Zhou v. International Business Machines Corporation et al
ORDER granting 102 Motion for Summary Judgment and denying 121 Resistance. The Clerk of Court is directed to enter judgment in accordance with the above findings. The trial date is vacated. Signed by Judge Linda R Reade on 3/31/2017. (Order emailed to plaintiff) (pac)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
RELEVANT PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . . . . . . 2
SUBJECT MATTER JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . 3
SUMMARY JUDGMENT STANDARD . . . . . . . . . . . . . . . . . . . . . . . . . 4
RELEVANT FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . 5
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
IBM and the Amtrak Team . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Zhou’s Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Request for pay increase . . . . . . . . . . . . . . . . . . . . . . . . . 9
Overtime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
February 12, 2016 through Zhou’s removal from IBM . . . . . 14
ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Age Discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Failure to hire . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Zhou’s assignments and workload . . . . . . . . . . . . . . . . . .
Application for pay raise . . . . . . . . . . . . . . . . . . . . . . . .
Underclaiming of hours . . . . . . . . . . . . . . . . . . . . . . . . .
FLSA Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Actual or constructive knowledge . . . . . . . . . . . . . . . . . . .
Just and reasonable inference . . . . . . . . . . . . . . . . . . . . .
Age discrimination . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Retaliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
The matters before the court are Defendant International Business Machines
Corporation’s (“IBM”) Motion for Summary Judgment (“IBM Motion”) (docket no. 102)
and Plaintiff Shaunpen Zhou’s “Resistance to Defendant IBM’s Motion for Summary
Judgment” (“Resistance”) (docket no. 121), in which Zhou requests partial summary
II. RELEVANT PROCEDURAL HISTORY
On April 8, 2016, Zhou filed an Amended Complaint (docket no. 52).1 The
Amended Complaint sets forth eleven claims: (1) Count I alleges that IBM violated the
“Age Discrimination in Employment Act of 1967” (“ADEA”), 29 U.S.C. § 623, by
failing to hire and promote Zhou; (2) Count II alleges that IBM and Artech Information
Systems, LLC (“Artech”) violated the ADEA by treating Zhou differently than his younger
coworkers; (3) Count III alleges that IBM violated the ADEA by deliberately under-rating
and underpaying Zhou; (4) Count IV alleges that IBM and Artech violated the ADEA by
prohibiting Zhou from claiming overtime for hours worked; (5) Count V asserts that IBM
and Artech violated the “Fair Labor Standards Act” (“FLSA”), 29 U.S.C. § 2, by
prohibiting Zhou from claiming overtime for hours worked; (6) Count VI asserts that IBM
At the time of the filing of the Amended Complaint, Zhou was represented by
Stephen T. Fieweger. On September 28, 2016, the court discharged Fieweger as Zhou’s
counsel. See Sept. 27, 2016 Order (docket no. 80). Zhou is currently appearing pro se.
violated the ADEA by retaliating against him after he filed the instant action; (7) Count VII
asserts that IBM violated the “Iowa Civil Rights Act” (“ICRA”), Iowa Code § 216.6, by
failing to hire and promote Zhou; (8) Count VIII asserts that IBM and Artech violated the
ICRA by treating Zhou differently than his younger coworkers; (9) Count IX asserts that
IBM violated the ICRA by deliberately under-rating and underpaying Zhou; (10) Count
X asserts that IBM and Artech violated the ICRA by prohibiting Zhou from claiming
overtime for hours worked; and (11) Count XI asserts that IBM violated the ICRA by
retaliating against him after he filed the instant action. On May 13, 2016, IBM filed an
Amended Answer (docket no. 68), generally denying liability and setting forth affirmative
On December 15, 2016, Artech moved for summary judgment.
generally Artech Motion for Summary Judgment (docket no. 99). On December 16, 2016,
IBM filed the IBM Motion. On January 23, 2017, at Zhou’s request, the court dismissed
Artech from the instant action. See Jan. 23, 2017 Order (docket no. 122). On that same
date, Zhou filed the Resistance, requesting summary judgment in his favor on Counts III,
VI, IX and XI of the Amended Complaint. On January 26, 2017, IBM filed a Reply
(“Reply”) (docket no.124). No party requests oral argument, and the court finds that oral
argument is unnecessary. The Motions are fully submitted and ready for decision.
III. SUBJECT MATTER JURISDICTION
The court has original jurisdiction over the ADEA and FLSA claims because they
arise under the United States Code. See 28 U.S.C. § 1331 (“The district courts shall have
original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of
the United States.”). The court has supplemental jurisdiction over the ICRA claims
because they are so related to the claims within the court’s original jurisdiction that they
form part of the same case or controversy. See 28 U.S.C. § 1367(a) (“[T]he district courts
shall have supplemental jurisdiction over all other claims that are so related to claims in
the action within such original jurisdiction that they form part of the same case or
controversy . . . .”). In other words, “the federal-law claims and state-law claims in the
case ‘derive from a common nucleus of operative fact’ and are ‘such that [a plaintiff]
would ordinarily be expected to try them all in one judicial proceeding.’” Kan. Pub.
Emps. Ret. Sys. v. Reimer & Koger Assocs., Inc., 77 F.3d 1063, 1067 (8th Cir. 1996)
(quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 349 (1988)) (alteration in
original) (quotation marks omitted).
IV. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate “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). “Summary judgment is proper ‘if the pleadings, the discovery and
disclosure materials on file, and any affidavits show’” an absence of a genuine dispute as
to a material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011)
(en banc) (quoting Fed. R. Civ. P. 56(c)(2)). “A dispute is genuine if the evidence is such
that it could cause a reasonable jury to return a verdict for either party; a fact is material
if its resolution affects the outcome of the case.” Amini v. City of Minneapolis, 643 F.3d
1068, 1074 (8th Cir. 2011) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
252 (1986)). “The movant ‘bears the initial responsibility of informing the district court
of the basis for its motion,’ and must identify ‘those portions of [the record] . . . which it
believes demonstrate the absence of a genuine issue of material fact.’” Torgerson, 643
F.3d at 1042 (alterations in original) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986)). Once the movant has done so, “the nonmovant must respond by submitting
evidentiary materials that set out ‘specific facts showing that there is a genuine issue for
trial.’” Id. (quoting Celotex Corp., 477 U.S. at 324).
On a motion for summary judgment, the court must view the facts “in the light
most favorable to the nonmoving party . . . .” Id. (quoting Ricci v. DeStefano, 557 U.S.
557, 586 (2009)). “Where the record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party, there is no genuine issue for trial,” and summary
judgment is appropriate. Ricci, 557 U.S. at 586 (quoting Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “The nonmovant ‘must do more than
simply show that there is some metaphysical doubt as to the material facts’ . . . .”
Torgerson, 643 F.3d at 1042 (quoting Matsushita, 475 U.S. at 586). Instead, “[t]o survive
a motion for summary judgment, the nonmoving party must substantiate his allegations
with sufficient probative evidence [that] would permit a finding in [his] favor based on
more than mere speculation, conjecture, or fantasy.” Barber v. C1 Truck Driver Training,
LLC, 656 F.3d 782, 801 (8th Cir. 2011) (second and third alterations in original) (internal
quotation marks omitted) (quoting Putman v. Unity Health Sys., 348 F.3d 732, 733-34 (8th
Cir. 2003)). Mere “self-serving allegations and denials are insufficient to create a genuine
issue of material fact.” Anuforo v. Comm’r of Internal Revenue, 614 F.3d 799, 807 (8th
V. RELEVANT FACTUAL BACKGROUND
Viewing the evidence in the light most favorable to the nonmoving party and
affording him all reasonable inferences, the uncontested material facts are as follows.
Zhou is an individual who resided in the State of Iowa at the time the instant action
was initiated.2 Amended Complaint ¶ 12. Zhou was jointly employed by IBM and Artech
until his termination. See id. ¶¶ 13-14. IBM is a corporation headquartered in Armok,
New York. Id. ¶ 13. IBM operates a “Client Innovations Center” in Dubuque, Iowa.
“IBM’s Statement of Undisputed Material Facts in Support of its Motion for Summary
Judgment” (“IBM Statement of Facts”) (docket no. 102-1) ¶ 1.
In January of 2016, Zhou relocated to Quincy, Massachusetts.
Complaint ¶ 12.
B. IBM and the Amtrak Team
Among IBM’s various teams working from the Dubuque location is the Amtrak
team. Id. ¶ 6. The Amtrak team is responsible for providing a variety of technical
services for the passenger railroad service Amtrak, including “operating system software
maintenance, operating system software trouble shooting and repair” as well as “ad-hoc
end user and other miscellaneous questions.” See id. ¶ 15. Systems administrators on the
Amtrak team are tasked with server “patching,” or “the installation of changes or upgrades
to the server environment, including security and service-related changes.” Id. ¶ 16.
Because the server must be taken offline to complete a patching assignment, so-called
“change windows,” a period of time “during which the change or patch could be applied,”
are generally scheduled over nights and weekends. Id. ¶¶ 16, 17. During the period
relevant to his action, Zhou was a systems administrator on the Amtrak team, working at
the Dubuque location. Id. ¶¶ 5, 6.
Artech is one of several temporary staffing firms with whom IBM contracts, and
the Amtrak team includes several members placed by Artech. See id. ¶¶ 2, 4. Zhou was
placed at IBM on the Amtrak team by Artech. Id. ¶¶ 5, 6. IBM would pay Artech for the
use of temporary employee’s services and, in turn, Artech would pay such employees’
wages. Artech employed a Service Delivery Manager at the Dubuque facility, Sarah
Lynch, to whom Zhou reported. Id.¶ 11.
IBM technicians fall into one of several levels, which corresponds to the complexity
of their job duties and their pay. “Rhythm” is the lowest technical level, “Blues” follows,
and “Jazz” represents the highest level. See IBM Statement of Facts ¶¶ 19, 20; see also
IBM Supplemental Appendix (docket no. 124-2) at 36-41. In early 2014, IBM received
unfavorable feedback from Amtrak regarding the team’s communication skills. See IBM
Statement of Facts ¶ 36. In response, the IBM team leader assigned to Amtrak proposed
the creation of new positions, “Subject Matter Experts” (“SME”). Id. Three such
positions were posted in 2014, and were communicated to the Amtrak team on May 20,
2014. Id. ¶¶ 36, 38. According to IBM management, the ideal candidate for the SME
position was “someone who could remain calm and professional when the customer was
yelling, explain technical concepts so that people of varying levels of technical knowledge
could understand, and could think and speak on their feet in stressful situations.” Id. ¶ 37.
Two of these SME positions were eventually filled by Mikhail Matveyev, who had
previously been a temporary employee like Zhou, and Brendan Lloyd. Id. ¶¶ 39-41.
System administrators generally reported to team leads, including the UNIX and
Intel Team Lead, to whom Zhou reported. During the relevant time period, the UNIX and
Intel team leads were: Robert Howe from Zhou’s hiring until the Fall of 2013; Heather
Majerus from Fall of 2013 through April of 2015; and David Fawcett from April of 2015
through Zhou’s removal from his IBM placement. See id. ¶ 12; see also IBM Appendix
I3 at 55, 67. In turn, team leads reported to a First Line Manager. See IBM Statement of
Facts ¶ 12. During Zhou’s time with IBM, there were three First Line Managers: William
Thompson from February of 2013 through February of 2014; Heather Chumbley from
February 2014 through August of 2014; and Jeff Segerstrom from August of 2014 through
February 22, 2016. Id. ¶ 11.
At all relevant times, IBM maintained an official overtime policy that reads as
follows: “All hours in excess of [forty] hours worked, exclusive of the employee meal
breaks, during an employee’s regular payroll workweek will be considered as weekly
overtime hours. . . . Time and one-half (1.5x base hourly rate) will be paid for hours
worked over [forty] for the week.” IBM Appendix II at 147-48. Zhou was aware of
IBM’s overtime policy and consulted IBM’s overtime policy during his placement at IBM.
IBM has filed its appendix in support of the IBM Motion in two parts. As used
in this order, “IBM Appendix I” shall refer to docket no. 102-4 and “IBM Appendix II”
shall refer to docket no. 102-5.
See IBM Statement of Facts ¶¶ 61, 62. Similarly, Artech maintains an overtime policy
that reads as follows: “The law says that you cannot waive overtime compensation. When
you are authorized to work overtime—over [forty] hours per week—you will be paid timeand-a-half for work after forty hours.” IBM Appendix II at 156. As with IBM’s policy,
Zhou was aware of and read Artech’s overtime policy. See IBM Statement of Facts ¶¶ 64,
Additionally, IBM managers receive training on the law surrounding overtime. In
particular, managers are trained that the right to overtime is governed by state and federal
law; overtime cannot be waived; even if an employee works overtime without permission,
the employee is normally paid for such hours; and “if an employee’s task takes him or her
over scheduled hours, he or she should still record that time, and IBM will pay that
employee for the time worked, even if prior authorization was not received.” See IBM
Appendix I at 123-128, 153-158. IBM has an online tool for reporting overtime hours,
which permanent employees and temporary employees like Zhou are directed to use. See
IBM Statement of Facts ¶ 67.
C. Zhou’s Employment
On November 26, 2012, Zhou and Artech entered into an employment agreement.
Id. ¶ 3; see also IBM Appendix II at 124-132. The employment agreement with Artech
set Zhou’s regular compensation at $40.00 per hour and overtime compensation at $60.00
per hour. See IBM Appendix II at 130. In approximately March of 2013, Artech placed
Zhou with IBM as a temporary employee at its Dubuque location. IBM Statement of Facts
¶ 5. Zhou was placed as a UNIX Systems Administrator with the Amtrak Team. Id. ¶ 6.
Zhou was placed at IBM as the lowest level technician, equivalent to the “Rhythm” level
for an IBM permanent employee. Id. ¶ 19. At IBM, Zhou primarily reported to the
UNIX and Intel Team Lead. See id. ¶ 12. He would receive assignments that had to be
completed within certain change windows, but it was up to employees to finish the
assignments within the forty regular hours allotted for the week, or request overtime to
complete such assignments. See, e.g., IBM Appendix II at 89.
At IBM, Zhou was one of the most technically skilled systems administrators on the
team and was regularly assigned the most technically challenging assignments. See Zhou
Affidavit (docket no. 121-3) ¶ 9. He was praised on several occasions for his technical
prowess. See Zhou Statement of Facts (docket no. 121-2) ¶¶ 10-16. Shortly after joining
the Amtrak team, Zhou uncovered a faulty practice in the way that IBM was patching
Amtrak’s servers. See Zhou Affidavit ¶ 11. For this reason, IBM assigned him the task
of patching the Amtrak servers, resulting in heavy workloads and extreme hours to
complete his assignments. See, e.g., id ¶¶ 20, 24, 25.
Request for pay increase
On or about February 24, 2014, Zhou contacted Lynch to formally request
reclassification to a higher skill level and a pay increase. See IBM Statement of Facts
¶ 47. Zhou’s request would increase Zhou’s hourly cost to IBM by $8.76 for regular time
and $14.16 for overtime. Id. ¶¶ 48-49. Such additional cost to IBM would then be
reflected in Zhou’s wages from Artech. Lynch passed Zhou’s request on to Chumbley.
Id. ¶ 47.
On April 9, 2014, Chumbley emailed Kim Mattox, Chumbley’s Senior Manager and
Service Integration Leader, and stated:
Are you interested in bringing this forward to raise Shaunpen’s
rate in an effort to retain him? I can’t afford to lose him now,
but with his communication problems (coming across as
argumentative with the customer on the line, with his team
lead and me). I have been keeping him on patching with help
from Brian on the ecab calls to keep him from communicating
with Amtrak as much as possible.
IBM Appendix II at 21; see also IBM Statement of Facts ¶ 50. Ultimately, on June 12,
2014, Chumbley replied to Lynch and another Artech representative and stated:
While Shaunpen does have some useful skills, my team leads
and I continue to have trouble getting Shaunpen to take
direction without significant argument. He frequently is
argumentative when our client asks him to do things as well.
For these reasons, I would not support an increase in rate for
IBM Appendix II at 27. Accordingly, Zhou was denied a pay increase.
IBM made regular attempts to inform Zhou and the other employees, both
temporary and permanent, of IBM’s overtime policies.4 Periodically, IBM restricted the
availability of overtime hours that employees could work as a cost-control measure.
See IBM Statement of Facts ¶ 76. Other times, IBM was less restrictive of the amount of
overtime that its employees could work. However, at all times, employees were required
to report all hours worked including overtime, regardless of whether they received
preapproval. See, e.g., IBM Appendix I at 120. IBM took measures to ensure that its
employees were aware of the overtime requirements as detailed below.
For example, on August 16, 2013, Thompson sent an email stating that “no
[overtime] is to be worked without prior written approval.” IBM Appendix I at 131. In
mid-November of 2013, Thompson and Majerus had a meeting with Zhou and stated that
no overtime was a rule and reminded Zhou that he was a contractor and he could be
replaced at any time. See Amended Complaint ¶ 83. At that time, Thompson also
directed Zhou to accurately claim all hours worked. See IBM Statement of Facts¶ 76.
After the meeting, Majerus sent Zhou an email that stated the following:
I would like to reiterate to you that it has been made clear by
[Thompson] as well as . . . [m]yself that claim[s] need to be
With respect to overtime, IBM appeared to apply its overtime procedures equally
to its own employees and employees of staffing firms like Artech, of which Zhou was one.
Therefore, with respect to overtime, where the court or the record refers to an “employee”
the court will assume that it applies to permanent and temporary employees alike.
100% accurate. . . . You are provided assignments on a
weekly basis and your [forty] hours needs to be allocated and
scheduled out as such. The expectation is that you work
[forty] hours per week unless you have an approval for
overtime. . . . There can be no exception to accuracy of
IBM Appendix II at 89. Zhou responded to Majerus later that evening, stating that he had
never over-claimed hours and that he could not predict how long his nightly patching
changes would take. Id. at 88. Zhou further stated that, if the patching changes took
longer than expected, he would simply claim eight hours. Id.
On March 14, 2014, Chumbley emailed Zhou and CC’ed Lynch, stating:
I do not want you to claim your hours different than what you
work. You must claim exactly what you work. . . . Overtime
must be pre-approved before you work it. . . . We (your
manager, team lead, change coordinator, and dispatcher) do
not have the technical expertise to know if we are scheduling
too much or too little work for you. We need you to review
your changes one or two weeks ahead to make sure that you
will not have too much work to fit in a [forty] hour week.
Id. at 29-30. Chumbley separately emailed Lynch, informing her that she had orally
related the substance of the email to Zhou but “wasn’t sure he got it.” Id. at 32.
Chumbley also informed Lynch: “He keeps saying he’s willing to work without claiming
and I want to make sure he knows that I don’t want him to do that.” Id. at 32. On April
25, 2014, Chumbley again emailed Zhou, stating:
It has come to my attention that you worked over [forty] hours
this week. . . . I want you to tell us if we are scheduling you
for too much work. If someone is asking you to do work that
will put you over [forty] hours, with the changes that you have
already scheduled, you need to tell them that. . . . I cannot
keep track of how many hours everyone on the team has spent.
Id. at 29.
During Zhou’s time on the Amtrak team, he claimed and was paid overtime hours
for half of the weeks that he worked. See IBM Statement of Facts ¶¶ 90-91; see also IBM
Appendix II at 181-95. In total, Zhou reported and was paid for over 575 hours of
overtime. See IBM Statement of Facts ¶¶ 91-92; see also IBM Appendix I at 41 (Zhou
deposition testimony stating that IBM paid him what he claimed).
IBM periodically inquired into Zhou’s overtime hours. When Zhou grew close to
reaching his regular-time hours for the week, IBM would either authorize him to work
overtime, or ask him to stop working so that he did not exceed his forty regular-time
hours. See, e.g., IBM Appendix II at 38 (instant message conversation between Chumbley
and Zhou wherein Chumbley asks Zhou “to leave early [the next day] to keep it to [forty]
hours total for the week” and Zhou agreed); IBM Appendix II at 44 (email from Chumbley
to a project manager stating that “Shaunpen is out of hours for the week and [she had]
decided not to request overtime for him”); IBM Appendix II at 99 (instant message
conversation between Zhou and Majerus wherein Majerus directs Zhou to not work any
more during that week because he had already worked thirty-eight hours and, after being
called in for an emergency began compiling overtime hours); IBM Appendix II at 107
(instant message conversation between Zhou and Majerus wherein Majerus instructs Zhou
to take the weekend off once he reached forty hours and reminds him that any additional
time should be claimed as overtime). On several occasions, Zhou refused to fully disclose
how much overtime he had worked until prompted by Majerus. See id. at 65 (instant
message conversation between Majerus and Zhou wherein Majerus inquired as to the
amount of overtime Zhou worked for the week, and Zhou stated “[t]his week [three] hours
OT” and then confessed to five hours after Majerus asked “thats [sic] it? are you sure?”).
For example, on May 8, 2014, Majerus and Zhou had the following instant message
Shaunpen, I need to know how many hours you
have worked for the week and with your change
tomorrow night how much OT will you need so
I can get it approved
for [a change] I think need 1 hour --- 30 min for
the noon conference call ; 30 min for night
But you have worked every day since Saturday
so I know I owe you more than that. I need you
to include all your hours and tell me where you
. . . If could , then I say 8 hours OT this week
plus tomorrow what ever will happen
right. Thats [sic] how you are supposed to do it.
Thank you . Right now I will ask for 15 hours of
OT for you , so if tomorrow is a long day and
then you have your night stuff too. You claim
as much of it as you end up needing. Its [sic]
very important to do it correctly. Thanks for
Id. at 95.
It was Zhou’s practice to simply claim that he worked forty hours per week on his
time sheets, even though he regularly worked over seventy overtime hours. See IBM
Statement of Facts ¶ 112; see also IBM Appendix I at 66 (Zhou deposition testimony
stating that he “always claim[ed] less than [he] worked”). Zhou did not ever “keep notes
or any kind of a record on a calendar or anything else about how many hours [he] worked
on any . . . day” because he claims he was too busy and did not have time to do so. IBM
Appendix I at 38. Zhou did not claim all the overtime hours he worked because he feared
being reprimanded for claiming too much overtime, due to IBM’s sometimes restrictive
overtime policy. See id. at 82. However, Zhou also admits that he “never got in trouble”
for claiming overtime. Id. It was Zhou’s practice to claim about half the overtime that
he worked in a given week, though such calculations were approximations. See id. at 83;
see also IBM Statement of Facts ¶¶ 70-72.
February 12, 2016 through Zhou’s removal from IBM
Zhou was assigned to a particular project on the evening of February 11, 2016, that
required him to work through the early morning of February 12, 2016. See IBM
Statement of Facts ¶ 113. The project required Zhou to patch one of Amtrak’s servers.
His customer contact for the project was Warren Enszer, an Amtrak employee who had
previously worked for IBM and reported to Segerstrom. Id.
On Friday, February 12, 2016, at 3:11 a.m., Enszer sent Segerstrom the following
I’m not sure if Shaunpen reports to you, but I’m hoping you
can help so that we can get this process and behavior
straightened out for future changes. I worked with Shaunpen
on this change tonight, and I had a very difficult time working
with him. I experienced what I believe to be quite
unprofessional behavior. . . .
I believe Shaunpen should have been directing this change. I
never saw an email from him without first contacting him
myself. . . . After I removed the blackout, I noticed that there
were some root file system alerts. These are not owned by us.
As a courtesy, I let him know about these, and he began
yelling at me and arguing with me that I or the application
owners should be opening tickets for these.
We need to get this process nailed down, unless this is just a
IBM Appendix I at 164. At 4:36 a.m., John Gardiner, Enszer’s supervisor at Amtrak,
emailed Segerstrom and included Enszer’s earlier email, stating: “Jeff, please call me
about this change.” IBM Supplemental Appendix at 53. Segerstrom called Gardiner just
after 6:00 a.m. and, during the phone call, Gardiner requested higher level
technicians—above Zhou’s level—to resolve the issue with the Amtrak server. See IBM
Statement of Facts ¶ 115. Later that morning, at 11:31 a.m., Segerstrom responded to
Enszer and stated the following:
Warren, yes Shaunpen does report to me and I will address
this issue. Thank you for bringing this to my attention.
Shaunpen has always had what seems to be almost rude
behavior but that has just been his commincation style and his
intent was never to be rude. In fact he is Marilyn’s favorite
patcher but what your [sic] describing sounds beyond the norm
for his behavior. I do apologize and I will handle. Thanks.
Zhou Appendix I5 at 83.
Segerstrom determined that he would request that Artech remove Zhou from
placement at IBM. See IBM Statement of Facts ¶ 120. However, because Segerstrom was
out of the office on February 12, he was not able to communicate with IBM’s human
resources leader until Monday, February 15, 2016. Id. ¶ 121. At that time, human
resources stated that the request was being forwarded for approval, and Segerstrom took
no immediate further action with regard to Zhou. Id. ¶¶ 121-22. Segerstrom received
approval to request Zhou’s removal from his IBM placement on Thursday, February 18,
2016. Id. ¶ 123. The approval stated that he could inform Artech of IBM’s request on
Friday, February 19, 2016. Id. ¶ 123. On February 19, 2016, Zhou served his initial
disclosures in the instant case. Id. ¶ 125. Segerstrom informed Artech of IBM’s request
for Zhou’s removal on Monday, February 22, 2016, and Zhou was removed from the IBM
placement later that day. Id. ¶ 124, see also Zhou Appendix I at 95-96.
Zhou has filed his appendix in support of the Resistance in two parts. As used in
this order, “Zhou Appendix I” shall refer to docket no. 121-4 and “Zhou Appendix II”
shall refer to docket no. 121-5.
The ADEA makes it unlawful for an employer “to fail or refuse to hire or to
discharge any individual or otherwise discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because of such
individual’s age.” 29 U.S.C. § 623(a)(1). The ADEA also makes it unlawful for an
employer “to discriminate against any individual . . . because such individual . . . has
opposed any practice made unlawful by [the ADEA], or because such individual . . . has
made a charge . . . or participated in any manner in an investigation, proceeding, or
litigation under this chapter.” 29 U.S.C. § 623(d). In this way, the ADEA prohibits
employment discrimination based on age and prohibits retaliation for engaging in protected
activity related to allegations of age discrimination.
Similarly, the ICRA makes it unlawful to discriminate against an individual on the
basis of age in the employment context. See Iowa Code § 216.6(1)(a). The ICRA also
prohibits retaliation “against another person in any of the rights protected against
discrimination by this chapter because such person has . . . filed a complaint, testified, or
assisted in any proceeding under this chapter.” Id. § 216.11(2). Zhou has brought
discrimination and retaliation claims under the ADEA (Counts I-IV, VI) and under the
ICRA (Counts VII-XI).
Under both the ADEA and the ICRA, a plaintiff may either offer direct evidence
of discrimination or prove his case through indirect evidence of discrimination under the
burden shifting framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Gibson v. Am. Greetings Corp., 670 F.3d 844, 855-56 (8th Cir. 2012).
“Direct evidence of discrimination must show ‘a specific link between the alleged
discriminatory animus and the challenged decision, sufficient to support a finding by a
reasonable fact finder that an illegitimate criterion actually motivated the adverse
employment action.’” Hutton v. Maynard, 812 F.3d 679, 683 (8th Cir. 2016) (quoting
Russell v. City of Kan. City, 414 F.3d 863, 866 (8th Cir. 2005)). Such evidence
“encompasses comments or statements indicating discriminatory intent, where those
comments are made by people with decision-making authority.” Id. The same analysis
applies with respect to claims of retaliation. Here, Zhou has not alleged direct evidence
of discrimination or retaliation.
Accordingly, to prevail on his claims, Zhou must
demonstrate the existence of a genuine dispute of material facts regarding indirect evidence
of discrimination or retaliation.
Under the McDonnell Douglas burden-shifting framework, the initial burden rests
on the plaintiff to establish a prima facie case of discrimination. See Gibson, 670 F.3d at
856. Once a plaintiff has done so, “the burden shifts to [the employer] to provide a
legitimate, nondiscriminatory reason for the [adverse employment action].” Id. (alterations
in original) (quoting Haigh v. Gelita USA, Inc., 632 F.3d 464, 468 (8th Cir. 2011)).
“Finally, if [the employer] provides such a reason, the burden returns to [the plaintiff] to
prove [the employer’s] reason was mere pretext for discrimination.” Id. (alterations in
original). “At all times, the plaintiff retains the burden of persuasion to prove that age was
the . . . cause of the termination.” Hilde v. City of Eveleth, 777 F.3d 998, 1004 (8th Cir.
2015) (quoting Rahlf v. Mo-Tech Corp., 642 F.3d 633, 637 (8th Cir. 2011)). The same
analysis applies to claims of retaliation.
The FLSA is designed to protect employees’ rights to not work in “labor conditions
detrimental to the maintenance of the minimum standard of living necessary for health,
efficiency, and general well-being of workers.” 29 U.S.C. § 202(a). “It does so in part
by setting forth substantive wage, hour, and overtime standards.” Kasten v. Saint-Gobain
Performance Plastics Corp., 563 U.S. 1, 11 (2011). The FLSA provides that, unless one
of several exemptions applies, “no employer shall employ any of his employees . . . for
a workweek longer than forty hours unless such employee receives compensation for his
employment in excess of the hours above specified at a rate not less than one and one-half
times the regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). The Eighth
Circuit Court of Appeals has warned that exemptions to the FLSA’s overtime provision
should be strictly construed and that remedial provisions should be given “[a] generous
reading, in favor of those whom [C]ongress intended to benefit from the law.” Kelley v.
Alamo, 964 F.2d 747, 750 (8th Cir. 1992); see also Nw. Airlines v. Jackson, 185 F.2d 74,
77 (8th Cir. 1950) (“[T]he Fair Labor Standards Act . . . should be strictly construed to
the end that . . . exemption[s] will not be enlarged beyond [their] necessary exten[t] and
in order that the Act will accomplish as fully as possible the remedial purposes for which
it was designed.”). “An employee who sues for unpaid overtime ‘has the burden of
proving that he performed work for which he was not properly compensated.’” Holaway
v. Stratasys, Inc., 771 F.3d 1057, 1059 (8th Cir. 2014) (quoting Anderson v. Mt. Clemens
Pottery Co., 328 U.S. 680, 686-87 (1946), superseded by statute on other grounds). Zhou
has brought a single claim for unpaid overtime under the FLSA (Count V).
Initially, the court notes that Zhou was technically an employee of Artech, not IBM.
The Equal Employment Opportunity Commission (“EEOC”) has released enforcement
guidance that squarely addresses this issue. See EEOC, No. 915.002, Enforcement
Temporary Employment Agencies and Other Staffing Firms (1997), available at
https://www.eeoc.gov/policy/docs/conting.html. The EEOC states that “[t]he staffing firm
and/or its client will qualify as the worker’s employer(s) if . . . one or both businesses
have the right to exercise control over the worker’s employment.” Id. The EEOC further
states that “[a] client of a temporary employment agency typically qualifies as an employer
of the temporary worker during the job assignment, along with the agency. This is
because the client usually exercises significant supervisory control over the worker.”6 Id.
The EEOC Enforcement Guidance defines a temporary employment agency as one
In the Title VII context, the Eighth Circuit has stated that “nothing in the law
precludes the possibility that a person may have two or more employers for the same
work.” Hunt v. State of Mo., Dep’t of Corrections, 297 F.3d 735, 742 (8th Cir. 2002).
Under the ADEA, courts employ a common law test to determine a worker’s employment
status, and such issue is a question of law, “and therefore ‘may often be decided by the
court on a summary judgment record.’” Alexander v. Avera St. Luke’s Hosp., 768 F.3d
756, 761-62 (8th Cir. 2014) (quoting Ernster v. Luxco, Inc., 596 F.3d 1000, 1006 (8th
Cir. 2010)). The common law test rests on the
hiring party’s right to control the manner and means by which
the product [of work] is accomplished. Among the other
factors relevant to this inquiry are the skill required; the source
of the instrumentalities and tools; the location of the work; the
duration of the relationship between the parties; whether the
hiring party has the right to assign additional projects to the
hired party; the extent of the hired party’s discretion over
when and how long to work; the method of payment; the hired
party’s role in hiring and paying assistants; whether the work
is part of the regular business of the hiring party; whether the
hiring party is in business; the provision of employee benefits;
and the tax treatment of the hired party.
Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992) (quoting Cmty. for
Creative Non-Violence v. Reid, 490 U.S. 730, 751-52 (1989)).
Examining the factors above, the court concludes that both Artech and IBM were
Zhou’s employers for purposes of his civil rights claims. Although Zhou signed an
who “recruits, screens, hires, and sometimes trains its employees. It sets and pays the
wages when the worker is placed in a job assignment . . . [and] bills the client for the
services performed.” Id. Additionally, “the client typically controls the individual’s
working conditions, supervises the individual, and determines the length of the
assignment.” Id. Under the EEOC’s definition, the court will consider Artech to be a
temporary employment agency.
employment agreement with Artech alone, and Artech paid his wages, IBM exercised
significant control over every other aspect of Zhou’s employment. IBM controlled Zhou’s
work assignments and when such assignments were to be completed, provided him
equipment and a workspace and determined when his assignment would end. The court’s
conclusion aligns with the majority of other courts that have addressed this issue and the
EEOC enforcement guidance. See Butler v. Drive Auto. Indus. of Am., Inc., 793 F.3d
404, 415 (4th Cir. 2015) (concluding that both a temporary staffing agency and the
manufacturer at which a plaintiff was placed by such agency were the plaintiff’s employers
because the manufacturer maintained a significant degree of control over the day-to-day
terms of the plaintiff’s employment and the staffing agency paid, disciplined and
terminated the plaintiff); Johnson v. Manpower Prof’l Servs., Inc., 442 F. App’x 977, 982
(5th Cir. 2011) (holding that a staffing agency’s client was the plaintiff’s employer for
purposes of the plaintiff’s Title VII claims, even though the staffing agency paid the
plaintiff and controlled her placement at the client, because the client so completely
controlled the terms and conditions of the plaintiff’s work); McQueen v. Wells Fargo Home
Mortg., 955 F. Supp. 2d 1256, 1279-80 (N.D. Ala. 2013) (finding that both the temporary
staffing agency and client were an ADEA and Title VII plaintiff’s employers); see also Ash
v. Anderson Merchs., LLC, 799 F.3d 957, 961 (8th Cir. 2015) (directing courts to consider
the “economic realit[ies]” of a relationship between a putative employer and employee to
determine the hired party’s employment status). But see Scott v. UPS Supply Chain Sols.,
523 F. App’x 911, 912-13 (3d Cir. 2013) (applying the Darden factors and concluding that
a plaintiff who was paid by, formally employed by and remained under formal employment
of a staffing agency rather than the staffing agency’s client, was solely an employee of the
staffing agency). Additionally, the court notes that IBM does not contend that it is entitled
to summary judgment specifically on these grounds. Accordingly, the court finds that IBM
was one of Zhou’s employers for purposes of his ADEA and FLSA claims and will not
grant summary judgment in IBM’s favor on these grounds.
The court shall proceed to analyze Zhou’s discrimination claims, retaliation claims
and FLSA claim separately.
A. Age Discrimination
To establish a prima facie case of age discrimination under the ADEA, a plaintiff
must demonstrate that he: “‘(1) is a member of a protected class, (2) was qualified, (3)
suffered an adverse employment action, and (4) can provide facts that give rise to an
inference of unlawful . . . discrimination’ on the basis of a protected class status.”
Blackwell v. Alliant Techsystems, Inc., 822 F.3d 431, 435 (8th Cir. 2016) (alterations in
original) (quoting Robinson v. Am. Red Cross, 753 F.3d 749, 754 (8th Cir. 2014)
(analyzing claims of race, gender and age discrimination). “To create an inference that
the decision to [take an adverse employment action] was based on unlawful discrimination,
a plaintiff may show pretext by such evidence as an employer failing to ‘follow its own
policies’ or treating ‘similarly-situated employees in a disparate manner.’” Id. (quoting
Young v. Builders Steel Co., 754 F.3d 573, 578 (8th Cir. 2014)). Generally, courts
analyze age discrimination claims arising under the ADEA and the ICRA identically. See
Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 514 (8th Cir. 2011). The
only distinction between the two analyses is the standard of proof required to prove a
plaintiff’s case. Under the ADEA, a plaintiff is required to prove that age was a “but for”
cause for the adverse employment action. See id. (citing Gross v. FBL Fin. Servs., Inc.,
557 U.S. 167, 177 (2009)). However, under the ICRA, a plaintiff need only demonstrate
that age was a “motivating factor” in the employer’s decision. See id. (quoting DeBoom
v. Raining Rose, Inc., 772 N.W.2d 1, 12-13 (Iowa 2009)). “In a ‘pretext’ case . . . the
Iowa Supreme Court’s interpretation of the ICRA arguably creates a lower standard than
the Supreme Court’s interpretation of the ADEA.” Id. at 514-15.
IBM does not dispute that Zhou is in a protected class, nor does it appear to dispute
that Zhou was qualified for the position for which he was hired. IBM argues that summary
judgment in its favor is appropriate on all of Zhou’s discrimination counts because there
is no evidence that age was a factor in its failure to hire him as a permanent employee, its
scheduling him for an allegedly heavier workload than his coworkers, in its decision not
to pay Artech more for his services and to rate him equivalent to a Rhythm level technician
or in allegedly forcing him to underclaim hours worked. See Brief in Support of the IBM
Motion (docket no. 102-2) at 8-16. Zhou argues that he is entitled to summary judgment
on his claim that IBM discriminated against him by deliberately under-rating his skill level
and refusing to raise his pay rate. See Resistance at 15-30.
As an initial matter, IBM argues that none of Zhou’s claims of age discrimination
are cognizable because “he is not complaining of age discrimination at all” and is instead
complaining of an “alleged lack of job mobility” that is merely “correlated with age.” See
Brief in Support of the IBM Motion at 8-9. In Hazen Paper Co. v. Biggins, the Supreme
Court held that, where an employer takes an adverse action against an employee on the
basis of a factor that is merely correlative with age, rather than on the basis of “age as a
proxy for [a plaintiff’s] remaining characteristics” such an action would fall outside of the
ADEA’s purview. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 611 (1993). Thus, for
example, an employer may terminate an individual to prevent his or her pension benefits
from vesting and not violate the ADEA, even though pensions generally vest after an
individual has worked for an employer for a certain number of years, making it more
likely that individuals whose pensions are about to vest will be older. See id.
However, the ADEA itself is based upon the premise that “older workers find
themselves disadvantaged . . . especially to regain employment when displaced from jobs.”
29 U.S.C. § 621(a)(1). Zhou claims that IBM discriminated against him because it knew
that his age made his ability to find a different job more difficult, such that he would
endure discriminatory treatment in his current job. The court believes than an employer,
genuinely motivated by the belief that an older individual will not complain of unfair
treatment or will not leave their job after being overworked, should not be shielded from
scrutiny under the ADEA when the ADEA was enacted to remedy these exact harms.
Accordingly, the court assumes that Zhou may proceed with this case and declines to grant
the IBM Motion on these grounds. Instead, the court shall address each of Zhou’s alleged
bases for discrimination separately.
Failure to hire
A plaintiff alleging a discriminatory failure to hire must establish a slightly different
prima facie case than one merely alleging disparate treatment. “A prima facie case of age
discrimination under the ADEA in a failure to hire context requires showing that (1) the
plaintiff was in the protected age group (over forty), (2) the plaintiff was otherwise
qualified for the position, (3) the plaintiff was not hired, and (4) the employer hired a
younger person to fill the position.” Chambers v. Metro. Prop. & Cas. Ins. Co., 351 F.3d
848, 856 (8th Cir. 2003). “Courts have generally recognized . . . that ‘failure to formally
apply for a job opening will not bar a . . . plaintiff from establishing a prima facie claim,
. . . as long as the plaintiff made every reasonable attempt to convey his interest in the job
to the employer.’” Chambers v. Wynne Sch. Dist., 909 F.2d 1214, 1217 (8th Cir. 1990)
(quoting Equal Emp’t Opportunity Comm’n v. Metal Serv. Co., 892 F.2d 341, 348 (3d Cir.
1990)). Courts have also “observed that plaintiffs in discrimination actions have been
excused from applying for promotions if the job opening was not officially posted or
advertised and either . . . the plaintiff had no knowledge of the job from other sources until
it was filled, or . . . the employer was aware of the plaintiff’s interest in the job
notwithstanding the plaintiff’s failure to make a formal application.” Lockridge v. Bd. of
Trs. of Univ. Of Ark., 315 F.3d 1005, 1011 (8th Cir. 2003) (alterations in original)
(internal quotation marks and emphasis omitted) (quoting Chambers v. Wynne Sch. Dist.,
909 F.3d at 1217).
Zhou claims that IBM’s failure to hire him for the SME position created in 2014
was discriminatory. IBM argues that it is entitled to summary judgment on Zhou’s claims
of discriminatory failure to hire because the evidence demonstrates that Zhou’s age was
not a factor in its decision not to hire him and because Zhou failed to apply for the
position. See Brief in Support of the IBM Motion at 10. Zhou argues that IBM is not
entitled to summary judgment because his employment agreement with Artech, as well as
the Master Services Technical Agreement between Artech and IBM, prevent an Artech
employee from applying for permanent employment with IBM without the permission of
his supervisors. See Resistance at 48.
Zhou does not point to any evidence in the record that he was verbally prohibited
from applying for a permanent position at IBM. Instead, he relies on his independent
reading of the employment agreement and Master Services Technical Agreement. See
Response to IBM Statement of Facts (docket no. 121-1) ¶¶ 38, 41, 42, 44.
documentary evidence on which Zhou relies flatly contradicts his argument. Section 8(a)
of Zhou’s employment agreement with Artech merely serves to prevent Zhou from
soliciting IBM for contract business on behalf of himself or another staffing firm. See IBM
Appendix II at 125; see also Reply at 4. Similarly, Section 6.1.3 of the Master Technical
Services Agreement merely states that Artech employees will not participate in IBM’s
benefits plans. See Zhou Appendix II at 99; see also Reply at 4. Nothing about these two
contractual provisions suggests that Zhou would not be permitted to apply for the SME
position, and such provisions are amenable to interpretation as a matter of law. See
Pillsbury Co. v. Wells Dairy, Inc., 752 N.W.2d 430, 435-36 (Iowa 2008) (“Interpretation
of a contract is a legal issue unless the interpretation of the contract depends on extrinsic
evidence. . . . We always review the construction of a contract as a legal issue.”).
Additionally, IBM has advanced evidence that the positions were electronically
posted and advertised. See IBM Appendix II at 11-13. Thus, Zhou cannot fulfill the first
part of the inquiry in Lockridge. See Lockridge, 315 F.3d at 1011. Furthermore, there
is no evidence that Zhou made “every reasonable attempt to convey his interest in the job”
to IBM. Chambers v. Wynne Sch. Dist., 909 F.2d at 1217. Zhou has advanced no
evidence, and the court is aware of none, that he communicated his interest in the SME
position to anyone at IBM or Artech, either verbally or in writing. Therefore, Zhou has
not demonstrated the existence of a genuine issue of material fact regarding IBM’s failure
to hire him.7 Accordingly, the court shall grant the IBM Motion with respect to Counts
I and VII.
Zhou’s assignments and workload
Zhou alleges that IBM discriminated against him by assigning him to a heavier
workload than other employees. IBM argues that it is entitled to summary judgment on
these claims because there is no evidence that any adverse action was taken because of his
age, Zhou did not suffer an adverse employment action, his allegations are not supported
by evidence beyond self-serving speculation and IBM had a legitimate, nondiscriminatory
reason for scheduling Zhou as it did. See Brief in Support of the IBM Motion at 12. Zhou
argues that summary judgment is not appropriate because his IBM managers repeatedly
assigned him to more projects than he could feasibly complete in a regular workweek, even
after Zhou repeatedly complained of the heavy workload. See Resistance at 40-48.
IBM argues that assigning Zhou mainly to patching changes does not constitute an
adverse employment action because such assignments “are simply the job responsibilities
for which he was hired to do.” Brief in Support of the IBM Motion at 12. IBM argues
To the extent that Zhou argues that IBM, at some other time, discriminatorily
failed to hire him, the court notes that there is no evidence in the record that Zhou applied
or expressed interest in such position. In fact, his testimony that he believed he was
prohibited from applying for permanent positions at IBM suggests that he never did so.
that such responsibilities do not place Zhou at a disadvantage and, thus, are not adverse
employment actions. Id. “An adverse employment action is a tangible change in working
conditions that produces a material employment disadvantage.” Thomas v. Corwin, 483
F.3d 516, 528 (8th Cir. 2007) (quoting Wedow v. City of Kan. City, 442 F.3d 661, 671
(8th Cir. 2006)). “While ‘[t]o be ‘adverse’ the action need not always involve termination
or even a decrease in benefits or pay . . . not everything that makes [a plaintiff] unhappy
is an actionable adverse action.’” Kelleher v. Wal-Mart Stores, Inc., 817 F.3d 624, 632
(8th Cir. 2016) (alterations in original) (quoting Sellers v. Deere & Co., 791 F.3d 938,
942 (8th Cir. 2015)). IBM admits that, at one point, it reassigned Zhou primarily to
patching responsibilities, requiring him to work at night or on weekends when change
windows were scheduled. See, e.g., Brief in Support of the IBM Motion at 14. The
undesirability of these change windows, and a shift of a plaintiff’s primary working hours
to those windows could reasonably be viewed as an adverse employment action. See
Kelleher, 817 F.3d at 631 (recognizing that “[a]n ‘increased workload that materially
changes an employee’s duties can constitute an adverse employment action’” (quoting
Sellers, 791 F.3d at 944)). At the least, the court concludes that there exists a genuine
issue of fact regarding whether Zhou suffered an adverse employment action in his work
IBM also argues that Zhou cannot demonstrate that similarly situated, younger
employees were treated more favorably, and thus he cannot establish a prima facie case
of discrimination. See Brief in Support of the IBM Motion at 13-14. The court agrees.
Zhou advances no additional “facts that give rise to an inference of unlawful . . .
discrimination,” such as evidence that IBM failed to follow, or even maintained, an official
policy regarding work distribution. Blackwell, 822 F.3d at 435. Similarly, Zhou has not
demonstrated the existence of a similarly situated, younger employee who was treated
“[T]he test for determining whether employees are similarly situated to a plaintiff
is a rigorous one.” Bone v. G4S Youth Servs., LLC, 686 F.3d 948, 956 (8th Cir. 2012)
(quoting Rodgers v. U.S. Bank, N.A., 417 F.3d 845, 853 (8th Cir. 2005), abrogated on
other grounds by Torgerson, 643 F.3d at 1058). In ADEA cases, courts employ the same
“similarly situated” standard that is used in race discrimination cases arising under Title
VII of the Civil Rights Act of 1964. See id. (analyzing both the plaintiff’s Title VII claim
and ADEA claim under the same framework). A plaintiff must show that he and the
employees outside of the protected classification were “similarly situated in all relevant
respects.” Id. at 956 (quoting Rodgers, 417 F.3d at 853). The burden of demonstrating
that such an employee exists falls on the plaintiff. See Gilmore v. AT&T, 319 F.3d 1042,
1046 (8th Cir. 2003). To be similarly situated in all relevant respects, the comparator
“must have dealt with the same supervisor, have been subject to the same standards, and
engaged in the same conduct without any mitigating or distinguishing circumstances.”
Bone, 686 F.3d at 956 (quoting Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000)).
Here, Zhou has identified no particular person as a comparator. Instead, he
generally asserts that all the other systems administrators were treated more favorably than
him, without reference to their age, skill level, the standards to which they were subjected,
or any other factor from which the court could draw a comparison. See Gilmore, 319 F.3d
at 1046. In short, Zhou has failed in his initial burden to produce a similarly situated
coworker, not in the protected class, who was treated more favorably than him. However,
even if the court were to indulge the assumption that one of Zhou’s coworkers was
subjected to the same standards, had the same supervisor and was younger than Zhou,
Zhou’s own assertions would require a finding that he was not similarly situated to his
coworkers. Zhou repeatedly states that he possessed the top technical expertise of his team
and that he possessed unique skills and knowledge that made him invaluable to Amtrak.
See, e.g., Resistance at 20-24. Accordingly, Zhou cannot establish a prima facie case of
discrimination, and IBM is entitled to summary judgment on these claims.
Even if Zhou were able to establish a prima facie case, the court would still find
summary judgment appropriate because IBM has offered legitimate and nondiscriminatory
reasons for assigning Zhou his workload and Zhou has failed to present evidence that such
reasons were pretext for age discrimination. IBM notes that Zhou himself asserts that “he
was the most competent system administrator for patching work, and he had specialized
knowledge about the Amtrak server environment.” Brief in Support of the IBM Motion
at 14. IBM further points to evidence that Amtrak requested that Zhou be kept from direct
contact with its personnel as much as possible. See id. According to IBM, it assigned
Zhou to the workload that it did due to these two considerations.
A plaintiff may demonstrate pretext in two ways: (1) he may demonstrate that “the
employer’s explanation is unworthy of credence . . . because it has no basis in fact” or (2)
he may prevail “by persuading the court that a [prohibited] reason more likely motivated
the employer.” Hilde, 777 F.3d at 1004 (alterations in original) (quoting Torgerson, 643
F.3d at 1047). “[T]he showing of pretext necessary to survive summary judgment requires
more than merely discrediting an employer’s asserted reasoning for [taking an adverse
employment action]. A plaintiff must also demonstrate that the circumstances permit a
reasonable inference of discriminatory animus.” Haigh, 632 F.3d at 470 (first alteration
in original) (quoting Roeben v. BG Excelsior Ltd. P’ship., 545 F.3d 639, 643 (8th Cir.
2008)). In other words, “[t]o prove pretext, a plaintiff must both discredit the employer’s
asserted reason for termination and show that the circumstances permit drawing the
reasonable inference that the real reason” for the adverse employment action was a
prohibited one. Twymon v. Wells Fargo & Co., 462 F.3d 925, 935 (8th Cir. 2006).
Here, as the court noted above, Zhou himself asserts that he worked primarily on
“high level, sophisticated, complicated, and difficult tasks” that previously required
multiple systems administrators to address. See Resistance at 20. He also states that,
because of that, “he had no chance to work low-level tasks, because the patching tasks are
the most difficult jobs [for] the team, and usually no one else [on] the team could take
over.” Id. Zhou provides evidence of the same with several emails and instant messaging
conversations wherein others praise him for his work. See Zhou Appendix I at 64-69.
Such assertions are fatal to Zhou’s claim of discrimination. Evidence of Zhou’s high level
of technical expertise demonstrates that IBM assigned Zhou to higher workloads not out
of a discriminatory animus or belief that his lack of job mobility would stifle his
complaints, but because of a belief that Zhou was particularly qualified or was efficient
enough to perform the work.8
Furthermore, IBM has advanced evidence supporting its assertion that Zhou had
trouble working with Amtrak. See, e.g., IBM Appendix I at 117 (Thompson affidavit
stating that “the relationship lead” with Amtrak “specifically asked [him] to keep . . .
Zhou away from the customer as much as possible, for the good of IBM-Amtrak
relations”); IBM Appendix I at 143 (Segerstrom affidavit stating that he “had received a
number of oral complaints from Amtrak employees about . . . Zhou, all of which were
along the lines of ‘difficult to work with,’ ‘rude,’ and ‘unresponsive in conference calls’”
and had been told by two different relationship leads that “they had received complaints
about . . . Zhou from the Amtrak personnel with whom they interacted”); IBM Appendix
II at 5 (Chumbley affidavit stating that she “had been keeping . . . Zhou primarily assigned
Additionally, there is evidence in the record that IBM management attempted to
have others help Zhou with patching tasks, but that he was resistant to such help and
refused to train others to perform the patching tasks. See, e.g., IBM Appendix II at 78
(email from Majerus to Zhou stressing that Zhou must share information with other team
members “so [IBM] can . . . take some of the patching off of [Zhou’s] shoulders”); Zhou
Appendix I at 46 (email from Zhou to Segerstrom and Majerus stating that he
“appreciate[d]” other Amtrak team members’ offers to help but stated, “it is not a right
time when they don’t know where is the starting point”).
to patching to keep him from communicating with Amtrak”). Because IBM assigned Zhou
primarily to patching assignments out of an effort to minimize Zhou’s contact with
Amtrak, its motivations were not discriminatory. Zhou argues that, in reality, patching
tasks involve more contact with Amtrak personnel, not less. See Resistance at 17.
However, Zhou does not provide any support for this self-serving statement. See Anuforo,
614 F.3d at 807. Accordingly, Zhou has failed to demonstrate pretext by either of the
methods outlined in Hilde. See Hilde, 777 F.3d at 1004.
Finally, the court notes that Zhou has put forth no evidence that, even if IBM’s
proffered explanations were false, the true reason for its actions were discriminatory. See
Twymon, 462 F.3d at 935. Zhou admits that, at no point did any person from IBM
intimate that he was too old to perform his job duties, make any derogatory comments
about his age or mention his age at all when assigning him work. See IBM Appendix I at
Zhou himself never complained to IBM that he believed he was being
discriminated against for his age, merely stating that he was being treated “unfairly” in
passing. See id. at 32; see also, e.g., Zhou Appendix I at 22 (email from Zhou to Majerus
with the subject “I feel not be treated fairly”); Zhou Appendix I at 50 (email from Zhou
to Majeru stating “It would be unfair if I am required to work [six] days a week and the
[seventh] day is set to be a furlough day other than to be my weekend day.”). However,
the ADEA and the ICRA are not meant to remedy merely unwise or even unfair business
choices. Without evidence that Zhou’s age was a but-for or motivating cause for his work
assignments, even if considered an adverse employment action, the court shall grant
summary judgment to IBM on Counts II and VIII.
Application for pay raise
Zhou argues that IBM discriminated against him by artificially classifying him at
a low skill level.
IBM argues that Zhou cannot bring this claim, because such
classification fell outside of the 300-day limitations period imposed by the ADEA and the
ICRA. See Brief in Support of the IBM Motion at 15 (citing 20 U.S.C. § 626(d)(1)(B);
Iowa Code § 216.15(13)). Zhou does not appear to contest this argument, but merely
argues that IBM had the chance, at some point, to raise his pay level but did not do so.
See Resistance at 15.
In any event, Zhou’s statement that “every other [system
administrator] [o]n the team has at least two technical levels and [payrates] higher than
Zhou’s” suggests that the allegedly discriminatory treatment was not his initial payrate, but
rather stemmed from IBM’s later failure to give him a raise in pay.9 Id. at 15. IBM bases
its arguments solely on Zhou’s application for a pay raise in February of 2014, and Zhou
does not appear to argue any other basis for discrimination in Counts III and IX.
IBM argues that it is entitled to summary judgment on this claim because Zhou’s
age was not a factor in its decision not to give him a raise, Zhou cannot demonstrate any
other similarly situated younger contract employee who was given a pay raise and because,
even though Artech is the entity that paid Zhou, IBM’s decision not to pay Artech more
for Zhou’s services was supported by legitimate, nondiscriminatory reasons. See Brief in
Support of the IBM Motion at 15. Zhou argues that he is entitled to summary judgment
on this claim because his skills dictate that he should have received a pay raise and the
reasons IBM gave for denying him a rate increase do not justify refusing such an increase.
See Resistance at 24-29.
Even if the court were to accept that Zhou could establish a prima facie case of
discrimination, the court would still find that summary judgment in IBM’s favor is
appropriate because IBM has proffered a legitimate, nondiscriminatory reason and Zhou
has failed to demonstrate that such reason is merely pretext for discrimination. Far from
satisfying his burden of demonstrating that he is entitled to judgment as a matter of law,
To the extent that Zhou does argue that his initial placement was discriminatory,
the court notes that he has advanced no evidence suggesting that such a placement was
based in any way on his age.
Zhou cannot even demonstrate the existence of a material question of fact regarding his
denial of a pay increase. IBM has supported its legitimate nondiscriminatory justification
with documentary evidence. In particular, IBM has produced emails between Chumbley,
Mattox and an Artech employee discussing the reasons for IBM’s decision not to pay
Artech more for Zhou’s services.
See IBM Appendix II at 21-27.
demonstrate that Chumbley did indeed value Zhou’s technical skills, but expressed concern
with the manner in which he communicated with other members of the Amtrak team and
the customer. See id. Zhou argues that wages are solely meant to compensate an
individual for the level of technical skill and work he or she provides to a company, and
not on the individual’s “character.” See Resistance at 24-25. He also argues that his
communication problems cannot possibly be the reason that IBM chose not to support a
rate increase because Chumbley had already taken such problems into consideration when
pursuing a potential raise on Zhou’s behalf. See id. at 28. The court is unconvinced by
these arguments. Zhou provides no authority for his argument that wages are solely based
on an individual’s technical skill. To the contrary, employers are entitled to consider a
wide variety of factors in making employment decisions—including whether an individual
would work well in a team environment. See Chambers v. Metro. Prop. & Cas. Ins. Co.,
351 F.3d at 857-58 (finding an employer’s choice not to hire an individual, in part,
because an “aggressive interview style” would not “fit well with the team” even though
the individual possessed sufficient skills to perform the job was legitimate and
Chumbley expressed concern about Zhou’s ability to work well with his team and
the customer—a concern supported by documentary evidence in the record. See, e.g.,
IBM Appendix I at 149 (email from Segerstrom to Zhou stating that Zhou had “refused to
share [his] screen or provide any type of KT other than telling other SA’s to read the help
file” and that “[t]his is not the way to share your expertise or knowledge”); IBM Appendix
II at 78 (email from Majerus to Zhou stating that Majerus did not “know where or why”
Zhou formed the belief that patching questions were other systems administrators’ issues,
and reminding Zhou that they “are a team”). Merely because Chumbley decided to pursue
the possibility of pay increase for Zhou, and then ultimately decided against it, does not
dictate a finding that such a justification is unworthy of credence. To the contrary, this
fact demonstrates that Chumbley had reservations about paying more for Zhou’s services
and that such reservations ultimately resulted in the decision not to move forward with the
rate increase. Zhou has failed to point to any evidence in the record that Chumbley’s
stated reason for denying the rate increase was pretext for discrimination, but instead
merely argues that the given reason was not sufficient to justify the denial. Nor has Zhou
advanced any evidence that Chumbley lacked a good faith belief that he was unfit for a pay
increase because of his tendency to be argumentative and his communication style. See
Blackwell, 822 F.3d at 436 (“[T]he critical inquiry in discrimination cases like this one is
not whether the employee actually engaged in the conduct for which he [suffered an
adverse employment action], but whether the employer in good faith believed that the
employee was guilty of the conduct justifying [such action].” (quoting McCullough v.
Univ. of Ark. for Med. Scis., 559 F.3d 855, 861-62 (8th Cir. 2009))).
In short, the court finds that Zhou has failed to demonstrate that he is entitled to
judgment as a matter of law in his favor. He has also not demonstrated the existence of
a genuine issue of fact regarding whether his age was a but-for or motivating factor in
IBM’s decision not to pay more for his services. Accordingly, the court shall grant
summary judgment to IBM on Counts III and IX.
Underclaiming of hours
IBM argues that it is entitled to summary judgment on Zhou’s claims that IBM
discriminated against him by forcing him to underclaim his hours worked because it urged
Zhou to follow its overtime policies. See Brief in Support of the IBM Motion at 16.
Because this issue may be resolved by a finding that IBM did not violate the FLSA, the
court shall address such issues together. Only if the court finds that IBM violated the
FLSA and was aware that Zhou was underclaiming his overtime hours could the court
determine that such a violation was purposeful discrimination. Accordingly, the court shall
address Zhou’s claims in Counts IV and X below.
B. FLSA Claim
A plaintiff “who sues for unpaid overtime ‘has the burden of proving that he
performed work for which he was not properly compensated.’” Holaway, 771 F.3d at
1059 (quoting Anderson, 328 U.S. at 686-87). The fact that an employee did not actually
seek overtime pay is irrelevant in a claim made under the FLSA, because an employee
cannot waive his or her entitlement to FLSA benefits. See Reich v. Stewart, 121 F.3d 400,
407 (8th Cir. 1997). The general rule is that “[a]n employee must be compensated for
duties ‘before and after scheduled hours . . . if the employer knows or has reason to
believe the employee is continuing to work and the duties are an integral and indispensable
part of the employee’s principal work activity.’” Hertz v. Woodbury Cty., Iowa, 566 F.3d
775, 781 (8th Cir. 2009) (second alteration in original) (quoting Mumbower v. Callicott,
526 F.2d 1183, 1188 (8th Cir. 1975)); see also 5 C.F.R. § 551.104 (“Suffered or
permitted to work means any work performed by an employee for the benefit of an agency
. . . provided the employee’s supervisor knows or has reason to believe that the work is
being performed and has an opportunity to prevent the work from being performed.”).
The constructive knowledge rule requires the employer to undertake “reasonable
diligence” to determine whether its employees are working in excess of their scheduled
hours. See Hertz, 566 F.3d at 781. “The FLSA’s standard for constructive knowledge
in the overtime context is whether the [employer] ‘should have known’ not whether it
could have known.” Id. at 782. Whether an employer has maintained “an established
procedure for overtime claims that [employees] regularly used” can impact the amount of
inquiry required of the employer into potential overtime worked. See id. (citing Newton
v. City of Henderson, 47 F.3d 746, 749 (5th Cir. 1995) (“If we were to hold that [an
employer] had constructive knowledge that [an employee] was working overtime because
[a supervisor] had the ability to investigate whether or not [the employee] was truthfully
filling out the [employer’s] payroll forms, we would essentially be stating that the
[employer] did not have the right to require an employee to adhere to its procedures for
claiming overtime.”)). This is so because, “[w]hen the employee fails to follow reasonable
time reporting procedures he prevents the employer from knowing its obligation to
compensate the employee and thwarts the employer’s ability to comply with the FLSA.”
White v. Baptist Mem’l Healthcare Corp., 699 F.3d 869, 876 (6th Cir. 2012) (citing Hertz,
566 F.3d at 781-82). Furthermore, if an employee “deliberately prevents” an employer
from learning of his overtime, the employer cannot be held to have violated the FLSA.
See Brennan v. Qwest Commc’ns Int’l, Inc., 727 F. Suppp. 2d 751, 755 (D. Minn. 2010)
(citing Forrester v. Roth’s I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir. 1981)).
“For employees subject to the overtime limits of the FLSA, employers are required
to keep records of wages and hours.” Holaway, 771 F.3d at 1059 (citing 29 U.S.C.
If an employer has failed to keep records, employees are not
denied recovery under the FLSA simply because they cannot
prove the precise extent of their uncompensated work. . . .
Under this relaxed standard of proof, once the employee has
shown work performed for which the employee was not
compensated, and sufficient evidence to show the amount and
extent of that work as a matter of just and reasonable
inference, the burden then shifts to the employer to produce
evidence to dispute the reasonableness of the inference.
Id. (internal quotation marks omitted) (quoting Carmody v. Kan. City Bd. of Police
Comm’rs, 713 F.3d 401, 406 (8th Cir. 2013)).
Zhou argues that IBM deprived him of overtime compensation in violation of the
FLSA. IBM argues that it is entitled to summary judgment on Zhou’s FLSA claim because
Zhou failed to follow established procedures for reporting overtime, failed to follow his
supervisors’ directives to claim all overtime that he worked and actively concealed the
amount of overtime he was working. See Brief in Support of the IBM Motion at 17-22.
IBM also argues that it is entitled to summary judgment because Zhou cannot demonstrate
the extent of any overtime he worked by a just and reasonable inference because he did not
keep contemporaneous records of the time he worked and his vague and bare allegations
on that matter are insufficient to justify relief. See id. at 22-26. Zhou argues that
summary judgment is not appropriate because he repeatedly complained of his workload
to his managers and argues that they should have been aware that he worked more than he
claimed because of the amount of emails and instant message chats he sent during the
daytime hours, when he was assigned patching tasks at night. See Resistance at 40-48.
Actual or constructive knowledge
IBM argues that it did not have actual or constructive knowledge that Zhou worked
overtime for which he was not compensated because he failed to report such hours, even
though “Zhou knew that [IBM’s] policy was to claim all of the hours he worked” and that
“Zhou’s supervisors repeatedly instructed Zhou that he had to claim all of the hours he
worked, including overtime hours.” Brief in Support of the IBM Motion at 18. It further
argues that Zhou failed to follow its policy of using the overtime reporting tool for his
purportedly uncompensated hours, despite the fact that Zhou regularly claimed overtime
during the disputed period. Id. at 18-19. IBM also asserts that Zhou’s supervisors
“routinely communicated with Zhou to check on the status of his workload, keep track of
the hours he had worked, and determine whether Zhou was working overtime hours in a
given week.” Id. at 21. Finally, IBM argues that it did not have constructive knowledge
of any overtime Zhou worked because he actively deceived IBM by claiming fewer hours
than he worked when he knew that IBM wanted him to claim all of his hours. Id. at 22.
Zhou points to several emails in which he complains that his workload was too heavy. See
Resistance at 40, 45-48. He also identifies the average number of emails and instant
messages that he sent during the time period. Id. at 41-42. Zhou argues that these
messages were sent during the day and that, because the majority of his patching
assignments happened overnight, the fact that he participated in chats and responded to
emails during the day should have put IBM on notice that he consistently worked overtime.
In particular, Zhou draws the court’s attention to an email that Zhou wrote to
Majerus on March 28, 2014 stating: “Today is the [seventh] day I have worked this week
and already pass the [forty] hours limit. I regularly don’t have shift and weekend, not just
for a period time.” Zhou Appendix II at 60. Despite mentioning that he exceeded forty
hours that week, Zhou did not claim any overtime. See IBM Appendix II at 184. Zhou
also cites multiple emails that he claims demonstrate that his supervisors should have
known he worked overtime. For example, on April 25, 2014, Zhou wrote the following
in an email to Majerus:
Management should know approximate time for a task and
work out a load balance, other than burden on employees to
count time for every piece of work. . . . For example, today
I already have worked [seven] weeks in a row without a
weekend day or any alternative weekend day, and next few
weeks are also everyday scheduled. Every night I have
average [two] changes and work into morning around [three]
o’clock. In order to maximally make customer satisfactions I
need to check . . . emails around 8:00 AM since if night
changes had problems customer would send me email around
Zhou Appendix I at 23. Zhou argues that IBM managers routinely “say one thing and do
another” with respect to overtime requirements, such that their repeatedly telling him he
must claim overtime hours as he worked them does not shield them from liability. See
Resistance at 8-10, 40. In response, IBM argues that Zhou fails to “explain how those
[emails] could have led his supervisors to believe that he was working more than” the
overtime that he already claimed for those months. See Reply at 7.
The court finds that Zhou cannot demonstrate that his managers at IBM knew or
should have known the extent to which he worked overtime. To begin, the record is
replete with examples of IBM directing Zhou to claim all hours that he worked, with no
exceptions. See Brief in Support of the IBM Motion at 18; see also, e.g., IBM Appendix
II at 29-30, 89. Zhou argues that his managers’ statements that “no overtime” was the
rule, and their threat to him that he was a contractor and could be replaced anytime was
a warning not to claim overtime. However, this contention is contradicted by the record.
Initially, the court notes that Zhou cannot have believed that he was generally unable to
claim any overtime, even during the times when IBM restricted overtime worked. The
record demonstrates that Zhou consistently claimed and received overtime compensation
throughout his placement at IBM. See IBM Statement of Facts ¶ 90. It is undisputed that
Zhou was paid for every overtime hour which he claimed.10 See IBM Appendix I at 41
The only time that Zhou claims he reported all hours worked and was not paid
for them was during his last week of employment. See Resistance at 41. In particular, he
claims that he worked twelve hours on Saturday, February 20, 2016, two hours on Sunday,
February 21, 2016 and eight hours on the day he was discharged, Monday, February 22,
2016. See Zhou Appendix II at 91. IBM only approved fourteen of the twenty-two total
hours he claimed. Id. However, such a claim does not properly arise under the FLSA,
which sets substantive standards governing overtime pay and minimum wage. See 29
U.S.C. §§ 206, 207. The hours Zhou claimed, but alleges he was not paid, were not
overtime hours because they did not exceed forty hours for a week. Nor does he allege
that he was paid less than minimum wage for such hours. See IBM Appendix II at 147
(stating that a workweek “begins at 12:00:01 a.m. Saturday”). Accordingly, a claim for
unpaid wages would arise under state law. See Iowa Code §§ 91A.3, 91A.7; see also
Guinan v. Boehringer Ingelheim Vetmedica, Inc., 803 F. Supp. 2d 984, 994 n.5 (N.D.
Iowa 2011) (“A violation of the [“Iowa Wage Payment Collection Law” (“IWPCL”)] . . .
is not always dependent upon establishing a violation of the FLSA. The specific amount
(Zhou deposition testimony stating that he was “paid for every overtime hour that [he]
claimed”). This is true even in the weeks following the meeting with Thompson wherein
Thompson stated that “no overtime” was the rule. See id. Additionally, IBM has put forth
evidence that IBM’s policy regarding working overtime was regularly communicated to
employees—overtime should not be worked without prior authorization from a supervisor.
See, e.g., IBM Appendix I at 131 (email from Thompson to the Amtrak team stating “no
[overtime] is to be worked without prior written approval”); IBM Appendix II at 29 (email
from Chumbley to Zhou stating “Overtime must be pre-approved before you work it”).
Therefore, Zhou’s argument that he was precluded from claiming overtime because of
IBM’s policy or his management’s statements does not create a genuine issue of material
Zhou also argues that his supervisors should have been on notice that he
underclaimed his overtime because he sent various emails complaining of his workload and
he was active on his email and instant messaging system during the daytime hours. The
of ‘wages due’ to employees under the IWPCL must be provided by something other than
the IWPCL . . ., such as an employment agreement or Iowa’s minimum wage law.”
(quoting Bouaphakeo v. Tyson Foods, Inc., 564 F. Supp. 2d 870, 884 n.9 (N.D. Iowa
2008))). Zhou alleged Count V solely under the FLSA and not under state law. See
Amended Complaint ¶ 125. In other words, because Zhou’s claim for the eight hours for
which he seeks payment does not derive from the FLSA, no federal claim exists and Zhou
cannot pursue such claim in this action for failure to plead the same.
Furthermore, Zhou’s argument that he did not claim overtime because he feared
for his job does not demonstrate a violation of the FLSA. Zhou does not allege that he was
retaliated against in any way for claiming the overtime that he did. See IBM Appendix I
at 82. His subjective belief that he would have been reprimanded had he claimed all the
overtime that he purportedly worked, without supporting evidence, is insufficient to raise
a genuine issue of material fact regarding whether IBM violated the FLSA. IBM does not
violate the FLSA by terminating an employee who cannot accomplish all of his assigned
tasks during his regular working hours. Such termination would be motivated by the
employee’s inefficiency, rather than to skirt its duties under the FLSA.
court also finds that these arguments fail to raise a genuine issue of material fact. Zhou’s
consistent complaints of being overworked do not necessarily require a finding that Zhou
worked more overtime than he claimed. To accept Zhou’s proposition, the court would
be required to assume that IBM knew that Zhou worked all night, that he failed to claim
his daytime hours or some of his nighttime hours on his timesheets and that his supervisors
would be able to detect the time periods when he worked and was not compensated. See
Roberts v. Advocate Health Care, 119 F. Supp. 3d 852, 861-64 (N.D. Ill. 2015) (finding
that an employee’s allegation that her employer should have known she was working
overtime due to her attendance at staff meetings and working through lunch to be without
merit because it rested on assumptions). These assumptions are unsupported by the record.
To begin, Zhou’s managers have testified, and Zhou himself appears to recognize, that
they are not technical experts and do not know how long certain assignments should be
taking him. See IBM Appendix II at 7 (Chumbley affidavit stating that she does “not have
the technical expertise to know if too much or too little work has been scheduled to fit in
a [forty] hour week”); IBM Appendix II at 29 (email from Chumbley to Zhou stating “I
want you to tell us if we are scheduling you for too much work”); see also Resistance at
12-13. Additionally, Zhou has failed to produce evidence to suggest that his managers
could have known how many hours he worked per evening aside from the hours he reports
on his timesheets. See IBM Appendix I at 78 (Zhou deposition testimony that Chumbley
“would never know” that he worked more than forty hours a week unless he informed
her); IBM Appendix I at 119 (Thompson affidavit stating that he could have no knowledge
of the hours an employee worked remotely or after hours); IBM Appendix I at 141
(Segerstrom affidavit stating that he relied on employees to accurately report hours because
he could not know the hours an employee worked remotely or overnight); IBM Appendix
II at 7 (Chumbley affidavit stating that she relies on employees to accurately report hours);
IBM Appendix II at 29 (email from Chumbley to Zhou that she “cannot keep track of how
many hours everyone on the team has spent”).
Additionally, Zhou’s argument is flawed because it is based on the premise that
emails, not accompanying his timesheets, and statistical evidence of his activity during the
day shift, are sufficient to demonstrate a genuine issue of fact regarding whether IBM
should have known that he worked overtime for which he was not compensated. Zhou
effectively argues that IBM must be expected to intuit, from Zhou’s online activity, that
he worked hours above and beyond what he reported. As the Eighth Circuit noted in
Hertz, an employer is not required to undertake extraordinary measures to determine
whether its employees work overtime for which they are not compensated and the standard
is not whether an employer could have known, but rather if it should have known. See
Hertz, 566 F.3d at 781-82 (refusing to find that forms tracking officers’ status from the
moment they go on duty to the time they are relieved gave their employers constructive
notice that they were working overtime because it would not be reasonable to require the
employer to “weed through non-payroll . . . records to determine whether or not its
employees were working beyond their scheduled hours”); see also Fairchild v. All Am.
Check Cashing, Inc., 815 F.3d 959, 965 (5th Cir. 2016) (holding that “computer usage
reports” did not place an employer on notice that an employee was working
uncompensated overtime when the employee refused to utilize the employer’s established
method of reporting overtime).
Here, IBM has maintained a specific tool for reporting regular and overtime hours,
which Zhou consistently used to claim overtime. This diminishes the burden placed on
IBM to inquire into the hours that Zhou alleges that he worked. See Hertz, 566 F.3d at
782; see also White, 699 F.3d at 876. Furthermore, the evidence demonstrates that IBM
did make inquiries into Zhou’s hours, and found that Zhou was concealing the hours he
truly worked from IBM. See, e.g., IBM Appendix II at 38, 44, 65, 99, 107. Emblematic
of this issue is the instant message conversation between Majerus and Zhou on May 8,
2014, wherein Majerus confronted Zhou, stating that she knew he had worked multiple
days in a row and that she knew he must have worked more than he was claiming. Id. at
95. It was only after she did so that Zhou admitted the total number of hours he had
worked. Id. IBM attempted to correct this action multiple times. See, e.g., id. at 29-30
(emails from Chumbley to Zhou stating that she had been made aware that he had worked
more than forty hours the previous week and reiterated that she wanted Zhou to claim all
hours); id. at 32 (email from Chumbley to Lynch asking Lynch to affirm Zhou’s
understanding of IBM’s policy because Zhou kept “saying he’s willing to work without
claiming and I want to make sure he knows that I don’t want him to do that”); id. at 95
(instant message conversation between Majerus and Zhou in which she approves overtime
for him after coaxing him to admit the total number of hours he worked stating, “[t]hats
[sic] how you are supposed to do it” and reiterating that “[i]ts [sic] very important to do
Furthermore, Zhou has advanced no evidence suggesting that IBM should have
known he worked hours in addition to those he regularly claimed. Neither party has
provided detailed time records with starting and stopping times—rather, such time records
merely record the total hours worked each week. See IBM Appendix II at 181-95. Zhou
does not demonstrate how IBM managers should have known his daytime emails and chats
were not included in his reported hours but merely argues that they should have been
aware of how long his assignments took him to complete. In light of the absence of
evidence supporting Zhou’s proposition, the court concludes that Zhou has failed to raise
a genuine issue of material fact regarding whether IBM undertook sufficiently “reasonable
diligence” or “should have known” that he worked overtime for which he was not
compensated. To require IBM to painstakingly wade through emails between itself and
Zhou, which do no more than raise the possibility that he was being overworked, or to
compare email and instant message responses to Zhou’s timesheets, would be to relieve
Zhou of his responsibility to comply with his employer’s policies regarding the reporting
of overtime. The law is clear that this is not required. Zhou’s arguments amount to
nothing more than suggestions that IBM could have determined that he was working more
overtime than he was claiming, but they do not demonstrate that IBM should have known
as much. There is no evidence that IBM actually encouraged Zhou to under-report his
hours. The only documentary, objective evidence in the record demonstrates the exact
opposite. Zhou’s self-serving, conclusory statements to the contrary are insufficient to
defeat summary judgment. See Anuforo, 614 F.3d at 807. Accordingly, the court shall
grant summary judgment on Count V.
Just and reasonable inference
Even if Zhou was able to demonstrate that he worked time for which he was not
compensated, the court would still find summary judgment to be appropriate. Zhou cannot
demonstrate the amount of uncompensated work as a matter of just and reasonable
inference. As an initial matter, the court notes that Zhou has not alleged that IBM has
failed to keep records and time sheets as required by the FLSA. See 29 U.S.C. § 211(c).
Such time sheets are the best evidence of overtime worked. However, even if IBM had
failed to keep time records, or such records were insufficient, triggering the relaxed
evidentiary standard, the court would still find that summary judgment in IBM’s favor is
In his deposition, Zhou admitted that he did not keep notes contemporaneously as
he worked, and also admitted that he has no notes or any other objective evidence
demonstrating the amount of overtime that he worked. See IBM Appendix I at 38. The
record is also unclear as to how often he allegedly worked overtime without claiming it,
and how often he merely claimed less overtime than he worked. Compare, e.g., IBM
Appendix II at 88 (email from Zhou to Majerus stating that he had “never over claim[ed]
hours” and he always “simply” claimed eight hours a day, even if he was working more),
with IBM Appendix I at 82-83 (Zhou deposition testimony stating that, when he did claim
overtime, he would normally claim about half of what he actually worked). Thus, there
is no evidence in the record by which a fact finder could calculate a measure of hours
worked without compensation as a matter of just and reasonable inference.
Nevertheless, Zhou testified during his deposition that he routinely worked twice
as many overtime hours as he actually claimed. Even accepting Zhou’s calculation
method, the court would still find such method to be insufficient. To begin, at his
deposition, Zhou testified as follows:
. . . I asked you how many hours you worked that
week. And is or . . . your answer is you don’t know
because its too — it’s impossible to determine? How
many hours did you work that week is my question.
Normally I claim just half overtime, so suppose should
be — if I claim [thirty] hours, I think really overtime
should be [sixty] hours.
So are you saying that . . . after Mr. Segerstrom
became you first-line manager . . . that you claimed
overtime but you only claimed half of—
— the overtime?
About this. Not exactly.
IBM Appendix I at 83. Therefore, the only method that Zhou puts forth to demonstrate
the extent of uncompensated time worked is based on mere approximation and Zhou admits
that it was not consistently applied. Without any evidence that Zhou employed this method
with any more regularity than “[n]ormally,” the court cannot conclude that a jury could
find, as a matter of just and reasonable inference, an amount of hours that Zhou worked
but for which he was not compensated. Id. at 83. Zhou’s contentions are unsupported by
anything but his own self-serving statements, which in turn are unsupported by any
evidence in the record. See Holaway, 771 F.3d at 1059-60 (holding that a plaintiff had not
proven the extent of uncompensated hours by a just and reasonable inference where the
basis for such claim was mere estimation, based on bare, contradictory assertions and
where the plaintiff provided only vague testimony without reference to specific days and
hours worked); see also Melton v. Tippecanoe Cty., 838 F.3d 814, 818-19 (7th Cir. 2016)
(noting that, where an FLSA plaintiff did not “designate any evidence to support his
claim” that he was periodically forced to work through part or all of his lunch break, “did
[not] rely on his own spreadsheet [of hours worked] as evidence of his unpaid lunch hours”
and the source of the spreadsheet itself was based on the employee’s “own memory,” he
could not prove the amount of overtime worked as a matter of just and reasonable
inference). Accordingly, the court finds that this is a separate basis to grant summary
judgment to IBM on Count V. Because the court finds that summary judgment is
appropriate on multiple grounds, it declines to address whether IBM’s alleged violation of
the FLSA was “willful.” See Resistance at 29-30.
Finally, because Zhou has failed to demonstrate that IBM knew or should have
known that he worked overtime, the court shall also grant summary judgment to IBM on
Counts IV and X—Zhou’s claims that he was discriminated against with respect to his
overtime compensation. Without sufficient evidence demonstrating that IBM was or
should have been on notice that Zhou worked more overtime than he claimed, there is no
evidence to suggest that IBM “forced” him to underclaim his hours due to his age.
Furthermore, Zhou has failed to put forth any evidence to suggest that IBM’s actions in
limiting the amount of overtime hours he worked and subsequently claimed was motivated
by his age rather than an attempt to control costs, as IBM argues. See, e.g., IBM
Statement of Facts ¶ 76. Even assuming that Zhou was correct that IBM managers “said
one thing but did another,” Zhou has advanced no evidence that they treated him
differently than any other employee, and such a contention is flatly contradicted by the
record. See IBM Appendix II at 35 (email from Majerus to Zhou and several other
contractors stating IBM’s overtime policy and stressing that employees must get
preapproval before working overtime). Thus, even IBM’s communicated restrictions on
overtime, construed by Zhou as a strict prohibition on claiming overtime, was not
discriminatory. Accordingly, the court shall also grant the IBM Motion with respect to
Counts IV and X.
Both the ADEA and the ICRA make it unlawful for an employer to retaliate against
an individual for making or participating in a charge of discrimination. See 29 U.S.C.
§ 623(d); Iowa Code § 216.11(2). Courts generally apply identical analyses to retaliation
cases arising from the ADEA and the ICRA. See Young-Losee v. Graphic Packaging Int’l,
Inc., 631 F.3d 909, 912 (8th Cir. 2011) (“This court analyzes ICRA claims under the same
method as federal retaliation claims.” (quoting Smith v. Allen Health Sys., 302 F.3d 827,
836 (8th Cir. 2002))).
In order to prevail on a claim for retaliation under the ADEA and the ICRA, a
plaintiff must demonstrate: (1) he engaged in protected activity; (2) the employer treated
him in a way that was materially adverse; and (3) there was a causal connection between
the two. See Betz v. Chertoff, 578 F.3d 929, 937 (8th Cir. 2009); see also Stewart v.
Indep. Sch. Dist. No. 196, 481 F.3d 1034, 1043 (8th Cir. 2007). “The timing of an
adverse employment action in connection with the protected activity ‘can sometimes
establish causation for [the] purpose of establishing a prima facie case.’” Green v.
Franklin Nat’l Bank of Minneapolis, 459 F.3d 903, 915 (8th Cir. 2006) (quoting Sherman
v. Runyon, 235 F.3d 406, 410 (8th Cir. 2000)). “However, [temporal] proximity alone
is insufficient to establish pretext.” Gibson v. Geithner, 776 F.3d 536, 542 (8th Cir.
2015). “Rather, [courts] evaluate ‘the timing of the discharge . . . in light of other
evidence, or lack of other evidence, in the record.’” Id. (second alteration in original)
(quoting Sherman, 235 F.3d at 410). “An inference of a causal connection between a
charge of discrimination and termination can be drawn from the timing of the two events,
but in general more than a temporal connection is required to present a genuine factual
issue on retaliation.” Green, 459 F.3d at 915 (8th Cir. 2006) (quoting Peterson v. Scott
Cty., 406 F.3d 515, 524 (8th Cir. 2005), abrogated on other grounds by Torgerson, 643
F.3d at 1031). A plaintiff may sever the causal inference created by a close temporal
proximity between the protected activity and adverse employment action by engaging in
“intervening unprotected conduct” that serves as the true reason for the adverse action.
Green, 459 F.3d at 915 (quoting Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th
IBM argues that it is entitled to summary judgment on Zhou’s claim of retaliation
because there is no evidence of a causal link between any protected activity and Zhou’s
removal from IBM.12 See Brief in Support of the IBM Motion at 28-29; Reply at 9. IBM
further argues that summary judgment is appropriate because it has advanced a legitimate
nondiscriminatory reason for requesting that Artech remove Zhou from his placement at
IBM—namely, that Zhou became argumentative with an Amtrak representative, Enszer,
during one of his patching changes. See Brief in Support of the IBM Motion at 29-31.
Zhou argues that he is entitled to summary judgment on his retaliation claims because
Segerstrom did not inquire as to his version of events before recommending that Zhou be
removed from IBM, Zhou was still on IBM’s schedule for the weeks following the incident
The court notes that Zhou was not technically terminated when IBM requested
that Artech remove him from his placement at IBM. However, because IBM does not
argue that it’s request to remove Zhou was not an adverse action, and because there exists
at least a genuine issue of fact regarding whether his removal from IBM was an adverse
action, the court shall not grant summary judgment on these grounds.
with Enszer, Segerstrom did not have a good faith belief that Zhou had argued with Enszer
and Segerstrom has shifted his justification for requesting that Artech remove Zhou from
IBM throughout the course of this litigation. See Resistance at 30-38. Zhou argues that
Segerstrom was instructed by some “manager whose level is higher than first line
manager” to seek his removal out of retaliation for filing the instant suit. See id. at 33-34.
Initially, the court notes that Zhou alleged that IBM retaliated against him for filing
his initial disclosures in the instant action in his Amended Complaint, but later changed his
argument to assert that it was the filing of the instant action that was the genesis of his
removal from IBM in the Resistance. Compare Amended Complaint ¶¶ 93-100, with
Resistance at 31 (“Plaintiff has found that the event of delivering Plaintiff’s Initial
Disclosure had not played the important role as initially thought . . . .”). The court finds
that, under either situation, summary judgment in favor of IBM is appropriate.
Premising Zhou’s argument on the filing of the instant action, the court concludes
that Zhou has failed to establish a prima facie case of retaliation. The original Complaint
(docket no. 1) in this action was filed on August 17, 2015. Zhou was not removed from
his IBM assignment until February 22, 2016, over six months later.
recognized that a six month interval is insufficient to prove causation. See Fercello v. Cty.
of Ramsey, 612 F.3d 1069, 1080 (8th Cir. 2010) (collecting cases and noting that a sixth
month gap between protected activity and adverse employment action “eliminates [the
plaintiff’s] ability to prove causation based on temporal proximity”). Accordingly, the
court must “look to other indicators of causation, and do so in light of a significant time
gap.” Id. Zhou has advanced no other evidence of causation between his initiation of the
instant action and his removal from IBM, instead attacking IBM’s proffered legitimate,
nondiscriminatory reason for such removal. See Resistance at 31. Assuming, without
deciding, that Zhou’s service of his initial disclosures constitutes protected activity, the
court finds that at least a genuine issue of fact exists regarding whether his service of the
same was causally related to his removal from IBM. The Eighth Circuit has noted that two
weeks is sufficiently close in time to justify an inference of causation. See Smith, 302 F.3d
at 833 (noting that the prima facie case stage of the McDonnell Douglas “requires only a
minimal showing before requiring the employer to explain its actions”). Here, Zhou
served his initial disclosures on February 19, 2016 and was removed from IBM’s account
on February 22, 2016. The temporal proximity between the events is sufficient to establish
a prima facie case of retaliation.
Moving to the second step of the McDonnell Douglas analysis, IBM has advanced
a legitimate, nondiscriminatory reason for seeking Zhou’s removal—namely, the February
12, 2016 incident with Enszer. See Brief in Support of the Motion at 29-31. Accordingly,
the burden shifts back to Zhou to demonstrate that such justification is pretextual. The
court finds that Zhou cannot do so.
Zhou argues that IBM’s failure to inquire into his side of the dispute with Enszer
demonstrates that IBM’s reasons were pretext. Zhou further argues that the argument with
Enszer “is a minor issue and . . . far from rising to the level of discharging a veteran
engineer without inquiring” into what occurred. Resistance at 30-31. However, the
evidence in the record demonstrates that Segerstrom viewed the incident as serious.
Segerstrom received emails from both Enszer and Gardiner regarding the incident. See
IBM Appendix I at 164; IBM Supplemental Appendix at 53. When Segerstrom responded
to Enszer regarding the incident, he stated that what Enszer was describing sounded
“beyond the norm” for Zhou’s behavior. Zhou Appendix I at 83. This was not the first
time that Zhou’s superiors had noted that he had a difficult time communicating
appropriately with customers and management. See IBM Appendix II at 21 (email from
Chumbley to Mattox stating that Zhou has “communication problems” and sometimes
“com[es] across as argumentative with the customer”); Zhou Appendix II at 112 (email
from an Artech representative to Zhou stating that Zhou was “being argumentative with
the customer and the new manager . . . Chumbley”); IBM Appendix I at 143 (Segerstrom
affidavit stating that he had previously received “oral complaints” from Amtrak employees
describing Zhou as being difficult to work with). In light of the emails from Enszer and
Gardiner and Segerstrom’s opinion that Zhou could come across as difficult and rude with
customers, the court does not view Segerstrom’s failure to inquire into Zhou’s version of
events as raising a genuine issue of fact regarding pretext. Zhou has produced no evidence
suggesting that Segerstrom’s belief that Zhou engaged in conduct “beyond the norm” with
Enszer, or that he had been difficult to work with in the past, was not held in good faith.
See Blackwell, 822 F.3d at 436. It does not matter whether Zhou, in fact, crossed some
line in terms of his conduct. Without evidence suggesting that Segerstrom lacked an
honest belief that he did, the court finds that Zhou has not demonstrated that his removal
was pretext for retaliation for either filing the instant action or serving his initial
Zhou argues that IBM’s treatment of Aaron Bouzek, a former IBM employee who
was discharged after being arrested for various child sex crimes, demonstrates that IBM’s
reasoning is pretext. See Resistance at 31; Zhou Appendix II at 100. Zhou asserts that
he and another systems administrator informed IBM in early 2014 that Bouzek was
“intentionally making systems unstable and creating problems on Amtrak servers.”
Resistance at 31. Zhou argues that, because Bouzek was not fired at that time, only later
after being arrested, the two were treated differently for similar actions, drawing the
inference of pretext. In the retaliation context, a plaintiff may establish pretext by
comparing him or herself to a similarly situated employee who did not engage in protected
conduct and was treated more favorably. See Smith, 302 F.3d at 835. The similarly
Furthermore, the court notes that the argument with Enszer occurred on February
12, 2016, seven days prior to Zhou’s service of his initial disclosures. This further
weakens the inference of pretext because it suggests that Segerstrom made the decision to
seek Zhou’s removal before Zhou even served his initial disclosures.
situated employee analysis is the same as in ADEA discrimination claims. See id. Here,
Bouzek and Zhou were not similarly situated in all relevant respects. To begin, Zhou
complained about Bouzek to management as a fellow co-worker. In Zhou’s case, he was
removed from his placement at IBM because of a customer complaint. This alone is
sufficient to conclude that Zhou and Bouzek were not similarly situated. Furthermore,
there is evidence in the record that IBM managers viewed Zhou as being argumentative
and difficult to work with since at least 2014, when Zhou requested a pay increase. See
IBM Appendix II at 21 (email from Chumbley to Mattox stating that Zhou has
“communication problems” and sometimes “com[es] across as argumentative with the
customer”); see also Zhou Appendix I at 83 (email from Segerstrom to Enszer stating that
Zhou “has always had what seems to be almost rude behavior but that has just been his
communication style and his intent was never to be rude”). Zhou has advanced no
evidence that Bouzek had such a history. Accordingly, the court cannot conclude that
Zhou and Bouzek were similarly situated.
Zhou also variously argues that IBM’s reasoning for seeking his removal is pretext
because Zhou was technically correct during his discussion with Enszer and because
Segerstrom has shifted his justification for Zhou’s termination.14 See Resistance at 33, 37.
Neither of these arguments are meritorious. Zhou was not removed for giving Amtrak
incorrect technical advice, he was removed for the manner in which he communicated with
Enszer. IBM’s justification for seeking his removal does not succeed or fail on whether
he was correct in his assessment of the Amtrak server. There is also no evidence that
Segerstrom or IBM have shifted their justification for seeking Zhou’s removal at any point
Zhou also suggests that IBM’s resistance to his discovery attempts demonstrates
pretext. The court will not address or consider such argument. The court has consistently
warned Zhou that he must file motions to compel if he feels that IBM is abusing the
discovery process. Zhou has consistently failed to do so. The court shall not deny IBM
summary judgment or grant Zhou summary judgment on these grounds.
during the course of litigation. Compare Zhou Appendix I at 96 (email from an Artech
representative to Zhou on April 22, 2016 stating that “[t]he immediate reason that IBM
requested that you be taken off the account ending your assignment was due to a complaint
that IBM received from Warren Enszer of Amtrak on February 12, 2016”), with Brief in
Support of the Motion at 29-30. Finally, Zhou argues that Segerstrom was not the person
who suggested or requested Zhou be removed from the account. See Resistance 34-35.
He does not support this argument with any evidence of who made the decision to remove
him from his placement at IBM or any other evidence allowing the court to infer causation.
Rather, he makes vague reference to the fact that he was scheduled for work and that
Segerstrom had requested login data for him for some of IBM’s new servers, arguing that
this demonstrates that Segerstrom was not planning on terminating him. See Resistance
at 34. This is insufficient to demonstrate that IBM’s justification was pretext. Vague,
conclusory allegations are insufficient to defeat summary judgment. See Anuforo, 614
F.3d at 807. Zhou fails to put forth evidence to suggest that Segerstrom would not have
taken those actions had he actually made the decision to request Zhou’s removal, or
demonstrate that such actions were not taken when other employees were terminated or
removed in the past.
In short, Zhou cannot establish a prima facie case of retaliation based on his filing
of the instant action. Even if he could, however, the lack of temporal proximity, along
with weak evidence supporting a prima facie case, fails to raise a genuine issue of fact
regarding pretext. Although Zhou can establish a prima facie case of retaliation based on
his service of his initial disclosures, he cannot establish the existence of a genuine dispute
of material fact in light of IBM’s legitimate, nondiscriminatory reason for seeking his
removal. Therefore, Zhou has also failed to demonstrate that he is entitled to judgment
as a matter of law on his retaliation claims. The court shall grant summary judgment in
IBM’s favor on Counts III and IX.
In light of the foregoing, the IBM Motion (docket no. 102) is GRANTED and the
Resistance (docket no. 121) is DENIED. The Clerk of Court is DIRECTED to enter
judgment in accordance with the above findings. The trial date is vacated.
IT IS SO ORDERED.
DATED this 31st day of March, 2017.
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