthews also noted purported pay discrepancies between white males and
minorities that Suzanne Ryan, S3’s Chief Financial Officer, purportedly concealed
by changing the general labor category codes. Id. at 42. Based on their discovery,
Foster and Matthews asked Ryan about her rationale in updating the electronic
records without doing so in the actual personnel files. Id. at 31. After this
conversation, S3 pulled Foster and Matthews from the audit, and decided that
Smith would review all documents before S3 sent them to DYAS for it to use in
responding to the OFCCP. Id. at 31–32; doc. 137-1 at 43.
On October 31, 2011, Foster filed a complaint with the Alabama State Board of
Public Accountancy, in which she accused Ryan of falsifying records at Smith’s
5
direction and requested that the appropriate government agency audit S3. Doc.
137-2 at 10–11. Also, Foster accused Ryan of using others to sit for the continuing
education classes Ryan needed to re-activate her accounting license. Id.
Although Ryan did not need an active license to perform her duties for S3,
Smith viewed Foster’s complaint as a personal attack against Ryan because it
threatened Ryan’s credentials. Doc. 131-2 at 81. Therefore, Smith decided to
investigate the allegations, and assigned the task to Rigney, an outside lawyer S3
used as its general counsel. Rigney conducted the interviews at S3’s headquarters
under oath before a court reporter. Id. at 52–53.
When Rigney met with Foster, Foster declined to submit to an interview
without her attorney. Doc. 131-4 at 100. Consequently, S3 placed Foster on
administrative leave until she retained an attorney. Id. Five days later, after hiring a
lawyer, Foster submitted to an interview during which she admitted that the
documents she sent to the Accounting Board were not indicative of fraud. Id. at
13–15. Consequently, on November 21, 2011, S3 terminated Foster’s employment,
for filing a false complaint with the Accounting Board. Doc. 131-2 at 89.
On the same day Rigney interviewed Foster, Rigney and Smith also met with
Matthews. Doc. 131-2 at 58. During the interview, Smith asked about the accuracy
of Matthews’ experience. Id. Based on Matthews’ purported admission that she
had no experience preparing AAP or EEO reports, id. at 57–59, Smith reassigned
6
Matthews from HR Manager to a personnel manager role with the same rate of
pay, effective November 7, 2011, id. at 60. However, S3 waited several days to
present Matthews with the paperwork reflecting this transfer. Doc. 137-2 at 41. On
November 17, 2011, the day after the transfer took effect, S3 discharged Matthews
due to Matthews’ purported dissatisfaction with the change in her duties. Doc. 1312 at 59–60, 91–93.
Sometime after Rigney interviewed individuals about Foster’s complaints,
Mooren notified Tom Houser (S3’s Vice President), Smith, and Ryan by email that
she had filed a complaint with the Department of Defense based on her belief that
S3 had engaged in fraudulent activity by falsifying information to government
agencies. Doc. 131-1 at 77. In Mooren’s email, she described the fraudulent
activity as purported violations of the FLSA and the making of employment
decisions based on race and gender. Id.
In light of Mooren’s email, Smith engaged Rigney to conduct another
investigation. Doc. 131-2 at 68. When Rigney met with Mooren on November 28,
2011, Mooren refused to describe the specific incidents of purported fraud, and
instead alleged generic fraudulent practices. Doc. 131-1 at 179–80. On March 29,
2012, S3 discharged Mooren. Doc. 137-2 at 50.
7
III.
ANALYSIS
Because the standard for analyzing FLSA, Title VII, FCA, and Section 1981
retaliation claims is the same in this Circuit, see Wolf v. Coca-Cola Co., 200 F.3d
1337, 1342–43 (11th Cir. 2000), the court will begin its analysis with plaintiffs’
retaliation claims. The court will then address Foster’s failure to pay overtime
FLSA claim separately in Section B.
A. Retaliation Claims
The False Claims Act prohibits adverse employment actions because of lawful
acts an employee made “including investigation for, initiation of, testimony for, or
assistance in an action filed or to be filed under this section [ . . . ].” 36 U.S.C. §
3730(h). To succeed, a plaintiff must demonstrate a causal connection between her
protected activity and the retaliatory actions, because § 3730(h) “provides relief
only if the whistleblower can show by a preponderance of the evidence that the
employer’s retaliatory actions resulted ‘because’ of the whistleblower’s
participation in a protected activity.” S. Rep. 99-345, at 34. Accordingly, the
plaintiffs must establish a prima facie case by demonstrating that (1) the employer
is covered by the act at issue, (2) the employee engaged in protected activity, (3)
the employee suffered an adverse action, and (4) there is an inference of causation
between the protected activity and the adverse action. Bechtel Const. Co. v.
Secretary of Labor, 50 F.3d 926, 933–34 (11th Cir. 1995). Protected activity is
8
conduct that is in furtherance of an FCA action and aimed at matters which are
calculated to lead to a viable FCA action. 31 U.S.C. § 3730(h). An employee is
protected “when there was at least a ‘distinct possibility’ of litigation under the
False Claims Act at the time of the employee’s action.” United States ex rel.
Sanchez v. Lymphatx, Inc., 596 F.3d 1300, 1303 (11th Cir. 2010) (internal citation
omitted). However, this Circuit broadly interprets the FCA to extend protection to
situations “in which the plaintiff did not even know of the FCA or that her conduct
was protected, as long as FCA litigation was a ‘distinct possibility’ when the
plaintiff acted.” Mann v. Olsten Certified Healthcare Corp., 49 F. Supp. 2d 1307,
1313 (M.D. Ala. 1999).
Retaliation claims based on opposing discriminatory employment practices are
cognizable under Title VII, the FLSA, and Section 1981, and “have the same
requirements of proof and use the same analytical framework.” Blue v. Dunn
Const. Co., Inc., 453 F. App’x 881, 883 (11th Cir. 2011). See also Phillips v.
Aaron Rents, Inc., 262 F. App’x 202, 207 (11th Cir. 2008); Wolf v. Coca-Cola Co.,
200 F.3d at 1342. Similar to claims made under the FCA, a plaintiff must first
establish a prima facie case. In the discrimination or pay context, this involves
“showing that: (1) he engaged in statutorily protected activity; (2) he suffered from
an adverse employment action; and (3) . . . establish[ing] a causal link between the
9
protected activity and the adverse action.” Bryant v. Jones, 575 F.3d 1281, 1307–
08 (11th Cir. 2009).
With these principles in mind, the court turns now to plaintiffs’ specific
contentions of retaliatory conduct.
1. Mooren
Mooren pleads a retaliation claim under the FCA, Title VII, Section 1981, and
the FLSA. She contends that S3 discharged her in retaliation for her protected
activity—i.e., the two letters she submitted to the DoD in 2011 and the internal
email she sent to Smith, Ryan, and Houser in which she alleged that S3 had
violated several federal laws and was “committing fraud by falsifying information
to various government agencies.” Docs. 137-3 at 2–4; 137-2 at 43. This protected
activity occurred approximately four months before Mooren’s discharge.
Generally, while temporal proximity may be used to establish causation,1 “a three
to four month disparity between the statutorily protected expression and the
adverse employment action is not enough.” Thomas v. Cooper Lighting, Inc., 506
F.3d 1361, 1364 (11th Cir. 2007). Therefore, Mooren’s claims fail at the prima
facie level.
1
Causation or a causal link entails a showing that “the decision-makers were aware of the
protected conduct, and that the protected activity and the adverse actions were not wholly
unrelated.” Shannon v. BellSouth Telecomm., Inc., 292 F.3d 712, 716 (11th Cir. 2002) (internal
quotation marks omitted).
10
Even if Mooren can make a prima facie case, her claims would also fail. S3 has
articulated a legitimate reason for its decision to discharge Mooren—i.e., that she
had access to sensitive company information and consistently evinced hostile and
negative feelings about Smith. 2 See, e.g., docs. 137-2 at 44, 45, 46–48. Because
this reason is sufficient to rebut Mooren’s prima facie case, see Johnson v. Booker
T. Washington Broadcasting Svc., Inc., 234 F.3d 501, 507 n.6 (11th Cir. 2000),
Mooren can only prevail if she shows that S3’s reason is pretext for retaliation.
To show pretext, Mooren claims that S3 has provided shifting rationales for her
termination by citing her absenteeism and alleged insubordination. According to
Mooren, these two reasons establish that her role as a DoD informant motivated
S3’s decision. As an initial matter, providing multiple reasons for a discharge is
distinct from the shifting rationales an employer may provide over a period of
time. Here, the memo that accompanied Mooren’s termination listed both the
absenteeism and the insubordination. Doc. 137-2 at 46–48. In fact, in addition to
stating that Mooren had failed to complete a forty hour workweek, the termination
2
In the weeks before her termination, a supervisor issued a memo (undated) about Mooren’s
purported absenteeism over the preceding months and her apparent poor attitude, doc. 137-2 at
44, and a personnel manager wrote a separate statement regarding Mooren’s absenteeism in a
March 21, 2012 memo, doc. 137-2 at 45. Also, in a memo dated March 30, 2012, the personnel
manager noted that Mooren had taken notes in an employee meeting, refused to say why, and
added that she had filed a complaint with the DoD. Doc. 137-2 at 46. When asked about the
complaint, Mooren stated that she was “protected and she did not have to tell us any
information.” Doc. 137-2 at 46–47. S3 also provided a memo dated a month after Mooren’s
termination in which Jackie Hicks detailed that Mooren had violated S3’s open door policy. Doc.
137-2 at 48.
11
memo also outlined S3’s belief that Mooren had become increasingly hostile and
vocal in her dislike of Smith. See docs. 137-2 at 46–47; 137-5 at 28. Because
multiple reasons may form the basis for an employer’s decision, and, in fact, the
law recognizes that an employer can cite multiple reasons, see Combs v. Plantation
Patterns, 106 F.3d 1519 (11th Cir. 1997), S3’s citation of these two reasons does
not support Mooren’s contention of shifting rationales.
As additional evidence of pretext, Mooren notes also that (1) Smith and S3’s
employees ostracized her; (2) that S3 was concerned about potential information
sharing with persons hostile to S3 based on a memo prepared by Tina Maddox in
March 2012 in which Maddox outlined a conversation with a disgruntled former
employee who stated that he had filed a complaint against Smith and needed
evidence to put Smith in jail, see docs. 136 at 43, 137-3 at 2; (3) that DoD executed
a search warrant on S3 six months after her discharge, doc. 136 at 45; and (4) that
before her discharge, S3’s personnel manager and an HR representative asked her
about conversations with non-S3 personnel and the content of her DoD complaint,
doc. 137-2 at 46–47. These contentions are unavailing because, first, the discharge
memo and Mooren’s testimony indicate that the two employees only asked Mooren
about her DoD complaint after Mooren disclosed the existence of the complaint.
Docs. 131-1 at 88; 137-2 at 46. An employee cannot voluntarily disclose a
whistlebower complaint and then argue that the employer’s questions regarding the
12
contents of the complaint are proof of retaliatory intent. Second, absent evidence
that S3 knew before it discharged Mooren that the DoD intended to execute a
search warrant, the DoD decision to execute a warrant six months after Mooren’s
discharge cannot act as proof of purported retaliatory intent by S3. Ultimately,
taking all inferences in Mooren’s favor, Mooren’s contentions fail to rebut S3’s
assertion that it discharged her due to her increasingly hostile attitude and
absenteeism, reasons which Mooren does not address. Because Mooren has failed
to rebut S3’s articulated reasons for her discharge, summary judgment is due on
these claims. See Chapman v. AI Transport, 229 F.3d 1012, 1024–25 (11th Cir.
2000) (“If the plaintiff does not proffer sufficient evidence to create a genuine
issue of material fact regarding whether each of the defendant employer’s
articulated reasons is pretextual, the employer is entitled to summary judgment on
the plaintiff’s claims.”).
2. Foster
Foster alleges retaliation under Title VII, the FCA, Section 1981, and the
FLSA. As evidence of protected activity, Foster cites her complaint to the
Accounting Board in which she raised allegations of fraud against Ryan and S3.
Doc. 136 at 29. Shortly after the complaint, S3 discharged Foster “based upon
[Foster’s] filing false information to the Alabama State Board of Accountancy.”
Doc. 137-2 at 42. This complaint, which alleged that Ryan’s purported falsification
13
of documents violated specific codes of conduct and failed to follow “standards
and/or procedures or other requirements in governmental audits,” doc. 137-4 at
155, is insufficient to establish that Foster engaged in protected activity under Title
VII or Section 1981, see 42 U.S.C. § 1981; 42 U.S.C. § 2000e-3. Therefore, the
Title VII and Section 1981 claims fail.
As for the FCA retaliation claim, Although S3 discharged Foster shortly after
she filed the complaint, Foster’s claim under the FCA fails because she
acknowledged to S3 that her complaint to the Board contained no proof of fraud.
Doc. 131-4 at 121–23. An employee does not engage in protected conduct where
she “fabricates a tale of fraud to extract concessions from the employer, or . . . just
imagines fraud but lacks proof.” Neal v. Honeywell, Inc., 33 F.3d 860, 864 (7th
Cir. 1994), abrogated on other grounds by Graham County Soil & Water
Conservation Dist. v. U.S. ex rel. Wilson, 545 U.S. 409 (2005). Rather, the
protected activity must involve a “distinct possibility” that litigation will occur.
Mack v. Augusta-Richmond Cty., Ga., 148 F. App’x 894, 897 (11th Cir. 2005).
Therefore, because Foster relied on fraudulent facts in making her complaint, and
Foster admitted as much during the internal investigation, doc. 131-4 at 13–15, no
reasonable possibility of an FCA action existed at the time of her complaint. As
such, Foster has failed to establish that she engaged in protected activity to sustain
her FCA retaliation claim.
14
Alternatively, the FCA, Section 1981, and Title VII claims also fail because of
Foster’s failure to rebut S3 and Smith’s contention that they discharged Foster for
filing a false complaint that they considered as a personal attack on Ryan. Doc.
137-2 at 42. “[T]he employer’s burden is satisfied if [it] simply explains why [it]
has done or produc[es] evidence of legitimate nondiscriminatory reasons.” Bd. of
Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25 n.2 (1978). Relevant
here, Foster has not rebutted S3’s reasoning, nor has she offered evidence of
pretext. As such, the motion for summary judgment is due to be granted on
Foster’s FCA and Title VII claims.
In support of the FLSA retaliation claim, Foster cites two instances of protected
activity: (1) her statement to S3 and Smith at some unknown date that S3’s method
of record keeping and calculation of pay violated the FLSA; and (2) her two
complaints about the misclassification of employees, including herself. Doc. 131-4
at 14, 23. Based on the record, Foster complained to the HR manager about being
allegedly misclassified as exempt in November 2009 and complained in a meeting
in April 2011 about the classification of employees. Doc. 131-4 at 23. Although
both reports qualify as protected activity, see E.E.O.C. v. White and Son Enters.,
881 F.2d 1006, 1011 (11th Cir. 1989) (employees’ informal complaint to
supervisor about unequal wages constitutes “an assertion of rights protected” under
the FLSA), Foster has not demonstrated a causal connection between these two
15
complaints which occurred two years and seven months, respectively, before her
discharge. See Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir.
2007). Moreover, summary judgment is also due because of Foster’s failure to
rebut the articulated reason for her discharge. See Frazier, 479 F. App’x at 932.
3. Matthews
Matthews pleads alleged retaliation claims under the FLSA, Title VII, the FCA,
and Section 1981. Matthews’ protected activity includes complaints internally
about alleged failure to maintain OFCCP required applicant flow logs and an
affirmative action plan, alleged FLSA violations and pay discrimination, and
improper coding in the Costpoint system which resulted in the submission of
inaccurate reports to the government. Doc. 118 at 60. Therefore, because these
complaints qualify as protected activity, 3 and in light of Matthews’ discharge
shortly thereafter, Matthews has made a prima facie case of retaliation.
As such, the burden reverts to S3 to articulate a legitimate non-retaliatiory
reason for the discharge. In that respect, S3 and Smith assert that they discharged
Matthews because she expressed unhappiness and displayed insubordinate
3
See U.S. ex rel. Sanchez v. Lymphatx, 596 F.3d at 1304 (An employee “may put her employer
on notice of possible [FCA] litigation by making internal reports that alert the employer to
fraudulent or illegal conduct.”); see also Saffold v. Special Counsel, Inc., 147 F. App’x 949, 951
(11th Cir. 2005) (“Title VII protects individuals who have filed formal EEOC complaints and
individuals who have filed informal complaints internally to their supervisors.”); Kasten v. SaintGobain Performance Plastics Corp., 563 U.S. 1, 14 (2011) (finding oral complaints sufficient to
constitute protected activity under the FLSA); Shannon v. Bellsouth Telecommunications, Inc.,
22 F.3d 712, 715 n.2 (11th Cir. 2002) (an employee engages in protected activity by “voicing
complaints of [racial] discrimination” to his employer).
16
behavior after her demotion for misrepresenting key skillsets S3 required for the
Human Resources Manager position. Doc. 131-2 at 58. See also doc. 137-2 at 38–
39 (termination memo prepared by Betty Ragsdale indicating that Matthews was
unhappy that S3 had posted her pervious position, that her answers to Rigney were
“conflicted” and “[h]er answers indicated less of an understanding of her job than
even previously expected,” and that Matthews was unhappy that S3 discharged
Foster.). However, taking all inferences in Matthews’ favor, summary judgment is
due to be denied on the Title VII, Section 1981, and FCA retaliation claims
because Matthews has identified facts in the record that support her contention that
S3’s stated reason is pretextual. As an initial matter Ragsdale, who authored the
discharge memo, could not identify in her deposition any instance of Matthews’
alleged insubordination. Doc. 131-7 at 17–18. Moreover, S3 discharged Foster five
days after it discharged Matthews. See doc. 137-2 at 42. While S3 contends that it
made a typographical error in citing Matthews’ purported anger over Foster’s
discharge, instead of her anger over the placement of Foster on administrative
leave, questions regarding the accuracy of testimony are credibility issues for a
jury. Therefore, in light of S3’s failure to identify specific incidents of
insubordination, and S3’s discharge of Foster after Matthews’ discharge, Matthews
has created sufficient doubt about the articulated reason to let a jury decide
whether S3 retaliated against Matthews or discharged her for legitimate reasons.
17
The court reaches a different result on the FLSA retaliation claim. After
Matthews and her supervisor informed Smith that S3’s lunch and learn programs
violated the FLSA by requiring employees to work through the lunch hour without
pay, docs. 137-4 at 33, 131-5 at 15, S3 stopped the practice, see doc. 131-5 at 41.
The cessation of the practice suggests that S3 simply implemented Matthews’
suggestion and had no reason to retaliate against her on this issue. This is even
more so when, as here, there is no evidence that S3 took any adverse action against
the supervisor who joined Matthews in raising the issue to S3. Therefore, because
an FLSA retaliation claim requires a plaintiff demonstrate that she “would not have
been fired but for [her] assertion of FLSA rights,” Wolf, 200 F.3d at 1343, and
Matthews has failed to make such a showing, her FLSA claim fails.
4. Claims against Gary Rigney
The plaintiffs contend that Rigney, a lawyer in private practice who served as
S3’s outside general counsel, retaliated against them, in violation of the FCA, Title
VII, and Section 1981, because S3 ultimately discharged them as a result of
Rigney’s investigation into Mooren’s and Foster’s complaints of fraud. As an
outside counsel, Rigney had no employer-employee relationship with the plaintiffs
for purposes of the FCA, and, as such, could not have retaliated against them. See
Lawson v. FMR, LLC, 134 S. Ct. 1158, 1166 (2014) (“[D]ischarge, demotion,
suspension, threats, harassment, or discrimination in the terms and conditions of
18
employment [] are commonly actions an employer takes against its own
employees.”).
The Title VII and Section 1981 retaliation claims against Rigney also fail. First,
Rigney was not an employer and there is no individual liability under Title VII. See
Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991). Second, contrary to
plaintiffs’ contention, conducting the investigation alone is insufficient to create
liability under Title VII or Section 1981. Such a rule would undermine the
investigative process by discouraging outside counsel and other uninterested
parties from agreeing to conduct objective investigations. Finally, there is nothing
in the record, other than his purported close relationship to Smith, to suggest that
Rigney instigated an adverse employment action against the plaintiffs either on his
own or through his position as investigative counsel for S3.
B. FLSA Overtime Claims
Foster raises a claim under the FLSA for overtime pay. The FLSA “obligates
employers to compensate employees for hours in excess of 40 per week at a rate of
1 ½ time the employees’ regular wages.” Christopher v. SmithKline Beecham
Corp., 132 S. Ct. 2156, 2162 (2012) (citing 29 U.S.C. § 207(a); see also 29 U.S.C.
§ 206(a)). Because the plaintiff bears the burden, see Allen v. Board of Public
Educ. for Bibb Cty., 495 F.3d 1306, 1315 (11th Cir. 2007), to prevail, the plaintiff
must demonstrate that (1) she worked overtime without compensation and (2) her
19
employer knew or should have known of the overtime work. Reich v. Dep’t of
Conservation and Nat. Res., 28 F.3d 1076, 1081–82 (11th Cir. 1994) (citing 29
C.F.R. § 785.11). To that end, an employee may satisfy this burden by
“produc[ing] sufficient evidence to show the amount and extent of that work as a
matter of just and reasonable inference.” Jackson v. Corrections Corp. of America,
606 F. App’x 945, 952 (11th Cir. 2015) (internal quotations omitted).
Foster has failed to meet her burden. Relevant here, Foster contends that she
worked over forty hours on multiple occasions as a payroll administrator and that
S3 and Smith failed to pay her the statutorily required overtime compensation. See
docs. 118 at 65; 131-4 at 16. However, Foster has not provided any evidence to
support this contention. Instead, Foster maintains that the time stamps on her
timesheets would allow her to present the necessary evidence by calculating the
overtime hours she worked. Doc. 131-4 at 24–25. Unfortunately, Foster has not
submitted the timesheets to allow the court to ascertain how exactly they support
her claim and she has not explained why she is unable to provide the calculation at
this juncture. Ultimately, Foster bears the burden of proving that she worked
overtime without compensation. See Reich, 28 F.3d at 1081. Simply stating that a
review of the timesheets at a later date will show the claimed overtime hours is
insufficient for Foster to meet her burden. Ellis v. England, 432 F.3d 1321, 1326
(11th Cir. 2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d
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1560, 1563 (11th Cir. 1989)) (“[M]ere conclusions and unsupported factual
allegations are legally insufficient to defeat a summary judgment motion.”). While
the FLSA is not intended to “penalize the employee by denying him any recovery
on the ground that he is unable to prove the precise extent of uncompensated
work,” the employee must still “prove[] that he has in fact performed work for
which he was improperly compensated and . . . produce[] sufficient evidence to
show the amount and extent of that work as a matter of just and reasonable
inference.” Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946).
Foster’s contention that with access to timesheets she could determine her overtime
hours is an unsubstantiated allegation that is too vague to allow her claims to
survive summary judgment. Jackson, 606 F. App’x at 952. As such, S3’s motion is
due to be granted on this claim.
CONCLUSION AND ORDER
For the foregoing reasons, Gary Rigney’s motion for summary judgment,
doc. 127, is GRANTED and the claims against him are DISMISSED WITH
PREJUDICE. S3 and Smith’s motion for summary judgment, doc. 128, is
GRANTED as to the claims brought by Elizabeth Foster and Denise Mooren, and
these claims against them are DISMISSED WITH PREJUDICE. S3 and Smith’s
motion against Katrina Matthews is GRANTED solely as to the FLSA claim
against S3 and Smith and the Title VII claim against Smith. Matthews may
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proceed on her Title VII, Section 1981, and FCA retaliation claims against S3 and
her Section 1981 and FCA retaliation claims against Smith.
DONE the 18th day of August, 2017.
_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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