Baouch v. Werner Enterprises, Inc. et al

Filing 53

MEMORANDUM OPINION on the Defendant's Motion for Summary Judgment 32 . A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (MKR)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
YASSINE BAOUCH,

)
)
Plaintiff,
)
)
v.
)
)
WERNER ENTERPRISES, INC.,
)
d/b/a WERNER TRUCKING, and
)
DRIVERS MANAGEMENT, LLC,
)
)
Defendants.
)
______________________________)

8:13CV85

MEMORANDUM OPINION

The matter before the Court on the motion (Filing No.
32) of the defendants for summary judgment.

The defendants have

filed a brief (Filing No. 33) and index of evidence (Filing No.
The plaintiff filed an untimely brief (Filing No. 35)1 and

34).

index of evidence (Filing No. 36) in opposition of the motion.
The defendants have filed a reply brief (Filing No. 39).

The

Court will grant the motion.
I.

FACTS
Yassine Baouch (“Baouch”) is the plaintiff in the

instant action.

Baouch was still employed by the defendants,

Werner Enterprises, Inc., doing business as Drivers Management,
L.L.C. (collectively “Werner”) in 2012, when he became a named
plaintiff in a separate class action against Werner regarding

1

This brief was filed one day later than 24 days after the
motion was filed; therefore, it is untimely.

minimum wages.

See Docket No. 8:12CV408.

Prior to the filing of

the class action, Baouch claims to have received no written
performance or disciplinary warnings from Werner.
¶ 19.

Filing No. 1,

The class action suit was filed on November 27, 2012, and

Baouch’s first written discipline received on December 18, 2012.
Filing No. 1, see also Docket No. 8:12CV408.

According to

Baouch, the subject of his discipline was fabricated and Werner
has since forced him to earn less take-home pay.
¶¶ 21-22.

Filing No. 1,

After Baouch gave notice of his grievances, Werner

terminated him on January 10, 2013.

Id. at ¶¶ 26-27.

Baouch has

initiated the following action against Werner for retaliation
under the Federal Labor Standards Act (“FLSA”) and wrongful
discharge in violation of public policy under Nebraska law.

Id.

at ¶¶ 28-41.
Werner counters Baouch’s pleadings in its statement of
material facts.

Filing No. 33.

Baouch was only employed

beginning on June 22, 2012 -- so his employment record lasted
just more than six months.

Id. at ¶ 1.

Beginning in September,

Baouch ended his student training and became a solo driver.
at ¶¶ 6-7.

Id.

Werner accuses Baouch of tardiness, inability to

complete necessary work, failure to communicate, profanity, and
abuse of personal time.

Id. at ¶¶ 33-35, 42.

In addition to

Werner’s complaints, Werner’s customers complained about Baouch’s
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performance.

Id. at ¶¶ 51-59, 64.

The final straw, according to

Werner, came when Baouch refused to perform his assigned work
unless Werner grant him additional pay.

Id. at ¶¶ 70-76.

With these conflicting narratives in mind, the Court
turns to whether to grant Werner’s motion for summary judgment.
II.

LEGAL STANDARD
A motion for summary judgment shall be granted by the

court “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a
matter of law.”

Fed. R. Civ. P. 56(a).

A “material” fact is one

that “might affect the outcome of the suit under the governing
law,” and a genuine issue of material fact exists when “the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.”
U.S. 242, 248 (1986).

Anderson v. Liberty Lobby, Inc., 477

On a motion for summary judgment, facts

must be viewed in the light most favorable to the nonmoving party
only if there is a genuine dispute as to those facts.

Wood v.

SatCom Marketing, LLC, 705 F.3d 823, 828 (8th Cir. 2013).
The moving party bears the burden to establish that no
genuine issue of material fact exists.

Fed. R. Civ. P. 56(a);

Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

If the

moving party does not meet its initial burden, summary judgment

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must be denied even if no affidavits or other evidence have been
submitted in opposition to the motion.

See id. at 159-60.

After

the moving party has met its burden, “the non-moving party may
not rest on the allegations of his pleadings, but must set forth
specific facts, by affidavit or other evidence, showing that a
genuine issue of material fact exists.”

Singletary v. Missouri

Dept. of Corrections, 423 F.3d 886, 890 (8th Cir. 2005).
III. UNDISPUTED MATERIAL FACTS
The parties have given a thorough recitation of
materials facts in their briefs but only the following few will
determine the outcome of this motion.

See Filing Nos. 33, 35,

39.
27. Baouch filed a wage and hour
FLSA, class action lawsuit against
Werner on November 27, 2012.
28. Werner was served a copy of the
Complaint on November 30, 2012.
29. No one from Werner criticized
Plaintiff for filing the FLSA
lawsuit.
30. After learning of the FLSA
complaint, Hand instructed his
subordinates at the Ardmore Distribution Center to treat Baouch
just like they would treat any other driver.
45. On December 18, 2012, Hand and
Bales counseled Baouch regarding
his unauthorized use of personal
drive time and his behavior

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surrounding the installation of the
Mobileye safety device.
69. Bullington and Bales each also
testified that no one from Werner
told them to build a file against
Baouch or look for reasons to
terminate him.
71. On January 10, 2013, Baouch
sent a Qualcomm message to Bales in
which he stated “THIS MESSAGE FOR
BRIAN, PER OUR CONVERSATION IN THE
OFFICE AS WELL AS ON THE PHONE, YOU
REFUSED TO SEND ME A CONFORMATION
IN REGARDS YOUR DENIAL TO PAY ME
FOR TIME SPENT AT THE DC WAITING
FOR A LOAD LAST NIGHT, YOU OFFERED
ME 100 DOLLARS FOR ALL TIME SPENT
AT THE TRUCK SHOP TO HAVE 5TH WHEEL
FIXED AS WELL AS TIME LOST LAST
NIGHT, I EXPLAINED TO YOU THIS IS
NOT A NEGOTIATION FOR PAYMENT, BY
LAW IM [sic] SUPPOSE TO GET PAID
FOR ALL TIME WORKED OR SPENT
WAITING TO BE DISPATCH OR ATTENDING
COMPANY BUSINESS SUCH AS WAIITNG
[sic] FOR TRUCK TO GET FIXED, AFTER
EXPLAINING THAT TO YOU, YOU
PROCEEDED TO SAY YOU DON’T [sic]
HAVE TO SEND ME THAT MESSAGE AND TO
JUSTIFY YOUR EXPLANATIONS, YOU HUNG
UP ON ME AND CALLED BACK YOU HUNG
UP AGAIN. I NEED TO GET PAID FOR
WHAT I WORK FOR PER FEDERAL LAW,
BEFORE I PROCEED TO DO ANYMORE WORK
I NEED TO GET CONFIRMATION TO WHEN
THE CORRECTION WILL TAKE PLACE, IM
[sic] NOW CONTACTING DEPARTMENT OF
LABOR FOR A FORMAL COMPLAINT SINCE
THIS ISSUE HAS HAPPENED OVER 30
TIMES OVER THE COURSE OF MY
EMPLOYMENT WITH WERNER AND NOTHING
HAS EVER HAPPENED TO GET T [sic]
FIXED”.
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72. Bales communicated this message
to Hand.
73. Hand believed that Baouch’s
refusal to deliver the load under
his control constituted a refusal
of work, which is a cardinal
violation of Werner policy.
74. Hand made the decision to
terminate Baouch's employment on
January 10, 2013.
76. On the morning of January 11,
2013, Hand terminated Baouch’s
employment with Werner during a
telephone call between Baouch,
Bales, and Hand.
79. No one from Werner mentioned
Baouch’s FLSA complaint or implied
that Baouch’s termination was
related to his complaint.
IV.

DISCUSSION

A.

FEDERAL CLAIM
The issue before the Court is whether the temporal

relationship between Baouch’s protected action and Werner’s
adverse actions can be sufficient to prove causal connection.
Under the FLSA, a plaintiff must prove the following for his
prima facie case: “(1) [the plaintiff] engaged in statutorily
protected activity; (2) an adverse employment action was taken
against [the plaintiff]; and (3) a causal connection exists
between the two events.”

Smith v. Fairview Ridges Hosp.

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(hereinafter “Fairview”), 625 F.3d 1076, 1087 (8th Cir. 2010)
(quoting Green v. Franklin Nat'l Bank of Minneapolis, 459 F.3d
903, 914 (8th Cir. 2006)), abrogated on other grounds by
Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011).
The Court’s analysis is limited to the final element because
Baouch engaged in protected conduct under the FLSA and Werner
undertook various adverse actions against Baouch.
The parties argue whether Baouch can meet the prima
facie requirements for his retaliation claim because Baouch has
only argued a temporal, causal connection between Werner’s
knowledge of Baouch’s statutorily protected class action and
Werner’s adverse actions toward Baouch’s employment.
33, at 23.

Filing No.

Retaliation claims require a “but-for” causal

relation between the statutorily protected activity and the
employer’s adverse employment action.

Grey v. City of Oak Grove,

Mo., 396 F.3d 1031, 1034-35 (8th Cir. 2005).

Mere temporal,

causal connections are generally insufficient as a matter of law
to satisfy this element unless the time between the protected act
and the adverse act are close.2

Fairview, 625 F.3d at 1087-88

(citing Peterson v. Scott Cnty., 406 F.3d 515, 524 (8th Cir.

2

Eighth Circuit case law provides a basis for what
constitutes “close” and the Court will address that case law
later herein.
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2005), Clark Cnty. School Dist. v. Breeden, 532 U.S. 268, 273
(2001), Smith v. Allen Health Sys., Inc., 302 F.3d 827, 833 (8th
Cir. 2002), Sprenger v. Fed. Home Loan Bank of Des Moines, 253
F.3d 1106, 1113–14 (8th Cir. 2001), Kipp v. Mo. Highway & Transp.
Comm'n, 280 F.3d 893, 897 (8th Cir. 2002)).

However, the

undisputed material facts show no other basis of but-for causal
relationship, so Baouch’s temporal, causal connection must pass
legal muster to survive summary judgment.

See Undisputed

Material Facts Nos. 28, 29, 30, 69, 76.
Werner challenges Baouch’s temporal connection as
insufficient to establish a causal connection as a matter of law.
Filing No. 33, at 23-25 (citing Fairview, 625 F.3d at 1087).
This argument depends wholly upon how the parties measure passage
of time from Baouch’s statutorily protected action and Werner’s
adverse actions.

Because the law favors shorter temporal, causal

connections over longer, more tenuous, connections, the parties
favor different measurements to bolster their time lines.
1.

Protected Act
The first issue is which of Baouch’s actions constitute

a protected action for this Court to analyze.
the alternative.

Baouch argues in

Within his complaint and in briefings, Baouch

has consistently asserted that his class action lawsuit is the
protected act and the reason for Werner’s retaliation against
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him.

Filing No. 1, ¶¶ 1, 14-24, 29, 30, 38, 39; Filing No. 35,

at 21-23.

However, when faced with the current summary judgment

motion, Baouch, for the very first time, asserted that the
January 10, 2014, Qualcomm message which led to his firing was
the protected act.

Filing No 35, at 24.

This argument is inappropriate.

The case before the

Court, as pleaded by the plaintiff, is retaliation against the
plaintiff for his class action suit, nothing more.

Baouch’s

January threat to file a new FLSA action indicates his grievances
were not a continuation of his class action suit, but a new,
unrelated action.

See Undisputed Material Facts No. 71.

Second,

Baouch introduced this new claim in an untimely filed brief
without any showing of good cause of the lateness of filing.
Filing No. 39, at 2-3.
argument.

Therefore, the Court rejects Baouch’s new

The protected act in question here is Baouch’s wage

and hour FLSA filed on November 27, 2012.
Material Fact No. 27.

See Undisputed

However, the Court will calculate Baouch’s

temporal, causal connection from when Werner was served a copy of
the complaint on November 30, 2012.
No. 28.

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See Undisputed Material Fact

2.

Adverse Action
The issue is whether the Court should measure Werner’s

adverse action as of the time of Baouch’s termination or Werner’s
earlier written disciplinary actions.

Werner advocates for the

termination dates, January 10 or 11, 2014.
Material Facts No. 74, 76.

See Undisputed

Werner’s first written disciplinary

act against Baouch, however, was December 18, 2012.

See

Undisputed Material Fact No. 45.
In Fairview, the plaintiff, Ms. Smith, alleged that her
employer retaliated against her through “Notice of Correction
Action” filings.

Id. at 1088.

The Eighth Circuit measured from

Ms. Smith’s protected act to her official reprimand, not her
termination.

Fairview, 625 F.3d at 1088.

The purported

retaliations came approximately a month after her protected
actions.

Id.

The Eighth Circuit concluded that approximately a

month between protected act and adverse act was too tenuous.
Werner incorrectly counts from the date Baouch filed
the collective action (November 27, 2012) to his date of
termination (January 10, 2013) to measure the temporal
connection.

Filing No. 39, at 18 (stating “Plaintiff cannot

establish causation by temporal proximity because more than a
month passed between his FLSA complaint and his termination.”)
(emphasis added).

However, the true measure, according to
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Id.

Fairview, is from the protected act to the adverse action -which need not necessarily be termination itself.
Fairview, 625 F.3d at 1088.

See e.g.,

Therefore, in accordance with Eighth

Circuit precedent, the Court will analyze the temporal, causal
connection at the time of Werner’s first, written, disciplinary
act against Baouch.
3.

CONCLUSION
In applying the principles above to the undisputed

material facts here and construing the facts in the light most
favorable to the nonmoving party, the Court calculates the
temporal relationship between when Werner was served the action
(November 30, 2012) to Werner’s first official written discipline
of Baouch (December 18, 2012) to be 19 days, or two and one-half
weeks.
This Court concludes that two and one-half weeks is
insufficient to establish a temporal, causal connection as a
matter of law.

Harris v. QCA Health Plan, Inc., No. 4:10CV85-

DPM, 2011 WL 1457597, at *5 (E.D. Ark. Apr. 15, 2011) (concluding
a temporal, causal connection of “about three weeks” was
insufficient), aff’d 452 Fed. Appx. 702 (8th Cir. 2012), cert.
denied, 133 S.Ct. 648 (2012); compare Smith, 302 F.3d at 833
(concluding a two-week temporal, causal connection was “extremely
close in time” and sufficient), and Sprenger, 253 F.3d at 1113–14
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(concluding a temporal, causal connection of a “matter of weeks”
was sufficient), with Fairview, 625 F.3d at 1088 (concluding a
temporal, causal connection of “approximately one month” was
insufficient).
B.

NEBRASKA CLAIM
The parties agree that Nebraska Wage and Hour Act

analysis is the same as Federal Labor Standards Act analysis.
Filing No. 35, at 30.

The Court incorporates its previous

analysis and determines that Baouch has failed to establish a
Nebraska Wage and Hour claim for those same reasons.

A separate

order will be entered in accordance with this memorandum opinion.
DATED this 1st day of July, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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