Jones v. New Orleans Regional Physician Hospital Organization, Inc

Filing 51

ORDER granting in part and denying in part 24 Motion for Summary Judgment. Signed by Judge Jay C. Zainey. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BILL JONES

CIVIL ACTION

VERSUS

NO. 18-2755

NEW ORLEANS REGIONAL PHYSICIAN HOSPITAL
ORGANIZATION, INC., DBA PEOPLES HEALTH
NETWORK

SECTION A(5)

ORDER AND REASONS
Before the Court is a Motion for Summary Judgment (Rec. Doc. 24) filed by Defendant
New Orleans Regional Physician Hospital Organization Inc. d/b/a Peoples Health Network (“Peoples
Health”). Plaintiff Bill Jones opposes the motion (Rec. Doc. 37). The Motion, set for submission on
May 15, 2019, is before the Court on the briefs without oral argument. Having considered the motion
and memoranda of counsel, the opposition, the record, and the applicable law, the Court finds that
Defendant’s Motion for Summary Judgment (Rec. Doc. 24) is DENIED in part and GRANTED
in part.
I.

Background
Plaintiff Bill Jones worked for Peoples Health from March 2013 until his alleged wrongful

termination in 2017. (Rec. Doc. 1 Complaint, ¶ 9). Plaintiff filed the instant suit alleging that his
termination related to a meeting with Janice Ortego, Peoples Health Vice President, during which he
raised concerns about violations of the Fair Labor Standards Act (“FLSA”). (Id. at 14). Plaintiff
seeks reinstatement of his position and damages pursuant to Section 15(a)(3) of the FLSA alleging
that his termination was motivated by his FLSA claims. (Id. at 18). The Court notes that the
Complaint pled a claim of retaliation under the False Claims Act. (Rec. Doc. 1, ¶ 17). Plaintiff’s
opposition provides that he does not wish to pursue a claim under the False Claims Act and requests
this Court to dismiss the claim without prejudice. (Rec. Doc. 37, p. 1). In the motion before the
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Court, Peoples Health argues that all of Plaintiff’s claims should be dismissed pursuant to Federal
Rule of Civil Procedure 56, summary judgment.
II.

Legal Standard
Summary judgment is appropriate only if “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any,” when viewed in the light
most favorable to the non-movant, “show that there is no genuine issue as to any material fact.” TIG
Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir.2002) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249–50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A dispute about a material fact is
“genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving
party. Id. (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505.). The court must draw all justifiable
inferences in favor of the non-moving party. Id. (citing Anderson, 477 U.S. at 255, 106 S.Ct. 2505).
Once the moving party has initially shown “that there is an absence of evidence to support the nonmoving party's cause,” Celotex Corp. v. Catrett, 477 U.S. 317, 325 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986), the non-movant must come forward with “specific facts” showing a genuine factual issue for
trial. Id. (citing Fed.R.Civ.P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587,
106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Conclusory allegations and denials, speculation, improbable
inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for
specific facts showing a genuine issue for trial. Id. (citing SEC v. Recile, 10 F.3d 1093, 1097 (5th
Cir.1993)).
III.

Discussion
Pursuant to the FLSA, it is unlawful for an employer to discharge or in any other manner

discriminate against an employee “because such employee has filed any complaint or instituted or
caused to be instituted any proceeding under or related to this chapter.” 29 U.S.C. § 215(A)(3). In
analyzing FLSA cases, the Fifth Circuit adopted the Title VII burden-shifting framework set out in

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McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Hagan v.
Echostar Satellite, LLC, 529 F.3d 617, 624 (5th Cir. 2008). The framework is applied as follows:
First, a plaintiff must make a prima facie showing of (1) participation in protected
activity under the FLSA; (2) an adverse employment action; and (3) a causal link
between the activity and the adverse action. If a plaintiff meets this burden, the
defendant must then articulate a legitimate, non-discriminatory reason for its decision.
The burden then shifts to the plaintiff to demonstrate that the proffered reason is a
pretext for discrimination.
Id.(quoting Hagan v. Echostar Satellite L.L.C., No. H–05–1365, 2007 WL 543441, at *4 (S.D.Tex.
Feb. 16, 2007).
Peoples Health argues that Plaintiff’s suit should be dismissed on summary judgment
because: (1) the facts show that he did not engage in a protected activity; (2) Peoples Health did not
consider him to have engaged in a protected activity; and (3) Peoples Health did not terminate his
employment because of a protected activity. (Rec. Doc. 24-1, p. 1). The Court must determine
whether there exists a genuine issue of material fact upon examination of each element of a prima
facie case, if there was a non-discriminatory reason for the employer’s decision, and if it was a
pretext for discrimination.
A. Prima Facie Case
i. Protected Activity
Peoples Health cites recordings of Plaintiff’s meeting with Ortego to assert that a
conversation about the paid time off policy and the FLSA did not rise to the level of engaging in an
activity protected by the FLSA. (Id. at 22). Plaintiff responds that during the meeting he specifically
brought up the company’s refusal to count overtime and Anthony Bonck’s, one of Jones’ supervisors,
failure to comply with the FLSA. (Rec. Doc. 37, p. 10-11). Plaintiff asserts that he also printed and
left with Ortego an information piece prepared by a law office online and a 64-page copy of the
FLSA. (Id.).

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Fifth Circuit precedent establishes that to engage in a protected activity the plaintiff must
make a complaint:
In order for an employee's communication to constitute a “complaint,” the “employer
must have fair notice that an employee is making a complaint that could subject the
employer to a later claim of retaliation” and the “complaint must be sufficiently clear
and detailed for a reasonable employer to understand it, in light of both content and
context, as an assertion of rights protected by the [FLSA] and a call for their
protection.”
Lasater v. Tex. A & M Univ.-Commerce, 495 Fed.Appx. 458, 461 (5th Cir. 2012) (per curiam)
(quoting Kasten v. Saint–Gobain Performance Plastics Corp., 563 U.S. 1, 131 S.Ct. 1325, 1334–35,
179 L.Ed.2d 379 (2011)). An informal, internal complaint also constitutes as a protected activity
under Section 215(1)(3). Hagan, 529 F.3d at 626 (5th Cir. 2008). The Fifth Circuit specified that the
informal complaint must concern some violation of law and frame the objection in terms of a
potential illegality. Id. The Fifth Circuit adopted the Tenth Circuit approach in requiring an employee
to “step outside his or her role of representing the company by either filing (or threatening to file) an
action adverse to the employer, by actively assisting other employees in asserting FLSA rights, or by
otherwise engaging in activities that reasonably could be perceived as directed towards the assertion
of rights protected by the FLSA.” Id. at 627-628 (quoting McKenzie v. Renberg's Inc., 94 F.3d 1478,
1486-1487 (10th Cir. 1996)).
On April 24, 2017, Jones recorded a one-on-one meeting held with Ortego. (Rec. Doc. 24-8).
Jones said, “[I]f things worked the way that I understand they are supposed to work, I would have
PTO [paid time off]…And, I mean, under – does the Federal – I mean, the Fair Standards Labor Act
apply differently to [Peoples Health]?” (Id. at 23). Jones told Ortego that he felt uncomfortable
discussing “compliance things” and “reporting things” with the human resource division of Peoples
Health due to a confidentiality concern. (Id. at 29). Jones said, “I keep having to take time off with no
pay because when I really should have pay – or PTO rather, then it is just a whole lot of added
consternation that is – that shouldn’t have to be there.” (Id. at 32). Jones had a follow-up meeting
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with Ortego and Macon Moore on May 10, 2017, during which Ortego informed Jones of his
termination. (Rec. Doc. 37-13, p. 15). Moore prepared a memorandum of what occurred at the
meeting including the following excerpt:
[Jones] raised a few questions about an issue he perceived and had reported about the
Fair Labor Treatment Standard. [Moore] reported that we were not here to discuss that
and that HR was more versed in those issues and had been made aware of his
perceptions.
(Id.). Considering the recorded one-on-one conversation, Jones providing Ortego with FLSA related
materials, and Moore’s witness report that Peoples Health was aware of Plaintiff’s perceptions
regarding the FLSA, the Court finds that there exists a genuine issue of material fact. A reasonable
trier of fact could find that Jones’ actions reasonably could be perceived as directed towards the
assertion of rights protected by the FLSA.
ii. Adverse Employment Action
The second element a plaintiff must show to succeed in a FLSA retaliation claim is an
adverse employment action. Hagan, 529 F.3d at 624. The parties do not dispute that Peoples Health
terminated Plaintiff’s employment which is an adverse employment action. Therefore, this element
of Plaintiff’s FLSA retaliation claim is established.
iii. Causal Link
Peoples Health asserts that Bonck and William “Hunt” Graham, Jones’ immediate
supervisor, intended to terminate Jones’ employment prior to Jones’ April 24, 2017, meeting with
Ortego. (Rec. Doc. 24-1, p. 24). Peoples Health argues that it was not required to abandon the
contemplated plans to discipline or terminate Jones merely because Jones referenced the FLSA in a
meeting with Ortego. (Id. at 23). Peoples Health states that Jones cannot succeed in a prima facie
FLSA case unless he can provide competent evidence from which a factfinder could conclude
Peoples Health would not have terminated his employment but for the fact that he mentioned the
FLSA in his meeting with Ortego on April 24, 2017. (Id. at 24). Plaintiff responds that Bonck lacked
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the authority to terminate or discipline him. (Rec. Doc. 37, p. 4). Plaintiff asserts that Bonck and
Graham “castigated” him since 2016 on his sub-par performance. (Id. at. 2-4). Despite the various
complaints over the years, Ortego did not terminate or discipline Jones prior to the follow-up meeting
on May 10, 2017. (Id. at 4).
The Supreme Court held that “temporal proximity alone, when very close, can in some
instances establish a prima facie case of retaliation.” Ganheart v. Brown, 740 Fed.Appx. 386, 389
(5th Cir. 2018) (citing Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149
L.Ed.2d 509 (2001)). In these instances, however, the plaintiff carries the burden to prove that the
protected activity was a but-for cause of the adverse action. Id. (citing Univ. of Tex. Sw. Med. Ctr. v.
Nassar, 570 U.S. 338, 360, 133 S.Ct. 2517, 186 L.Ed.2d 503 (2013)). Termination followed
approximately two weeks after the April 24, 2017, meeting. The Court finds that there is a genuine
issue of material fact regarding the but-for cause of the adverse action. Based upon the evidence
before the Court, the Court concludes that a reasonable fact finder may draw the reasonable inference
that Jones’ termination at the May 2017 follow-up meeting was out of a retaliation for an FLSA
protected activity.
B. Non-discriminatory Reason and Pretext for Discrimination
Considering that the Court finds there is a genuine issue of material fact as to Plaintiff’s
prima facie case, Peoples Health carries the burden by stating a legitimate non-retaliatory reason for
the employment action. Peoples Health cites to two instances in 2015 during which Bonck counseled
Jones for failure to submit payroll information and complete mandatory computer training. (Rec.
Doc. 24-1, p. 2-3). Peoples Health also cites to meetings held in 2016 with Bonck, Graham, and
Jones to discuss concerns regarding Jones’ work performance and organizational skills. (Id.). In
2017, Jones requested to work remotely from home to help his father who had suffered a stroke. (Id.
at 5). Peoples Health cites to the reporting requirements set forth by Bonck and Jones’ failure to
comply including Jones’ failure to remotely connect to Peoples Health’s computer network. (Id. at 66 of 8

7). Peoples Health asserts that at the May 10, 2017, meeting Ortego and Moore advised Jones that
Peoples Health decided to terminate his employment because it did not appear he was working
remotely as previously agreed. (Id. at 9). Plaintiff does not dispute the complaints submitted by
Bonck and Graham regarding his lack of work documentation. (Rec. Doc. 37). Failing to adhere to
specific protocol established by supervisors is a potential legitimate reason to terminate employment.
The Court recognizes that these compliance issues may be grounds for valid termination, and
although Plaintiff has raised material facts to be in dispute, Plaintiff will still have a challenge in
prevailing on the merits, especially in light of the fact that even by Plaintiff’s own admissions it
appears he was not a model employee.
Shifting the burden to the plaintiff, Jones must provide evidence that the employer’s
permissible reason is instead a pretext for retaliation. Plaintiff responds that there is a history of
conflict with his immediate supervisors, Bonck and Graham, regarding Plaintiff’s inadequate
documentation of his work. (Rec. Doc. 37, p. 14). Plaintiff argues that neither Bonck nor Graham
possessed the authority to terminate his employment. (Id. at 15). Rather, Plaintiff asserts that Ortego
held the position to terminate him, and irrespective of Bonck’s repeated complaints over the years,
she supported Plaintiff until the April 24, 2017, meeting. (Id.).
The Court finds that a reasonable trier of fact could find that Plaintiff presented evidence of
discriminatory pretext. The Fifth Circuit held that a plaintiff “may also establish pretext by
presenting evidence that the employer's proffered explanation is false or unworthy of credence,
because ‘it is not the real reason for the adverse employment action.’” Sanders v. Anadarko
Petroleuum Corp., 108 Fed.Appx. 139, 143 (5th Cir. 2004)(quoting Laxton v. Gap Inc., 333 F.3d
572, 578 (5th Cir.2003); Nichols v. Lewis Grocer, 138 F.3d 563, 566 (5th Cir.1998)).
The Court emphasizes that Jones does not dispute that he had accountability issues dating
back to 2015; however, he asserts that he was never disciplined for any performance issues over the
term of his employment. (Rec. Doc. 37-1, p. 4). Ortego testified that Bonck reported directly to her
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regarding his concerns about Jones. (Rec. Doc. 37-9, p. 47). Similarly, Bonck testified that he had
never fired anyone and that he reports directly to Ortego. (Rec. Doc. 37-8, p. 11). This evidence
coupled with the assertion that Plaintiff requested the April 24, 2017, meeting, and it is after that
meeting that Ortego scheduled a follow-up meeting (Rec. Doc. 37-5, p. 57) could lead a reasonable
trier of fact to conclude that the proffered reason is a pretext for the retaliation against Plaintiff’s
FLSA claim.
IV.

Conclusion
Accordingly;
IT IS ORDERED that Defendant’s Motion for Summary Judgment (Rec. Doc. 24) is

GRANTED in part with respect to Plaintiff’s claim of retaliation under the False Claims Act and this
claim is dismissed without prejudice. The motion is DENIED in part with respect to Plaintiff’s
retaliation claim under the Fair Labor Standards Act.
New Orleans, Louisiana, this 8th day of August, 2019

__________________________________
JUDGE JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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