Cage v. Multiband, Inc.

Filing 57

MEMORANDUM AND ORDER re: 42 MOTION for Summary Judgment filed by Defendant Multiband, Inc. motion is GRANTED. Signed by District Judge Stephen N. Limbaugh, Jr on 2/18/15. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
ANTHERS CAGE,
Plaintiff,
v.
MULTIBAND, INC.,
Defendant.

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Case No. 1:12CV87 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court on defendant’s motion for summary judgment.
Plaintiff has not filed a response and the time for doing so has expired. The motion is
ripe for disposition. For the following reasons, the Court will grant the motion.
I.

Background
Plaintiff Anthers Cage was a cable installer for defendant Multiband, Inc. from

July 2007 to February 2010. Plaintiff filed this multi-count action against Multiband
alleging claims of race discrimination and retaliatory discharge under Title VII of the
Civil Rights Act, failure to pay overtime and retaliatory discharge under the Fair Labor
Standards Act (FLSA), and wrongful discharge in violation of public policy.
In accordance with this Court’s Case Management Order, on August 29, 2014,
defendant filed its motion for summary judgment. On September 19, 2014, plaintiff’s
counsel filed a motion for leave to withdraw indicating a strained relationship between
plaintiff and counsel such that counsel could no longer represent plaintiff and that
plaintiff had advised counsel that he intended to seek new counsel. At the same time,

plaintiff’s counsel filed a request for an extension of plaintiff’s deadline to respond to
defendant’s motion for summary judgment. The Court granted the motion to withdraw
and entered an Order extending plaintiff’s response deadline to October 20, 2014.
On November 17, 2014, the Court sua sponte issued an Order providing notice to
plaintiff that if he did not respond to the motion for summary judgment within twentyone days it would be taken up as an unopposed motion. On December 12, 2014, plaintiff
requested an additional thirty to sixty days to obtain counsel. Plaintiff’s request failed to
state any reason why he had been unable to obtain counsel or why he needed additional
time to obtain counsel. Defendant opposed the motion. The Court denied the motion
finding plaintiff had been given sufficient time to obtain new counsel following the
withdrawal of counsel. Plaintiff did not file a response to the motion for summary
judgment.
II.

Summary Judgment Standard
Pursuant to Federal Rule of Civil Procedure 56(a), a district court may grant a

motion for summary judgment if all of the information before the court demonstrates that
“there is no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The
burden is on the moving party. City of Mt. Pleasant, Iowa v. Associated Elec. Co-op.
Inc., 838 F.2d 268, 273 (8th Cir. 1988). After the moving party discharges this burden,
the nonmoving party must do more than show that there is some doubt as to the facts.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead,
the nonmoving party bears the burden of setting forth affirmative evidence and specific
2

facts by affidavit and other evidence showing that there is a genuine dispute of a material
fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Celotex, 477 U.S. at
324.
The movant’s statement of facts are deemed admitted if not specifically
controverted by the opposing party. E.D. Mo. L.R. 4.01 (E). Even where all of movant’s
facts are deemed admitted, the Court must look at the entire record to determine whether
summary judgment is warranted. “The Eighth Circuit has determined that when a
plaintiff fails to respond adequately to a motion for summary judgment, a district court
should not treat such a non-response as sufficient to dispose of the motion.” Lowry v.
Powerscreen USB, Inc., 72 F.Supp.2d 1061, 1064 (E.D. Mo. 1999) (citing Canada v.
Union Electric Co., 135 F.3d 1211, 1213 (8th Cir. 1997). “Courts should proceed to
examine those portions of the record properly before them and decide for themselves
whether the motion is well taken.” Id. “In so ruling, even on an unopposed motion for
summary judgment, the court should review the facts in a light most favorable to the
party who would be opposing the motion.” Id.
III.

Facts
Plaintiff failed to specifically controvert defendant’s statement of facts and,

therefore, those facts are deemed admitted for this motion. O’Connell v. Accurate
Plumbing, LLC, 4:04CV1368 FRB, 2005 WL 2176926, at *2 (E.D. Mo. Sept. 8, 2005)
(citing Northwest Bank & Trust Co. v. First Ill. Nat’l Bank, 354 F.3d 721, 724-25 (8th
Cir. 2003); Harris v. Interstate Brands Corp., 348 F.3d 761, 762-63 (8th Cir. 2003)).
The undisputed facts, as supported by the record, are set forth below.
3

Multiband, via its subsidiaries, maintains DIRECTV’s installations, service, and
upgrades for residential and commercial digital media services. Multiband maintains
office locations throughout the United States, including an office in Paducah, Kentucky.
Among many other types of workers, Multiband employs technicians to install, repair,
and upgrade equipment for its customers.
Cage was employed as a technician for Multiband in the Paducah location from
July 19, 2007 to February 12, 2010. During all times relevant to the amended complaint,
certain Multiband technicians, including plaintiff, were represented by the
Communication Workers of America (the “Union”). A Collective Bargaining Agreement
(CBA) between the Union and Multiband was in effect at all times relevant to this case.
Cage was subject to the CBA beginning in 2008.
Pursuant to the terms of the CBA, Multiband technicians, including Cage, are
classified as “job based” employees and compensated at a piece rate, receiving a certain
amount for each piece of work they perform. Cage agrees the piece rate is meant to
incorporate payment for all the work performed for each job. In addition to the piece
rate, job based technicians received an overtime premium of time and one-half.
Multiband calculates that premium by taking the weekly gross compensation for a job
based technician, including production work only, and dividing by the hours worked in
the week to determine a rate per hour. The hourly rate is then divided by two to
determine one half of the hourly rate. One half of the hourly rate is then multiplied by
the hours worked, in excess of forty, to determine the amount of the overtime premium.
Cage agrees Multiband calculated and paid him overtime in the manner described.
4

At all times relevant to this lawsuit, Multiband maintained a set of written
employment policies. Cage signed a Receipt and Acknowledgement for the Policy
Manual on July 26, 2007. Multiband maintains a written policy that job based
technicians are expected to arrange their schedule, have meals, and take breaks in a
manner that will allow them to complete their work in no more than forty hours per week.
Multiband’s written policy requires employees to obtain advance written approval before
working overtime.
Multiband provided Cage with a vehicle to use while traveling to customer work
sites. Cage executed a Vehicle Assignment Agreement when he received the vehicle
from Multiband. Cage did not have to obtain any special licenses to drive his Multiband
vehicle and parked the vehicle in his driveway. Multiband has a written policy that the
time a technician spends traveling to each customer site to perform work is counted as
compensable work time. Multiband has a written policy indicating that employees who
believe there is an error in their pay should contact the corporate payroll office
immediately. Cage alleges he complained to a supervisor and various Union members
about not receiving compensation for his commute to work each day. However, Cage did
not report to Multiband, as hours worked or as overtime, the time it took him to drive
from his home to the first job of the day.
At the time he was hired, Cage knew he was assigned to work in the Southeast
Missouri region and that he would be required to travel throughout Missouri. At the time
he was hired, Cage knew Multiband required him to attend weekly technician meetings.
Multiband maintains a written policy that employees are responsible for accurately
5

recording and reporting all time worked. If Cage reported to Multiband his attendance at
a weekly technician meeting, Multiband compensated him for his attendance. Cage
alleges he reported his attendance at weekly technician meetings about half the time.
Cage never complained to anyone at Multiband about having to attend to weekly
technician meetings.
Cage claims he kept handwritten notes on scraps of paper each week indicating the
hours over forty he worked for Multiband, but did not provide those notes to Multiband.
In determining how many hours he worked over forty each week for the purposes of this
lawsuit, Cage included the time each day, “from when I woke up in the morning [to]
when I done my last job […].” To calculate how many hours he worked each day for the
purposes of this lawsuit, Cage looked at each work order and assigned a particular
amount of time based on the average it generally took him to perform that task. For
instance, it generally took him an hour to an hour and a half to install a standard dish.
Cage alleges he made verbal complaints to “Sally” in Multiband’s Human
Resources Department about his pay. In particular, with regard to his complaint, Cage
alleges, “I told her she might want to take a look at my check stub, because my
computation shows totally different than what the company is showing, and I told her that
my overtime hours weren’t correctly paid in full.” In response to his verbal complaints,
Cage received a response that Multiband was compensating him properly. Cage also
alleges he made general verbal complaints to supervisors with Multiband that his
overtime was calculated improperly.

6

On June 12, 2013, Cage’s counsel sent a letter outlining the basis for Cage’s
overtime claim. On March 19, 2014, Multiband’s counsel responded in a letter to Cage’s
counsel indicating that the overtime compensation calculation provided in the CBA is
expressly permitted by the Fair Labor Standards Act. In particular, defendant’s counsel
stated, “according to your letter, Cage believes Multiband miscalculated his overtime and
paid him only half time, instead of time-and-one-half. Multiband has audited Cage’s
payroll records and finds that he was actually overcompensated. Cage was paid a jobbased rate for all of the hours he worked each week, including hours exceeding forty.
This would be the ‘time’ in a ‘time and one-half’ evaluation. Multiband then takes the
average of an employee’s weekly compensation, divides it in half, and applies it to each
hour of overtime each week. This is the “and one-half” in a ‘time and one-half’
evaluation. This method is proper under the Fair Labor Standards Act. Cage was
properly compensated for all overtime he reported.” Cage’s counsel responded by letter,
admitting that the provision of the CBA setting forth Multiband’s method of calculating
overtime for job based employees complies with the Fair Labor Standards Act.
Multiband has a written policy stating that excessive absence or lateness is cause
for disciplinary action, up to and including termination. Multiband has a written
discipline policy that indicates it may terminate an employee at any time for more serious
disciplinary offenses, but that the company generally follows a progressive discipline
plan which includes the following steps: oral reminder, written warning, suspension, and
termination. Multiband issued disciplinary actions to Cage on seven occasions prior to
the disciplinary action that resulted in his termination. Each written disciplinary notice
7

Cage received contained the statement, “employee is aware that if this problem persists it
will result in additional disciplinary action up to and including dismissal.”
Multiband provided Cage with more verbal and written warnings than were
required by the company discipline policy before Cage’s eventual suspension and
termination. Multiband issued Cage a verbal warning for tardiness on February 24, 2009.
Multiband issued Cage a verbal warning for failure to attend a required inventory
meeting on February 27, 2009. Multiband issued Cage a verbal warning for failure to
attend a required technician meeting on March 12, 2009. Multiband issued Cage a
written warning for failure to attend a required technician meeting on April 22, 2009.
Multiband issued Cage a verbal warning for failing to perform duties in a satisfactory
manner on June 24, 2009. Multiband issued Cage a three-day suspension for failure to
attend a required technician meeting on November 20, 2009 and for showing up later that
afternoon in his company vehicle wearing jeans, t-shirt, and tennis shoes rather than his
uniform. On February 5, 2010, Multiband issued Cage a verbal warning for failure to
enter his hours of work into the company’s timekeeping system for a period of three
weeks in violation of company policy. Cage sometimes made general complaints to his
coworkers and union steward about receiving discipline, but did not file a grievance or
complaint with Multiband after he was disciplined.
Multiband terminated Cage’s employment for failure to attend a required
technician meeting on February 12, 2010, which was his eighth disciplinary action within
a one year period. On February 22, 2010, the union filed a grievance on Cage’s behalf
contesting Cage’s termination. The union’s grievance does not allege Multiband
8

discriminated against Cage in discipline or termination, or that Cage’s termination was
retaliatory. On February 24, 2010, the union requested documentation regarding Cage’s
disciplinary history and the reason for his termination. Multiband denied Cage’s
grievance and provided all of the documentation the union requested. Under the CBA,
Multiband employees, including Cage, have four grievance steps available including
arbitration at step four. The union did not appeal Multiband’s step one denial of the
grievance regarding Cage’s termination.
On April 5, 2010, Cage filed a charge of discrimination with the Missouri
Commission on Human Rights, alleging discrimination on the basis of race and
retaliation. On November 8, 2011, the Missouri Commission on Human Rights issued a
finding of no reasonable cause with regard to Cage’s claims. Cage filed this lawsuit on
December 26, 2011.
For his Title VII race discrimination claim, plaintiff alleges that race was a
motivating factor in his termination and he was subject to disparate treatment compared
with Caucasian technicians who failed to attend technician meetings. In his deposition,
plaintiff testified that defendant treated Caucasian employees more favorably when those
employees failed to attend weekly technician meetings. He had identified those
employees as Mike Magarian, Ronnie Moore, and an employee named “Chris” in his
interrogatory responses, but at his deposition testified only that Magarian and Moore
missed technician meetings and were not disciplined. However, within approximately
the same one year time period during which Multiband issued Cage eight disciplinary
memorandums, the company issued Magarian four disciplinary memorandums, including
9

three for performance issues and one for failure to attend a weekly technician meeting.
Multiband disciplined Moore for failure to attend technician meetings on January 22,
2010 and February 19, 2010. Cage also testified Multiband treated Moore differently
than Cage because Moore crashed his company vehicle and the incident “went
unnoticed.” In fact, Multiband terminated Moore’s employment for driving while
intoxicated and causing damage to his vehicle.
For his Title VII retaliation claim, plaintiff contends he was terminated due to his
complaint of an alleged discriminatory comment made to him by a supervisor, Andrew
Wilkins. Cage alleges Wilkins made the following alleged discriminatory statement to
him: “Boy, you ain’t done until I say you’re done.” That statement is the only alleged
discriminatory statement that Cage alleges was made to him by any employee of
Multiband. Cage claims Wilkins made the statement to him in July 2009, after Cage
finished work early, went home, and refused to accept a job assignment from Wilkins
because Cage was already home for the day. The day after Wilkins made the statement,
Cage alleges he told Kevin Corbett, a manager at Multiband, that he felt Wilkins made a
“derogatory” statement to him. Multiband has written policies prohibiting harassment,
discrimination, and retaliation. The company also maintains a policy providing
employees with specific instructions on filing a complaint about discrimination or
harassment. Cage did not file a complaint with Multiband, pursuant to Multiband policy
or otherwise, alleging he experienced discrimination.
IV.

Discussion
1.

Title VII - Race Discrimination
10

Plaintiff alleges a claim under Title VII that defendant discriminated against him
based on his race in terminating his employment. He claims that race was a motiving
factor in the decision to discipline him and terminate his employment for failure to attend
technician meetings. Further, he alleges that he was subject to disparate treatment
compared with Caucasian technicians who failed to attend technician meetings.1
For a claim of discrimination brought under Title VII to survive a motion for
summary judgment, plaintiff must present direct evidence of unlawful discrimination or
create an inference of unlawful discrimination under the burden-shifting framework
established in McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973). Gibson v.
American Greetings Corp., 670 F.3d 844, 853 (8th Cir. 2012). “To prove intentional
discrimination through direct proof, a plaintiff must establish ‘a specific link between the
alleged discriminatory animus and the challenged decision, sufficient to support a finding
by a reasonable fact finder that an illegitimate criterion actually motivated the employer’s
decision.’” Id. (quoting Putman v. Unity Health Sys., 348 F.3d 732, 735 (8th Cir. 2003)).
Under the burden-shifting framework, plaintiff must first establish a prima facie
case of discrimination. Jackson v. United Parcel Serv., Inc., 643 F.3d 1081, 1086 (8th
Cir. 2011). To establish a prima facie case for race discrimination, plaintiff must show
that (1) he is a member of a protected class, (2) he met his employer’s (defendant’s)
legitimate expectations, (3) he suffered an adverse employment action, and (4) “the

1

Cage also alleged in his complaint that his installer position was filled by a Caucasian
employee but testified at his deposition that he has no idea who filled his position or the
race of that individual.
11

circumstances give rise to an inference of discrimination (for example, similarly situated
employees outside the protected class were treated differently).” Gibson, 670 F.3d at 854
(quoting Lake v. Yellow Transp., Inc., 596 F.3d 871, 874 (8th Cir. 2010)). “A prima facie
case creates a rebuttable presumption of discrimination.” Pye v. Nu Aire, Inc., 641 F.3d
1011, 1019 (8th Cir. 2011). The burden then shifts to the defendant to prove a legitimate,
nondiscriminatory reason for its action. Id. If defendant establishes such a reason, the
presumption disappears, and the burden shifts back to the plaintiff to prove that
defendant’s proffered reason is a pretext for unlawful discrimination. Id.
Plaintiff has not presented any direct evidence of racial discrimination. Therefore,
this Court will analyze plaintiff’s claim under the McDonnell Douglas burden-shifting
framework. Defendant argues that plaintiff’s claim fails because he was not meeting the
legitimate expectations of his employer, the circumstances do not give rise to an
inference of discrimination, and there was a legitimate, nondiscriminatory reason for
terminating plaintiff’s employment.
Assuming, without deciding, that plaintiff could establish a prima facie case for
race discrimination, defendant has established a legitimate, nondiscriminatory reason for
its decision to terminate plaintiff’s employment. The undisputed facts show that plaintiff
violated defendant’s policies and received eight disciplinary actions in the one year
period prior to his termination. The termination was in accordance with defendant’s
written policy regarding progressive discipline. In fact, defendant gave plaintiff more
verbal and written warnings than necessary under the policy before his termination.

12

Because defendant has articulated a legitimate, nondiscriminatory reason for
terminating plaintiff’s employment, the presumption of discrimination disappears
requiring plaintiff to prove that the proffered reason is a pretext for discrimination. “The
plaintiff has the burden of persuasion at all times.” Bone v. G4S Youth Services, LLC,
686 F.3d 948, 955 (8th Cir. 2012). “A reason cannot be proved to be a pretext for
discrimination unless it is shown both that the reason was false and that discrimination
was the real reason.” Bone v. G4S Youth Services, LLC, 686 F.3d 948, 955 (8th Cir.
2012) (internal quotations omitted).
In his complaint, plaintiff alleged disparate treatment. To establish that
defendant’s reason is a pretext for unlawful discrimination based on disparate treatment,
plaintiff must pass the “rigorous test” to show that he and more favorably treated
employees were “similarly situated in all relevant respects.” Evance v. Trumann Health
Services, LLC, 719 F.3d 673, 678 (8th Cir. 2013). “The individuals used for comparison
must have dealt with the same supervisor, have been subject to the same standards, and
engaged in the same conduct without any mitigating or distinguishing circumstances.”
Id.
During his deposition, plaintiff testified that he believed he was disciplined when
Caucasian employees were not. Specifically, he testified that Caucasian employees Mike
Magarian and Ronnie Moore failed to attend technician meetings and received no
discipline from Multiband. Plaintiff provided no more information than that vague
allegation and his belief that he was treated differently than them. Plaintiff also testified

13

that Moore was not disciplined following a driving while intoxicated accident in a
company vehicle.
Plaintiff has not submitted any evidence in support of his allegations that
Magarian and Moore failed to attend technician meetings and received no discipline from
defendant. Plaintiff’s allegations are vague and unsubstantiated. Further, plaintiff has
not submitted any evidence in support of his allegation that Moore was not disciplined
following a driving while intoxicated accident in a company vehicle. Instead, the
undisputed evidence before the Court on this motion disproves plaintiff’s allegations.
The evidence shows that, during the same one year period of time, Magarian received
four disciplinary actions including three for performance issues and one for failure to
attend a weekly technician meeting. And, the evidence shows that Moore was disciplined
twice for failure to attend technician meetings and was terminated for driving while
intoxicated and causing damage to his company vehicle. Plaintiff has not met his burden
to show disparate treatment. Because defendant has shown a legitimate,
nondiscriminatory reason for terminating plaintiff’s employment, and plaintiff has failed
to show that reason was a pretext for discrimination, defendant is entitled to judgment as
a matter of law on this claim.
2.

Title VII - Retaliation

Plaintiff alleges a claim under Title VII that defendant retaliated against him by
terminating his employment after he complained of racial discrimination by a supervisor.
In his complaint, plaintiff, who is African American, alleges that a Caucasian supervisor
made a discriminatory comment to him. Specifically, plaintiff claims a supervisor,
14

Andrew Wilkins, said to him “[b]oy, you ain’t done until I say you’re done.” Plaintiff
alleges Wilkins made this statement to him after he finished work early, went home, and
refused to accept a job assignment from Wilkins because he was already home for the
day. Plaintiff alleges he complained to another supervisor about the comment.
As with a discrimination claim, to survive a motion for summary judgment,
plaintiff must present direct evidence of retaliation or create an inference of retaliation
under the burden-shifting framework established in McDonnell Douglas. Pye v. Nu Aire,
Inc., 641 F.3d 1011, 1020 (8th Cir. 2011). “Direct evidence of retaliation is evidence that
demonstrates a specific link between a materially adverse action and the protected
conduct, sufficient to support a finding by a reasonable fact finder that the harmful
adverse action was in retaliation for the protected conduct.” Id. (citing Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)).
Title VII makes it unlawful for an employer to discriminate against an employee
because the employee “has opposed any practice made an unlawful employment practice
[by Title VII] . . . or . . . has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing [under Title VII].” 42 U.S.C.
§ 2000e-3(a). “The two clauses of this section typically are described, respectively, as
the opposition clause and the participation clause.” Barker v. Missouri Dept. of
Corrections, 513 F.3d 831, 834 (8th Cir. 2008). Plaintiffs claim is viewed under the
opposition clause, “which shields an employee against discrimination because he has
opposed a practice made unlawful by Title VII.” Id.

15

To establish a prima facie case of unlawful retaliation, plaintiff must establish that
(1) he engaged in protected conduct, including opposition to an action prohibited by Title
VII; (2) his employer took an adverse action against him; and (3) the adverse action was
causally linked to the protected conduct. Tyler v. University of Arkansas Bd. of Trustees,
628 F.3d 980, 985 (8th Cir. 2011). Marzec v. Marsh, 990 F.2d 393, 396 (8th Cir. 1993).
“In terms of the causal connection, the plaintiff must show that the protected conduct was
a ‘determinative – not merely motivating – factor in the employer’s adverse employment
decision.’” Tyler v. University of Arkansas Bd. of Trustees, 628 F.3d 980, 985 (8th Cir.
2011) (quoting Van Horn v. Best Buy Stores, L.P., 526 F.3d 1144, 1148 (8th Cir. 2008)).
“If an employee establishes a prima facie case of retaliation, the burden shifts to the
employer to articulate a legitimate, non-retaliatory reason for its action; if the employer
does so, the burden shifts back to the employee to put forth evidence of pretext, the
ultimate question being whether a prohibited reason, rather than the proffered reason,
actually motivated the employer’s action.” Pye v. Nu Aire, Inc., 641 F.3d 1011, 1021
(2011) (quoting Fercello, 612 F.3d at 1077-78).
As with his race discrimination claim, plaintiff has not presented any direct
evidence of discriminatory treatment based on retaliation. As a result, his claim of
retaliation is also analyzed under the McDonnell Douglas burden-shifting framework.
Defendant argues that plaintiff’s retaliation claim fails because he was not engaging in a
protected activity, the evidence does not establish a causal relationship between his
complaint and his discharge, and there was a legitimate, non-retaliatory reason for
terminating plaintiff’s employment.
16

Assuming, without deciding, that plaintiff could establish a prima facie case for
retaliation, defendant has established a legitimate, non-retaliatory reason for its decisions
to terminate plaintiff’s employment. Again, the undisputed facts show that plaintiff
violated defendant’s policies and received eight disciplinary actions in the one year
period prior to his termination. The termination was in accordance with defendant’s
written policy regarding progressive discipline. Plaintiff has not produced any evidence
that defendant’s proffered reason is a pretext for unlawful discrimination. As a result,
plaintiff’s claim fails and defendant is entitled to judgment as a matter of law.
3.

FLSA Failure to Pay Overtime

In his complaint, plaintiff alleges that he “routinely worked in excess of forty
hours per week without proper compensation.” Based on his deposition testimony,
plaintiff’s overtime claim includes two categories: 1) plaintiff’s disagreement with
defendant’s method of calculating overtime; and 2) overtime compensation plaintiff
claims but did not report to defendant while he was employed including time spent
commuting to work, attending technician meetings, and general overtime recorded on
scraps of paper.
Under section 7 of the FLSA, an employer may not subject non-exempt employees
to a work week in excess of forty hours unless the employee is compensated for overtime
with pay of at least one and one half times the regular hourly wage. 29 U.S.C. § 207. An
employer who violates this restriction “shall be liable to the employee or employees
affected in the amount of their . . . unpaid overtime compensation . . . and in an additional
equal amount as liquidated damages.” 29 U.S.C. § 216(b).
17

Plaintiff disagrees with defendant’s method of calculating overtime wages and
believes it to be unlawful. However, plaintiff has not specified how or why the
calculation is unlawful. Plaintiff admits that defendant calculated and paid him overtime
in accordance with the collective bargaining agreement. Further, during the pendency of
this action, plaintiff’s counsel sent a letter to defendant’s counsel admitting that the
overtime calculation set forth in the collective bargaining agreement is in accordance
with the FLSA. Plaintiff has not offered any evidence to support his claim. Instead, the
undisputed evidence before this Court is that plaintiff was properly compensated for all
overtime he reported.
Additionally, plaintiff claims he is owed overtime pay for hours he now claims for
commute time, attending technician meetings, and general overtime he alleges he kept
track of on scraps of paper but did not submit for payment to defendant while employed.
“An employee must be compensated for duties before and after scheduled hours . . . if the
employer knows or has reason to believe the employee is continuing to work and the
duties are an integral and indispensable part of the employee’s principal work activity.”
Hertz v. Woodbury County, Iowa, 566 F.3d 775, 781 (8th Cir. 2009) (internal citations
and quotations omitted). Thus, in order to prevail on his overtime claims, plaintiff is
required to present evidence that he worked above his scheduled hours without
compensation and that the defendant knew or should have known that he was working
overtime. Id. Further, “[t]he FLSA’s standard for constructive knowledge in the
overtime context is whether the [employer] ‘should have known, not whether it could
have known.” Id. at 782.
18

Plaintiff has not offered any evidence to support his claim that he is owed
overtime wages for time spent commuting to work. According to plaintiff’s deposition
testimony, he did not ever make a written request to be paid for his drive from home to
his first job of each day. Further, plaintiff’s claim that he was not paid overtime wages
for attending technician meetings fails because he admitted that he was properly
compensated for his attendance at meetings when he reported the time as hours worked.
Plaintiff’s vague allegations that he was not paid overtime for commute time and some
meetings that he did not report as hours worked, does not support his claim that he is
entitled to overtime wages.2 Similarly, plaintiff’s vague allegations that he was not paid
overtime for work hours that he did not turn in to defendant but instead wrote down on
scraps of paper is insufficient to support his claim. Plaintiff has not produced evidence
sufficient to establish either that defendant knew or should have known that he was
performing overtime work without compensation.
Moreover, plaintiff failed to comply with defendant’s written policies that
employees are responsible for accurately recording and reporting all time worked and that
employees who believe there is an error in their pay should contact the corporate payroll
office immediately. “Under the FLSA, if an employer establishes a reasonable process
for an employee to report uncompensated work time the employer is not liable for nonpayment if the employee fails to follow the established process. When the employee fails

2

Plaintiff does not make a claim for failure to pay wages for this alleged time, but rather,
a claim for failure to pay overtime wages for the time. Accordingly, plaintiff would first
have to prove he worked forty hours or more in each week that he claims he was not paid
overtime for these previously unclaimed work hours.
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to follow reasonable time reporting procedures [he] prevents the employer from knowing
its obligation to compensate the employee and thwarts the employer’s ability to comply
with the FLSA.” White v. Baptist Memorial Health Care Corp., 699 F.3d 869, 876 (6th
Cir. 2012) (citing, inter alia, Hertz, 566 F.3d at 781–82). It is undisputed that plaintiff did
not submit the overtime hours to defendant that he claims in this action. In fact, plaintiff
did not pursue any official written action regarding any of his alleged “disputes”
regarding his pay that he claims he conveyed to “Sally” in human resources and various
supervisors. Further, the undisputed evidence before this Court is that plaintiff was
properly compensated for all overtime he reported. As a result, plaintiff’s claim fails and
defendant is entitled to judgment as a matter of law on this claim.
4.

FLSA Retaliatory Discharge

Plaintiff alleges that his employment was terminated in retaliation for his
complaints to his supervisors that he was not paid overtime hours. He contends that his
discharge was in violation of 29 U.S.C. § 215 (a)(3) of the FLSA.
Section 215(a)(3) of the FLSA makes it unlawful “to discharge or in any other
manner discriminate against any employee because such employee has filed any
complaint ... under or related to this chapter.” 29 U.S.C. § 215(a)(3). The familiar
McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973) burden-shifting framework is
applied to plaintiff’s FLSA retaliatory discharge claim. “To establish a prima facie case
of retaliation, appellant had to show that he participated in statutorily protected activity,
that appellees took an adverse employment action against him, and that there was a
causal connection between them.” Grey v. City of Oak Grove, Mo., 396 F.3d 1031, 103420

35 (8th Cir. 2005). “The Eighth Circuit decisions interpreting § 215(a)(3) make clear that
the employee must engage in protected activity in order to be shielded from retaliation.”
Bartis v. John Bommarito Oldsmobile-Cadillac, Inc., 626 F.Supp.2d 994, 999 (E.D. Mo.
2009) (citing Grey, 396 F.3d at 1034–35). “The ‘protected activities’ are listed explicitly
in the statute: filing a complaint, instituting or testifying in a proceeding, or serving on a
committee.” Id. “Workplace complaints are not included.” Id. “Raising informal
objections with one’s supervisor is not included.” Although there is room for broad
interpretation, the statute cannot be construed so broadly as to depart from its plain and
clear language.” Id.
According to plaintiff’s own testimony, he did nothing more than verbally
complain to “Sally” in HR and to his supervisors that his overtime was calculated
improperly. Plaintiff did not file a complaint with regard to his allegations that his
overtime was not properly paid. Plaintiff did not, therefore, engage in a protected activity
under the FLSA. For these reasons, plaintiff’s claim for unlawful retaliation under the
FLSA fails as a matter of law. Defendant is entitled to judgment as a matter of law on
this claim.
5.

Wrongful Discharge in Violation of Public Policy

Plaintiff makes a state law claim for wrongful discharge in violation of public
policy based on the same allegations he offered in support of the FLSA retaliatory
discharge claim. Again, in his complaint, he alleges that his employment was terminated
in retaliation for his complaints to his supervisors that he was not paid overtime hours.

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Further, he alleges that the failure to pay overtime was a violation of state and federal
law.
For at-will employees in Missouri, a common law wrongful discharge claim is
considered the “public-policy exception to the at-will employment doctrine.” Fleshner v.
Pepose Vision Institute, P.C., 304 S.W.3d 81, 92 (Mo. banc 2010). Generally, an at-will
employee may be discharged at any time, with or without cause. Id. Under the public
policy exception, however, an at-will employee may not be terminated “(1) for refusing
to violate the law or any well-established and clear mandate of public policy as expressed
in the constitution, statutes, regulations promulgated pursuant to statute, or rules created
by a governmental body or (2) for reporting wrongdoing or violations of law to superiors
or public authorities.” Id. When an employee is terminated under either of these
circumstances, Missouri courts have held that he has a cause of action in tort for wrongful
discharge based on the public-policy exception. Fleshner, 304 S.W.3d at 92. The second
theory of wrongful discharge is commonly referred to as “whistleblowing.” Margiotta v.
Christian Hosp. Northeast Northwest, 315 S.W.3d 342, 346 (Mo. banc 2010). To prevail
on such a claim, plaintiff must show that he “reported to superiors or to public authorities
serious misconduct that constitutes a violation of the law and of ... well established and
clearly mandated public policy.” Id.; Frevert v. Ford Motor Co., 614 F.3d 466, 471 (8th
Cir. 2010).
Plaintiff cannot establish a claim for wrongful discharge because he does not
allege he was terminated for refusing to perform an illegal act and there is no evidence
that he was terminated for reporting wrongdoing or violations of law to superiors or third
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parties. 3 The undisputed evidence shows that plaintiff did nothing more than verbally
complain to “Sally” in HR and to his supervisors that his overtime was calculated
improperly. Plaintiff admits that “Sally” checked into his complaints and responded that
defendant was paying him correctly. In his deposition, plaintiff stated that he disagrees
with defendant’s method of calculating overtime. During the pendency of this case, after
defendant’s counsel explained to plaintiff’s then counsel the method defendant used to
calculate overtime, plaintiff’s counsel conceded that it complied with the FLSA. There is
no evidence before this Court that plaintiff complained to his supervisors or to public
authorities serious misconduct by defendant that constitutes a violation of the law and of
well-established and clearly mandated public policy. Further, there is no evidence that
plaintiff was terminated for any reason other than the eight disciplinary notices that he
received within a one year time period. Plaintiff’s claim for wrongful discharge in
violation of public policy fails as a matter of law. Defendant is entitled to judgment as a
matter of law on this claim.
V.

Conclusion
Although plaintiff failed to respond to the motion for summary judgment, his

deposition testimony was before the Court on this motion. Based on the undisputed facts,
and review of the entire record before this Court, plaintiff’s claims fail as a matter of law

3

The parties did not raise, and the Court finds it unnecessary to address, the issue of
whether plaintiff’s wrongful discharge claim would be preempted by the MHRA. For a
discussion of this issue, see Noel v. AT&T Corp., 936 F.Supp.2d 1084, 1089-90 (E.D.
Mo. 2013) and Shelton v. Village of Bel Nor, 2011 WL 3207123, at *3 (E.D. Mo. July 28,
2011).
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for the reasons stated herein and, therefore, defendant is entitled to judgment as a matter
of law in its favor on all claims.
Accordingly,
IT IS HEREBY ORDERED that defendant’s motion for summary judgment
(ECF #42) is GRANTED. A separate judgment shall accompany this Memorandum and
Order.
Dated this 18th day of February, 2015.

___________________________________
STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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