Montgomery v. Havner et al
ORDER granting defts' 19 22 Motions for Summary Judgment and directing the Clerk to close the case. Signed by Judge James M. Moody on 4/18/12. (kpr)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
KYLE HAVNER, KATHY HAVNER, and
HAVNER LAW FIRM, P.A.
ORDER GRANTING SUMMARY JUDGMENT
Pending are Defendants’ Motions for Summary Judgment of Plaintiff’s only remaining
claim, the Fair Labor Standards Act claim. The parties have fully briefed the issues. For the
reasons set forth below, Defendants’ motions are GRANTED.
Standard for Summary Judgment
Summary judgment is appropriate only when there is no genuine issue of material fact, so
that the dispute may be decided solely on legal grounds. Holloway v. Lockhart, 813 F.2d 874
(8th Cir. 1987); Fed. R. Civ. P. 56. The Supreme Court has established guidelines to assist trial
courts in determining whether this standard has been met:
The inquiry is the threshold inquiry of determining whether there
is a need for trial -- whether, in other words, there are genuine
factual issues that properly can be resolved only by a finder of fact
because they may reasonably be resolved in favor of either party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
The Eighth Circuit Court of Appeals has cautioned that summary judgment should be
invoked carefully so that no person will be improperly deprived of a trial of disputed factual
issues. Inland Oil & Transport Co. v. United States, 600 F.2d 725 (8th Cir. 1979), cert. denied,
444 U.S. 991 (1979). The Eighth Circuit set out the burden of the parties in connection with a
summary judgment motion in Counts v. M.K. Ferguson Co., 862 F.2d 1338 (8th Cir. 1988):
[T]he burden on the moving party for summary judgment is only to
demonstrate, i.e., ‘[to] point out to the District Court,’ that the
record does not disclose a genuine dispute on a material fact. It is
enough for the movant to bring up the fact that the record does not
contain such an issue and to identify that part of the record which
bears out his assertion. Once this is done, his burden is
discharged, and, if the record in fact bears out the claim that no
genuine dispute exists on any material fact, it is then the
respondent’s burden to set forth affirmative evidence, specific
facts, showing that there is a genuine dispute on that issue. If the
respondent fails to carry that burden, summary judgment should be
Id. at 1339. (quoting City of Mt. Pleasant v. Associated Elec. Coop., 838 F.2d 268, 273-274 (8th
Cir. 1988) (citations omitted)(brackets in original)). Only disputes over facts that may affect the
outcome of the suit under governing law will properly preclude the entry of summary judgment.
Anderson, 477 U.S. at 248.
Plaintiff worked as a paralegal for Kyle Havner (“Kyle”) at the Havner Law Firm. Kathy
Havner (“Kathy”), Kyle’s wife, was the office manager for the firm. At all times Plaintiff was
paid more than minimum wage and Plaintiff has no dispute regarding overtime pay. Plaintiff
admits that she and Kyle had previously dated. (Pl’s Complaint, ECF No. 2 at p. 1). Plaintiff
was also aware that Kathy believed that Plaintiff and Kyle “had been, or were having, an affair.”
(Pl’s Complaint, ECF No. 2 at p. 2).
On June 16, 2011, Kathy told the firm employees that they could leave at 4:45 p.m.
instead of 4:55 p.m. and that she would not dock their paid time. However, Kathy marked
Plaintiff’s time card as if she had left at 4:45 instead of 4:55 as Kathy had stated. Plaintiff called
Kathy after leaving the office on June 16, 2011, and inquired about her time card. Kathy told
Plaintiff that she chose to dock Plaintiff’s pay by 10 minutes on June 16, 2011, because she
determined that Plaintiff was not working when she entered the room at 4:45. (Pl.’s Dep., ECF
NO. 22-3 at p. 70-71). Plaintiff explained that she had come to a good stopping point in her
work that day so she stopped working at 4:45. Kathy agreed, and said that she would change
Plaintiff’s time card to reflect the additional 10 minutes. Id. at 71. The two hung up on good
terms. Id. However, Kathy called Plaintiff back 20-30 minutes later. Id. at 71. During the
telephone call, Plaintiff and Kathy disagreed over another issue in the office. Id. at 71-72.
Plaintiff hung up on Kathy. Id. at 72. Afterward, Kyle called Plaintiff and terminated her
employment. Id. at 73; Def. Kyle Havner’s Dep. ECF No. 22-5 at p. 10.
Plaintiff filed suit in Jefferson County Circuit Court on August 19, 2011. Kathy Havner
removed the action to this Court pursuant to 28 U.S.C. § 1446. The Court has subject matter
jurisdiction of the case because Plaintiff has asserted a claim under the Fair Labor Standards Act
(“FLSA”). Originally, Plaintiff made three allegations against the Defendants: wrongful
termination under Arkansas law, defamation, and retaliation in violation of the FLSA. Plaintiff
voluntarily dismissed her state law claims on January 23, 2012. The Defendants have filed
separate motions for summary judgment of Plaintiff’s FLSA claim.
Discussion of the Law
To establish a prima facie case of retaliation under the FLSA, Plaintiff must show that
she participated in statutorily protected activity, that the Defendants took an adverse employment
action against her, and that there was a causal connection between Plaintiff's statutorily protected
activity and the adverse employment action. Ritchie v. St. Louis Jewish Light, 630 F.3d 713, 717
(8th Cir. 2011) (citing Grey v. City of Oak Grove, 396 F.3d 1031, 1034–35 (8th Cir. 2005)).
The anti-retaliation provision of the FLSA makes it unlawful for any person:
to discharge or in any other manner discriminate against any employee because such
employee has filed any complaint or instituted or caused to be instituted any proceeding
under or related to this chapter, or has testified or is about to testify in any such
proceeding, or has served or is about to serve on an industry committee.
29 U.S.C. § 215(a)(3).
The Court finds that Plaintiff did nothing to trigger the anti-retaliation provision of the
FLSA. It is undisputed that Kathy, Plaintiff’s supervisor, chose to dock Plaintiff’s pay by 10
minutes on June 16, 2011, because she determined that Plaintiff was not working during those 10
minutes. (Pl.’s Dep., ECF NO. 22-3 at p. 70-71). Plaintiff called her supervisor to discuss the
issue. There is no evidence in the record that Plaintiff engaged in a protected activity under the
FLSA. Merely calling to inquire why a supervisor docked an employee’s pay by 10 minutes,
does not constitute “filing a complaint” under the FLSA. See Kasten v. Saint-Gobain
Performance Plastics Corp., 131 S.Ct. 1325, 1335 (U.S.,2011) (“To fall within the scope of the
antiretaliation provision, a complaint must be sufficiently clear and detailed for a reasonable
employer to understand it, in light of both content and context, as an assertion of rights protected
by the statute and a call for their protection.”); Ritchie v. St. Louis Jewish Light, 630 F.3d 713,
717 (8th Cir. 2011). Therefore, Defendants’ Motions for Summary Judgment of Plaintiff’s
FLSA claim is GRANTED.
In conclusion, Defendants’ Motions for Summary Judgment (ECF No. 19, 22) are
GRANTED. The Clerk is directed to close the case. The trial scheduled for June 4, 2012 is
IT IS SO ORDERED this 18th day of April, 2012.
James M. Moody
United States District Judge
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