West et al v. City of Holly Springs, Mississippi et al

Filing 183

ORDER regarding protected activity issue. Signed by District Judge Michael P. Mills on 06/10/2019. (rmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
BOBBY WEST, ET AL.

PLAINTIFFS

VS.

CAUSE NO. 3:16CV79-MPM-RP

CITY OF HOLLY SPRINGS, MISSISSIPPI, ET AL.

DEFENDANTS

ORDER
This cause comes before the court on its own motion, ruling as a matter of law that the
filing of the instant FLSA lawsuit constituted protected activity under federal retaliation law.
Footnote 5 of the Fifth Circuit’s Model Jury Instruction 11.5 provides that: "[w]hether activity is
protected … will generally be determined by the court as a matter of law, particularly for
participation clause cases." This is a participation clause case, since it arises from the filing of a
formal FLSA lawsuit, which is the quintessential protected activity under federal retaliation law.
In defendant’s proposed jury instruction 17(c), it seeks to have the jury decide whether
plaintiffs had a good faith basis for believing, when they filed this lawsuit, that they had actually
been denied overtime pay. Defendant cited the very same footnote 5 of Model Jury Instruction
11.5 in support of its proposed instruction, but it did not mention the fact that the instruction
explicitly states that it is only applicable in opposition clause cases, not participation clause
cases. This court finds that omission to be troubling. Opposition clause cases involve much less
formal acts of resistance to discrimination than the filing of a lawsuit, so there’s a much stronger
basis for arguing that there is no protected activity in such cases.
As this court made clear in its summary judgment order, it was only when the report of
defendant’s expert Joseph Hines was produced, long after this lawsuit had been filed, that

plaintiffs should have known that they had actually been overpaid. Until that time, a great deal
of confusion prevailed regarding the effect of the City’s new payment system, and this court has
no reason to doubt that plaintiffs acted in good faith in filing this lawsuit. Indeed, this court
notes that, at the evidentiary hearing which it held, counsel for plaintiffs was quite forthright and
candid regarding his agreement with Mr. Hines’ report. This court does not believe that the
same plaintiffs’ counsel would have filed this lawsuit absent a good faith belief that
underpayments had actually occurred.
Once again, Fifth Circuit model jury instructions state that courts should generally decide
as a matter of law whether activity was protected in a participation clause like this one, and this
court therefore finds that the filing of the instant FLSA lawsuit constituted protected activity. It
appears from its proposed jury instructions that defendant wishes to inquire into now-irrelevant
matters such as whether plaintiffs were actually overpaid. In the court’s view, the prejudicial
effect of such testimony would greatly outweigh any arguable relevance it might have, and it
specifically instructs the parties not to inquire into these matters. This court has already granted
defendant summary judgment on its FLSA wage claims, but the time for addressing the merits of
those claims has passed. The federal claims in this case involve the simple question of whether
defendant retaliated against plaintiffs for filing this lawsuit, and this court directs the parties to
proceed accordingly at trial.
So ordered, this the 10th day of June, 2019.

/s/ Michael P. Mills
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI