Adams et al v. Nature's Expressions Landscaping, Inc.

Filing 93

MEMORANDUM OPINION & ORDER: 1. IT IS ORDERED that Defendant's 67 MOTION for Summary Judgment as to Plaintiff Ron Stewart's retaliation claim is GRANTED. 2. Defendant's 68 MOTION for Summary Judgment as to Plaintiff Frankie Anderson's retaliation claim is DENIED. Signed by Judge Joseph M. Hood on 9/14/2018.(GLD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

THOMAS ADAMS, et al.,

)
)
)
)
)
)
)
)
)
)
)

Plaintiffs,
v.
NATURE’S EXPRESSIONS
LANDSCAPING, INC.,
Defendant.

Civil Case No.
5:16-cv-98-JMH
MEMORANDUM OPINION
AND ORDER

***
Plaintiffs Ron Stewart and Frankie Anderson claim that their
former employer, Defendant Nature’s Expressions Landscaping, Inc.,
violated 29 U.S.C. § 215(a)(3) by retaliating against them for
engaging in activity protected by the Fair Labor Standards Act
(“FLSA”).

Nature’s Expressions denies the allegations and argues

that Anderson and Stewart were terminated for legitimate, nondiscriminatory reasons.

Thus, Nature’s Expressions filed Motions

for Summary Judgment [DE 67, 68] on the retaliation claims.
Anderson and Stewart responded [DE 77, 78] and Nature’s Expressions
replied [DE 82, 83], making this matter ripe for review.

Both

Motions for Summary Judgment [DE 67, 68] will be addressed in this
Memorandum Opinion and Order.

For the reasons stated herein,

Defendant’s Motion for Summary Judgment as to Plaintiff Ron Stewart
[DE 67] is GRANTED, and Defendant’s Motion for Summary Judgment as
to Plaintiff Frankie Anderson [DE 68] is DENIED.
1

I. PROCEDURAL AND FACTUAL BACKGROUND
Plaintiffs,

former

employees

of

Defendant

Nature’s

Expressions, originally brought a collective action complaint in
state court alleging that Nature’s Expressions violated their
rights under various provisions of the FLSA, 29 U.S.C. § 201, et
seq., and the Kentucky Wage and Hour Act, KRS § 337.285.
1-1, Collective Action Complaint].

The matter was removed to this

Court pursuant to 28 U.S.C. § 1331 on March 30, 2016.
Notice of Removal].
April 28, 2016.

[DE

[DE 1,

Defendant then filed a corrected Answer on

[DE 9-1, Corrected Answer].

Nearly two dozen former employees of Nature’s Expressions
opted in to this collective action as Plaintiffs after the Court
certified the class.

[DE 26].

After the Court denied Defendant’s

Motion for Summary Judgment [DE 48], the parties engaged in
settlement negotiations.
The

parties

submitted

a

Joint

Motion

for

Approval

of

Settlement to settle all overtime claims asserted by the named
Plaintiffs on behalf of themselves and the class under 29 U.S.C.
§ 207 (Count I of the Complaint) and the individual overtime claims
asserted by Plaintiffs Adam Allnut and John Heska under KRS 337.285
(Count II).

[DE 69].

The Settlement Agreement and Release of

Claims was approved by the Court on July 26, 2018.

[DE 74, Order].

The settlement did not include the individual retaliation claims
2

asserted by Plaintiffs Frankie Anderson and Ron Stewart under 29
U.S.C. § 215(a)(3) (Count III).

[DE 69, Joint Motion; 74, Order].

Defendant filed new Motions for Summary Judgment on the
retaliation claims asserted by Anderson and Stewart.

[DE 67, 68].

These new Motions are the subject of this Memorandum Opinion and
Order. This dispute arises out of Plaintiffs’ employment with
Nature’s Expressions.
Ron

Stewart

was

employed

by

Nature’s

Expressions

carpenter from September 3, 2015 to February 9, 2016.

as

a

[DE 67-1,

Nature’s Expressions Memorandum in Support of Summary Judgment, p.
2;

DE

67-2;

DE

67-3].

The

Nature’s

Expressions

employment

agreement, which Stewart signed, states that a typical work week
is from 7:00 a.m. until 6:00 p.m., Monday through Friday and some
Saturdays, with a 30-minute lunch period.
Employment Agreement, p. 1, 3].
at a rate of $160 per day.

[DE 67-2, Stewart

Stewart was initially compensated

[Id. at 2].

Additionally, Stewart was

permitted five days of unpaid sick or personal leave per year,
excluding paid holidays.

[Id. at 3].

The employment agreement

requires that time off requests “be cleared by [a] supervisor . .
. in advance.”
supervisor.

[Id.].

Jonathan Donley was Stewart’s direct

[Id. at 1].

Frankie Anderson was employed by Nature’s Expressions as a
mechanic from September 10, 2013 to March 14, 2016.
3

[DE 78-1,

Nature’s

Expressions

Employee

Anderson’s Termination Notice].
maintenance

and

repairing

File

Cover

Sheet;

DE

68-3,

Anderson was tasked with building

and

maintaining

equipment

used

by

Nature’s Expressions. [DE 78, p. 2]. Anderson’s position required
him to make “runs” to purchase materials or work on equipment at
job sites.

[DE 68-1, p. 3; DE 68-7, Flygstad Affidavit, p. 2].

Anderson was originally required to work from 7:00 a.m. until
5:00 p.m., with a thirty-minute lunch break. [DE 68-2].
was initially compensated at a rate of $160 per day.

Anderson

[Id.].

At

some point, Anderson’s day rate compensation was raised to $180
per

day

based

on

a

[DE 68-1, p. 13, 78, p. 7].

typical

fifty-hour

work

week.

Nature’s Expressions submits that the

day rate was inclusive of overtime pay, which was calculated into
the

daily

rate.

[DE

68-1,

p.

13].

Furthermore,

Nature’s

Expressions asserts that Anderson’s day rate was based on a base
rate of $14.40 per hour.1

[Id.].

1

It is unclear, based on the record and pleadings, how Nature’s
Expressions calculated overtime pay into the day rate.
While
issues regarding overtime pay have been resolved by the parties,
determining whether Anderson’s pay was reduced is relevant to
whether an adverse employment action occurred.
Even assuming, for the sake of argument, the facts as provided by
Nature’s Expressions are true [See DE 68-1, p. 13], prior to the
March 4th employment agreement, Anderson was paid $180/day for a
ten-hour work day. Thus, Anderson would presumably be paid his
base rate of $14.40 for eight hours per day equaling $115.20 base
pay per day.
Thus, the additional $64.80 of his day rate is
presumably compensation for two additional hours of overtime pay.
4

Dale

Flygstad

was

Anderson’s

direct

supervisor.

[Id.].

Anderson testified that he had an agreement with Flygstad that
permitted him to leave the Nature’s Expressions premises for
personal errands during the workday.

[DE 68-3, pp. 37-39].

Nature’s Expressions denies that Flygstad gave Anderson permission
to run personal errands but acknowledges that Anderson did run
personal errands during the work day.
24-25].

[DE 68-7, p. 2; DE 9-1, pp.

Furthermore, Anderson was also using a master key to

access the facility to complete his work after hours.

[DE 68-7,

p. 2; DE 78-2, pp. 39-42].

If so, Nature’s Expressions paid $32.40 per hour for overtime pay.
But time-and-a-half for two hours of overtime pay, based on the
base hourly rate of $14.40, would be $21.60 per hour, not $32.40.
Based on his base hourly rate of $14.40, Anderson would have been
compensated a daily total of $158.40 for eight hours of base pay
and two hours of overtime at time-and-a-half. But Anderson was
paid $180/day or $900/week under the day rate compensation scheme.
It is equally unclear how Anderson would have been compensated if
he had worked six days in a week or worked more than fifty hours
in a week.
Alternatively, Defendant’s Answer states that Anderson was
originally paid $14.54 per hour base pay for eight hours (totaling
$116.32), $21.81 per hour of time-and-a-half overtime pay for two
hours (totaling $43.62) and a paid thirty-minute lunch break, for
a total original day rate of $160. [DE 9-1, pp. 14-15]. But this
still doesn’t compute. If true, this means that Anderson was only
being paid six cents (0.06) for a paid thirty-minute lunch break
when he should have been paid at least $7.27 for a half-hour of
base pay, if not more based on the overtime rate. Additionally,
this is inconsistent with Anderson’s ten-hour work day.
Defendant’s Answer suggests that Anderson was working ten hours in
addition to a thirty-minute paid lunch for a total of ten-and-ahalf hours per day. 
5

At some point during both Anderson’s and Stewart’s employment
with Nature’s Expressions, disputes arose pertaining to Nature’s
Expressions compensation scheme relating to overtime pay.

Stewart

testified that he questioned the compensation scheme on several
occasions

during

his

employment

with

beginning as early as November 2015.
Stewart,

pp.

conversations

27-29].
about

Stewart
overtime

Nature’s

Expressions,

[DE 67-5, Deposition of

testified

that

compensation

he

with

only

his

had

direct

supervisor, Jonathan Donley. [Id. at 27-28]. Nature’s Expressions
and Donley deny that Stewart ever complained about overtime pay.
[See DE 9-1, p. 18; DE 67-7, Donley Affidavit].
On January 11, 2016, Stewart sent a text message to Donley
stating that he would not be at work that day because his truck
would not start.

[DE 67-5, Stewart Deposition, p. 22; DE 67-5,

Exh. 2, Text Message].

Donley responded and told Stewart that he

needed Stewart to come to work that day and told Stewart to
“[p]lease find a way to work.”

[DE 67-5, Exh. 2].

Still, Stewart

testified that he did not go to work on January 11th and that he
did not respond to Donley’s text message.

[DE 67-5, pp. 22-23].

Eventually, sometime in January 2016, Stewart anonymously
filed an administrative complaint with the Kentucky Labor Cabinet
pertaining to unpaid overtime at Nature’s Expressions.
2; see DE 67-5, pp. 31-33].

Stewart testified that he told his

6

[DE 77, p.

direct

supervisor,

administrative

Jonathan

complaint

Donley,

with

the

that

Kentucky

he

had

an

Cabinet

Labor

filed

on

February 5, 2016, but this information is not included in the
original

Complaint.

[DE

67-5,

pp.

35-36;

see

DE

1-1].

Additionally, Donley denies that Stewart told him that he had filed
a complaint with the Kentucky Labor Cabinet.

[DE 67-6, p. 2].

On Saturday, February 6, 2016, Stewart sent a text message to
Donley informing Donley that he would not be at work on Monday,
February 8, 2016, because he had an appointment with an eye doctor.
[DE 67-5, pp. 23-24; DE 67-5, Exh. 3, Text Message].

Donley

responded to Stewart’s message, stating:
Its [sic] important that you go to the eye doctor. But
I will not be working Monday because of a planned PET
scan and oncology appointment. Its [sic] not good for
both of us to miss the same day. Time off requests need
to be made 2 weeks in advance. Please reschedule your
appointment for another day . . . .

[DE 67-5, Exh. 3].

Stewart testified that he did not call Donley

or respond to his message. [DE 67-5, p. 24]. Furthermore, Stewart
testified that he did not appear at work on February 8, 2016, even
though his appointment did not take the entire day.

[Id.].

The next day, on February 9, 2016, Stewart was terminated
from his employment at Nature’s Expressions for “[m]isconduct due
to disregard of Nature’s Expression’s [sic] policies.”

[DE 67-2,

Stewart

sign

Termination

Notice].

Stewart
7

refused

to

the

termination acknowledgement on the termination notice.

[DE 67-5,

p. 27; see DE 67-2].
Later that month, on February 24, 2016, a representative of
the

Kentucky

Labor

[DE 9-1, p. 20].

Cabinet

visited

Nature’s

Expressions.

During the representative’s visit to Nature’s

Expressions, Flygstad asked Anderson if he was happy with his
position at Nature’s Expressions.

[Id., DE 78, p. 2].

Plaintiff

Anderson testified that Flygstad pointed out that the Labor Cabinet
representative’s car was in the company parking lot and that
Anderson’s friend and co-worker, Steven Atwood, had contacted the
Labor Cabinet.

[DE 78-2, pp. 43-44].

Additionally, Anderson

testified that Flygstad asked if he had contacted the Labor
Cabinet, to which Anderson responded, “no.” [Id. at 44]. Nature’s
Expressions acknowledges that Flygstad asked Anderson if he was
happy with his position but denies that Flygstad mentioned Steven
Atwood contacting the Kentucky Labor Cabinet or that Flygstad asked
Anderson if he had called the Labor Cabinet.
On

February

25,

2016,

Nature’s

[DE 9-1, pp. 20-21].

Expressions

announced

an

employee meeting to explain the overtime compensation scheme. [Id.
at 21].

Flygstad personally informed Anderson about the meeting

and stated that he wanted to have a private meeting with Anderson.
[Id.].

8

The employee meeting was held the next day, on February 26,
2016.

[Id.].

David Miller, a Nature’s Expressions executive, led

the meeting and informed employees that the Kentucky Labor Cabinet
was reviewing Nature’s Expressions records due to complaints that
had been filed.

[Id.].

Anderson asserts that he spoke up during

the employee meeting and “said that it seemed like the math in Mr.
Miller’s overtime calculations could be done several different
ways.”

[DE

Expressions
meeting.

78-3,

denies

Anderson
that

Declaration,

Anderson

spoke

p.

2].

during

the

Nature’s
employee

[DE 9-1, p. 22].

During the employee meeting, employees were polled as to
whether they wanted to retain the current day rate compensation
scheme with daily overtime premiums or transition to an hourly pay
scheme.

[Id.].

Nature’s Expressions claims that “all employees

who voted [at the employee meeting] did so in favor of the current
[day rate] compensation scheme.”

[Id.].

Anderson asserts that he

was not present during the portion of the employee meeting when
the vote was held because he had left the meeting to take his
daughter to school.

[DE 78-3, p. 2].

After the meeting, Anderson returned to work and claims that
he was asked by multiple employees to give his opinion on the
compensation scheme for overtime pay.

9

[Id.].

Anderson asserts

that each time he responded by saying that he felt Miller’s math
for calculating overtime pay was incorrect.

[Id.].

Later that day, on February 26th, Anderson met privately with
Flygstad.
that

[Id. at 3, DE 9-1, p. 23].

employees

compensation

had

scheme

unanimously
for

Flygstad informed Anderson

voted

overtime

to

pay.

keep
[DE

the
9-1,

current
p.

23].

Furthermore, Flygstad informed Anderson that his current day rate
pay scheme would be changed.

[Id.].

Anderson asserts that

Flygstad informed him that he would be paid at an unspecified
hourly rate going forward.

[DE 78-3, p. 3].

Additionally, Anderson asserts that he was approached again
by Flygstad on February 26th, who inquired about “five other
employees [who] had reported that [Anderson] had said Mr. Miller’s
math was not correct when calculating overtime.”

[Id.].

Anderson

claims that Flygstad told him that he “needed to keep [his] mouth
shut, and that the conversation about overtime pay needed to be
shut down and come to an end.”

[Id.].

Anderson claims that

Flygstad said that further conversation about overtime pay “would
not be tolerated” and that Flygstad had told employees to report
to him if they heard further talk about overtime pay.

[Id.].

Nature’s Expressions denies that this conversation took place.
[DE 9-1, p. 23].

10

Subsequently, on March 4, 2016, Anderson was asked by Flygstad
to return a diagnostic computer that he used while working on
company vehicles and equipment.

[Id. at 23-24].

On the same

day, Anderson met with Lisa Keyes, a human resources employee for
Nature’s Expressions. [Id. at 24; see DE 78, p. 6]. Keyes directed
Anderson to turn in his master key and informed him that he was no
longer responsible for building maintenance.
Additionally,

during

the

meeting

[DE 9-1, p. 24].

on

March

4th,

Keyes

presented Anderson with an employment agreement, with new terms of
employment.

[Id. at 24; DE 68-1, p. 3; see DE 68-5, Anderson

Employment Agreement].

The agreement limited Anderson’s work week

to forty hours per week and required that Anderson clock out for
lunch.

[DE 68-5, p. 1].

Additionally, the agreement required

that Anderson’s work be fulfilled between 7:00 a.m. and 6:00 p.m.,
Monday through Friday.
changed

Anderson’s

[DE 68-5, p. 1].

pay

from

the

The agreement also

previous

compensation

of

“$180/day, which included both regular and overtime pay,” to $22
per hour.

[Id. at 2].

The agreement stated that “[a]ll overtime

hours must be approved by [a] supervisor in advance.”

[Id. at 1].

Finally, Keyes explained that, as a condition of the agreement,

11

Anderson would be required to clock out each time he left the
premises.2

[Id. at 24].

Anderson testified that Keyes read the agreement to him and
told him that he needed to sign it immediately.
46-48].

[DE 78-2, pp.

Anderson claims that he was told by Keyes that he could

not return to work until he signed the agreement.
46-47].

[Id. at

Anderson testified that he called Flygstad to discuss the

agreement and asked if he could take the agreement home to review
it before signing it.

[Id. at 47; DE 78-3, p. 4].

Anderson claims

that Keyes told him that she could not go home before he signed
the agreement.

[DE 78-2, p. 47; DE 78-3, p. 4].

Anderson asserts

that he had to pick up his daughter from school, so he signed the
employment agreement and left for the day.
78-3, p. 4].

[DE 78-2, p. 47; DE

Nature’s Expressions denies that Anderson was

pressured into signing the employment agreement.

[DE 9-1, p. 25].

Then, Anderson was given the day off on Monday, March 7, 2016.
[DE 9-1, pp. 26-25].

Subsequently, Anderson claims that he had

multiple conversations with Flygstad, one in which the verses from
the Bible were discussed.

[Id. at 24-25; DE 78-3, pp. 4-5].

In

one of those conversations, Anderson claims that Flygstad told him

2

The requirement that Anderson clock out each time he left the
premises does not appear on the face of the March 4th employment
agreement, but the parties do not dispute that this was a
requirement under his March 4th employment agreement. [See DE 91, p. 24; DE 68-5].
12

that he had heard Anderson was trying to get past and present
employees of Nature’s Expressions to join a lawsuit.
5].

[DE 78-3, p.

Anderson claims that Flygstad asked if he had hired an

attorney and Anderson asserts that he told Flygstad that he had
hired an attorney and was in the process of filing a lawsuit
against Nature’s Expressions. [Id.]. In response, Anderson claims
that Flygstad said that if Anderson filed a lawsuit he would not
just be suing the company but also the owners and workers at
Nature’s Expressions.

[Id.].

Finally, Anderson claims that

Flygstad told him that he did not see how Anderson could continue
as an employee with Nature’s Expressions if he was suing the
company.

[Id.].

Finally, Anderson states that Flygstad told

Anderson that he could keep his job if he agreed not to file a
lawsuit against Nature’s Expressions.

[Id. at 6].

Later, on March 8, 2016, Flygstad sent a message to Anderson
with a list of tasks that were to be completed that day.
1, p. 27; DE 78-3, p. 6].

[DE 9-

Anderson completed some of the tasks

that were assigned to him, but he claims that his company credit
card had been cancelled, which prevented him from completing the
remaining tasks.

[DE 78-3, pp. 6-7].

Anderson asserts that he

was waiting on a co-worker, Quincy Hand, to return to work and go
pick up parts so that Anderson could complete his work.
7].

[Id. at

In the meantime, Anderson claims that he started to have back

pain from an injury unrelated to his work at Nature’s Expressions
13

and that he left work after telling multiple co-workers about his
back pain.

[DE 78-2, pp. 61-63].

Additionally, Anderson claims

that a doctor encouraged him to stay off work until March 14, 2016.
[DE 78-3, p. 7].

Nature’s Expressions denies that the company

credit card assigned to him was cancelled and denies that Anderson
did not have access to the tools needed to complete the tasks
assigned to him on March 8th.

[DE 9-1, p. 27].

Finally, an exhibit to Anderson’s Response to the Motion for
Summary Judgment indicates that Anderson was terminated from his
employment on March 14, 2016.

[DE 68-3].

Even so, the complaint

in the present case was filed on March 8, 2016, prior to Anderson’s
termination, and the pleadings have not been amended to include
factual information or legal allegations arising from Anderson’s
termination.

[See DE 1; DE 1-1].

Anderson’s termination was

discussed when Anderson was deposed.

[DE 78-2, pp. 77-78].

Furthermore, Anderson’s termination is mentioned in the Report of
the Parties’ Planning Meeting, which states: “Plaintiffs Stewart
and

Anderson

claim

they

were

unlawfully

terminated

by

the

Defendant, in violation of the FLSA, after complaining about
overtime pay.”

[DE 12, p. 2].
II.

Standard of Review

Summary judgment is appropriate only when no genuine dispute
exists as to any material fact and the movant is entitled to

14

judgment as a matter of law.

Fed. R. Civ. P. 56(a).

The moving

party has the burden to show that “there is an absence of evidence
to support the nonmoving party’s case.”
477 U.S. 317, 325 (1986).

Celotex Corp. v. Catrett,

“A dispute about a material fact is

genuine if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.”

Smith v. Perkins Bd. of Educ.,

708 F.3d 821, 825 (6th Cir. 2013) (internal quotations omitted).
The Court construes all facts, including inferences, in the light
most favorable to the nonmoving party.

See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986); Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
III. Analysis
A.
Whether
Plaintiff
Frankie
Anderson’s
Claim
for
Retaliation Arising from his Termination is Properly Before
the Court

As

an

Plaintiff

initial

matter,

Anderson’s

claim

Nature’s
of

Expressions

retaliation

argues

arising

from

that
his

termination is not properly before the Court because he was
terminated after the initial Complaint was filed and has made no
effort to supplement the pleadings pursuant to Fed. R. Civ. P.
15(d).

[See DE 68-1, pp. 7-9].

In response, Anderson states that

his termination may be properly considered in this action because
his termination does not constitute a new claim that would require
supplemental pleading.

[See DE 78, pp. 22-23].
15

Furthermore,

Anderson asserts that he identified his termination as an adverse
employment action in discovery responses and the Report of the
Parties’ Planning Meeting [DE 12].

[See id. at 23-24].

Fed. R. Civ. P. 8(a)(2) states that “a pleading that states
a claim for relief must contain . . . a short and plain statement
of the claim showing that the pleader is entitled to relief.”

The

Supreme Court elaborated on the pleading standard in Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556
U.S. 662 (2009), confirming that the “rule imposes legal and
factual demands on the authors of complaints.”

16630 Southfield

Ltd. Partnership v. Flagstar Bank, F.S.B., 727 F.3d 502, 503 (6th
Cir. 2013).
Still, in Swierkiewicz v. Sorema N. A., the United States
Supreme Court unanimously held that the prima facie case analysis
under McDonnell Douglas is an evidentiary standard, not a pleading
requirement.
and

Iqbal

534 U.S. 506, 510.
did

not

alter

the

Subsequent decisions in Twombly
holding

in

Swierkiewicz

but

reemphasized that “application of the McDonnell Douglas prima
facie case analysis at the pleading stage ‘was contrary to the
Federal Rules’ structure of liberal pleading requirements.’”

Keys

v. Humana, Inc., 684 F.3d 605, 609 (6th Cir. 2012) (quoting
Twombly, 550 U.S. at 570).

Here, the “plausibility” standard in

Twombly and Iqbal requires the Plaintiff to allege sufficient

16

“factual content,” as opposed to “detailed factual allegations,”
from which a court, informed by its “judicial experience and common
sense,” could “draw the reasonable inference,” Iqbal, 556 U.S. at
678, that Nature’s Expressions terminated Anderson in retaliation
for engaging in protected activity.

29 U.S.C. § 215(a)(3).

Even so, where “transactions, occurrences, or events aris[e]
after the date of filing a complaint, a supplemental pleading must
be filed.”

Stewart v. Shelby Tissue, Inc., 189 F.R.D. 357, 361

(W.D. Tenn. 1999) (citing Fed. R. Civ. P. 15(d)); see also, Dubuc
v. Green Oak Twp., 312 F.3d 736, 750 (6th Cir. 2002) (“When the
alleged

manifestation

of

retaliatory

animus

occurs

before

adjudication on the merits of the initial suit, however, the victim
is

obliged

to

allegations.”).

amend

his

or

her

complaint

to

add

these

new

The Federal Rules of Civil Procedure provide a

procedural vehicle for supplementing pleadings, providing that
“[o]n motion and reasonable notice, the court may, on just terms,
permit a party to serve supplemental pleading setting out any
transaction, occurrence, or event that happened after the date of
the pleading to be supplemented.”

Fed. R. Civ. P. 15(d).

Ultimately, Anderson’s termination is not properly before the
Court for consideration.

Anderson’s termination is not simply new

evidence that may support his claim but instead constitutes a
separate, discrete act of retaliation upon which Anderson may

17

recover.

See Nat’l R.R. Passenger Corp. v. Morgan, 526 U.S. 101,

114 (2002) (“Discrete acts such as termination . . . are easy to
identify. Each incident of discrimination and each retaliatory
adverse employment decision constitutes a separate actionable
unlawful

employment

practice.”

(internal

quotation

marks

omitted)).
Anderson

is

correct

that

Swierkiewicz

stands

for

the

proposition that he is not required to prove a prima facie case of
retaliation at the pleading stage.

Still, even the liberal

pleading standards in the Federal Rules require something more
than nothing.

Pleadings serve crucially important functions in

civil litigation.

Complaints inform adverse parties of the legal

grounds and factual allegations underlying a lawsuit.

Complaints

also allow a defendant to gather information, prepare a defense,
and initiate settlement negotiations.
Here, Anderson’s termination is not before the Court, not due
to res judicata, but simply because his termination is not included
in any pleadings before the Court.

Simply put, no information

pertaining to Anderson’s termination has been pleaded.
Anderson is correct that his termination is mentioned in his
discovery responses and in the Report of the Parties’ Planning
Meeting,

but

this

falls

well

short

standards found in the federal rules.
18

of

the

liberal

pleading

Anderson was terminated

after the original complaint was filed.

The first time that

Anderson presented his termination in any detail is in the Response
to the Motion for Summary Judgment [DE 78], over two years after
this lawsuit was filed.

A response to a motion for summary

judgment is not contemplated as a pleading under the Federal Rules
of Civil Procedure.

See Fed. R. Civ. P. 7(a) (listing the only

pleadings allowed in federal courts).
Anderson’s termination, which occurred after this lawsuit was
filed, is a discrete act of unlawful retaliation and Anderson was
required to either supplement his pleading in this action to
include the termination claim or file a separate lawsuit based on
the alleged retaliatory termination.

Anderson has done neither.

A complaint initiates a lawsuit, sets out a factual basis to
support the claims, and defines the parameters of civil litigation.
Other than passing mentions in discovery documents, Anderson’s
termination has been presented for the first time over two years
after this lawsuit was initiated and less than two months before
trial.

Allowing Anderson to include a claim of retaliation based

on his termination or use his termination to support his current
retaliation
resulting

claim
in

would

delays,

likely
and

require

would

additional

prejudice

the

discovery,
defendant.

Furthermore, allowing Anderson to include his termination at this
stage in the litigation would render the pleading standards and
supplemental pleading rules meaningless.
19

Why would a party be

required to plead sufficient factual content to demonstrate that
the pleader is entitled to relief if the pleader could simply
introduce a new claim two months before trial?
Federal

Rules

provide

for

supplemental

Why would the

pleading

of

any

transaction, occurrence, or event that happened after the date of
pleading if a party could simply raise a new occurrence or event
two years after the commencement of a suit?
In the end, Anderson has failed to plead any, much less
sufficient, factual content from which this Court, informed by its
judicial experience and common sense, could draw the reasonable
inference

that

employment

in

Nature’s

retaliation

Expressions
for

engaging

terminated
in

Anderson’s

protected

activity

because there is no mention of Anderson’s termination in the
pleadings.

As such, the Court will not consider Anderson’s

termination in determining whether Anderson has demonstrated a
prima facie claim of retaliation under the FLSA.
B.

Prima Facie Retaliation Claims Under the FLSA

The anti-retaliation provision of the FLSA makes it unlawful
for an employer to “discharge or in any other manner discriminate
against [an] employee because such employee has filed [a] complaint
or instituted . . . any proceeding under [the FLSA].”
§ 215(a)(3).

29 U.S.C.

Where the plaintiff establishes direct evidence of

discrimination, he may prevail without proving all the elements of
20

a prima facie case of discrimination.

See Trans World Airlines,

Inc. v. Thurston, 469 U.S. 111, 121 (1985) (“[T]he McDonnell
Douglas test is inapplicable where the plaintiff presents direct
evidence of discrimination.”).

Alternatively, the burden shifting

analysis employed in McDonell Douglas Corp. v. Green, 411 U.S. 792
(1973) applies to an FLSA retaliation claim where there is no
direct evidence of discrimination. Adair v. Charter Cty. of Wayne,
452 F.3d 482, 489 (6th Cir. 2006).
At the summary judgment stage, “the plaintiff must first
submit evidence from which a reasonable jury could conclude that
a prima facie case of discrimination has been established.” Pettit
v. Steppingstone, Ctr. for the Potentially Gifted, 429 Fed. App’x
524, 530 (6th Cir. 2011) (citing Macy v. Hopkins County Sch. Bd.
of Educ., 484 F.3d 357, 364 (6th Cir.2007) (internal citations and
quotation marks omitted)).

To establish a prima facie case of

retaliation, an employee must prove, by a preponderance of the
evidence, that: “(1) he or she engaged in a protected activity
under

the

FLSA;

(2)

his

or

her

exercise

of

this

[protected

activity] was known by the employer; (3) thereafter, the employer
took an employment action adverse to her; and (4) there was a
causal connection between the protected activity and the adverse
employment action.”

Id.; see also St. Mary’s Honor Ctr. V. Hicks,

509 U.S. 502, 506 (1993).

A prima facie case of retaliation

“creates a presumption that the employer unlawfully discriminated
21

against the employee.”

Id. (quoting Hicks, 509 U.S. at 506). “The

burden of establishing a prima facie case in a retaliation action
is not onerous, but one easily met.”

Nguyen v. City of Cleveland,

229 F.3d 559, 563 (6th Cir. 2000).
If the plaintiff establishes a prima facie case, “the burden
shifts

to

the

defendant

to

set

forth

a

legitimate,

discriminatory reason for the adverse employment action.”

nonAdair,

452 F.3d at 489 (citing McDonnell Douglas, 411 U.S. at 802).

At

this stage, “[t]he defendant bears only the burden of production;
the burden of persuasion remains with the plaintiff at all times.”
Weigel v. Baptist Hosp. of E. Tennessee, 302 F.3d 367, 377-78 (6th
Cir. 1991) (citing Texas Dep't of Cmty. Affairs v. Burdine, 450
U.S. 248, 253 (1981)).
If the defendant articulates a legitimate, non-discriminatory
reason for the adverse employment action, “the plaintiff must then
prove by a preponderance of the evidence that the defendant’s
proffered reasons were not its true reasons, but merely a pretext
for illegal discrimination.”

Adair, 452 F.3d at 489.

“To raise

a genuine issue of fact as to pretext . . . the Plaintiffs must
show that (1) the proffered reason had no factual basis, (2) the
proffered reason did not actually motivate [the] action, or (3)
the proffered reason was insufficient to motivate the action.”
Id. at 491 (citing Cicero v. Borg-Warner Automotive, Inc., 280

22

F.3d 579, 589 (6th Cir. 2002)); Mickey v. Zeidler Tool & Die Co.,
516 F.3d 516, 526 (6th Cir. 2008).

Ultimately, “[t]he plaintiff

must

from

produce

sufficient

evidence

which

the

jury

could

reasonably reject [the defendant’s] explanation and infer that the
defendant[] . . . did not honestly believe in the proffered
nondiscriminatory

reason

for

its

adverse

employment

action.”

Mickey, 516 F.3d at 526 (internal quotations omitted).

“To show

an honest belief, the employer must be able to establish its
reasonable reliance on the particularized facts that were before
it at the time the decision was made.”

Id. (internal quotations

omitted).
The first potential showing to attack the credibility of the
defendant’s articulated reason for its actions requires that the
proffered reason has no factual basis.

Manzer v. Diamond Shamrock

Chemicals Co., 29 F.3d 1078, 1084 (6th Cir. 1994) (overruled on
other grounds, Geiger v. Tower Automotive, 579 F.3d 614 (6th Cir.
2009)).

This first showing is “easily recognizable and consists

of evidence that the proffered bases for the plaintiff's discharge
never

happened, i.e., that

they

(internal quotations omitted).

are

factually

false.”

Id.

The second showing, that the

proffered reason did not actually motivate the defendant’s action,
requires that “the plaintiff admits the factual basis underlying
the employer's proffered explanation and further admits that such
conduct could motivate dismissal.”
23

Id. (emphasis in original).

The second showing constitutes an indirect attack on the proffered
reason where “the plaintiff attempts to indict the credibility of
his employer's explanation by showing circumstances which tend to
prove that an illegal motivation was more likely than that offered
by the defendant.”

Id. (emphasis in original).

Like the first

showing, the third showing is a direct attack that “consists of
evidence that other employees, particularly employees not in the
protected class, were not fired even though they engaged in
substantially

identical

conduct

to

that

which

contends motivated its discharge of the plaintiff.”
(i)

the

employer

Id.

Plaintiff Ron Stewart’s Retaliation Claim

Plaintiff Ron Stewart engaged in protected activity under the
FLSA when he filed an anonymous complaint with the Kentucky Labor
Cabinet pertaining to overtime pay, satisfying the first element
of the McDonnell Douglas analysis.

See 28 U.S.C. § 215(a)(3);

Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 7
(2011).
Next, Stewart must demonstrate that a reasonable jury could
find that it is more likely than not Nature’s Expressions was aware
that he engaged in activity protected by the FLSA.

Stewart’s

administrative complaint with the Kentucky Labor Board was filed
anonymously.

Stewart testified that, on February 5, 2016, he

personally told his direct supervisor, Jonathan Donley, that he
24

had filed an administrative complaint with the Kentucky Labor
Cabinet pertaining to unpaid overtime hours. Of course, if Stewart
told Donley that he had filed an administrative complaint, Nature’s
Expressions would be aware that Stewart had engaged in protected
activity.
Even so, there is evidence that points the other way and
suggests that Stewart did not tell Donley that he had filed a
complaint. First, the allegation that Stewart told Donley about
the

administrative

Complaint.

complaint

[See DE 1-1].

is

not

included

in

the

initial

One would imagine that, if true, such

a material fact would be included in the initial pleadings to
support Stewart’s claims.

Second, Donley’s affidavit expressly

denies

told

that

Stewart

ever

Donley

that

administrative complaint with the Labor Cabinet.

he

had

filed

an

[DE 67-7, p. 2].

Additionally, Stewart’s assertion that he told Donley that he
filed the administrative complaint is contradicted by Plaintiff
Anderson’s testimony.

Anderson testified that, in late February,

after Stewart had been terminated, Nature’s Expressions suspected
that Anderson’s friend and colleague Steven Atwood had filed the
complaint with the Kentucky Labor Cabinet.
DE 78-3, p. 1].

[DE 78-2, pp. 42-45;

Additionally, Anderson testified that Nature’s

Expressions also suspected him of filing the complaint with the
Labor Cabinet.

[DE 78-2, pp. 42-44].

25

Stewart’s claim, that he

told Donley in early February that he had filed an administrative
complaint with the Kentucky Labor Cabinet, seems questionable if,
later that month, Nature’s Expressions suspected that Atwood or
Anderson had filed a complaint with the Kentucky Labor Cabinet.
Thus, some evidence in the record suggests that Stewart did not
tell

Donley

that

he

had

filed

a

complaint

against

Nature’s

Expressions.
Regardless, at the summary judgment stage, the evidence is
viewed in the light most favorable to the nonmoving party.
Nguyen, 229 F.3d at 562.

See

Stewart testified that he personally

told Donley that he had filed an administrative complaint.

Here,

the jury is in the best position to determine whether Stewart’s
testimony is credible.

At trial, the jury will have the ability

to view the demeanor of witnesses, hear cross examination, and
review all the evidence before making a determination about the
credibility of a witness.
Additionally, Stewart may rely on circumstantial evidence to
create an inference that Nature’s Expression was aware that he had
filed an administrative complaint.

Circumstantial evidence may be

used to support a reasonable inference that the decision maker had
knowledge that an employee engaged in protected activity if the
evidence is comprised of “specific facts” and offers more than
“flights of fancy, speculations, hunches, intuitions, or rumors

26

about matters remote from [personal] experience.”

Mulhall v.

Ashcroft, 287 F.3d 543, 552 (6th Cir. 2002) (quoting Visser v.
Packer Eng'g Assocs., Inc., 924 F.2d 655, 659 (7th Cir. 1991)).
The record reflects that Stewart was terminated on February 9,
2016, four days after he allegedly told Donley that he had filed
a complaint with the Labor Cabinet.

Additionally, Donley denied

a time-off request made by Stewart on February 6th, one day after
Stewart allegedly told Donley about his complaint.
treatment

could

serve

as

circumstantial

This adverse

evidence

to

support

Stewart’s claim that Nature’s Expressions was aware that he had
filed an administrative complaint.
A

reasonable

fact

finder,

after

hearing

testimony

and

evidence presented at trial, may find that it is more likely than
not that Stewart had told Donley that he filed an administrative
complaint

pertaining

to

overtime

wages

and

that

Nature’s

Expressions was aware of this protected activity. As such, Stewart
has met the second element of a prima facie case of retaliation.
Third, Stewart’s termination clearly constitutes a materially
adverse employment action under the FLSA.

Adair, 452 F.3d at 490.

(“Employment actions qualifying as materially adverse include
termination of employment . . . .” (internal quotations omitted)).
Fourth,

and

finally,

Stewart

has

presented

sufficient

evidence from which the jury could draw an inference that he would
27

not have been terminated if he had not filed an administrative
complaint with the Kentucky Labor Cabinet.
To demonstrate a causal connection, Stewart “must produce
sufficient evidence from which an inference can be drawn that the
adverse action would not have been taken had” Stewart not engaged
in

the

protected

activity.

See

Allen

v.

Michigan

Corrections, 165 F.3d 405, 413 (6th Cir. 1999).
matter,

temporal

proximity

between

the

Dep’t

of

As a general

materially

adverse

employment action and the protected activity, standing alone, is
insufficient to establish the causation element in a retaliation
claim.

Tuttle v. Metro. Gov’t of Nashville, 474 F.3d 307, 321

(6th Cir. 2007); Adair, 452 F.3d at 490-91; Nguyen, 229 F.3d at
566.
Even so, in a rare case, “[w]here an adverse employment action
occurs very close in time after an employer learns of a protected
activity,

such

temporal

proximity

between

the

events

is

significant enough to constitute evidence of a causal connection
for the purposes of satisfying a prima facie case of retaliation.”
Mickey, 516 F.3d at 525.

In such cases, where an employer

immediately retaliates against an employee upon learning of his
protected

activity,

“the

employee

would

be

unable

to

couple

temporal proximity with any such other evidence of retaliation
because the two actions happened consecutively, and little other

28

than the protected activity could motivate the retaliation.”
Alternatively,

where

some

time

passes

between

the

Id.

employer

learning of the protected activity and the adverse employment
action, “the employee must couple temporal proximity with other
evidence of retaliatory conduct to establish causality.”

Id.;

Little v. BP Exploration & Oil Co., 265 F.3d 357, 365 (6th Cir.
2001).
Here,

it

is

unnecessary

to

determine

whether

temporal

proximity alone can establish a causal connection because Stewart
has demonstrated both temporal proximity and evidence of other
retaliatory conduct.
supervisor

that

he

Stewart claims that he told his direct
had

filed

an

administrative

complaint

on

February 5th and was terminated just four days later. Furthermore,
Stewart’s request for time off work was denied after he allegedly
told Donley that he filed an administrative complaint.

The

temporal proximity between the alleged notification of protected
activity and the adverse employment action, paired with the denial
of the time-off request, may lead a reasonable jury to infer that
there is a causal connection between the Nature’s Expressions
learning

of

termination.

Stewart’s

protected

activity

and

Stewart’s

Here, Stewart’s burden “is easily met” and he has

“proffer[ed] evidence sufficient to raise the inference that [his]
protected activity was the likely reason for the adverse action.”

29

Nguyen, 229 F.3d at 565-66 (quoting EEOC v. Avery Dennison Corp.,
104 F.3d 858 (6th Cir. 1997)).
Ultimately, viewing the facts in the light most favorable to
Stewart, he has demonstrated that there is sufficient evidence
from which a reasonable jury could find that the four elements of
a prima facie case of discrimination have been by a preponderance
of

the

evidence.

Thus,

the

burden

now

shifts

to

Nature’s

Expressions to articulate a legitimate, non-discriminatory reason
for Stewart’s termination.
In response, Nature’s Expressions claims that the reason
that Stewart was terminated was due to “disregard of Nature’s
Expression’s [sic] policies.”

[See id.].

Specifically, Nature’s

Expressions claims that it terminated Stewart “due to his complete
lack of regard for its attendance policy, and for his willful
disregard of the instruction of his supervisor, Jonathan Donley,
to report to work on February 8, 2016.”

[DE 67-1, pp. 10-11].

Thus, Nature’s Expressions has articulated a legitimate, nondiscriminatory reason for Stewart’s termination.
In response, Stewart asserts that this stated reason for
termination

is

pretext

because

he

had

been

granted

time-off

requests with less than two weeks’ notice in the past and that the
record indicates an atmosphere where Nature’s Expressions was

30

regularly retaliating against employees that filed complaints
about overtime pay.

[See DE 77, pp. 10-13].

But here, the articulated legitimate reason for Stewart’s
termination has a factual basis.

On February 6, 2016, Stewart

sent his direct supervisor, Jonathan Donley, a text message stating
that he would not be at work on Monday due to an appointment with
an eye doctor.

[DE 67-5, pp. 23-4; DE 67-5, Exh. 3]. Donley

responded to Stewart via text message and told Stewart that timeoff requests needed to be made two weeks in advance and instructed
Stewart to reschedule his appointment on February 8th.
pp. 23-4; DE 67-5, Exh. 3].

[DE 67-5,

Stewart neither responded to Donley

nor reported for work on the 8th.

[DE 67-5, pp. 24-25].

As a

result, Nature’s Expressions terminated Stewart’s employment on
February 9th, 2016.

[DE 67-3].

Stewart admits that he disregarded the written leave policy.
[DE 67-5, pp. 23-25].

Furthermore, Stewart admits that he did not

respond to Donley or report to work as instructed.

[Id.].

Thus,

Stewart has failed to demonstrate that the proffered legitimate
reasons for his termination lack a factual basis.
Still,

Stewart

claims

that

past

conduct

established

an

informal policy for time-off requests at Nature’s Expressions.
[See DE 77, pp. 10-13].

Thus, Stewart claims that a reasonable

jury could conclude that his absence from work on February 8th did
31

not actually motivate the Defendant to terminate his employment
because

there

was

an

informal

policy

in

place

that

allowed

employees to take time off work with less than two weeks’ notice.
[See DE 77, pp. 10-11].
But Stewart cannot meet the second showing to attack the
credibility of the proffered reason for his termination because he
has not admitted that the factual basis underlying the explanation
could motivate his dismissal.

Stewart admitted that he did not

respond to Donley’s text message denying his time-off request and
that he failed to report to work on February 8th, but he has not
admitted that his failure to comply with the notice requirement or
his

failure

dismissal.
showing

to

respond

to

Donley

could

have

[See DE 77; DE 77-2, pp. 23-27].

attacking

the

credibility

of

an

motivated

his

Again, the second

employer’s

proffered

legitimate reason for an adverse employment action is an indirect
attack that requires the plaintiff to admit that the factual basis
underlying the employer’s proffered explanation is true and could
motivate dismissal.

Manzer, 29 F.3d at 1084. In the present case,

Stewart flatly denies that his absence from work and failure to
comply with the notice policy motivated his dismissal.
Furthermore, even assuming that Stewart had acknowledged that
the proffered explanation could have motivated his dismissal,
Stewart has failed to show circumstances which tend to prove that

32

an illegal motivation was more likely the cause of his termination
than the explanation offered by Nature’s Expressions.
claims

that

past

instances

where

his

time-off

Stewart

requests

were

approved without two weeks’ notice suggests that it is more likely
that he was fired due to an illegal motivation instead of due to
violation of company policy.

But Stewart was terminated, not only

due to disregard of the written time-off policy, but also because
he failed to report to work when he was told to do so by his
supervisor

and

failed

to

communicate

otherwise explain his actions.
Stewart

has

failed

to

with

his

supervisor

or

[See DE 67-3, DE 67-5, pp. 23-26].

advance

sufficient

evidence

that

demonstrates that the decision to terminate him was not motivated
due to his insubordination or failure to communicate.

When asked

why he did not respond to Donley’s denial of his time-off request,
the best response that Stewart could muster was, “I just didn’t.”
[Id. at 25].
As a result, Nature’s Expressions has demonstrated that it
fired Stewart due to his failure to comply with company policy in
addition to insubordination and failure to communicate with his
supervisor.
which

a

Stewart has not presented sufficient evidence from

reasonable

insubordination

and

finder
failure

motivate his termination.

of

fact

to

communicate

conclude
did

not

that

his

actually

As such, Stewart has failed to meet the

second showing to demonstrate pretext.
33

could

Finally, Stewart has failed to meet the third showing to
demonstrate pretext, which requires evidence that other employees
were not terminated or retaliated against even though they engaged
in substantially identical conduct.

Stewart has not provided

evidence that other employees failed to comply with the written
notice policy or disregarded an instruction from a superior and
kept their jobs. Thus, there is no evidence of disparate treatment
that would suggest that other employees who engaged in the same
conduct would not have also been terminated.
Thus, Nature’s Expressions had legitimate reasons, based on
violations of company policy and insubordination, to terminate
Stewart.

Here,

there

is

insufficient

evidence

to

allow

a

reasonable jury to conclude that the stated reasons for Stewart’s
termination are pretext.
Ultimately, Stewart has presented sufficient evidence, while
attenuated at times, to meet the low bar for demonstrating a prima
facie case of retaliation.
articulated

a

legitimate,

But here, Nature’s Expressions has
non-discriminatory

explanation

for

Stewart’s termination and Stewart has failed to prove that the
proffered reason is pretext.

Therefore, even when construing the

facts in the light most favorable to Stewart, there is no genuine
dispute of material fact such that a reasonable jury could return

34

a verdict for Stewart and summary judgment is granted to Nature’s
Expressions on Stewart’s retaliation claim.
(ii) Plaintiff Frankie Anderson’s Retaliation Claim
Plaintiff Frankie Anderson did not file a formal complaint
pertaining to violations of the FLSA before he joined the Complaint
initiating

this

lawsuit.

Still,

Anderson’s

oral

complaints

pertaining to calculation of overtime pay constitute protected
activity under the FLSA.

The FLSA protects oral complaints so

long as the complaint is “sufficiently clear and detailed for a
reasonable employer to understand it, in light of both content and
context, as an assertion of rights protected by the statute . . .
.”

Kasten, 563 U.S. at 14.

Additionally, even an informal

complaint may constitute protected activity under the FLSA.

Moore

v. Freeman, 355 F.3d 558, 562 (6th Cir. 2004).
Here, Anderson testified that, on February 24, 2016, he was
asked by his supervisor, Dale Flygstad, whether he had filed an
administrative complaint with the Kentucky Labor Cabinet.
2, pp. 43-44].

[DE 78-

Anderson asserts that he truthfully told Flygstad

that he had not filed a complaint with the Labor Cabinet.

[Id. at

44].
The next day, on February 25, 2016, Flygstad personally
informed Anderson about an employee meeting to discuss calculation
of overtime pay and asked for a private meeting with Anderson.
35

[DE 9-1, p. 21].

Furthermore, Anderson asserts that he spoke up

at the employee meeting, which was held on February 26, 2016, and
“said that it seemed like the math in Mr. Miller’s overtime
calculations could be done several different ways.”
2].

[DE 78-3, p.

Then, after the meeting, Anderson claims that he was asked by

multiple employees to give his opinion on the overtime pay scheme.
[Id.].

Anderson asserts that he responded that he felt Miller’s

math for calculating overtime pay was incorrect.

[Id.].

Later that day, Anderson had a private meeting with Flygstad.
[Id. at 3, DE 9-1, p. 23].

During the private meeting, Flygstad

informed Anderson that his current day rate pay scheme would be
changed.

[DE 9-1, p. 23].

Furthermore, Anderson claims that he

was approached again by Flygstad on February 26th to inquire about
five employees that had stated that Anderson said that he thought
Miller’s math pertaining to overtime pay was incorrect.
3, p. 3].

[DE 78-

Anderson claims that Flygstad told him to “keep [his]

mouth shut” about overtime pay and that further conversations about
overtime pay “would not be tolerated.”

[Id.].

Nature’s Expressions admits that Flygstad asked Anderson if
he was happy with his position at Nature’s Expressions, that
Flygstad personally informed Anderson about the employee meeting,
and that Flygstad met privately with Anderson after the employee
meeting to inform Anderson that his compensation scheme would be

36

changed. [DE 9-1, pp. 20-21, 22]. Otherwise, Nature’s Expressions
denies that Flygstad asked Anderson if he filed a complaint, that
Anderson spoke up during the employee meeting, that Anderson was
ever threatened, or that Nature’s Expressions had knowledge of
Anderson’s

alleged

overtime pay.

conversations

with

his

co-workers

about

[See DE 9-1, pp. 20-24].

Still, Anderson’s testimony is supported by circumstantial
evidence that suggests that he did in fact make informal complaints
about overtime pay and that Nature’s Expressions was aware of his
grievances.

When a representative from the Kentucky Labor Cabinet

visited Nature’s Expressions, Flygstad asked Anderson if he was
happy with his job.

Flygstad also asked Anderson for a private

meeting to discuss overtime wages.

Furthermore, Anderson was

informed that his pay rate would be changed during the private
meeting.

The record indicates that Anderson is the only employee

with whom Flygstad met privately and the only employee that
received a different pay rate after the meeting regarding overtime
pay.
Ultimately,

Anderson’s

testimony,

paired

with

the

circumstantial evidence in the record, indicate that Flygstad had
a heightened interest in Anderson and suggest that Flygstad was
concerned that Anderson was aggrieved or that he had filed a
complaint with the Kentucky Labor Cabinet.

37

More to the point, the

evidence suggests that Anderson made oral, informal complaints,
that

made

it

“sufficiently

clear

and

detailed

for

[Nature’s

Expressions] to understand [the complaints], in light of both
content and context, as an assertion of rights protected by the
statute . . . .”

Kasten, 563 U.S. at 14.

As such, a reasonable

jury could find it more likely than not that Anderson made oral
complaints about the overtime compensation scheme at Nature’s
Expressions and that Flygstad was aware of Anderson’s complaints,
satisfying the first and second elements of the McDonell Douglas
analysis.
Next, Anderson must demonstrate that an adverse employment
action

occurred.

Actions

that

constitute

materially

adverse

employment actions include: “termination of employment, a demotion
evidenced by a decrease in wage or salary, a less distinguished
title,

a

material

loss

of

benefits,

significantly

diminished

material responsibilities, or other indices that might be unique
to a particular situation.”

Adair, 452 F.3d at 490.

Here, the

March 4th employment agreement constitutes a materially adverse
employment

action

under

the

McDonell

Douglas

standard.

Prior to March 4, 2016, Anderson was paid $180 per day or
$900 per week.

The terms of the March 4th employment agreement

switched Anderson from the $180 daily rate to a $22 hourly rate.
[See DE 68-5].

Nature’s Expressions submits that this is not

a materially adverse employment action because Anderson’s base pay
38

rate of $14.40 per hour was increased under the employee agreement
to $22.00 per hour.
Expressions

is

[See DE 68-1, p. 13].

correct

that

“[w]orking

Not so fast.
the

same

Nature’s

fifty-hour

workweek as he was previously expected to work, Anderson would
have earned $1,210.00 [per week] under the new agreement.”

[Id.].

The rub is that under the March 4th agreement, Anderson was only
permitted to work forty hours per week and was required to seek
approval to work any additional overtime hours.
1].

[See DE 68-5, p.

Prior to the March 4th agreement, Anderson worked fifty hours

per week in a typical week.

Thus, the agreement on March 4th

effectively cut Anderson’s hours by ten hours per week, which
reduced his pay.

Before the March 4th employment agreement,

Anderson made $180 per day or $900 week. Because of the employment
agreement on March 4th, Anderson was only permitted to work forty
hours per week, at $22 per hour, making his weekly pay $880.
Nature’s Expressions argues that this reduction in hours is
irrelevant because Anderson never sought approval to work overtime
under the agreement, but this misses the point.

The main point is

that the March 4th employment agreement required Anderson to seek
permission to work overtime and thus required Anderson to seek
permission to make more than $880 per week.

Ultimately, the

employment agreement reduced Anderson’s pay because it allowed him
to only work forty hours per week and required him to seek

39

permission

to

work

overtime,

effectively

reducing

his

weekly

take-home pay by twenty dollars.
Furthermore,

the

employment

agreement

also

significantly

reduced Anderson’s responsibilities and resulted in a material
loss of benefits.

Before the agreement, Anderson had the ability

to use a master key to complete his work after hours.
March 4th agreement, Anderson lost this privilege.
also

relinquished

Anderson’s

responsibility

maintenance at Nature’s Expressions.

After the

The agreement
for

building

Finally, Anderson asserts

that he originally had the ability to make runs and run personal
errands to take his daughter to school.

The employment agreement

required that Anderson complete his work within set hours and
required that he clock in and out each time he left the premises.
Thus,

the

material

employment

changes

to

agreement
Anderson’s

resulted
previous

in

significant

and

responsibilities

and

benefits.
Ultimately, the March 4th employment agreement constitutes a
materially

adverse

employment

action

because

it

effectively

reduced the hours that Anderson could work without permission,
lowered his weekly take-home pay, and reduced his responsibilities
and benefits in a material way.
Lastly, as was previously discussed, Anderson “must produce
sufficient evidence from which an inference can be drawn that the
40

adverse action would not have been taken had” Anderson not engaged
in

the

protected

activity.

See

Allen

v.

Michigan

Dep’t

of

Corrections, 165 F.3d 405, 413 (6th Cir. 1999).
Here,

Anderson

has

demonstrated

a

sufficient

connection

between the adverse employment action, the March 4th employment
agreement,

and

overtime pay.

the

protected

activity,

the

complaints

about

Anderson claims that he first complained about

overtime pay calculation during the employee meeting on February
26th.

Anderson was also the only employee with whom Flygstad met

personally and was similarly the only employee whose wages were
changed after the meeting regarding overtime pay.

Prior to the

March 4th agreement, Anderson had no formal, written employment
agreement with Nature’s Expressions.

Anderson testified that he

had an informal agreement with Flygstad that allowed him to make
runs during the work day and attend to personal errands.

Nature’s

Expressions denies that such an agreement existed, but it is clear
from the record that Anderson was regularly making runs for
supplies and leaving work to attend to personal errands prior to
March 4, 2016.

Nature’s Expressions has failed to demonstrate why

Anderson’s runs became a problem in early March leading to the new
terms in his employment agreement.
Of course, it may be true that the March 4th employment
agreement was intended as a modified employment agreement.

41

But a

reasonable jury could see it differently and conclude that the
March 4th employment agreement would not have been presented to
Anderson had he not complained about overtime pay.

Here, there is

sufficient evidence to lead a reasonable jury to infer that the
new terms of employment contained in the March 4th employment
agreement would not have been presented to Anderson if he had not
complained about overtime pay in late-February.
Thus, Anderson has presented sufficient evidence that could
lead a reasonable fact finder to conclude that he has demonstrated
all four elements of a prima facie case of discrimination by a
preponderance of the evidence.

Since Anderson has demonstrated a

prima facie case of retaliation, the burden shifts to Nature’s
Expressions to articulate a legitimate, non-discriminatory reason
for the adverse employment action.
Nature’s Expressions asserts that the March 4th employment
agreement was a “modified employment agreement . . . due to
Anderson’s

increasing

unavailability

performance during his work hours.”

and

decreasing

[DE 68-1, p. 15].

work
Thus,

Nature’s Expressions has successfully articulated a legitimate,
non-discriminatory reason for the March 4th employment agreement.
Now, the burden shifts back to Anderson to demonstrate that
the proffered legitimate reason advanced by Nature’s Expressions
is mere pretext.

First, the articulated reason appears to be
42

supported by a factual basis.

Anderson acknowledged that he

regularly made runs and attended to personal errands during the
work day but claims that he did so with Flygstad’s permission.
[DE 68-3, pp. 37-39].
Second, Anderson cannot meet the second showing to attack the
credibility of the proffered explanation because, like Stewart,
Anderson has not admitted that the proffered reason could have
motivated the adverse employment action.

In fact, Anderson argues

the opposite, claiming that the factual basis underlying the
proffered

explanation

could

not

have

motivated

Nature’s

Expressions to present him with new terms of employment in the
March 4th employment agreement.

[See DE 78].

But here, Anderson has met the third showing by demonstrating
that he was treated differently than other employees that engaged
in substantially identical behavior.

The record indicates that

multiple employees had grievances with the overtime compensation
scheme

at

Nature’s

Expressions.

Additionally,

Nature’s

Expressions was aware that employees had complained about overtime
pay and held an employee meeting to address the issue.

Even so,

the record indicates that Anderson is the only employee with whom
Flygstad met privately after the employee meeting to discuss the
overtime compensation scheme.

More important, Anderson is the

only employee at Nature’s Expressions whose compensation scheme

43

was changed from the day rate to an hourly wage after the employee
meeting.

These instances of disparate treatment could lead a

reasonable jury to conclude that Anderson was presented with the
new terms of employment in the March 4th agreement as punishment
for speaking out about the overtime compensation scheme and not as
an employee improvement plan or modified employment agreement.
Taking

Nature’s

Expressions

at

its

word,

the

modified

employment agreement increased Anderson’s hourly wage but required
him to perform less work. But a reasonable jury would be justified
in concluding that it does not make sense that Nature’s Expressions
would pay Anderson more money to do less work under a modified
employment
availability

agreement

if

they

during

normal

were

business

unhappy

with

hours.

Anderson’s

Thus,

there

is

sufficient evidence from which a reasonable fact finder could
conclude that Anderson’s unavailability during the work day was
insufficient to motivate Nature’s Expressions to alter the terms
of Anderson’s employment through the March 4th agreement.
Ultimately,

Anderson

has

shown

a

prima

facie

case

of

retaliation by establishing, by a preponderance of the evidence,
that there is a genuine dispute at all four stages of the McDonell
Douglas analysis.

Additionally, Anderson has demonstrated that

the proffered legitimate explanation for the new terms of his
employment was pretext because he was treated differently than
similarly situated employees. As such, a genuine issue of material
44

fact exists as to whether Nature’s Expressions retaliated against
Anderson

for

engaging

in

protected

activity

under

the

FLSA.

Resolution of this material fact is left to the jury and the motion
for summary judgment pertaining to Anderson’s retaliation claim
must be denied.
IV.

Conclusion

In early 2016, disagreements about overtime pay boiled over
and caused a stir at Nature’s Expressions.

The FLSA makes it

unlawful to retaliate against employees who engage in protected
activity under the Act. Here, Nature’s Expressions has articulated
a

legitimate,

termination

and

non-discriminatory
Stewart

has

explanation

failed

to

for

Stewart’s

demonstrate

articulated reason for his termination is pretext.

that

the

Alternatively,

while Anderson’s termination is not before the Court, Anderson has
demonstrated a prima facie case of retaliation arising from the
March

4th

employment

agreement

and

has

presented

sufficient

evidence that could entitle a reasonable jury to conclude that the
articulated legitimate reason for the adverse employment action is
pretext.
Accordingly, IT IS ORDERED:
(1) Defendant’s Motion for Summary Judgment as to Plaintiff
Ron Stewart’s retaliation claim [DE 67] is GRANTED;

45

(2) Defendant’s Motion for Summary Judgment as to Plaintiff
Frankie Anderson’s retaliation claim [DE 68] is DENIED.
This the 14th day of September, 2018.

46