Diaz v. TTT Foods, LLC
Filing
33
MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that defendant TTT Foods LLC's Motion for Summary Judgment 30 is GRANTED. IT IS FURTHER ORDERED that defendant TTT Foods LLC's Motion to Dismiss for Failure to Prosecute 21 is DENIED as moot. Signed by District Judge Catherine D. Perry on 10/17/2017. (CBL)
Case: 4:16-cv-01701-CDP Doc. #: 33 Filed: 10/17/17 Page: 1 of 8 PageID #: 170
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MICHAEL DIAZ,
Plaintiff,
v.
TTT FOODS LLC,
Defendant.
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No. 4:16 CV 1701 CDP
MEMORANDUM AND ORDER
Plaintiff Michael Diaz brings this action under Section 15(a)(3) of the Fair
Labor Standards Act (FLSA), 29 U.S.C. § 215(a)(3), claiming that defendant TTT
Foods LLC unlawfully terminated his employment in retaliation for his complaint
that he was not being paid overtime as required under the FLSA and for seeking to
recover his back wages. TTT Foods seeks summary judgment on Diaz’s claim.
Because TTT Foods has articulated legitimate, non-retaliatory reasons for Diaz’s
discharge and Diaz has failed to show these reasons were pretext for retaliation, I
will grant the motion for summary judgment. TTT Foods’ motion to dismiss for
failure to prosecute will be denied as moot.
Background
In his amended complaint, Diaz claims that during his employment with TTT
Foods, he often worked in excess of forty hours per week but was paid the equivalent
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of an hourly wage for only forty hours. Diaz claims that he complained about TTT
Foods’ failure to pay overtime wages – including to the Department of Labor for
recovery of back wages – and was terminated because of his complaints.
In its motion for summary judgment, TTT Foods contends that Diaz never
complained to it about unpaid overtime, and any informal oral complaints that Diaz
may have made do not amount to protected activity under the FLSA. To the extent
Diaz complained to the Department of Labor, TTT Foods contends that it did not
become aware of the complaint until after Diaz was terminated, thereby negating
any causal connection between the complaint and Diaz’s termination. Regardless,
TTT Foods claims that Diaz released his claim of retaliatory discharge when he
settled his dispute over overtime pay with TTT Foods. Finally, TTT Foods avers
that it terminated Diaz for legitimate, non-retaliatory reasons and that Diaz cannot
show these reasons to be pretext for retaliation.
Summary Judgment Standard
Summary judgment must be granted when the pleadings and proffer of
evidence demonstrate that no genuine issue of material fact exists and that the
moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Torgerson v. City of
Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). I must view the evidence
in the light most favorable to the nonmoving party and accord him the benefit of all
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reasonable inferences. Scott v. Harris, 550 U.S. 372, 379 (2007).
Initially, the moving party must demonstrate the absence of an issue for trial.
Celotex, 477 U.S. at 323. Once a motion is properly made and supported, the
nonmoving party may not rest upon the allegations in his pleadings or in general
denials of the movant’s assertions, but must instead come forward with specific facts
showing that there is a genuine issue for trial. Id. at 324; Torgerson, 643 F.3d at
1042. “Where the record taken as a whole could not lead a rational trier of fact to
find for the nonmoving party, there is no genuine issue for trial.” Torgerson, 643
F.3d at 1042 (internal quotation marks and citations omitted).
If the nonmoving party fails to properly address an assertion of fact made by
the movant, the Federal Rules of Civil Procedure permit me to consider the fact
undisputed. Fed. R. Civ. P. 56(e)(2). The Local Rules of this Court, however,
require it. Under Local Rule 4.01(E), moving parties must include a statement of
uncontroverted material facts with their memorandum, with citations to the record if
the fact(s) are established by the record.
Every memorandum in opposition shall include a statement of material
facts as to which the party contends a genuine issue exists. Those matters
in dispute shall be set forth with specific references to portions of the
record, where available, upon which the opposing party relies. The
opposing party also shall note for all disputed facts the paragraph number
from movant’s listing of facts. All matters set forth in the statement of
the movant shall be deemed admitted for purposes of summary judgment
unless specifically controverted by the opposing party.
E.D. Mo. L.R. 4.01(E) (emphasis added).
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Evidence Before the Court on the Motion
The following recitation of facts set out in TTT Foods’ Statement of
Uncontroverted Material Facts (ECF #27-1) are deemed admitted because Diaz did
not specifically controvert them in response to the motion for summary judgment.
TTT Foods owns and operates the Copia Restaurant & Wine Garden
(Restaurant) and the Copia Wine Shop and Bodega (Bodega). TTT Foods hired
Diaz on or about July 22, 2014, initially to bus tables for the Restaurant. Diaz then
began working as a cashier in the Bodega. In January or February of 2016, Diaz
became assistant manager of the Bodega.
After becoming assistant manager, Diaz received oral reprimands and
write-ups for issues involving his work performance and conduct, including for
failing to appear for work, undercharging for goods, providing an unauthorized
“discount” to friends and co-employees, failing to appear in uniform, and taking
longer than thirty minutes to take out the trash. He also smelled of marijuana.
TTT Foods counseled Diaz but did not take adverse job action against him.
On May 22, 2016, Diaz came to work out of uniform and was unshowered
with noticeable poor personal hygiene. He also brought nunchucks and a sword to
work with him. As a result of this conduct, TTT Foods suspended Diaz for three
days. Diaz thereafter returned to work without any limitation in duties or decrease
in shifts or work hours.
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On Sunday, June 25, 2016, TTT Foods’ General Manager Amer Hawatmeh
entered the Bodega on a surprise visit and found Diaz to have money strewn about
the counter. Diaz exuded an odor indicating a lack of hygiene and was again out of
uniform. No stocking had been done, and Diaz had an open energy drink and food
for which he had not paid. When Hawatmeh approached Diaz to address the issues,
Diaz became angry and stated that that he did not have to listen to or put up with
Hawatmeh, and that he (Diaz) could do what he wanted. Diaz appeared to be under
the influence of marijuana and to have been drinking. Diaz’s employment was
immediately terminated, his keys were confiscated, and he was instructed to leave
the premises. Hawatmeh worked the remainder of Diaz’s shift. While doing so,
Hawatmeh found empty alcohol containers in the trash can under the cashier’s
station. The following day, Hawatmeh prepared a Discipline Documentation Form.
On September 14, 2016, the Department of Labor contacted TTT Foods about
claims of its alleged failure to pay overtime wages to its employees. TTT Foods
was not aware until that time that anyone had complained about overtime wages.
Although Diaz attests that he demanded that TTT Foods pay him overtime, he
provides no dates on which he made these demands. (See ECF #29.)
Discussion
The FLSA makes it unlawful “to discharge or in any other manner
discriminate against any employee because such employee has filed any complaint .
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. . under or related to this chapter.” 29 U.S.C. § 215(a)(3). I apply the
burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), to Diaz’s FLSA claim of retaliatory discharge. Grey v. City of Oak Grove,
Mo., 396 F.3d 1031, 1034-35 (8th Cir. 2005). Accordingly, to establish a prima
facie case of retaliation, Diaz must show that he participated in statutorily protected
activity, that TTT Foods took an adverse employment action against him, and that
there was a causal connection between the protected activity and the adverse action.
Id. If Diaz can establish a prima facie case, the burden shifts to TTT Foods to
articulate a legitimate, non-retaliatory reason for the adverse action. If TTT Foods
meets this burden, the burden then shifts back to Diaz to prove that the reason
advanced by TTT Foods is pretextual. Id. To show pretext, Diaz must present
sufficient evidence to show both that TTT Foods’ articulated reason for the adverse
employment action was false and that retaliation was the real reason. See Lors v.
Dean, 595 F.3d 831, 834 (8th Cir. 2010).
I will assume for purposes of this discussion only that Diaz could establish a
prima facie case of retaliation. TTT Foods has presented undisputed evidence,
however, that it terminated Diaz’s employment for legitimate, non-retaliatory
reasons given the repeated episodes of Diaz’s unsatisfactory work performance,
including being out of uniform, displaying poor hygiene, bringing weapons to work,
appearing under the influence of alcohol or illegal substances, undercharging or
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providing unauthorized discounts for goods, and/or being insubordinate to
supervisory personnel. Despite receiving warnings, counseling, and a suspension,
Diaz continued to engage in unacceptable behavior at work. This continued
conduct gave TTT Foods legitimate reason to terminate Diaz’s employment. See
Putman v. Unity Health Sys., 348 F.3d 732 (8th Cir. 2003) (insubordination is
legitimate reason for termination); Hopper v. Hallmark Cards, Inc., 87 F.3d 983 (8th
Cir. 1996) (poor work performance and poor attendance are legitimate,
nondiscriminatory reasons for discharge); Crayton v. Cardinal Bldg. Materials, Inc.,
No. 4:98CV1863-DJS, 1999 WL 1063182, at *2 (E.D. Mo. June 2, 1999) (appearing
for work under influence of alcohol in violation of policy is legitimate,
nondiscriminatory reason for discharge), aff’d, 221 F.3d 1341 (8th Cir. 2000) (per
curiam). Further, an employer’s honest belief that an employee’s conduct merited
termination does not indicate that unlawful discrimination motivated the employer
to take adverse employment action. Johnson v. AT&T Corp., 422 F.3d 756, 762-63
(8th Cir. 2005); Horton v. Hussmann Corp., No. 4:05 CV 65 DDN, 2007 WL
3352367, at *9 (E.D. Mo. Nov. 9, 2007).
Diaz does not argue, nor has he produced any evidence, that TTT Foods’
proffered reasons are pretext for unlawful retaliation. As a result, his claim of
retaliatory discharge under the FLSA fails and TTT Foods is entitled to judgment as
a matter of law. See Krenik v. County of Le Sueur, 47 F.3d 953, 960 (8th Cir. 1995)
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(defendant-employer entitled to summary judgment where plaintiff failed to present
any evidence to support a finding of pretext). Because TTT Foods lawfully
terminated Diaz’s employment for legitimate, non-retaliatory reasons, I need not
consider TTT Foods’ other bases for summary judgment on Diaz’s FLSA claim of
retaliatory discharge.
Accordingly,
IT IS HEREBY ORDERED that defendant TTT Foods LLC’s Motion for
Summary Judgment [30] is GRANTED.
IT IS FURTHER ORDERED that defendant TTT Foods LLC’s Motion to
Dismiss for Failure to Prosecute [21] is DENIED as moot.
A separate Judgment is entered herewith.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 17th day of October, 2017.
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