Kreb v. Life Flight Network, LLC et al

Filing 185

MEMORANDUM DECISION AND ORDER RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT - Defendants Motion for Summary Judgment (Dkt. 126 ) is GRANTED; Plaintiffs claims against Jacksons are DISMISSED; and The seven-day jury trial set to begin April 13, 2021 trial is VACATED. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

Case No.: 3:16-cv-00444-REB

ROBERT KREB, an individual,

MEMORANDUM DECISION AND
ORDER RE: DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT

Plaintiff,
vs.
JACKSONS FOOD STORES, INC., a Nevada
Corporation, JACKSON JET CENTER, LLC, an
Idaho Corporation, and CONYAN AVIATION,
INC., d/b/a Jackson Jet Center, an Idaho
Corporation

(Dkt. 126)

Defendants,
Pending before the Court is Defendants’ Motion for Summary Judgment (Dkt. 126).
Having carefully considered the record, participated in oral argument, and otherwise being fully
advised, the Court enters the following Memorandum Decision and Order:
I. BACKGROUND1
In November 2013, Plaintiff Robert Kreb applied to a Life Flight Network, LLC (“LFN”)
job posting. He was hired the next month – not by LFN, but by Defendants Jacksons Food
Stores, Inc., Jackson Jet Center, LLC, and Conyan Aviation, Inc., d/b/a Jackson Jet Center
(collectively referred to as “Jacksons” or “Defendants”). See Pl.’s First Am. Compl., ¶¶ 6-7, 1517 (Dkt. 78). This unusual arrangement stemmed from the fact that when Plaintiff was hired,
Jacksons held a Federal Aviation Administration (“FAA”) Part 135 Certificate, while LFN did
not. See id. at ¶¶ 9, 18. So, it was Jacksons that actually hired Plaintiff to fly fixed-wing
1

Plaintiff’s claims began in Washington state court before being removed to federal
court in the Western District of Washington. The federal court in Washington then ordered the
case transferred to this Court, while separate administrative claims proceeded before the
Department of Labor.
MEMORANDUM DECISION AND ORDER - 1

emergency medical response planes for emergency medical transport services provided by LFN,
with LFN contracting with Jacksons for Plaintiff’s services until LFN secured an FAA Part 135
Certificate and formally (re)hired Plaintiff itself. See id. at ¶¶ 6-7, 10, 18-19. In short, Jacksons
technically employed Plaintiff, but his work followed dispatch directions from LFN employees,
he piloted LFN-owned planes, followed LFN handbooks and safety guidelines, reported to LFN
supervisors, wore an LFN uniform, and was to follow LFN protocols. See id. at ¶¶ 8, 19.
While employed, Plaintiff raised many complaints with Jacksons and/or LFN about
alleged failures to pay him wages and other compensation he says he was promised. See
generally id. at ¶¶ 34, 38-57. Jacksons ultimately fired Plaintiff on July 10, 2014, one day after
he raised alleged safety concerns (concerns questioned by Jacksons) about an LFN flight he was
scheduled to pilot. See id. at ¶¶ 58-67. Following his termination, Plaintiff claims that he was
“blacklisted” from other pilot jobs, and that although now employed, he moved to New Mexico
with his family because he could not obtain employment in the Pacific Northwest. See id. at
¶¶ 70-74. This action followed.
Originally, Plaintiff alleged that Jacksons and LFN owe him unpaid wages and other
compensation (first claim), wrongfully discharged him in violation of public policy (second
claim), and breached their employment contract with him (third claim). See Pl.’s Compl., ¶¶ 1.1,
5.1-7.3 (Dkt. 1, Att. 1). Among other things, Plaintiff sought unpaid wages, lost future wages,
punitive damages, exemplary damages, and emotional distress damages. See id. at ¶¶ 8.1-8.11.
Jacksons moved for summary judgment on December 7, 2016. See Jacksons’ MSJ (Dkt.
46).2 On the same day Plaintiff responded to Jacksons’ Motion for Summary Judgment, Plaintiff

2

On July 25, 2017, the parties stipulated to LFN’s dismissal from this action and, on
August 1, 2017, the Court entered an Order to that effect. See Stip. (Dkt. 71); 8/1/17 Order (Dkt.
72). LFN’s dismissal had no effect on Plaintiff’s claims against Jacksons or, likewise, Jacksons’
defenses to Plaintiff’s claims against them. See id.
MEMORANDUM DECISION AND ORDER - 2

also moved to amend his Complaint. See Pl.’s Resp. to MSJ (Dkt. 60); Pl.’s Mot. for Leave to
Am. Compl. (Dkt. 62).
On March 12, 2018, the Court granted, in part, and denied, in part, Jacksons’ Motion for
Summary Judgment. Plaintiff’s wage claim (first claim) was dismissed as time-barred (except
for insurance benefits-related wage claims); Plaintiff’s wrongful discharge claim (second claim)
premised upon safety concerns (but not premised upon wage concerns) was dismissed because it
was precluded by Plaintiff’s then-pending, related administrative action; and Plaintiff’s breach of
contract claim (third claim) was dismissed as time-barred. See 3/12/18 MDO, pp. 12-20, 22-23
(Dkt. 77). The Court also granted Plaintiff leave to amend his Complaint to add a Fair Labor
Standards Act (“FLSA”) claim for retaliation based on Plaintiff’s complaints regarding overtime.
See id. at pp. 20-23.
Consistent with the Court’s March 12, 2018 Memorandum Decision and Order,
Plaintiff’s eventual First Amended Complaint asserts three amended claims against Jacksons:
(1) failure to pay insurance-related wages due; (2) wrongful termination in violation of public
policy based on wage concerns; and (3) retaliation under the FLSA. See Pls.’ First Am. Compl.,
¶¶ 78-96 (Dkt. 78). Jacksons moved again for summary judgment, arguing that each of these
claims fails because Jacksons made no promises to pay Plaintiff any overtime or additional
insurance-related benefits; and that, without such predicate promises from Jacksons to Plaintiff,
his claims against Jacksons cannot stand. See generally Jacksons’ Mem. ISO of MSJ (Dkt. 1262). That motion is decided here.
II. LEGAL STANDARD
A court “shall grant summary judgment 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.” Fed.
R. Civ. P. 56(a). One principal purpose of summary judgment “is to isolate and dispose of
MEMORANDUM DECISION AND ORDER - 3

factually unsupported claims . . . .” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It is
“not a disfavored procedural shortcut,” but is instead the “principal tool[ ] by which factually
insufficient claims or defenses [can] be isolated and prevented from going to trial with the
attendant unwarranted consumption of public and private resources.” Id. at 327.
The burden of establishing the absence of a genuine issue of material fact lies with the
moving party, and the court must view the facts and draw reasonable inferences in the light most
favorable to the nonmoving party. See id. at 322-23; see also Scott v. Harris, 550 U.S. 372, 378
(2007). A disputed fact is “material” where the resolution of that fact might affect the outcome
of the suit under the governing law, and the dispute is “genuine” where “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). To show that a genuine issue of material fact is not in dispute, a
party may cite to particular materials in the record, or show that the materials cited do not
establish the presence of a genuine dispute, or that the adverse party is unable to produce
admissible evidence to support the fact. See Fed. R. Civ. P. 56(c)(1)(A) & (B); Ransier v. United
States, 2014 WL 5305852, at *2 (D. Idaho 2014).
In response, the nonmoving party cannot simply rest on the pleadings or argue that any
disagreement or “metaphysical doubt” about a material issue of fact precludes summary
judgment. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986);
see also Celotex, 477 U.S. at 322-23. Nor will uncorroborated allegations and “self-serving
testimony” create a genuine issue of material fact. Villiarimo v. Aloha Island Air, Inc., 281 F.3d
1054, 1061 (9th Cir. 2002). Similarly, conclusory or speculative testimony in affidavits is
insufficient to raise genuine issues of fact and defeat summary judgment. See Thornhill Publ’g
Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). The nonmoving party must produce some
significant probative evidence tending to contradict the moving party’s allegations, thereby
MEMORANDUM DECISION AND ORDER - 4

creating a material question of fact. See Anderson, 477 U.S. at 256-57 (plaintiff must present
affirmative evidence to defeat properly supported motion for summary judgment).
Rule 56(e)(3) authorizes summary judgment for the moving party “if the motion and
supporting materials – including the facts considered undisputed – show that the movant is
entitled to it.” Fed. R. Civ. P. 56(e)(3). Though the Court may not weigh conflicting evidence or
make credibility determinations, there must be more than a mere scintilla of contradictory
evidence to survive summary judgment. See Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134
(9th Cir. 2000); see also Scott, 550 U.S. at 380 (“When opposing parties tell two different stories,
one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a
court should not adopt that version of the facts for purposes of ruling on a motion for summary
judgment.”). Rather, “there must be evidence on which the jury could reasonably find for the
[non-moving party].” Anderson, 477 U.S. at 252; see also Weston v. Harrigan, 359 F.App’x
868, 870 (9th Cir. 2009) (“A court does not have to accept as true allegations that are contradicted
by the record and which no reasonable jury would believe.”). “Summary judgment must be
entered ‘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.’” United States v. Carter, 906 F.2d 1375, 1376 (9th Cir. 1990) (quoting Celotex, 477 U.S.
at 322).
III. DISCUSSION
A.

Plaintiff’s Claims Assume an Entitlement to Certain Benefits from Jacksons
Each of Plaintiff’s three remaining claims – (1) failure to pay insurance-related wages,

(2) wrongful termination based on wage concerns, and (3) retaliation based on complaints
regarding overtime compensation under the FLSA – presupposes that he was not fully
compensated and that it was Jacksons’ obligation to pay him the additional compensation. To be
MEMORANDUM DECISION AND ORDER - 5

clear, Plaintiff does not allege he was never paid; rather, he argues that he was not paid as much
as he was entitled, contending that he was owed overtime pay, fringe benefits, differences in
insurance coverage benefits, flight differential pay (higher rates for certain flights), per diems,
and payment for time logged before/after shifts. See Pl.’s First Am. Compl., ¶¶ 13, 20-25, 34,
38-47 (Dkt. 78). Plaintiff alleges that Jacksons was responsible for these additional benefits,
beyond the salary and insurance benefits that Jacksons indisputably paid/provided to Plaintiff for
the entirety of his employment with Jacksons.
For example, under the Idaho Wage Claim Act (“IWCA”), a “wage claim” means “an
employee’s claim against an employer for compensation for the employee’s own personal
services, and includes wages, penalties, or damages provided by law to employees with a claim
for unpaid wages.” I.C. § 45-601(6). “Wages” are defined under the IWCA as “compensation
for labor or services rendered by an employee, whether the amount is determined on a time, task,
piece or commission basis.” I.C. § 45-601(7). While employers are required to pay wages
monthly, the employer and employee have a great deal of freedom to determine how that
compensation will be paid – that is, “the [IWCA] does not place any limitations on the ability of
the employer and employee to contract for the terms of the employee’s compensation.” Bakker
v. Thunder-Spring-Wareham, LLC, 108 P.3d 332, 337 (Idaho 2005). To this end, Plaintiff claims
that Jacksons “promised” certain insurance-related benefits, alleging as the basis for his first
claim (failure to pay insurance-related wages) that “Defendants willfully violated [the IWCA] by
failing to pay [Plaintiff’s] promised payments related to his insurance benefits.” Pl.’s First Am.
Compl, ¶ 79 (Dkt. 78) (emphasis added).
Relatedly, the right to discharge an at-will employee (like Plaintiff) is limited by
considerations of public policy, such as when the motivation for the firing contravenes public
policy. See Van v. Portneuf Med. Ctr., 212 P.3d 982, 991 (Idaho 2009). One such exception
MEMORANDUM DECISION AND ORDER - 6

protects employees who refuse to commit unlawful acts, who perform important public
obligations, or, relevant here, who exercise certain legal rights and privileges. See id. It follows
that an employer may not discharge an at-will employee without cause when the discharge would
violate public policy. See id. Plaintiff claims that his “termination . . . amounts to wrongful
discharge as it offends public policies enacted to ensure the economic security of employees,”
alleging in support of his second claim (wrongful termination) that Jacksons terminated his
employment “immediately after he reported shortcomings in pay and then blacklisted [him] from
obtaining new employment in the Pacific Northwest.” Pl.’s First Am. Compl, ¶¶ 85-88 (Dkt.
78). Plaintiff relies upon Idaho Code § 45-613, which states in relevant part:
No employer shall discharge or in any other manner retaliate against any employee
because that employee has made a complaint to the employer, or to the department,
or filed suit alleging that the employee has not been paid in accordance with the
[IWCA], or because the employee has testified or may be about to testify in an
investigation or hearing undertaken by the department. The provisions of this
section shall not be construed to otherwise restrict the discipline or termination of
an employee.
See id. at ¶ 84 (quoting I.C. § 45-613 (emphasis added)).
Finally, and in the same vein, the FLSA proscribes firing, or in any other manner
discriminating against, an employee for complaining about an employer’s failure to pay required
overtime. See 29 U.S.C. §§ 207(a)(1), 215(a)(3). Plaintiff claims he “had an objectively
reasonable belief”3 that Jacksons was required to pay his overtime under the FLSA, alleging as

3

This select turn-of-phrase is likely drawn from the Court’s handling of Plaintiff’s earlier
Motion to Amend within its March 12, 2018 Memorandum Decision and Order. See supra.
There, the Court re-phrased Plaintiff’s response to Jacksons’ then-raised futility argument as
follows:
Plaintiff acknowledges that he may not be entitled to FLSA-mandated overtime [ ],
but nonetheless argues that he remains protected by FLSA’s anti-retaliation
provision. According to Plaintiff, so long as his wage complaint is in good faith
and objectively reasonable (even if mistaken and [Jacksons’] conduct is actually
lawful), his FLSA retaliation claim is properly asserted.
MEMORANDUM DECISION AND ORDER - 7

the basis for his third claim (retaliation based on complaints for overtime compensation under the
FLSA) that Jacksons fired him on July 10, 2014 “because he complained, just the day before,
that they had not paid him and the other pilots overtime.” Pl.’s First Am. Compl. ¶¶ 92, 94 (Dkt.
78).
In sum, the viability of Plaintiff’s claims against Jacksons – and, thus, this action in its
entirety – turns on whether Jacksons was required to pay Plaintiff those additional employment
benefits he claims he should have received. For the reasons that follow, the Court concludes
that, even if Plaintiff was entitled to compensation/benefits above and beyond what Jacksons
actually paid to him, any such additional compensation/benefits were not Jacksons’
responsibility.
B.

Jacksons Was Not Obligated to Pay Plaintiff Certain Additional Benefits
Plaintiff’s theory against Jacksons runs a particular path and proceeds as follows: (1)

owing to promises made at the time he was hired, Jacksons owes/owed him more than he was
actually paid (including insurance-related wages and overtime); and (2) Jacksons improperly
fired him and/or retaliated against him in violation of public policy and the FLSA after he
complained that he had not been fully compensated as originally promised. The record,
however, does not neatly track such a path; rather, it indicates that even though certain promises
may have been made to Plaintiff when he was first hired, any such promises did not originate
with Jacksons and that, actually, Jacksons paid Plaintiff all that Jacksons was required to pay.

3/12/18 MDO, p. 21 (Dkt. 77) (internal citations omitted, emphasis added). At that time, the
Court declined to find as a matter of law that Plaintiff is foreclosed from making an FLSA
retaliation claim because of Jacksons’ status as an exempt employer, though acknowledging the
inherent logic to that reasoning. Id. at pp. 21-22. Instead, the Court simply permitted the
amendment, leaving for another day the question of whether an FLSA retaliation claim could
prevail against an exempt employer. See id. at p. 22 (. . . neither party has put before the Court
any authority (binding or otherwise) directly apropos of what is a nuanced, complicated, and
potentially lynchpin issue.”).
MEMORANDUM DECISION AND ORDER - 8

Plaintiff’s pleadings (both his original Complaint and First Amended Complaint) either
collectively group Jacksons with LFN (denoting them as “Defendants”), or clearly differentiate
the two when alleging how certain promises were made to him when being recruited in late
2013.4 Significantly, however, Plaintiff’s own pleadings do not specifically allege that Jacksons
made any of the promises Plaintiff relies upon to support the three claims he has asserted against
Jacksons. Instead, the pleadings point to LFN as the source of promises. For instance, within his
First Amended Complaint, Plaintiff alleges:


“LFN recruited Mr. Kreb and had him placed in Lewiston, Idaho as his principal
base of operations.” Pl.’s First Am. Compl., ¶ 7 (Dkt. 78).



“LFN contracted with [Jacksons] to co-employ Mr. Kreb to perform emergency
medical service (“EMS”) transport under the LFN banner.” Id. at ¶ 10.



“Mr. Kreb first submitted his application for hire through the ‘[e-mail]’
[(LFN)] email address on November 3, 2013.” Id. at ¶ 15.



“On November 19, 2013, Mr. Kreb was interviewed on the telephone by Ryan
Swakon, LFN Director of Operations, BJ Miles, LFN Director of Safety and Risk
Management, and Ron Fergie, LFN Chief Pilot.” Id. at ¶ 16.



“LFN then arranged for Mr. Kreb to attend an in-person interview at the LFN
headquarters in Aurora, Oregon. This was later revised to an in-person interview
in Boise, Idaho at the Jackson Jet Center, LLC [(“JJC”)] headquarters.” Id. at ¶ 17.



“Ryan Swakon, Ron Fergie [(both for LFN)] and Steve Bower for JJC informed
Mr. Kreb that LFN was working towards obtaining an FAA FAR Part 135
certificate within a 90 day timeframe.” Id. at ¶ 18.



“These men told Mr. Kreb that, in the meantime, JJC would be Mr. Kreb’s
employer in name; he would nevertheless fly LFN owned planes, wear an LFN
uniform, follow LFN protocol and would be expected to follow LFN flight
directives, including safety protocols.” Id. at ¶ 19.



“Additionally, Mr. Swakon, Mr. Fergie and Nicole Barnard-Croft all assured Mr.
Kreb that pilots who fly for LFN receive overtime compensation and all LFN fringe
4

Again, Plaintiff already dismissed his claims against LFN, and the Court dismissed
LFN from the lawsuit in 2017; the details leading up to LFN’s dismissal (or any related terms)
are not in the record. See supra.
MEMORANDUM DECISION AND ORDER - 9

benefits regardless of who was his employer in name.” Id. at ¶ 20 (emphasis
added).


“Though Mr. Kreb was going to be paid through JJC’s payroll system, Mr. Swakon
stated to Mr. Kreb in his Boise interview that LFN would cut a check for any
benefits coverage differences, and differences in deductibles not covered by the JJC
insurer. Mr. Swakon further stated that all overtime, PTO and sick days would be
calculated and paid through JJC payroll.” Id. at ¶ 21 (emphasis added).5



“LFN’s company handbooks provide for overtime pay of pilots and for flight
differentials where flights that occurred later in the scheduled shift were paid at a
higher premium.” Id. at ¶ 23 (emphasis added).



“LFN represented that per diems would be provided to pilots for company required
training, travel to training centers, and other overnight stays.” Id. at ¶ 24
(emphasis added).



“LFN assured Mr. Kreb and other Lewiston pilots numerous times that they would
soon be paid by LFN payroll and would be eligible to receive all of the same
benefits, compensation and bonus structures as other LFN employees.” Id. at ¶ 25
(emphasis added).



“LFN’s intentions regarding the compensation of pilots like Mr. Kreb were
memorialized in many communications from LFN to Mr. Kreb and JJC
management.” Id. at ¶ 26.



“LFN agreed to pay Mr. Kreb’s $29.10 hourly wage with an annual $1000.00 ATP
stipend. This was confirmed by an offer of employment emailed from Mr. Steve
Bower [(for JJC)] to Mr. Kreb on Friday, December 13, 2013.” Id. at ¶ 27
(emphasis added).



“After nearly a one month recruitment process, LFN hired Mr. Kreb to fly out of
the Lewiston, Idaho base. He would commute from his home in Friday Harbor
each week to start a seven-day schedule for LFN.” Id. at ¶ 31.
5

Plaintiff argues that, before LFN was dismissed from the action, it admitted that Mr.
Swakon [of LFN] told Plaintiff that all overtime, PTO and sick days would be calculated and
paid through JJC payroll. See Ex. 2 at ¶ 4.12 to Pl.’s Errata (Dkt. 176-2) (attaching LFN’s
Answer and Affirmative Defenses to Plaintiff’s original Complaint). However, this is an
allegation of a statement made by an LFN representative, not by anyone from Jacksons.
Moreover, LFN expressly denied Plaintiff’s additional allegation that: “Mr. Bower, as JJC’s
representative, agreed to this arrangement at the time of the interview.” See id.; compare with
Pl.’s Compl., ¶ 4.12 (Dkt. 1-1) and Pl.’s First Am. Compl., ¶ 22 (Dkt. 78). Hence, although
Plaintiff alleges that LFN may have once suggested that overtime would be paid through
Jacksons, Jacksons itself never stated that to Plaintiff or anyone else. But see infra (discussing
12/13/13 and 1/16/14 emails from Steve Bower to Plaintiff and other JJC pilots).
MEMORANDUM DECISION AND ORDER - 10



“Mr. Kreb did not receive the per diem pay promised by LFN during his training
period.” Id. at ¶ 34 (emphasis added).



“JJC only paid Mr. Kreb ‘straight time’ pay and limited their payments to 80 hours
per two-week pay period, regardless of the hours he worked.” Id. at ¶ 38.



“This was not what LFN promised Mr. Kreb at the time he was hired, nor was it
what he understood federal overtime law required.” Id. at ¶ 39 (emphasis added).



“After Mr. Kreb protested this change in pay, Steve Bower, Director of Operations
for JJC, wrote the three Lewiston pilots, Mr. Kreb, Matt Stewart, and Craig Young,
and stated that JJC hired the three pilots as ‘salaried professionals.’” Id. at ¶ 40.



“Mr. Bower explained that JJC had decided to pay the pilots by using the LFN
hourly rate and then multiplying it by an approximate 2184 hours ‘normally worked
in a year’ by the pilots, converting their pay to a ‘salary’ rate. Their paycheck
reflected 80 hours, though he acknowledged that this was not the hours that they
actually worked. In fact, the pilots were scheduled to be working at least 84 hours
per work week.” Id. at ¶ 41.



“This pay arrangement was not communicated to Mr. Kreb at the time of hire.” Id.
at ¶ 42.



“Mr. Bower added that when LFN soon became their employer, that they would
have a method of paying for overtime compensation. Mr. Kreb believed that he
was entitled to overtime compensation not only due to his original agreement when
he was hired but also under federal overtime law.” Id. at ¶ 43.



“Mr. Kreb continued to raise his objections regarding wages with Defendants.” Id.
at ¶ 44.



“Beginning in March 2014, Mr. Kreb began working additional days, but was not
paid double time pay as he had been promised by LFN.” Id. at ¶ 45 (emphasis
added).



“Defendants did not compensate Mr. Kreb for this [(shift change and safety briefing
and other pre-flight duties)] ‘off the clock’ time.” Id. at ¶ 47.



“As a result of Defendants’ failure to correct these pay issues, Mr. Kreb was not
paid wages as required by law, including hourly pay and overtime pay
requirements.” Id. at ¶ 48.



“At no time did Defendants assert or make known to Mr. Kreb that they allegedly
thought he was exempt from overtime pay.” Id. at ¶ 49; but see id. at ¶¶ 40-41.

MEMORANDUM DECISION AND ORDER - 11



“When Mr. Kreb complained to JJC’s agent, Wayne Werner, regarding pay, Mr.
Werner stated, ‘Thanks for reaching out to LFN as this is the proper channel to go
through.” Id. at ¶ 50 (emphasis added).



“Mr. Kreb also protested to LFN that is promises to pay him more were not honored
during those first six months of employment.” Id. at ¶ 51 (emphasis added).



“Mr. Fergie, LFN Chief Pilot, acknowledged the issue on June 19, 2014, telling Mr.
Kreb, ‘Soon we will be under one umbrella’ and they could address the problems
then.” Id. at ¶ 52.



“After the pilots protested the discrepancies between the promised compensation
and the compensation actually received numerous times, Ryan Swakon for LFN
finally called a conference call between the Lewiston pilots and himself. Id. at ¶ 54
(emphasis added).



“In that conference call on July 8, 2014 Mr. Swakon admitted that there were issues
with pay that needed to be corrected.” Id. at ¶ 55 (emphasis added).



“Mr. Swakon assured the pilots that going forward, their overtime pay and flight
differential promises would be honored.” Id. at ¶ 56 (emphasis added).



“Steve Bower sent an email confirming LFN’s commitment to honor their promises
regarding pay the following day to all of the pilots in Lewiston who flew for LFN.”
Id. at ¶ 57 (emphasis added).
The record itself mirrors the focus of Plaintiff’s pleadings, i.e., that, if anything, it was

LFN – not Jacksons – that made promises to Plaintiff (and that Plaintiff understood as much).
The record also provides factual context to Plaintiff’s claim for additional benefits, context that
illustrates real-time facts regarding what was said, and by who/whom. For example, on
December 13, 2013, Jacksons’ Steve Bower relayed to Plaintiff that he “will receive a $1000
annual ATP stipend, full-time [JJC] pilot benefits, and additional compensation for hours
worked beyond your scheduled shifts.” Ex. 6 to Kreb Decl. (Dkt. 141-6) (emphasis added).
Importantly, Mr. Bower did not say that Jacksons would be responsible for these benefits (other
than the full-time JJC pilot benefits). See id. The distinction was further illustrated a month later
when the first pay checks went out and LFN pilots were told that (as to their relationship with
Jacksons) each was “a salaried exempt employee, which means that you are paid the same
MEMORANDUM DECISION AND ORDER - 12

amount every 2 weeks regardless of your schedule or the amount of hours you work.” Ex. 5 to
Kreb Decl. (Dkt. 141-5). An email to the pilots from Mr. Bower two days later, on January 16,
2014, repeated the information, stating in relevant part:
I hired you as salaried professional pilots. That is an exempt employee status,
meaning that you are not entitled to overtime pay, nor are you docked when your
schedule involves less than 40 hours per week. For example, you are receiving
your normal salary now while waiting for us to be able to start your local training.
I converted the hourly rate [LFN] told me to an annual salary by multiplying it by
the 2184 hours you will normally work in a year. Our payroll department converted
that annual salary to a bi-weekly salary by dividing it into 26 pay periods. The pay
stubs will show 80 hours per pay period even though we understand that your
schedule will always differ from that.
Regarding the ATP stipend, I misunderstood and consequently mis-communicated
what [JJC] can do. We require all our pilots to have an ATP as a condition of
employment, so we don’t pay a bonus for it. [LFN], when they get their certificate
and become your employer, may be able to offer that bonus as they described in
their hiring request details.
Regarding extra pay for shifts longer than 12 hours, you would have to become
non-exempt employees (hourly) to earn what amounts to overtime. We aren’t set
up that way, but again, [LFN] apparently will have a method to honor that feature
when they become your employer.
For now, I hope you enjoy your paid time at home waiting for us to get ready to
begin your training here. It currently appears that we will be ready on or about
Monday, January 27. . . .
Ex. F to Gunn Decl. (Dkt. 126-5) (emphasis added).6 The correspondence that followed is
consistent on the subject of, and leaves no room for ambiguity, the different obligations as
between Jacksons and LFN, namely:

6

Two other LFN pilots hired by Jacksons, Craig Young and Aaron Roark, reiterated that
“it was made clear to [themselves] and the other pilots that we were salaried employees and
would not receive overtime compensation from [JJC]” and that, at the time of hire, “it was also
made clear . . . that we would receive [JJC] benefits, and that any differential in the benefits
between [JJC] and [LFN] would be the sole responsibility of [LFN].” Young Decl., ¶¶ 3-4 (Dkt.
126-3); Roark Decl., ¶¶ 3-4 (Dkt. 126-4). Their employment with Jacksons terminated on
August 11, 2014 and neither was hired by LFN. See Young Decl., ¶¶ 11-12 (Dkt. 126-3); Roark
Decl., ¶¶ 5-6 (Dkt. 126-4).
MEMORANDUM DECISION AND ORDER - 13



In a June 7, 2014 email to Aaron Roark and Craig Young, Plaintiff responded to a
schedule change proposal involving the three JJC/LFN pilots, stating: “I think this
is what you were after. I do not believe extra day pay for my two 8-day weeks you
propose for me [sic] and I cannot agree to that particularly until our
overtime/holiday pay issue with LFN is remedied.” Ex. J to Gunn Decl. (Dkt. 1265) (emphasis added); see also id. (Plaintiff’s subsequent email four minutes later
stating: “My extra day pay for 2 8-day weeks will not likely be approved.”).



In a June 12, 2014 email to JJC/LFN pilots, JJC’s Ryan Pike states in relevant part:
“Hey guys, BJ Miles from [LFN] is coming out on 6/24 to do your AMRM training.
All of you are required to be in attendance. Aaron and Craig, I’ll need you [to] stay
an extra day for this, and we’ll bill [LFN] for the overtime for you.” Ex. 1 to Kreb
Decl. (Dkt. 141-1) (emphasis added).



In a June 19, 2014 email string between Plaintiff and LFN’s Ron Fergie, Plaintiff
attempted to “clear[ ] up the discrepancy of pay/benefits between the LWS
[(Lewiston-Nez Perce County Regional Airport)] FW [(fixed-wing)] Pilots and
those hired from Aero Air and other places in recent months,” complaining that:
BJ Miles is conducting Mandatory Attendance Safety Training next
week in Lewiston. Dan [Jackson] will be compensated with
substantial overtime consideration and per diem while LWS Pilots
will only receive a flat daily rate for the same attendance. I heard a
rumor our 4th was hired and will likely be receiving that same
compensation subsidy as the other newer hires while we continue to
be deferred/limited to only that salary schedule from Jacksons?
I am hoping you have encouraging news for LWS Pilots’
assimilation of overtime/pay as the newer hires’ or positive
feedback from your meeting last week with Senior Management you
hoped to raise this issue?
Ex. K to Gunn Decl. (Dkt. 126-5) (emphasis added).



On June 19, 2014, Ron Fergie [LFN] responded to Plaintiff about his understanding
of LFN’s pay protocols, saying he had talked to “[LFN’s] Ryan [Swakon] about
this issue” and that:
[H]is explanation to me was that the daily rate is based on time and
a half and should work out to be about the same. He also said you
had an opportunity to address this with him but you said you didn’t
have any problems. I have cc’ed Ryan on this email as he is the one
who would be most able to explain and or help with the pay
structure. I hope this will help.
Id.



On June 19, 2014, Plaintiff then responded to Ron Fergie, stating in relevant part:

MEMORANDUM DECISION AND ORDER - 14

I have been on a merry-go-round of deferrals to find relief on this
issue for far too long, but to no avail. I apologize I only felt it proper
to begin with you in the anticipated chain of command.
I haven’t spoke to Ryan since he called after I returned to cover Matt
Stewart’s shift when he was let go in March. I heard Ryan was in
Boise when I delivered 890WA for a 100-hr but was inclined time
constraints of his scheduled departure [sic] did not leave adequate
time to address the aircraft squawk list with Brent Demer and also
address the pay and benefits issue I was not prepared to raise in such
little amount of time Wayne Warner made no promises would
actually be available for me [sic].
....
Dan Jackson has stated he and all of the newer hires are receiving
the same [JJC] daily pay rates as Lewiston hires, but then making
entry in the LFN ADP payroll site for additional overtime for
additional days of work, travel and all duty days exceeding 7 normal
12-hr shift as well as additional compensation for holiday pay when
worked and per diem when away from their bases. Dan has also
stated he and the other pilots are included on the LFN insurance
programs and not limited [to] Jacksons coverages as the Lewiston
pilots are at much higher premiums, deductibles and at lesser
coverages.
All of these measures were promised to me when I was interviewed
and hired in December where no deferral or differentiation was
inferred to commensurate with LFN receiving a Certificate and Ops
Specs except for benefits which were stated would be supplemented
where deficient on Jackson’s coverage until such time as open
enrollment with LFN could be made available [sic].
This could be construed as a reduction in promised compensation in
addition to salary negotiations I chose to defer as a result of
additional promises of leadership, advancement and or lateral
assignment to new base location opportunities that we previously
discussed and were provided a loosely diplomatic and quaint
deferral and discount of my potential grievance having not even
been notified such actions were ensuing, much less tender my desire
for consideration or candidacy [sic].
We have broken our backs and sought to give 150% to the mission
and vision of LFN with Fixed Wing ops cutting a lot of roads and
pouring a lot of foundation that did not previously exist, without a
safety net and yet, with considerable positive results because LFN
MEMORANDUM DECISION AND ORDER - 15

has been raved as the best to care for its staff and the best and highly
sought places for its staff to call home. LFN’s treatment of the same
group of workers differently in compensation and access to benefits
because their roots are alternatively traced and as a direct result of
a backroom deal out of necessity or convenience has to be
recognized as inconsistent if not counterproductive and even
detrimental to such accolades?
Please forward as necessary. It is disappointing to go months
without any advocate for relief or for anyone to accept ownership,
obligation and/or pride and stewardship of us in LWS FW and all
the hard work and loyalty we have dispensed, only to take a back
seat to a pompous Aero Air Contingent that was interested in
coming to LFN only after their cushy entrenchment in Hillsboro was
in jeopardy by maturing of the LFN FW Commander Contract.
I apologize for any grief caused you. Surely you can imagine my
exhaustive pursuit to date and hope for any miniscule grain of
remedy but deferred at every turn while the status quo prevails,
negatively affecting my income, expenditures for a lackluster health
plan and a ridiculous commute every week [sic].
Id. (emphasis added).


Then, in a June 26, 2014 email to LFN’s Ryan Swakon and Ron Fergie, Plaintiff
stated in relevant part:
In attending BJ’s AMRM briefing Tuesday, I was elated to find
affirmation, recollection and support implicated in my pursuits
since April to remedy exclusion of LWS FW Pilots from conciliatory
provisions to other pilots more recently hired. . . . .
I am going to break the biggest rule of negotiation by disclosing
upfront: I will not be escalating my assertions beyond this
conclusive criticism to further confront or create a conflict because
of these inducements. Even if justified and appreciable on very
significant aspects of our recruitment or future roles with LFN, I do
not feel anyone will properly benefit from drawing any lines in the
sand on these issues.
Therefore, I will simply speak my peace in three simple and concise
points, withhold demand or place any expectation upon LFN for
remedy. It is at LFN’s pleasure, whether to operate within mission
specifications and parameters they set and then disclosed when I
joined the team. My aim is only to draw attention and/or distinction;
this aircraft’s attitude and situation are not in alignment or is
deviating from a course and objectives that we agreed upon at my

MEMORANDUM DECISION AND ORDER - 16

hire and for our mutual enrichment. The value of my input as a crew
of this mission of LFN can only be determined by leadership at LFN.
Fear of reprisal by my fellow crew mates to speak up or their refusal
to tender a view when solicited “do you have any problems” should
not be an adequate gauge of their health, morale or support for
reported flaws in any LFN operation.
1. Compensation
I was tendered an offer for an hourly wage to accept the LWS FW
Position. Jackson’s payroll system/structure lacked an ability for
payroll adjustments to compensate our overtime and holiday duties
and was only to be a temporary solution to surrogate our
compensation.
Dated inquiries upon learning LWS Pilots’
exclusion from adjustments provided other pilots hired well after
our induction [sic]. Jacksons has stated all pilots on LFN dedicated
operations are being compensated equally within their payroll.
Non-LWS Pilots are reported as receiving hourly, overtime, holiday
and per diem supplements by LFN.
2. Insurance Benefits
I was hired with the stated expectation to be placed upon an LFN
medical, dental, vision and life benefit coverage option(s) at the
earliest available opportunity and that any shortcomings from
limitations of coverage under any enrolled Jackson’s coverage
would be supplemented by LFN according to their attractive
coverage option(s). I have been fortunate to not require such
intervention by LFN and have yet been offered enrollment under
LFN to enjoy those benefits with that same exclusivity as cited above
regarding compensation.
3. LFN Seniority, Growth and Future Base Assignments
....
In conclusion, I am only asserting, boldly and I hope, concisely
herein, a level of criticism I wish to escalate no further in
communicating these deficiencies while omitting a host of
secondary shortcomings I hope may be resolved with complete LFN
assimilation I understand is scheduled.
I entertained complains from my LWS teammates prior to raising
the original protest in April and thoroughly discussed potential
effectiveness from our unity. Aaron [Roark] and Craig [Young]
reconsidered their positions and were adamant, declining any
MEMORANDUM DECISION AND ORDER - 17

support and asked to be excluded in any communication I made to
LFN. Any backlash or retribution of this conclusive and intended
constructive criticism should be reserved for me alone as Craig and
Aaron have asked I not speak on their behalf. Other than confirming
and supporting context of LFN commitments during our
recruitment. Any indictment of their corporate support is purely
unintentional.
Ex. G to Gunn Decl. (Dkt. 126-5) (emphasis added).


On July 9, 2014, JJC’s Steve Bower emailed Plaintiff, Craig Young, and Aaron
Roark, stating in relevant part: “[LFN’s] Ryan Swakon told me this morning that
he contacted you all last night and that LFN is now providing you with their benefits
and overtime compensation. I think that’s wonderful. He also said you are
interested in helping fill the schedule for the missing fourth pilot now that you will
earn about double what Jacksons paid for working days off. . . . .” Ex. H to Gunn
Decl. (Dkt. 126-5) (emphasis added).7
Over and over again, the record highlights that, whatever benefits Plaintiff claims to have

been owed (but never received), such benefits were not promised to him by Jacksons when he
was recruited by LFN and later hired by Jacksons because of that recruitment, to then fly
exclusively for LFN. Likewise, it is inescapable that Plaintiff understood that Jacksons was not

7

Plaintiff argues that when deposed, LFN’s Ryan Swakon disagreed with the
representations made in Steve Bower’s July 9, 2014 email (though Plaintiff, as part of the July 8,
2014 meeting with Mr. Swakon, nonetheless alleged them to be true (see Pl.’s Am. Compl.,
¶¶ 55-57 (Dkt. 78))), claiming that he only told Mr. Bower that LFN was “moving forward with
the process to bring [JJC/LFN pilots] on board.” See Ex. 1 at 111:20-112:12 to Pl.’s Errata (Dkt.
176-1); see also id. at 114:11-14. According to Mr. Swakon, as of July 8-9, 2014, LFN was not
providing the JJC/LFN pilots with LFN benefits and overtime compensation because “[t]here’s
no way [LFN] can provide them with compensation and pay if they’re not my employees.” Id. at
112:17-113:11. Regardless, even if LFN never actually incorporated the JJC/LFN pilots into
LFN’s benefits and overtime compensation structure, it is undisputed that only LFN could
approve increases in Plaintiff’s (or other JJC/LFN pilots’) benefits and overtime compensation.
See id. at 114:15-21 (Mr. Swakon testifying that JJC/LFN pilots based in Lewiston flying on
behalf of LFN did not get any increase in their benefits and overtime compensation between July
and August 2014 “[b]ecause I did not approve it.”); see also id. at 115:3-7 (Mr. Swakon
characterizing his conversation with JJC pilots as follows: “[JJC] has their pay practices, and
LFN has our pay practices. And I did tell them on the phone that when they became an LFN
employee, they would fall under our pay practice.”) (emphasis added). This testimony aligns
with Mr. Bower’s January 16, 2014 email that the JJC/LFN pilots are not entitled to overtime
pay. See supra. It was, after all, LFN’s pay practices, not Jacksons’ pay practices, that were the
source of Plaintiff’s claims, as he repeatedly described in his communications.
MEMORANDUM DECISION AND ORDER - 18

responsible for these additional benefits, as his own communications consistently directed his
inquiries and complaints about the issue to LFN (not Jacksons) because only LFN (not Jacksons)
could account for such benefits. See supra. In this setting, Plaintiff’s claims against Jacksons
cannot stand.
In other words, where Plaintiff’s claim for failure to pay insurance-related wages (his first
claim) presumes a promise from Jacksons to pay those wages, the absence of such a promise
necessarily defeats the claim. Simply put, the record does not reflect that Jacksons was obligated
to pay Plaintiff the insurance-related wages he now seeks. And, without such an obligation,
there can be no wrongful termination in violation of public policy (his second claim) when the
claim is anchored on that (or some other) imagined obligation in the first instance. This also
upends Plaintiff’s retaliation claim under the FLSA (his third claim). Even if Plaintiff, as an
exempt employee, had a good faith belief8 that Jacksons was still responsible for his overtime
pay, the record proves there was no such responsibility, to wit: Jacksons had not paid any JJC
pilots overtime. See, e.g., Keith v. Univ. of Miami, 437 F. Supp. 3d 1167, 1171-73 (S.D. Fla.
2020) (in dismissing complaint, rejecting employee’s good faith belief that she was entitled to
more compensation under FLSA as not “objectively reasonable belief,” stating: “Where, as here,
Plaintiff was explicitly exempt and therefore not covered by the FLSA, the court concludes no
reasonable employer, given the context and content, could have perceived her complaint as a

8

On this point, Plaintiff seeks to emphasize Steve Bower’s December 13, 2013 email.
See supra. But his argument that it supports Plaintiff’s alleged good faith belief about Jacksons
paying overtime is undermined by the subsequent January 14 & 16, 2014 correspondence from
Jacksons (six months before Plaintiff was terminated), coupled with Jacksons never paying
overtime, Plaintiff’s own correspondence to LFN thereafter about overtime, Plaintiff’s
allegations in his First Amended Complaint, the Declarations of Messrs. Young and Roark, and
the deposition testimony of LFN’s Ryan Swakon. See id; see also, e.g., Range Road Music Inc.
v. East Coast Foods, Inc., 2010 WL 11527426, at *4 (C.D. Cal. 2010) (“A genuine issue of
material fact is not created where the only issue of fact is to determine which of the two
conflicting versions of the plaintiff’s testimony is correct.”).
MEMORANDUM DECISION AND ORDER - 19

genuine assertion of rights under the FLSA. . . . Because Plaintiff is explicitly exempt and
therefore not covered by the FLSA, Plaintiff’s cause of action under the FLSA is futile.”).
Plaintiff understandably seeks to emphasize some aspects of this record in isolation and
attempts to construe from such isolated pieces of the record inferences in his favor to argue a
genuine dispute of material fact to avoid summary judgment. But this is a record that must be
considered in toto, and even the inferences that Plaintiff would draw upon fail the test of being
reasonable inferences (that would then create a genuine issue of material fact) when measured
against the entirety of the record. See Anderson, 477 U.S. at 252; Scott, 550 U.S. at 380; Weston,
359 F.App’x at 870.
Even when construing all reasonable inferences in Plaintiff’s favor, no reasonable juror
could conclude that Jacksons was obligated to pay Plaintiff the at-issue additional benefits. See
id. Therefore, there is no genuine issue of material fact that would preclude entry of summary
judgment. Accordingly, Jacksons’ Motion for Summary Judgment is granted and Plaintiff’s
claims against Jacksons are dismissed.9
IV. ORDER
Based on the foregoing, IT IS HEREBY ORDERED that
1.

Defendants’ Motion for Summary Judgment (Dkt. 126) is GRANTED;

2.

Plaintiff’s claims against Jacksons are DISMISSED; and

9

After Plaintiff’s counsel withdrew on July 13, 2020, Plaintiff has represented himself
and, in that capacity, has repeatedly suggested that Jacksons has not complied with its discovery
obligations. See, e.g., Pl.’s Mem. ISO Mot. for Recusal or Disqual. of Judge, p. 6 (Dkt. 136-2).
The Court notes that the only Motion to Compel, filed on May 21, 2019, was seemingly resolved
as of June 28, 2019 (pursuant to a stipulation whereby Jacksons agreed to produce the documents
ordered by the Court on or before that date). See Mtn. to Compel (Dkt. 92); 6/12/19 Order (Dkt.
98); Stip. for Ext. of Time (Dkt. 101). Thereafter, in the parties’ February 14, 2020 and May 4,
2020 Joint Status Reports (Dkts. 112 & 113) (while Plaintiff was still represented by counsel),
there is no mention of any problematic outstanding discovery issues. Nor has another Motion to
Compel ever been filed before the expiration of the discovery deadline in this case.
MEMORANDUM DECISION AND ORDER - 20

3.

The seven-day jury trial set to begin April 13, 2021 trial is VACATED.

DATED: March 5, 2021
_________________________
Ronald E. Bush
Chief U.S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 21