Wolfe v. Tobacco Express, II, Inc. et al

Filing 136

ORDER granting in part and denying in part 110 Motion for Summary Judgment; granting in part and denying in part 113 Motion for Partial Summary Judgment; granting 115 Motion for Summary Judgment Signed by Chief District Judge Louis Guirola, Jr on 06/16/2014 (Guirola, Louis)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
KEVIN WOLFE

PLAINTIFF/COUNTER-DEFENDANT

v.

CAUSE NO. 1:13CV104-LG-JMR

TOBACCO EXPRESS II, INC., MARDI
GRAS WINE AND SPIRITS, INC., and
SHELIA ANN THOMAS-GATIAN

DEFENDANTS/
COUNTER-PLAINTIFFS

MEMORANDUM OPINION AND ORDER
REGARDING MOTIONS FOR SUMMARY JUDGMENT
BEFORE THE COURT are three motions for summary judgment filed by the
parties in this employment-related case. Plaintiff Wolfe claims he worked for
defendants Tobacco Express II, Inc. and Thomas-Gatian for an eight-month period
and was not paid for his work, in violation of the Fair Labor Standards Act. The
Court finds questions of material fact and therefore denies both parties’ motions for
summary judgment in regard to this claim.
Wolfe also claims that after he was formally hired by Thomas-Gatian to work
at Tobacco Express and Mardi Gras Wine and Spirits, Inc., the defendants violated
the Employee Polygraph Protection Act by requesting or requiring him to take a
polygraph examination and terminating his employment when he refused. The
Court finds no question of material fact regarding the EPPA claims. Wolfe prevails
on the issue of defendants’ liability for the request or requirement that he take a
polygraph examination, but defendants prevail on the issue of retaliation for Wolfe’s
refusal to take the examination.
The defendants claim that Wolfe has converted notebooks containing

business records, cash, and inventory of Tobacco Express. Wolfe has shown that
there is no question of material fact regarding this claim, and therefore his motion
for summary judgment will be granted. The defendants also move for dismissal of
this case as a sanction for spoliation of evidence. The Court finds sanctions
inappropriate and therefore this request will be denied.
BACKGROUND
According to his Complaint (ECF No. 1), Wolfe was employed by Tobacco
Express, II, Inc. and Mardi Gras Wine and Spirits, Inc. for approximately seventeen
months, from February 18, 2011 to July 2, 2012.1 Both stores are operated and/or
owned by defendant Thomas-Gatian.
Wolfe alleges that from February 18 through September 9, 2011, he
maintained the same hours at Tobacco Express as his girlfriend, Elizabeth
Rutherford,2 who was employed there as a cashier. Wolfe alleges that even though
he restocked coolers, stocked shelves, unloaded trucks, assisted customers and
helped Rutherford during that time period, he was not paid for his work. Wolfe was
placed on the payroll on September 12, 2011. He worked between thirty-five and
forty hours per week, at a wage of eight dollars per hour. Although it is not clear in
the Complaint, it appears that Wolfe claims to have been an employee of both

1

Wolfe’s Complaint also states that he was employed by the defendants from
February 2, 2011 to July 2, 2012. (Compl. 2 (¶3), ECF No. 1).
2

Rutherford later married Wolfe and is now known as Elizabeth Wolfe. The
Court will refer to her by her name at the time of the relevant events to reduce the
possibility of confusion.
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Tobacco Express and Mardi Gras Wine from September 12, 2011 to July 2, 2012.
In June 2012, the defendants noticed that inventory and cash were missing
from Tobacco Express. In the course of investigating the shortage, the defendants
required three employees, including Wolfe and Rutherford, to undergo a polygraph.
Each of the three employees was given a 48-hour notice to sign prior to
administration of the test. Wolfe alleges he questioned the legality of the
requirement that he submit to the test, but was informed by Thomas-Gatian that
he would be terminated immediately if he refused. Wolfe therefore appeared at the
scheduled time for the polygraph test. However, he refused to take the test when
the polygraph examiner notified Wolfe of his rights and that he was not required to
take the test to maintain his employment. Wolfe left the test site and returned to
the Mardi Gras Wine store to complete his shift. He alleges that when he arrived,
the manager requested his keys, terminated his employment, and told him to never
return to the premises.
In August of 2012, Wolfe made a complaint to the U.S. Department of Labor
regarding the polygraph test. (Pl. Mot. Part. Summ. J. Ex. A 3, ECF No. 114-1).
He also complained that he not been paid for six months of work at Tobacco
Express. (Id. at 2). An investigator for the U. S. Department of Labor concluded
that although Wolfe was not expressly employed by Tobacco Express from February
through September of 2011, Tobacco Express had nonetheless “suffered or
permitted” him to work there for the same hours as Rutherford, and therefore he
was owed minimum wage for those hours. (Id. at 3). The parties indicate that the
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investigator found no violation of the EPPA, but that portion of the narrative does
not appear to be in the record. Tobacco Express has refused to pay the $8,616.63 in
back wages calculated by the investigator for the FSLA violation.
Wolfe brings an EPPA claim against Mardi Gras Wine, Tobacco Express and
Thomas-Gatian, for which he seeks damages pursuant to 29 U.S.C. §§ 216(b) and
2005(c). Additionally, he brings a FLSA claim against Tobacco Express and
Thomas-Gatian for unpaid wages in the amount of $8,616.63, plus damages as
allowed by 29 U.S.C. § 216(b).
According to the Counterclaim (ECF No. 68), Thomas-Gatian is a principal of
Tobacco Express and Mardi Gras Wine, both of which are S corporations. The
businesses are operated out of a single building owned by Thomas-Gatian. Wolfe
was employed as a retail sales clerk from September 2011 until his resignation in
June 2012.
Management noticed inventory irregularities in the spring and summer of
2012, primarily involving Tobacco Express. Three employees, including Wolfe and
Rutherford, who were in a position to have regular access to the goods and/or money
were offered polygraph examinations. Rutherford and the other employee took and
passed the examination. Wolfe refused the test, returned to the store, turned in his
keys and never returned to work or otherwise communicated with the defendants.
He filed a claim for unemployment benefits, which was denied initially and on
appeal on the basis of the finding that Wolfe had not been fired but had voluntarily
resigned his employment. The defendants allege that Wolfe was criminally charged
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by his subsequent employer with embezzlement, giving credence to their suspicions
that he was responsible for the inventory losses at Tobacco Express.
The defendants further allege that during this litigation, Wolfe has provided
his attorneys with notebooks taken from Tobacco Express which are defendants’
business records. The defendants contend these notebooks were created and
maintained for management’s purposes and contain entries that would substantiate
their defense to Wolfe’s claims. However, Wolfe has not returned the notebooks to
Tobacco Express.
The defendants’ counterclaims against Wolfe are for conversion of
merchandise, money, and business records. They seek compensatory and punitive
damages.
ANALYSIS
In his summary judgment motions, Wolfe seeks judgment in his favor as to
the defendants’ conversion counterclaims, and as to the liability portion of his own
claims against the defendants. The defendants move for summary judgment on all
claims against them.
The Court analyzes the motions under the well-established summary
judgment standard. Fed. R. Civ. P. 56(c); see generally, Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 576, 586–87 (1986); Burge v. Parish of St. Tammany, 187 F.3d 452, 464
(5th Cir. 1999).

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Spoliation
The defendants move for dismissal of Wolfe’s claims against them as a
sanction for spoliation of the evidence. They argue that Rutherford removed at
least five notebooks containing business records from the stores, and although she
produced five notebooks in discovery, the notebook containing the manager’s
comments about Wolfe’s presence at the store was not produced. The manager
testified that “I do know that I wrote a lot about [Wolfe] being up there, about
complaints that I had received, and I don’t see any of that in here.” (Def. Ex. 36 at
35, ECF No. 111-16). Defendants conclude that Rutherford has not produced or
perhaps destroyed at least one notebook. (Id. at 9).
In earlier proceedings in this case, the defendants filed a motion to compel
requesting, among other things, that Elizabeth Rutherford be ordered to respond to
questions about the notebooks. (ECF No. 67). The Court granted this motion in
part, allowing the defendants to ask Rutherford certain questions about the
notebooks. (Order Jan. 10, 2014, ECF No. 86). Rutherford’s answers were clearly
unsatisfactory to defendants, because she testified both that the notebooks were her
property because she purchased them, and also that they were store records that
she had mistakenly brought home with some of her own items. (See Def. Resp. Ex.
41 at 140-41, ECF No. 119-2). The defendants argue that there remains at least
one other notebook in Rutherford’s possession, and her retention of it shows bad
faith. They argue that the notebook is necessary to show that Rutherford received
specific instructions from the manager regarding the conditions under which Wolfe
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could be on the premises during Rutherford’s shifts. Defendants did not file a
motion to compel production of the notebook(s).
The law regarding spoliation requires that the moving party show that the
party alleged to have concealed or destroyed evidence has acted in bad faith.
King v. Ill. Cent. R.R., 337 F.3d 550, 556 (5th Cir. 2003). The Court should demand
even more compelling evidence of bad faith when asked to apply the more severe
sanction of dismissal or summary judgment. Stahl v. Wal-Mart Stores, Inc., 47 F.
Supp. 2d 783, 786-87 (S.D. Miss. 1998).
The defendant’s request for dismissal on the grounds of spoliation must be
denied. Rutherford, although closely aligned with Wolfe, is not a party to this
lawsuit. The Court has not located a case in which a non-party’s alleged bad faith
has constituted grounds for dismissal for spoliation. Even so, the evidence
concerning Rutherford’s conduct does not unequivocally show bad faith, considering
that she testified to both negligent and knowing removal of the notebooks. There is
no evidence at all of Wolfe’s involvement in the disappearance of the notebooks or
that he knew they were stored in a closet in his home. Further, the notebook is not
the only source of the information defendants wish to present to the jury, as the
person who created the record has testified that she advised Rutherford of the
circumstances under which Wolfe could remain at the store during Rutherford’s
shifts. (Def. Ex. 36 at 33-34, ECF No. 111-16). Thus, the evidence has not been
“lost.” Dismissal of the entire case would be inappropriate in any event, because
the documentation sought by the defendants concerns only the FLSA portion of this
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case. The Court will therefore exercise its discretion to deny sanctions based on
spoliation of the evidence.
Plaintiff’s Fair Labor Standards Act Claim
The FLSA allows injured employees to sue directly on their own behalf under
29 U.S.C. § 216(b), for back pay, plus an equal amount as liquidated damages.
Reich v. Tiller Helicopter Servs., Inc., 8 F.3d 1018, 1030 (5th Cir. 1993). In order to
establish a claim for failure to compensate under the FLSA, there must first be an
employer-employee relationship. The FLSA defines employer as “any person acting
directly or indirectly in the interest of an employer in relation to an employee.” 29
U.S.C. § 203(d). The parties do not dispute the employer status of the corporate
entities, but Thomas-Gatian argues she is not an employer under the statute. She
argues that she should not be subjected to individual liability for any FLSA
violations, because to do so would improperly pierce the corporate veil.
A shareholder, member, or officer of an entity is not individually liable as an
employer simply because of her position. Instead, the Fifth Circuit Court of Appeals
applies an “economic reality” test to determine whether an individual is sufficiently
involved in the day-to-day operation of the company and its employees to be
considered an employer for FLSA purposes. See Gray v. Powers, 673 F.3d 352, 35455 (5th Cir. 2012). “To determine whether an individual or entity is an employer,
the court considers whether the alleged employer: (1) possessed the power to hire
and fire employees; (2) supervised or controlled employee work schedules or
conditions of employment; (3) determined the rate or method of payment; and (4)
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maintained employee records.” Id. at 355 (internal quotations omitted); see also
Watson v. Graves, 909 F.2d 1549, 1553 (5th Cir. 1990).
When a plaintiff alleges that there is more than one employer, the Court
“‘must apply the economic realities test to each individual or entity alleged to be an
employer and each must satisfy the four part test.’” Gray, 673 F.3d at 355 (quoting
Watson, 909 F.2d at 1556)). And much like piercing the corporate veil, the Fifth
Circuit has recognized that “‘individuals are ordinarily shielded from personal
liability when they do business in a corporate form, and . . . it should not lightly be
inferred that Congress intended to disregard this shield in the context of the
FLSA.’” Id. at 356 (quoting Baystate Alt. Staffing, Inc. v. Herman, 163 F.3d 668,
677 (1st Cir. 1998)). Only those individuals “who have operating control over
employees” may be individually liable for FLSA violations committed by the
company. Id. at 357. See also Lee v. Coahoma Cnty., Miss., 937 F.2d 220, 226 (5th
Cir.1991) (noting that the term “employer” includes individuals with managerial
responsibilities and substantial control over the terms and conditions of the
employee's work).
The evidence in this case establishes that Thomas-Gatian meets the FLSA’s
definition of an “employer.” She testified that she made all staffing decisions, and
was involved in the day-to-day management of employees. It is evident from her
deposition testimony as a whole that she was the decision-maker for all aspects of
the businesses. She therefore qualifies as an “employer” under the FLSA.

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Next, the Court must determine if Wolfe is an “employee.” The FLSA defines
“employee” as “any individual employed by an employer.”•29 U.S.C. § 203(e)(1). An
entity employs an individual under the FLSA if it “suffer[s] or permit[s]” that
individual to work. 29 U.S.C. § 203(g). “Work not requested but suffered or
permitted is work time.” 29 C.F.R. § 785.11. “[A]n employer's actual or imputed
knowledge that an employee is working is a necessary condition to finding the
employer suffers or permits that work.” Chao v. Gotham Registry, Inc., 514 F.3d
280, 285 (2d Cir. 2008).
Wolfe testified that from February to August 2011, he spent the same
number of hours as Rutherford at Tobacco Express. He retrieved items for
customers, restocked shelves, and did “everything except the processing of the credit
cards and physically ringing up the customers.” (Def. Ex. 34 at 91, ECF No. 11114). He testified that management knew he was there, and actually observed him
stop in with Rutherford during their off hours to help the manager, who was
pregnant at the time, restock the cooler and clean up. (Id. at 93-94). He further
testified that management praised him on several occasions, telling him “Hey, store
looks great. Y’all are doing a good job. Everything looks nice and stocked and
straightened and cleaned.” (Id. at 111). He was never directly asked by anyone to
not work in the store when he accompanied Rutherford on her shift. (Id. 110-11).
The manager told Rutherford that it was okay for Wolfe to be there as long as he
stayed away from the cash register area. (Id. at 113). Rutherford generally agreed
that Wolfe helped her during her shift. (Def. Ex. 35 at 46, ECF No. 111-15).
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By contrast, the manager testified that she had several conversations with
Rutherford about Wolfe interfering with vendors and customers. She told
Rutherford that Wolfe wouldn’t be allowed there anymore if he continued
interfering. (Def. Ex. 36 at 33-34, ECF No. 111-16). “It was a one-person job.
[Rutherford] was the one that worked there. There was no reason for [Wolfe] to be
up there.” (Id. at 34). The manager told Wolfe more than once that he did not work
there, “[b]ecause I was getting complaints from the vendors that he was trying to
tell them how to do their jobs and complaints from the customers that he was loud
and swearing in the store.” (Id. at 47). However, when she was pregnant the
manager did ask Rutherford to ask Wolfe to throw a vacuum machine into the
dumpster and change out the air filters. (Id. at 54, 59-60). But her comment
praising “y’all” for doing a good job was directed to Rutherford and the vendors, who
had primary responsibility for keeping the coolers stocked. (Id. at 80).
Defendant Thomas-Gatian, who did not spend time at the stores, testified
that she spoke to Rutherford, and asked her to have Wolfe leave Tobacco Express
because of the complaints from vendors and customers. (Def. Ex. 33 at 11-12, ECF
No. 111-13). Gatian was never informed that Wolfe performed work for Tobacco
Express during the time before he was hired in August 2011. (Id.).
Reviewing this evidence in the light most favorable to Wolfe, the Court finds
that there are questions of material fact in regard to the FLSA claim. There is
conflicting evidence regarding whether Wolfe was performing work for Tobacco
Express between February and August 2011, and if so, whether the employer was
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aware of it. Accordingly, neither party is entitled to summary judgment as to the
FLSA claim.
Plaintiff’s Employee Polygraph Protection Act Claim
The EPPA makes it unlawful for most non-govermental employers to require
an employee to take a polygraph test, or even suggest in any way that the employee
do so. 29 U.S.C. § 2002(1). Employers are also prohibited from discharging or
disciplining an employee for any reason related to a polygraph test – even the
refusal to take one. 29 U.S.C. § 2002(3). Wolfe contends that the defendants
violated both of these provisions.
A. The Polygraph Testing
The defendants advised Wolfe that he was requested or required to take a
polygraph examination by verbally informing him, and providing him with a
document titled “48 Hour Notice of Polygraph Examination.” (Def. Mot. Summ. J.
Ex. 3, ECF No. 110-3). There is no question that while he was an employee of
Mardi Gras Wine and Tobacco Express, Wolfe’s employer requested that he submit
to a polygraph test, which is a violation of Section 2002(1) of the EPPA.
However, the defendants claim that their use of polygraph testing was
authorized under the ongoing investigation exemption of the EPPA, because it was
in conjunction with an ongoing investigation of an apparent theft of cash and/or
products from its store. The exemption, found at Section 2006(d), provides that the
EPPA does not prohibit an employer from requesting that an employee take a
polygraph examination when:
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(1) the test is administered in connection with an ongoing investigation
involving economic loss or injury to the employer's business, such as
theft, embezzlement, misappropriation, or an act of unlawful
industrial espionage or sabotage;
(2) the employee had access to the property that is the subject of the
investigation;
(3) the employer has a reasonable suspicion that the employee was
involved in the incident or activity under investigation;
(4) the employer executes a statement, provided to the examinee before
the test, that—
(A) sets forth with particularity the specific incident or
activity being investigated and the basis for testing
particular employees,
(B) is signed by a person (other than the polygraph
examiner) authorized to legally bind the employer,
(C) is retained by the employer for at least 3 years, and
(D) contains at a minimum—
(i) an identification of the specific economic
loss or injury to the business of the employer,
(ii) a statement indicating that the employee
had access to the property that is the subject
of the investigation, and
(iii) a statement describing the basis of the
employer's reasonable suspicion that the
employee was involved in the incident or
activity under investigation.
29 U.S.C. § 2006(d).
The regulations explain how to apply the exemption in circumstances like
those alleged by the defendants in this case:
[P]olygraph testing in response to inventory shortages would be
permitted where additional evidence is obtained through subsequent
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investigation of specific items missing through intentional wrongdoing,
and a reasonable suspicion that the employee to be polygraphed was
involved in the incident under investigation. Administering a
polygraph test in circumstances where the missing inventory is merely
unspecified, statistical shortages, without identification of a specific
incident or activity that produced the inventory shortages and a
“reasonable suspicion that the employee was involved,” would amount
to little more than a fishing expedition and is prohibited by the Act.
29 C.F.R. § 801.12(b).
Wolfe argues that the written notice provided by Tobacco Express did not
comply with the third and fourth requirements of the ongoing investigation
exception. In regard to the fourth requirement, concerning the contents of the
statement, Wolfe argues that the notice provided does not set forth with
particularity the specific incident or activity being investigated, nor does it identify
the specific economic loss or injury to the employer.
It appears that Wolfe’s refusal to take the polygraph examination makes the
contents of the notice irrelevant. Although the Court is unable to locate a case in
which the Fifth Circuit Court of Appeals has addressed this issue, the Eleventh
Circuit Court of Appeals has determined that in the case of an employee who has
refused to take a polygraph test, the fourth requirement of a statement is not
applicable.
The requirement refers not to “employees” but “examinees,” that is to
say, individuals who will take the proposed tests. See Polkey v.
Transtecs Corp., 404 F.3d 1264, 1270 (11th Cir. 2005) (relying on the
distinction between “employee” and “examinee” to hold that the notice
requirement applies only to individuals who will take lie detector
tests). Because plaintiffs declined to take lie detector tests, they were
never “examinees” and so the Company was never obliged to provide
them with statements of alleged misconduct.
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Watson v. Drummond Co., Inc., 436 F.3d 1310, 1315 (11th Cir. 2006); see also
Maybury v. Slaton, No. 3:06cv363, 2010 WL 518041 at *6 (S.D. Ohio Feb. 2, 2010)
(following Polkey). As Wolfe was never an “examinee,” the defendants had no
obligation to comply with the requirement of a statement in order for the ongoing
investigation exemption to apply. Accordingly, the Court will not examine the
contents of the statement and will proceed to Wolfe’s arguments concerning the
third exemption requirement.
The third requirement for application of the exemption is that the employer
have a reasonable suspicion that the employee was involved in the incident or
activity under investigation. The regulations define “reasonable suspicion” as “an
observable, articulable basis in fact which indicates that a particular employee was
involved in, or responsible for, an economic loss.” 29 C.F.R. § 801.12(f)(1).
While access or opportunity, standing alone, does not constitute a basis
for reasonable suspicion, the totality of circumstances surrounding the
access or opportunity (such as its unauthorized or unusual nature or
the fact that access was limited to a single individual) may constitute a
factor in determining whether there is a reasonable suspicion.
Id.
Viewing the evidence in the light most favorable to the plaintiff, it appears
that the defendants have not shown that they are entitled to the ongoing
investigation exemption. Wolfe had access to the inventory and/or cash that was
the subject of the investigation, and he had the opportunity for theft, as singleperson shifts were the norm at both stores. But the employer was unable to
articulate a reason for suspecting that Wolfe, in particular, was responsible for the
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missing property. The owner testified that she just knew it was Wolfe. (“As far as
him actually putting cash in his pocket, I don’t know what all Mr. Wolfe did. But I
know he was creative. And I know that likely happened. . . . it’s just my
assumption. . . . [b]ased on a lot of experience.”) (Def. Ex. 33 at 34-35, ECF No. 11113). She could identify no eyewitnesses, video surveillance or business records
pointing to Wolfe’s culpability. In the Court’s view, that is not sufficient to give rise
to reasonable suspicion, as this evidence merely invites the jury to speculate along
with Thomas-Gatian. Accordingly, Wolfe has established that Mardi Gras Wine
violated section 2002(1) of the EPPA when it requested or required him to submit to
a polygraph test. His motion for summary judgment as to the liability portion of his
Section 2002(1) EPPA claim will be granted.
B. Wolfe’s Termination
Wolfe contends that he was terminated for his refusal to submit to a
polygraph test, in violation of section 2002(3) of the EPPA. The defendants argue
that the question of whether Wolfe was terminated from his employment has
already been adjudicated by the MDES, when an administrative law judge found
that Wolfe was not terminated but had voluntarily quit.3 Wolfe responds that the

3

In regard to Wolfe’s employment at Tobacco Express, the ALJ concluded
that Wolfe “voluntarily left his employment in order to give his one day a week shift
to a co-worker. The claimant was not under any threat of being discharged.” (Def.
Ex. 23 at 1, ECF No. 111-3). In regard to Wolfe’s employment at Mardi Gras Wine,
the ALJ concluded that,
[t]he claimant voluntarily left his employment when he assumed he
was being terminated once the manager asked for the claimant’s keys
and told the claimant to leave the property. Although the claimant
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anti-retaliation provisions of the EPPA override the preclusive effect of the MDES’
factual finding.
i.) Issue Preclusion
The law is clear that “when a state agency acting in a judicial capacity . . .
resolves disputed issues of fact properly before it which the parties have had an
adequate opportunity to litigate, federal courts must give the agency’s fact-finding
the same preclusive effect to which it would be entitled in the State's courts.” Univ.
of Tenn. v. Elliott, 478 U.S. 788, 799 (1986) (internal quotation marks, alteration,
and citation omitted). “Under Mississippi law, res judicata or collateral estoppel
precludes relitigation of administrative decisions.” Smith v. Univ. of Miss., 797 So.
2d 956, 963 (Miss. 2001); Zimmerman v. Three Rivers Planning & Dev. Dist., 747
So. 2d 853, 861 (Miss. Ct. App. 1999). “‘Once an agency decision is made and the
decision remains unappealed beyond the time to appeal, it is barred by
administrative res judicata or collateral estoppel.’” A & F Prop., LLC v. Madison
Cnty. Bd. Of Sup'rs, 933 So. 2d 296, 302 (Miss. 2006) (quoting Zimmerman, 747 So.
2d at 861).
Wolfe argues that the state agency’s factual finding does not preclude his
EPPA retaliation claim, because “state administrative decisions do not have

was told by this same manager two times to contact the owner, the
claimant failed to do so or return to work. The claimant was not under
any prior threat of termination.
(Def. Ex. 24 at 2, ECF No. 111-4).
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preclusive effect as to claims for which Congress provided a detailed administrative
remedy, such as Title VII and ADEA claims.” Wright v. Custom Ecology, Inc., No.
3:11CV760 DPJ–FKB, 2013 WL 1703738, at *5 (S.D. Miss. Apr.19, 2013). See also
Cox v. DeSoto Cnty., Miss., 564 F.3d 745, 748-49 (in a case brought under ADEA,
collateral estoppel did not apply since Congress included an anti-retaliation section
that was implicated by the complaint) (citing Astoria Fed. Sav. & Loan Ass'n v.
Solimino, 501 U.S. 104, 110–14 (1991)). Thus, in a Title VII action, a prior state
decision enjoys preclusive effect only if rendered or reviewed by a court; “[a]n
administrative decision involving Title VII claims that is not reviewed by a state or
federal court may not preclude a subsequent Title VII claim.” Thomas v. La., Dep’t.
of Social Servs., 406 Fed. App'x 890, 894–95 (5th Cir .2010) (citing Elliott, 478 U.S.
at 796). See also Roth v. Koppers Indus., Inc., 993 F.2d 1058, 1062 (3d Cir. 1993)
(“Following Elliott, the courts of appeals have unanimously concluded that
unreviewed administrative agency findings can never be accorded issue preclusive
effect in subsequent Title VII proceedings.”)
Wolfe does not bring a Title VII or ADEA claim, and unlike the cases cited
directly above, his proceedings at the MDES did not concern why he had been
terminated, only the more basic question of whether he had been terminated.
Nevertheless, because the EPPA includes an anti-retaliation provision similar to
those in Title VII and the ADEA, the Court finds that the administrative findings of
the MDES should not be given preclusive effect. Similarly to Title VII and the

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ADEA, the EPPA is intended to protect employees from an employment practice
deemed by Congress to be unfair or discriminatory. The findings of the MDES in
Wolfe’s case were not reviewed by a state or federal court, and therefore the
findings should not preclude this Court’s consideration of his EPPA retaliation
claim.
ii.) Retaliation
The Fifth Circuit Court of Appeals has not had an opportunity to address the
issue of how to analyze an EPPA retaliation claim on summary judgment. The two
appellate courts that have considered the issue have concluded that the mixedmotive analysis developed for other retaliation claims is, at the least, not
inappropriate. In Worden v. SunTrust Banks, Inc., 549 F.3d 334 (4th Cir. 2008), the
Fourth Circuit held that “on its face, § 2002(3) does not require polygraph results to
be the ‘sole’ basis of an employment decision.” Id. at 341. Therefore, the court
applied the mixed-motive framework, requiring only that a plaintiff show that the
results of the polygraph examination (or, in this case, the refusal to take the
examination) was a motivating factor in the termination of employment to make a
prima facie case of retaliation. Id.; see also Laney v. Getty, No. 5:12-306-DCR, 2014
WL 1779456 at *3 (E.D. Ky. May 5, 2014). Once the plaintiff has made a prima
facie case, the employer can avoid liability by proving that it would have made the
same decision regardless. Worden, 549 F.3d at 343.
Similarly, in Bass v. Wendy’s of Downtown, Inc., 526 F. App’x 599 (6th Cir.
2013), the Sixth Circuit reluctantly approved the mixed-motive framework, stating
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that “although it is not clear that [the mixed-motives framework of] Price
Waterhouse [v. Hopkins] is necessarily the appropriate test, the Price Waterhouse
framework places a relatively light burden on plaintiffs and alternative tests would
not aid – indeed they would likely harm – [the plaintiff's] claim.” Bass, 526 F. App’x
at 603.
Regardless of whether the mixed-motive framework is proper for use in an
EPPA retaliation case in this Circuit, Wolfe’s claim cannot advance beyond the
prima facie stage required for any retaliation claim. The evidence that he was
terminated is virtually non-existent. Although Wolfe’s deposition provided a
number of opportunities for him to explain why he thought the MDES
administrative law judge was incorrect to find that he had left his employment
voluntarily, the matter was never directly addressed. The exchange that comes
closest is where Wolfe was asked:
And so even after the Department of Labor found that there had been
no violation of the EEPA and even though the [MDES] found after two
hearings in a judgment that’s now final that you weren’t discharged,
that you left voluntarily so as to disqualify yourself for unemployment
benefits, you still wanted to file this suit against Ms. Thomas for what
you claim is a violation of the EPPA, is that right?
Wolfe answered:
Yes, I did and because of the fact that the statements that were given
in these documents here from the [MDES] here, Exhibit 13, there are
handwritten remarks on the bottom basically stating that I had
showed up late, yelling profanity and turning in – I can’t read that.
It’s missing – it’s incomplete, but to the part of me showing up late,
yelling profanity did not happen because during the hearing when that
question was asked by the judge, Ms. Gwen Killibrew did answer that
no, that did not happen. I was not cursing and I did not use profanity
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in any way, shape, or form.
(Pl. Dep. 86-87, ECF No. 111-14). Thus, he objected to the language regarding his
conduct, but not the conclusion that he had voluntarily quit.
Wolfe points to the deposition testimony of Elizabeth Lottman, an employee
on duty at the time Wolfe returned to the store after refusing to take the polygraph
test. Lottman testified that Wolfe was advised by Killibrew that “until everything
was cleared up, because he didn’t take his test, that he needed to leave the property
just for the moment, nothing about being fired, anything like that.” (Def. Ex. 38 at
17, ECF No. 111-19). Wolfe also points to the deposition testimony of Melanie
Eshbaugh, the manager of Tobacco Express at the time. Eshbaugh testified that
Thomas-Gatian told her that Wolfe had been fired. (Def. Ex. 36 at 66, ECF No. 11116). Eshbaugh clarified that Thomas-Gatian did not say “I fired him,” but only that
“he wasn’t working there anymore.” (Id.). However, this testimony is in response to
a question about whether Thomas-Gatian told Eshbaugh why Wolfe had filed a
lawsuit.4 (Id. at 65).
On the opposing side of the issue, Thomas-Gatian testified that she did not
terminate Wolfe. (Def. Ex. 33 at 118, ECF No. 111-13). Thomas-Gatian testified
that she got a phone call from Killibrew on the night of the polygraph testing, after
Wolfe returned to the store. Killibrew advised Thomas-Gatian that she was going
down to the store because Wolfe was being disruptive. (Def. Ex. 33 at 120, ECF No.

4

It is reasonable to expect that Thomas-Gatian would eventually terminate
Wolfe’s employment when he did not appear for work.
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111-13). Thomas-Gatian’s testimony regarding the exchange between Killibrew and
Wolfe is similar to Lottman’s, above, but is obviously second-hand.5 Also relevant
are the factual findings of the MDES, which constitute competent summary
judgment evidence that Wolfe was not terminated, but voluntarily quit.
Viewing the evidence in the light most favorable to Wolfe, the Court finds
insufficient competent summary judgment evidence supporting Wolfe’s claim that
he was terminated from his employment. Although he clearly understood that
termination was a possibility if he refused the polygraph test, Wolfe did not testify
that he had been terminated. No other witness testified that he was told he was
terminated when he appeared at the store for the last time. Without evidence that
he was terminated from his employment, Wolfe cannot establish a prima facie case
of retaliation for refusal to submit to a polygraph examination. Accordingly, the
defendants will be granted summary judgment on this claim.
Defendants’ Conversion Claims
To establish the tort of conversion in Mississippi, “there must be proof of a
wrongful possession, or the exercise of a dominion in exclusion or defiance of the
owner's right, or of an unauthorized and injurious use, or of a wrongful detention
after demand.” Cmty. Bank, Ellisville, Miss. v. Courtney, 884 So.2d 767, 772-73 (¶
10) (Miss. 2004) (quoting Smith v. Franklin Custodian Funds, Inc., 726 So. 2d 144,
149 (¶ 20) (Miss. 1998)). The intent required does not have to be that of a

5

Killebrew’s deposition testimony does not reach the issue of whether she
told Wolfe he was or would be fired. (Def. Ex. 37, ECF Nos. 111-17, 111-18).
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wrongdoer. Id. at 774 (¶ 15) (citing First Investors Corp. v. Rayner, 738 So. 2d 228,
235 (¶ 28) (Miss. 1999)). Wolfe argues that the defendants have no evidence that he
was involved in the theft of business records, merchandise, or money from the
businesses, and therefore defendants have failed to establish any of their conversion
claims.
The defendants point to Rutherford’s testimony, where she states that she
took the business records, which are “store notebooks” normally kept at the
business for the purpose of communicating between shifts. (Def. Ex. 41, at 140-141,
ECF No. 119-2). However, Rutherford asserted that the notebooks belong to her,
because she paid for them. (Id. at 136) (“I said I paid for it and for the most part,
yes, sir. I was never reimbursed for it. Therefore, it is mine.”). Rutherford found
them in a box in the back of her closet at home, but did not know when she brought
them from the store. (Id. at 146-47). The defendants attempt to impute this
evidence concerning Rutherford to Wolfe by pointing out that Wolfe and Rutherford
live together, and therefore he shares access to the closet. A conversion requires an
intent to exercise dominion or control of another’s property. Greenline Equip. Co.,
Inc. v. Covington Cnty. Bank, 873 So. 2d 950, 954 (Miss. 2002). The defendants
have not shown that Wolfe was aware of the notebooks, and therefore cannot show
his intent to wrongfully possess them. Further, although the defendants provide
some evidence of inventory and cash shortages, they point to no evidence that Wolfe
was at fault and wrongfully possessed any property belonging to them. The
evidence presented is therefore insufficient to create a question of fact as to whether
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Wolfe converted defendants’ property. Wolfe is entitled to judgment as a matter of
law in regard to the defendants’ conversion claims.
CONCLUSION
The Court concludes that the defendants have not shown they are entitled to
dismissal as a sanction for spoliation of evidence. Their request for dismissal will
be denied.
Wolfe has shown there is no question of material fact regarding the
defendants’ conversion counterclaims. Summary judgment will therefore be
granted in Wolfe’s favor on defendants’ counterclaims.
The Court finds questions of material fact regarding Wolfe’s FLSA claim, and
therefore neither party is entitled to summary judgment.
As to Wolfe’s EPPA claims, the Court finds no question of material fact.
Wolfe has shown a violation of Section 2002(1). He is entitled to summary
judgment as to liability on this claim. Wolfe has not shown a violation of Section
2002(3), and therefore his motion for summary judgment will be denied and the
defendant’s motion will be granted.
As a result of these rulings, the remaining issues for trial are: 1) whether
defendants violated the FLSA and any resulting damages; and 2) damages for
defendants’ violation of Section 2002(1) of the EPPA.
IT IS THEREFORE ORDERED AND ADJUDGED that the Motion [110]
for Summary Judgment filed by the defendants, Mardi Gras Wine and Spirits, Inc.,
Sheila Ann Thomas-Gatian, and Tobacco Express, II, Inc., is GRANTED IN PART
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AND DENIED IN PART as set out above.
IT IS FURTHER ORDERED AND ADJUDGED that the Motion [113] for
Partial Summary Judgment filed by plaintiff Kevin Wolfe is GRANTED IN PART
AND DENIED IN PART as set out above.
IT IS FURTHER ORDERED AND ADJUDGED that the Motion [115] for
Summary Judgment filed by plaintiff Kevin Wolfe is GRANTED. Defendants’
counterclaims against Wolfe are DISMISSED.
SO ORDERED AND ADJUDGED this the 16th day of June, 2014.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE

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