ABOUD et al v. THE CITY OF WILDWOOD
Filing
91
OPINION FILED. Signed by Magistrate Judge Joel Schneider on 12/10/14. (js)
[Doc. Nos. 64, 67]
THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
PAUL ZIELINSKI, ET AL.,
:
:
Plaintiffs, :
:
v.
:
:
THE CITY OF WILDWOOD,
:
:
Defendant. :
______________________________:
Civil No. 12-7195 (JS)
OPINION
This matter is before the Court on the “Motion for Summary
Judgment” [Doc. No. 64] filed by defendant the City of Wildwood
(“Wildwood”). The Court received the response in opposition from
plaintiff Paul Zielinski (“Zielinski” or “plaintiff”) [Doc. No.
66]. Plaintiff also filed a cross-motion to preclude defendant’s
expert. [Doc. No. 67].1 Defendant submitted a reply to plaintiff’s
opposition [Doc. No. 69] and an opposition to plaintiff’s crossmotion [Doc. No. 71]. The Court heard oral argument by telephone
on two occasions.2 Pursuant to 28 U.S.C. § 636(c), the parties
consented to the jurisdiction of this Court to hear the case. [Doc.
1
Wildwood intends to use its expert, William Toms, Ed.D., to testify
about police practices, including police officer violations of rules and
regulations. Def.’s Opp. to Cross-Motion [Doc. No. 71].
2
The Court also received plaintiff’s letter supplementing the record of
the November 20, 2014 oral argument. [Doc. No. 81].
1
No. 14]. For the reasons to be discussed, defendant’s motion for
summary judgment is GRANTED. Plaintiff’s cross-motion is DENIED as
moot.3
BACKGROUND
At bottom the issue before the Court is straightforward.
Zielinski was a City of Wildwood police officer who was directed
to report for work fifteen minutes before his shift started (socalled
“muster
time”).
Zielinski
objected
to
this
practice,
claiming it was illegal for Wildwood to direct him to report
fifteen minutes early if he was not paid for the time. Zielinski
then
knowingly
violated
the
directions
of
his
superiors
and
repeatedly reported late for work. Despite being disciplined for
his chronic lateness, Zielinski continued to report late. Wildwood
claims it fired Zielinski for violating its work rules by failing
to report to work on time. Zielinski argues he was retailed against
because he objected to Wildwood’s alleged illegal practice.
This
matter
formerly
concerned
multiple
plaintiffs,
all
former police officers for Wildwood, who sought payment for unpaid
wages and overtime compensation allegedly owed pursuant to the
Fair Labor Standards Act ("FLSA”) for muster time. See generally
3
At oral argument on November 20, 2014, the parties agreed that
plaintiff’s cross-motion to preclude defendant’s expert did not have to be
decided to rule on defendant’s summary judgment motion. Additionally, because
the Court grants defendant’s motion without consideration of defendant’s expert
report, plaintiff’s cross-motion is moot.
2
Am. Compl. [Doc. No. 1].4 On April 7, 2014, the Court approved the
parties’ settlement agreement of plaintiffs’ FLSA claims. See
April 7, 2014 Order [Doc. No. 62]. Zielinski participated in this
FLSA settlement and shared a portion of the settlement proceeds.
As of the date defendant filed this motion, all claims in this
matter
were
resolved
with
the
exception
of
Zielinski’s
FLSA
retaliation claim contained in count three of the complaint.
Zielinski alleges a violation of 29 U.S.C. § 215(a)(3)5 and claims
he was wrongfully disciplined and terminated because he filed a
FLSA claim challenging the muster rule. Am. Compl. ¶¶ 142, 143. As
set forth in Zielinski’s opposition, “[p]laintiff’s complaint for
wrongful termination alleges that defendant retaliated against him
for having complained about the illegality of the [Collective
Bargaining Agreement] provision as being in violation of the FLSA.”
Pl.’s Br. at 6. After oral argument, plaintiff filed, and the Court
granted, plaintiff’s motion to amend his complaint to assert a new
claim under 42 U.S.C. § 1983 for First Amendment violations.
4
The parties disagree as to whether Zielinski’s shifts ended at a quarter
to the hour, resulting in an 8-hour shift, or whether the shift ended on the
hour, and the first 15 minutes was unpaid. Giving plaintiff the benefit of the
doubt, as the Court must in the present context, the Court assumes plaintiff
was required to report fifteen minutes before his shift started and then
required to work an 8-hour shift.
5 29 U.S.C. § 215(a)(3) provides that, “it shall be unlawful for any
person-- to discharge or in any other manner discriminate against any employee
because such employee has filed any complaint or instituted or caused to be
instituted any proceeding under or related to this chapter, or has testified or
is about to testify in any such proceeding, or has served or is about to serve
on an industry committee[.]”
3
Specifically, plaintiff added a claim that Wildwood retaliated
against him for exercising his First Amendment rights after he
complained about not being paid for muster time. Am. Compl. ¶¶
145-48 [Doc. No. 82-5]. Wildwood opposed Zielinski’s motion to
amend and argued that all disciplinary actions taken against him
were in response to chronic rule violations and did not relate to
Zielinski’s
“complain[ts]
about
perceived
[FLSA]
violations.”
Def.’s Opp. at 2 [Doc. No. 83].
Wildwood does not dispute that Zielinski was disciplined and
ultimately terminated. Def.’s Br. at 1. Wildwood claims, however,
that these actions had nothing to do with Zielinski’s FLSA claims
and complaints. Id. Rather, Wildwood asserts that Zielinski was
disciplined and terminated “for chronic, long-term lateness, to
which he previously plead guilty and agreed to serve a lengthy onthe-record suspension.” Id. Thus, in order to decide Wildwood’s
motion it is necessary to understand Zielinski’s disciplinary
history. What the history unquestionably shows is that despite
numerous warnings and discipline, Zielinski chronically showed up
late for work and was terminated for his insubordination.
Zielinski worked as an active officer for the Wildwood Police
Department for about 20 years. Def.’s Statement of Material Facts
(“Def.’s Facts”) ¶ 1. In December 2008, Zielinski underwent neck
surgery and was out on medical leave for over two years. Def.’s
Facts ¶¶ 12, 13. Because Zielinski was absent from work for over
4
two years, he was required to undergo extensive retraining upon
his return. Def.’s Facts ¶ 14. When Zielinski returned from medical
leave
on
April
11,
communications/dispatch
2011,
he
officer
was
assigned
pending
to
work
completion
of
as
a
his
retraining. Def.’s Facts ¶ 16.
On July 15, 2011, Captain Regalbutto, one of Zielinski’s
superiors, sent Zielinski an email stating that he was aware that
Zielinski had been reporting late to work (arriving some time
during muster time) and offering him an opportunity to change his
behavior before discipline was warranted. Def.’s Facts ¶ 17.
Zielinski acknowledged receiving this email. Def.’s Facts ¶ 19. On
May 28, 2012, Captain Regalbutto emailed Zielinski regarding a
shift assignment and reminded him that his shift began 15 minutes
before the hour, specifically at 6:45 a.m. if the shift started at
7 a.m. and 2:45 p.m. if the shift started at 3 p.m. Def.’s Facts
¶ 20. Zielinski also acknowledged receiving this email. Def.’s
Facts ¶ 21. Zielinski acknowledges that even though he was acting
as a communications officer he was still subject to the terms of
the Collective Bargaining Agreement (“CBA”) between Wildwood and
the Fraternal Order of Police (“FOP”).
Pursuant to the CBA
Zielinski was required to report to his shift 15 minutes early.
5
Pl.’s Response to Def.’s Statement of Material Facts (“Pl.’s
Facts”) ¶ 22.6
After continuous late arrivals for his shift, Zielinski was
served with Preliminary Notices of Disciplinary Actions (“PNDAs”)
on January 19, March 5 and May 10, 2012. Def.’s Facts ¶¶ 23-25.
Each
notice
contained
similar
charges
including
chronic
or
excessive absenteeism or lateness, a violation of N.J.A.C. 4A:22.3(a)(4). Def.’s Facts ¶ 27. Zielinski pled guilty to the lateness
charges, and in exchange, all other charges were dropped. Def.’s
Facts ¶ 27. Zielinski and Wildwood signed a settlement agreement
on July 3, 2012, wherein Zielinski agreed to serve an “on the
record” suspension totaling 135 days for his violations. Def.’s
Facts ¶ 28. An “on the record” suspension results in no lost time
from work but may be used in considering future disciplinary
actions. Def.’s Facts ¶¶ 29-30.
On August 20, 2012, Zielinski was served with another PNDA
citing that he reported late for 17 of the 24 shifts following the
July 3, 2012 settlement agreement. Def.’s Facts ¶ 32. Zielinski
was charged with various lateness and neglect of duty charges and
was also charged with conduct unbecoming a police officer under
6
Although defendant apparently disputes whether Zielinski was a party to
the CBA (Def.’s Facts ¶ 8, Pl.’s Facts ¶ 8), plaintiff alleges he was bound by
the CBA. On this summary judgment motion the Court must draw all reasonable
inferences in the light most favorable to the non-moving party. Thus, for
present purposes, the Court assumes Zielinski was a party to the CBA and required
to report to work 15 minutes before his shift began. And, that he was not paid
for the 15 minutes.
6
the common law of the State of New Jersey. Def.’s Facts ¶¶ 34-36.
Zielinski requested a hearing on the August 20 charges. Def.’s
Facts ¶ 37. On October 23, 2012, subsequent to the filing of the
charges, but prior to the hearing, Zielinski filed his first
complaint in New Jersey Superior Court against Wildwood alleging
violations of the FLSA. Def.’s Facts ¶ 38. After Wildwood removed
the case to federal court Zielinski voluntarily dismissed the
complaint. Def.’s Facts ¶ 38.
The hearing on Zielinski’s August 20, 2012 charges was held
on November 12, 2012 before an independent hearing officer. Def.’s
Facts ¶ 41. At this hearing, Zielinski was represented by counsel.
Def.’s Facts ¶ 42. On November 20, 2012, subsequent to the November
12,
2012
hearing
but
before
the
hearing
officer’s
decision,
Zielinski filed the instant federal complaint. Compl. [Doc. No.
1].
The
complaint
included
Zielinski’s
claim
for
retaliatory
discharge and termination. Def.’s Facts ¶ 47.7 These claims were
not discussed at the November 12, 2012 hearing. Def.’s Facts ¶ 48.
The hearing officer’s decision was rendered on December 1, 2012;
seven of the eight charges against Zielinski were sustained with
the exception of the charge of conduct unbecoming a police officer.
Def.’s Facts ¶¶ 49, 54-55. The hearing officer’s decision noted
7 Additionally, Zielinski states in the complaint that “[i]n or about
April-May 2012” he advised Wildwood “that he was going to file a lawsuit against
[d]efendant for violations of the FLSA as a result of the [d]efendant issuing
disciplinary suspension time against Zielinski for ‘lateness’ without
compensating him for this time.” Am. Compl. ¶ 83.
7
that
he
considered
attendance
records
Zielinski’s
various
and
the
supervisors.
documents
direct
Def.’s
including
and
Facts
¶¶
Zielinski’s
cross-examination
50-51.
The
of
hearing
officer found that Zielinski “[had] been given repeated written
notices
and
warnings
incorporated
within
prior
disciplinary
actions that he has been expected to report for assigned duty on
time, specifically 15 minutes before the start of the shifts he
has been assigned to cover . . . . He arrived and clocked-in late
on 85% of his 20 assigned work days during the July 9 to August
18, 2012 time period.” Def.’s Ex. L, Dec. 1, 2012 Decision of
Hearing Officer at 13. The hearing officer wrote that Zielinski
“is clearly guilty of chronic or excessive absenteeism or lateness,
that his conduct is a neglect of duty, and that he violated the
Wildwood Police Department’s rules and regulations as charged.”
Id. Further, the hearing officer found that due to the “extensive
previous documented progressive disciplinary record” including
multiple suspensions, which Zielinski accepted responsibility for,
and the repeated notices and warnings, the proper penalty was
termination. Id. at 14. On December 4, 2012, the City of Wildwood
accepted the hearing officer’s recommendations and Zielinski was
terminated. Def.’s Facts ¶¶ 61-62.8
8
Wildwood asks the Court to find that Zielinski was appropriately
disciplined for chronic lateness under the applicable regulations of the New
Jersey Civil Service Commission. See Def.’s Br. at 7. The Court agrees with
Zielinski that whether he was properly disciplined is not determinative as to
8
Wildwood argues that Zielinski was appropriately disciplined
for chronic lateness, termination was an appropriate remedy, and
Zielinski has produced no facts to support his claim that it
imposed illegal, discriminatory or retaliatory discipline because
of plaintiff’s FLSA complaints. See generally Def.’s Br. Zielinski
responds that Wildwood’s discipline and termination constitutes
retaliation under the FLSA and violates his First Amendment rights.
See generally Pl.’s Br. Nevertheless, Zielinski does not contest
that he repeatedly reported late for work. Albeit, plaintiff
insists he should have been paid for muster time.9
DISCUSSION
Pursuant
to
Fed.
R.
Civ.
P.
56,
summary
judgment
is
appropriate where the court is satisfied that “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any . . . demonstrate the absence
of a genuine issue of material fact.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986) (internal citations omitted). Summary
judgment will not lie if the dispute about a material fact is
“genuine,” that is, if the evidence is such that a reasonable jury
the instant motion. See Pl.’s Br. at 9. Rather, the Court only considers whether
Zielinski’s termination was retaliatory conduct under the FLSA.
9 Zielinski, along with two other officers no longer in case, filed a
motion for partial summary judgment on June 19, 2013. See Mot. for Partial Summ.
J. [Doc. No. 24]. In the motion, the moving plaintiffs asked the Court to
declare the muster policy facially illegal. Id. The Court found there was a
material question of fact regarding how the policy could be interpreted and
denied the motion. See Nov. 26, 2013 Order [Doc. No. 48].
9
could return a verdict in favor of the non-moving party. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The materiality
of a fact turns on whether under the governing substantive law, a
dispute over the fact might have an effect on the outcome of the
suit. Id. The court must view all evidence and draw all reasonable
inferences in the light most favorable to the non-moving party.
See Startzell v. City of Phila., 533 F.3d 183, 192 (3d Cir. 2008).
The moving party bears the initial burden of informing the
court of the basis for its motion and demonstrating the absence of
a genuine issue of material fact. Celotex, 477 U.S. at 323. Once
the burden is met, the burden shifts to the non-moving party to
“set forth specific facts showing that there [are] . . . . genuine
factual issues that properly can be resolved only by a finder of
fact because they may reasonably be resolved in favor of either
party.” Anderson, 477 U.S. at 250. The party opposing summary
judgment may not “rest upon mere allegation[s] or denials of his
pleading,”
but
must
set
forth
specific
facts
and
present
affirmative evidence demonstrating that there is a genuine issue
for trial. Id. at 256-57.
1. Prima Facie Claim of FLSA Retaliation
Under the FLSA, it is unlawful to “discharge . . . any
employee
because
such
employee
has
filed
any
complaint
or
instituted or caused to be instituted any proceeding under this
chapter[.]” 29 U.S.C. § 215(a)(3). To establish a prima facie case
10
of retaliatory discharge, a plaintiff must demonstrate that: (1)
the plaintiff engaged in a protected activity, (2) the employer
undertook an adverse employment action against the plaintiff, and
(3) there was a causal link between the plaintiff's protected
action and the employer's adverse action.10 Marra v. Phila. Hous.
Auth., 497 F.3d 286, 300 (3d Cir. 2007); see also Barnello v. AGC
Chems. Ams., Inc., C.A. No. 08–cv–03505 (WJM/MF), 2009 WL 234142,
at *6 (D.N.J. Jan. 29, 2009) (applying the McDonnell Douglas burden
shifting framework to FLSA retaliation claims). After the prima
facie case is made, the burden shifts to the employer to articulate
a
legitimate,
non-retaliatory
reason
for
the
adverse
action.
Marra, 497 F.3d at 300. If successful, the burden of production
returns to the plaintiff, who must show by a preponderance of the
evidence that the employer's reason was false, and that the true
source for the adverse employment action was retaliation. Id.
(citing Moore v. City of Phila., 461 F.3d 331, 342 (3d Cir. 2006)).
To engage in a protected activity a plaintiff need not file
a formal written complaint with an employer; rather, a verbal
complaint that provides notice of the allegations to the employer
is sufficient to form the basis of a FLSA retaliation claim. Kasten
v. Saint–Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1335
10 Zielinski wrongly states that it is Wildwood’s burden to show its
actions were not retaliatory. Pl.’s Br. at 6. Rather, it is the plaintiff that
has the burden to establish a prima facie retaliation claim. Marra v. Phila.
Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007).
11
(2011); Ghobrial v. Pak Mfg., Inc., C.A. No. 11-2023 (ES), 2012 WL
893079, at *4 (D.N.J. Mar. 13, 2012) (“courts in this Circuit, in
interpreting Kasten, have held that unofficial, oral complaints to
an employer are sufficient to show participation in protected
activity."). In this case, Zielinski filed a complaint in the
Superior Court of New Jersey asserting violations of the FLSA on
October 23, 2012 (which was voluntarily dismissed) and a second
federal complaint on November 20, 2012. Additionally, Zielinski
alleges that “[i]n or about April-May 2012” he advised Wildwood
“that he was going to file a lawsuit against [d]efendant for
violations
of
the
FLSA
as
a
result
of
[d]efendant
issuing
disciplinary suspension time against Zielinski for ‘lateness’
without compensating him for this time.” Am. Compl. ¶ 83; Zielinski
Cert. ¶ 7 [Doc. No. 9-2]. The notification that Zielinski would
sue as well as the complaints themselves constitute protected
activity under the FLSA. Kasten, 131 S. Ct. at 1335. Further, it
is undisputed that Zielinski was disciplined and terminated on
December 4, 2012. It is clear, therefore, that plaintiff satisfies
the first and second elements of a prima facie case. Thus, the
following analysis focuses on whether Zielinski can demonstrate a
causal link between his complaints and his discipline and ultimate
termination.
To
demonstrate
a
causal
link
or
causation
in
a
FLSA
retaliation claim, the Third Circuit permits plaintiffs to rely on
12
a “broad array of evidence.” Farrell v. Planters Lifesavers Co.,
206 F.3d 271, 284 (3d Cir. 2000). In considering this evidence
district courts focus “on two main factors in finding the causal
link necessary for retaliation: timing and evidence of ongoing
antagonism.” Abramson v. William Patterson Coll. of N.J., 260 F.3d
265, 288 (3d Cir. 2001) (citing Farrell, 206 F.3d at 281). Temporal
proximity may suffice to demonstrate causation, for example, where
a plaintiff was fired just two days after filing an EEOC complaint.
Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989). When the
facts
show
that
the
temporal
relationship
is
not
“unusually
suggestive,” timing alone is insufficient, absent other evidence,
to demonstrate causation. Krouse v. Am. Sterilizer Co., 126 F.3d
494, 503 (3d Cir. 1997).
While Zielinski can show that he was terminated a few weeks
after filing his second complaint, this temporal relationship is
not, by itself, unusually suggestive. Frazier v. Bed Bath & Beyond
Inc., C.A. No. 2:10-05398 (WJM), 2013 WL 1845499, at *5 (D.N.J.
Apr. 30, 2013) (five-week gap between complaint and allegedly
adverse
action
was
not,
by
itself,
“unusually
suggestive
of
retaliatory motive”); see also Williams v. Phila. Hous. Auth.
Police Dep't, 380 F.3d 751, 760 (3d Cir. 2004) (two months not
unusually suggestive); Carmody v. Pa. State Univ., C.A. No. 5–
1645, 2007 WL 1074862, at *8 (M.D. Pa. Apr. 9, 2007) (one month
not unusually suggestive). In addition, as noted by the hearing
13
officer, Zielinski was given progressive discipline. Further,
Zielinski was not fired until after the hearing officer recommended
his
termination.
Thus,
the
time
frame
between
Zielinski’s
complaints and his hiring is not in and of itself sufficient to
make out a prima facie case of causation.
In
short,
Zielinski
presents
no
evidence
of
ongoing
antagonism and no argument which explains how his discipline and
termination in December 2012 was in retaliation for his protected
activity. Although Zielinski can show that he threatened suit as
early
as
April
2012,
he
has
not
provided
evidence
that
his
discipline notices were related to this threat of suit rather than
in response to his continuous rule violations.11 Instead, the
undisputed evidence illustrates that Zielinski was given at least
two
written
warnings
about
his
violations
without
being
disciplined, and was only terminated in response to the issuance
of four PNDAs within an eight-month period and in light of a
previous suspension. Thus, Zielinski has not established a prima
facie claim of retaliation.
The
fundamental
mistake
in
plaintiff’s
argument
is
his
insistence that he was engaged in protected activity when he
reported late for work. The Court agrees that plaintiff’s oral and
court complaints were protected activity. Kasten, 131 S. Ct. at
11
For example, Zielinski does not contend that any other officer who
violated department lateness policies was treated differently.
14
1329. However, plaintiff’s decision to knowingly flaunt the work
requirement that he report to work fifteen minutes before his shift
started
was
insubordination.
not
protected
Plaintiff
has
activity
provided
but
no
instead
support
for
was
his
argument that knowing refusal to report on time for work is
protected activity.12 See Ritchie v. St. Louis Jewish Light, 630
F.3d 713, 716-17 (8th Cir. 2011) (nurse’s act of recording her
disallowed overtime was insubordination and not protected activity
under §215(a)(3)); Bogner v. R&B Sys., Inc., C.A. No. 10-193, 2011
WL 1832750, at *5 (E.D. Wash. May 12, 2011) ("failing to comply
with such a modest adjustment to one’s schedule could constitute
insubordination and serve as a basis for termination" and would
not give rise to a retaliation claim under the FLSA). This is true
even if it is the case, as plaintiff argues, that he was not paid
for his muster time. Plaintiff’s recourse was to seek compensation
for his muster time, which he did in this case by filing his
complaint, rather than to defy his work rules. As noted in Ritchie,
12
One outlier case potentially suggests that refusing to report to work
for unpaid time raises a fact question as to whether employees were engaged in
protected activity under the FLSA. See Wilke v. Salamone, 404 F. Supp. 2d 1040
(N.D. Ill. 2005). This case is distinguishable. In Wilke, the plaintiffs were
carpenters, who according to their employer, had engaged in substandard work.
Id. at 1044. In response, their employer demanded that they fix the work “on
their own time” or face termination. Id. After the employees failed to report
to work to fix the problem they were terminated. Id. The court held that a
factual question existed as to whether failing to report to work was a protected
activity and denied summary judgment. Id. at 1048. Here, Wildwood did not ask
Zielinski to work for free to make up for unsatisfactory work. Rather, Wildwood
merely asked Zielinski, as it asked all of its police officers, to comply with
the police department’s shift schedule and the CBA. Choosing not to comply with
the schedule and CBA is not protected activity. In addition, Zielinski was given
progressive discipline and was fired after multiple work rule violations.
15
630 F.3d 713, 717 (8th Cir. 2011), “[i]nsubordination is not
protected under the FLSA, and insubordination is not sufficient to
trigger the anti-retaliation provision[.]”
An instructive case is Vargas v. Gen. Nutrition Centers, Inc.,
C.A. No. 10-867, 2011 WL 43020, at *7 (W.D. Pa. Jan. 6, 2011). In
Vargas, the court dismissed plaintiff’s retaliation claim because
the act of modifying recorded hours did not constitute protected
activity under the FLSA. Id. at *7. The court stated that while it
did not condone the employer’s underlying practice of encouraging
employees to not report overtime, it found that “an employee’s
‘self-help’ method to accomplish the goal of being compensated for
all time worked does not constitute a ‘complaint’ [under the
FLSA.]” Id. Rather, the court found that a complaint must be “a
formal or informal, written or oral, statement of objection by an
employee to an employer about the latter’s labor practices.” Id.
Zielinski’s “self-help” conduct was similar to the plaintiff in
Vargas. The Court agrees with Vargas that Zielinski’s self-help
method of reporting late was not protected activity under the FLSA
and therefore cannot give rise to a retaliation claim.
The statute plaintiff relies upon, 29 U.S.C. § 215(a)(3),
supports the Court’s ruling. The statute states that it is unlawful
to discriminate against anyone who filed a complaint or instituted
a FLSA related proceeding, or who testified in a proceeding or who
is on an industry committee. The statutory language, therefore,
16
protects against discrimination caused by plaintiff’s complaints.
The language does not protect a police officer who does not report
on time for work because he is upset he is not paid for the time.
Quite
simply,
the
FLSA
does
not
prohibit
an
employer
from
appropriately disciplining an employee who is insubordinate. If
plaintiff’s argument is accepted, an employer may be liable for
retaliation every time it disciplined its employee. This would
create chaos in the workplace.
2. Pretext
Even
if
Zielinski
established
a
prima
facie
retaliation
claim, which he did not, Wildwood has provided a legitimate,
nondiscriminatory reason for his discipline and termination. Under
the
burden-shifting
analysis,
once
a
prima
facie
case
is
established by the plaintiff the burden of persuasion shifts back
to the defendant to put forth “a legitimate, nondiscriminatory
reason” for the employment decision. Cononie v. Allegheny Gen.
Hosp., 29 Fed. Appx. 94, 95 (3d Cir. 2002). If the defendant
succeeds
in
demonstrating
that
the
decision
was
based
on
a
nondiscriminatory reason, “the burden of production rebounds to
the plaintiff, who must show by a preponderance of the evidence
that the employer’s explanation was merely a pretext for its
actions,
thus
meeting
the
plaintiff’s
burden
of
persuasion.”
Puchakjian v. Twp. of Winslow, 804 F. Supp. 2d 288, 304 (D.N.J.
2011), aff'd, 520 Fed. Appx. 73 (3d Cir. 2013). Here, Wildwood has
17
shown that Zielinski’s discipline and termination was based on his
extensive
record
of
lateness,
violations
that
Zielinski
was
repeatedly warned about. The hearing officer found that due to the
“extensive previous documented progressive disciplinary record,”
including
multiple
accepted
suspensions,
responsibility
for,
which
and
the
Zielinski
repeated
previously
notices
and
warnings, the proper penalty was termination. Def.’s Ex. L, Dec.
1, 2012 Decision of Hearing Officer at 14. The hearing officer
went into great detail documenting all of Zielinski’s attendance
records
and
termination.
found
Indeed,
that
his
chronic
plaintiff
does
not
violations
contest
warranted
his
chronic
lateness. Additionally, plaintiff acknowledges he was subject to
the CBA which required him to report to his shift 15 minutes before
the shift began. See Def.’s Opp, Ex. D, Collective Bargaining
Agreement.
Case law supports the notion that an employee’s violation of
company
policies
constitutes
a
legitimate,
nondiscriminatory
reason for termination. See, e.g., Grey v. City of Oak Grove, Mo.,
396 F.3d 1031 (8th Cir. 2005) (police department’s decision to
terminate an officer for his failure to follow police department
policies,
including
misusing
sick
leave,
was
legitimate
and
nondiscriminatory); Cross v. Bally's Health & Tennis Corp., 945 F.
Supp. 883 (D. Md. 1996) (company’s decision to terminate an
employee for excessive lateness in violation of company policy was
18
legitimate and nondiscriminatory); Gideon v. Rite aid of Ohio,
Inc., C.A. No. 08-426, 2009 WL 3788728 (S.D. Ohio Nov. 10, 2009)
(terminating an employee because she violated company policy by
modifying her time sheets was legitimate and nondiscriminatory);
Bick v. Harrah's Operating Co., C.A. No. 98-7849, 2000 WL 204222
(N.D. Ill. Feb. 17, 2000) (terminating an employee because he
violated company policy was legitimate and nondiscriminatory);
Martin v. Loomis Armored US, Inc., C.A. No. 08-0418, 2009 WL
1956685 (M.D. Tenn. July 7, 2009) (terminating an employee because
he committed theft and violated company policy was legitimate and
nondiscriminatory). Zielinski does not dispute that the charges
against him were filed in response to actual department violations.
Thus, Wildwood has provided a legitimate, nondiscriminatory reason
for Zielinski’s termination.
Since Wildwood can provide a legitimate, nondiscriminatory
reason
for
Zielinski’s
termination,
the
burden
of
production
rebounds to the plaintiff, who must show by a preponderance of the
evidence that the employer’s explanation was merely a pretext for
its actions, thus meeting the plaintiff's burden of persuasion.
Zielinski has not provided any such evidence. Thus, even if
Zielinski presented a prima facie retaliation claim, he has not
shown Wildwood’s actions were merely a pretext for a retaliatory
intent.
19
Zielinski asserts the “essential question” in this matter is
whether the 15-minute muster provision is illegal. The Court
disagrees. In order to assert a retaliation claim under the FLSA
Zielinski must show that his protected activity was the cause of
his discipline and termination. He has failed to do so. For present
purposes it is not determinative whether Zielinski should have
been paid for muster time. Instead, it is only relevant whether
the
actions
taken
by
Wildwood
were
retaliatory
because
of
Zielinski’s protected activity.
As noted, in the present context it is not determinative
whether Zielinski should have been paid for muster time. In fact,
in the present context, the Court must assume Zielinski should
have been paid. Nevertheless, this did not give Zielinski the right
to flaunt his work rules and to continue with his insubordination.
Simply put, Zielinski was not engaged in protected activity when
he purposely reported late for work. Zielinski was engaged in
protected activity when he complained to his supervisors and when
he filed his complaints. It is clear, however, that Zielinski was
not fired because he engaged in this protected activity. He was
fired because he violated his work rules. See Walker v. Interstate
Distrib. Co., C.A. No. 99-1807, 2001 WL 1230882, (D. Or. May 24,
2001) (an employee who added time he believed he should be paid
for on his time sheet was not engaged in protected activity);
Randolph v. ADT Sec. Servs., Inc., C.A. No. 09-1790, 2011 WL
20
3476898, at *5 (D. Md. Aug. 8, 2011) (“the FLSA's complaint clause
is more akin to a participation clause, which generally bars
retaliation based on an employee’s involvement in or initiation of
an investigation, proceeding, or hearing.”). What Zielinski should
have been content to do is to seek payment for his muster time. He
accomplished this goal by settling his FLSA claim in exchange for
a monetary payment. Zielinski did not have the right to decide for
himself when he should or should not report to work. The reason
Zielinski was fired was because he continually violated his work
rules and the directions of his superiors by reporting late.
Zielinski has not produced any evidence that he was fired because
he complained he was not being paid for muster time.
Zielinski makes numerous arguments that are irrelevant for
present purposes, i.e., that the 15-minute muster provision is
illegal,13 that he was not required to present a defense during the
November 12, 2012 hearing, and that Wildwood has provided no
evidence to show that he was permitted to leave 15 minutes before
the end of his shift. See Pl.’s Br. None of these arguments are
determinative as to Wildwood’s motion which asserts that Zielinski
was not retaliated against for his FLSA complaints. Thus, the Court
13 Plaintiff’s argument that he was directed to engage in illegal activity
is rejected. There is nothing illegal about requiring police officers to report
15 minutes before their shift starts when this is agreed to in a CBA. Whether
the officer should be paid for this time is another matter. Plaintiff’s proper
recourse was to seek payment for his muster time which is precisely what he did
when he filed the instant complaint.
21
does not find Zielinski’s supplemental arguments germane to the
Court’s analysis of his retaliation claim and will not address
them.
The
Court,
therefore,
will
enter
summary
judgment
for
Wildwood on Zielinski’s retaliation claim contained in count three
of
his
complaint.
Additionally,
because
the
Court
grants
Wildwood’s summary judgment motion, Zielinski’s cross-motion to
preclude Wildwood’s expert is denied as moot. Wildwood’s motion is
granted even without consideration of Dr. Toms’ expert report. The
Court need not address the admissibility of defendant’s expert
report to decide defendant’s motion for summary judgment.
3. First Amendment Retaliation Claim
Last,
the
Court
considers
the
new
count
contained
in
Zielinski’s amended complaint. The new fourth count contains a
claim under 42 U.S.C. § 1983 for alleged violations of the First
Amendment. See Am. Compl. ¶¶ 145-48. As relayed at oral argument,
plaintiff’s First Amendment claim relates to the oral complaints
Zielinski
made
to
his
co-workers
and
superiors
regarding
defendant’s muster time policy. In limited circumstances, “the
First Amendment protects public employees from retaliation by
their employer.” Fogarty v. Boles, 121 F.3d 886, 888 (3d Cir.
1997). “Under 42 U.S.C. § 1983, public employees may sue to enforce
that protection if (1) they spoke on a matter of public concern;
(2) their interest in that field outweighs the government's concern
22
with
the
effective
responsibilities
to
and
the
efficient
public;
(3)
fulfillment
the
speech
of
caused
its
the
retaliation; and (4) the adverse employment decision would not
have occurred but for the speech. Id. (citing Green v. Phila.
Housing Auth., 105 F.3d 882, 885 (3d Cir.1997)).
Here,
the
Court
has
already
found
that
Zielinski’s
termination was not based on his speech and that his adverse
employment decision would have occurred in the absence of any
complaints. Therefore, Wildwood is entitled to summary judgment on
Zielinski’s
First
Amendment
claim.14
See
Bradshaw
v.
Twp.
of
Middletown, 296 F. Supp. 2d 526, 542 (D.N.J. 2003), aff'd sub nom.,
145 Fed. Appx. 763 (3d Cir. 2005) (claims of First Amendment
violations under § 1983 failed as a matter of law where the
plaintiff
failed
to
show
retaliatory
conduct);
Zimmerlink
v.
Zapotsky, 539 Fed. Appx. 45, 50 (3d Cir. 2013) (even where the
plaintiff demonstrated harassment, she failed to show “the extreme
conduct that gives rise to a First Amendment retaliation claim”
and thus failed to state a claim). Since there are no viable claims
in plaintiff’s amendment complaint, defendant’s summary judgment
motion will be granted and the case will be dismissed.
CONCLUSION
14
Because of this ruling there is no need to address whether plaintiff
satisfied the first two elements necessary to make out a First Amendment
retaliation claim.
23
Accordingly, for all the foregoing reasons, the Court grants
Wildwood’s motion for summary judgment as to the FLSA retaliation
claim in Count Three of plaintiff’s amended complaint and the §
1983 First Amendment claim in Count Four. The Court finds that
Zielinski has not set forth a prima facie case of retaliation under
the FLSA or the First Amendment. In the alternative, even if
Zielinski was able to set forth a prima facie claim of retaliation,
his motion would still be denied because Wildwood had a legitimate,
nondiscriminatory reason for termination. Plaintiff has not shown
that Wildwood’s justification for his firing was a pretext. Because
Wildwood’s motion is granted, Zielinski’s cross-motion to preclude
Dr. Toms’ expert report and testimony [Doc. No. 67] is denied as
moot. An appropriate Order follows.
s/ Joel Schneider
JOEL SCHNEIDER
United States Magistrate Judge
Dated: December 10, 2014
24
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