Riffe v. Wal-Mart Stores East, L.P. et al

Filing 24

Memorandum Opinion and Order: Defendants' Motion for Summary Judgment is granted and Plaintiff's Motion for Summary Judgment is denied as to plaintiff's federal FLSA retaliation claim. Plaintiff's remaining state law claims are remanded to state court. Judge Patricia A. Gaughan on 1/24/12. (LC,S) re 13 , 15 , 19

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Terri Riffe,
Plaintiff,
vs.
Wal-Mart Stores, Inc., et al.,
Defendants.

)
)
)
)
)
)
)
)
)

CASE NO. 1: 11 CV 266
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

This removed case arises from the termination of plaintiff’s employment in February
2010, from defendant Wal-Mart Stores, Inc. (Walmart).1 Plaintiff alleges claims of retaliatory
discharge in violation of the Fair Labor Standards Act (FLSA) and supplemental state law
claims. The parties have filed cross-motions for summary judgment: Defendants’ Motion for
Summary Judgment (Doc. 13) and Plaintiff’s Motion for Summary Judgment (Doc. 15). For
the reasons stated below, Defendants’ Motion for Summary Judgment is granted and

1

Walmart asserts in its answer that it is incorrectly referred to in plaintiff’s complaint
as Wal-Mart Stores, Inc. That name is used here because it is the name appearing on the
complaint and is the name Walmart used to refer to itself in its motion for summary judgment.
1

Plaintiff’s Motion for Summary Judgment is denied as to plaintiff’s federal claim of
retaliatory discharge under the FLSA.
Facts
Plaintiff worked for defendant Walmart for over fifteen years. Plaintiff was first hired
by Walmart in 1995 to work in Walmart’s Elyria, Ohio store. (Pltf. Dep. at 30-31.) In 2006,
plaintiff transferred to Walmart’s Avon, Ohio store where she took the position of lead cash
office associate. As lead cash office associate, plaintiff was responsible for preparing register
bags to ensure that the store’s cash drawers were stocked; handled and counted money;
helped balance the funds from the cash drawers; investigated overages and shortages;
prepared daily reports and logs monitoring the store’s cash flow; and worked to ensure that
incoming cash was properly counted and tracked. (Pltf. Dep., Ex. 3.) Plaintiff was the only
lead cash office associate at the Avon store. (Pltf. Dep. at 42.) Plaintiff’s regular work hours
were Tuesday through Saturday, 5:00 a.m. to 2:00 p.m. (Pltf. Dep. at 32.)
Each day, at approximately 9:00 a.m., a financial courier arrives at the store to pick up
cash and other financial documentation and transport it off-site. (Esterly Aff., ¶ 5.) Each
morning, the previous day’s financial accounting must be completed by associates in the cash
office before the courier arrives at 9:00 a.m. Thus, the most important hours of work for cash
office associates are usually 5:00 a.m. to 9:00 a.m. (Id. at ¶ 6.)
Plaintiff received training on various policies and procedures of Walmart when she
was hired. She received further on-going computer based training as to Walmart’s policies
and procedures during her employment. (Pltf. Dep. at 42.) Among other policies and
procedures, plaintiff was trained on Walmart’s timekeeping procedures. In particular, in 2003

2

and again in 2004, plaintiff received computer based – or “CBL” – training called “You’ve
earned it hourly.” (Pltf. Dep. at 46.) This training explained to associates Walmart’s policy
of paying associates for all the time they worked, including any work associates perform “off
the clock” (that is, time that is not recorded by any electronic or manual timekeeping means)
and for overtime pay when authorized. The training instructs associates that they are to
record their time and be paid for any work they perform “off the clock.” The training gives
various examples of situations where an employee works off the clock and the appropriate
way for the employee to seek compensation for the work. The training explains that if an
associate receives a call at home, she must complete a “time adjustment slip.” The time
adjustment slip requires the associate to indicate the actual time she spent on the call and the
date for which the time is claimed, and to have a member of management sign the bottom of
the form. (Pltf. Dep. at 79, Ex. 8.)
Beginning around 2008, Walmart also implemented an “electronic time adjustment”
process by which associates could adjust their hours for various reasons. (Pltf. Dep. at 8284.) To complete an electronic time adjustment, the associate logs onto Walmart’s computer
network with her internal password and electronically adjusts her hours on the computer.
(Pltf. Dep. at 79-85.) For example, if an associate forgets to punch out before going to lunch,
the associate can add a punch to her time sheet on the computer indicating when she started
lunch for the day. (Id. at 84.) The electronic time adjustment procedure requires the associate
to select the reason why her hours have been adjusted from a selection of options. (Esterly
Aff., ¶ 9; Pltf. Dep. Ex. 13.) The options from which an associate can choose include such
reasons as “forgot badge” and “missed punch.” There is no option for receiving work-related

3

phone calls at home. (Esterly Aff., ¶ 9; Pltf. Dep. at 117.)
In addition, Walmart’s Payroll Integrity Policy provides that associates “must
accurately report and record all hour you work for the date you performed the work indicating
actual start and stop times. . .” (Esterly Aff., Ex. A.)
Beginning in late 2009, management at the Avon Walmart began noticing that
plaintiff had a large number of electronic time adjustments. Defendant Jody Traxler, the
Asset Protection Coordinator at the Avon Walmart, was asked to investigate the situation.
(Traxler Aff., ¶ 4.)
In early January and February 2010, Traxler reviewed surveillance video of plaintiff
entering the store and clocking in and compared the times on the surveillance video to
plaintiff’s recorded clock-in times. (Id. at ¶ 5.) Traxler determined that on a number of
occasions in January and February, plaintiff entered the store after 5:00 a.m., and then
electronically “rolled-back her clock-in time to a time before she was physically present in the
store.” Id. Walmart submits an affidavit by Traxler to demonstrate the following:
• On January 7, 2010, video surveillance showed that plaintiff entered the store at 5:18
a.m. She went directly to the customer service manager’s room to put her coat and purse
away and entered the cash office at 5:20 a.m. She punched in at 5:46 a.m., but later
completed an electronic time adjustment to roll back her punch-in time to 5:08 a.m. (Traxler
Aff., ¶ 5, Ex. A.)
• On January 14, 2010, video surveillance shows that plaintiff entered the Avon
Walmart at 5:51 a.m. Plaintiff did not punch-in until 6:50 a.m., but later electronically
adjusted her punch-in time to 5:30 a.m. (Id.)

4

• On January 19, 2010, plaintiff punched in at 5:18 a.m., but electronically adjusted
her punch-in time to 5:09 a.m. (Id.)
• On February 3, 2010, plaintiff entered the store at 5:13 a.m., punched in at 5:15 a.m.,
and later electronically adjusted her time to 5:07 a.m. (Id., Pltf. Dep. at 118.)
• On February 10, 2010, plaintiff left the cash office for the day at 12:52 p.m.,
although she was scheduled to work until 1:00 that day [due to “cutting hours.”] Plaintiff did
not punch out that day but later electronically adjusted her punch-out time to 2:17 p.m. (Ex.
A.)
Plaintiff indicated that she completed the electronic time adjustments because she
forgot her badge. (Pltf. Dep. 118.)
On February 25, 2010, Defendant Randy McCarty (the Store Manager), Defendant
Melodie Esterly (the Assistant Store Manager), and Defendant Jody Traxler met with
plaintiff. (Pltf. Dep. at 94.) At this meeting, McCarty asked plaintiff if she understood
Walmart’s procedures for clocking in and out, and plaintiff stated that she did. (Id. at 94, 96.)
McCarty then stated that “there had been some problems that had been brought to his
attention” and that Walmart had evidence that plaintiff was “trying to put in for time” that she
had not worked. (Id. at 94.) Plaintiff asked to see the evidence. McCarty did not show
plaintiff any evidence but told plaintiff that Walmart was terminating her for misconduct.
Plaintiff was asked to return her badge and discount card and was escorted out of the store by
Esterly and Traxler. (Pltf. Dep. at 101.)
Plaintiff testified that she did not “steal” time from Walmart in making the electronic
time adjustments. Rather, plaintiff testified that she completed the electronic time

5

adjustments in order to be paid for handling the after-hours work calls made to her at home by
other Walmart employees as her supervisors instructed her to do .
Plaintiff testified she was the most experienced, “go to” person in the cash office.
After a reorganization at Walmart, she started receiving frequent calls at her home seeking
assistance from her about cash office problems beginning in late 2008 and continuing into
2009 and 2010. (Pltf. Dep. at 53.) Plaintiff testified that she repeatedly reported and
complained to her supervisors about these frequent after-hours calls to her at home. (Pltf.
Dep. at 48-49.) According to plaintiff, her supervisors did nothing to stop the calls but simply
told plaintiff to make sure that she was compensated for her time. (Pltf. Dep. at 56-59.)
Plaintiff’s supervisors did not specifically tell her to obtain compensation for the after-hours
calls by making electronic time adjustments, but plaintiff’s supervisors did tell her that she
should make sure that she was paid for her time. (Pltf. Dep. at 70.) Plaintiff testified that in
making the electronic payroll time adjustments, she was following the “new” electronic time
adjustment policy implemented in 2008 as to which she and all other employees received
training and were generally instructed to use by Walmart’s Personnel Manager, Sue Walling.
(Pltf. Dep. at 90.) Plaintiff admitted that Ms. Walling did not specifically tell plaintiff that
she could seek pay for the phone calls she handled at home by making electronic time
adjustments. However, plaintiff testified that it was her understanding that the electronic time
adjustments could be used for this purpose. (Pltf. Dep. at 110.) Plaintiff did not keep written
records of the time she spent on calls at home. (Pltf. Dep. at 59.)
Walmart submits evidence that if any associate received a call at home, the associate
was required to complete a written time adjustment slip signed by a manager with the actual

6

start and stop time included on the time adjustment slip. The associate could not claim pay
for work-related calls using the electronic time adjustment system, which does not list time
spent on work-related calls at home as an “adjustment reason.” (Esterly Aff., ¶¶ 8, 9.)
After her termination, plaintiff requested a meeting to discuss her termination pursuant
to Walmart’s “Open Door” process, which encourages associates to raise complaints and
concerns about their work environment and prohibits retaliation for utilizing the Open Door
procedures. (Pltf. Dep. at 46-47; 124-25.) Plaintiff, Esterly, Traxler, and Defendant Chris
Hubbard, Walmart’s Market Manager, were present at the Open Door meeting. During the
Open Door meeting, plaintiff admitted that she made the electronic time adjustments but
explained that she made them to claim pay for time spent on work-related calls at home.
(Pltf. Dep. at 126.) Ms. Esterly and Ms. Traxler informed Hubbard of the basis for plaintiff’s
termination – that plaintiff had been showing up late for work, clocking-in, and then
electronically adjusting her time backwards and that Traxler’s investigation indicated that
plaintiff was selecting “forgot badge” as the reason for her adjustments. (Def. Mot., Hubbard
Aff. at ¶ 4.) Mr. Hubbard made the decision to uphold plaintiff’s termination because the
information presented to him at the Open Door meeting led him to believe that plaintiff
violated Walmart policy in that plaintiff did not allege that anyone told her to claim pay for
the work-related calls using the electronic time adjustment system; plaintiff did not ask a
manager whether it was appropriate to use the electronic system to claim the time; plaintiff
selected “forgot badge” – an untrue reason – as the reason for her electronic adjustments; and
plaintiff did not keep records of her calls or the actual hours she worked and did not present
phone records to corroborate her claim that the electronic adjustments were made in any

7

effort to claim pay for time spent on work-related calls. (Hubbard Aff.)
Plaintiff filed this action on December 29, 2010, alleging five claims for relief against
Walmart, McCarty, Hubbard, Esterly, and Traxler. Plaintiff alleges a federal claim of
retaliation under the Fair Labor Standards Act (FLSA) (first claim for relief). In addition,
plaintiff alleges state law claims for wrongful termination in violation of public policy
(second and fourth claims for relief); violations of Ohio Revised Code §§ 4111.13 and
4111.14 (third claim for relief); and defamation (fifth claim for relief).
Standard of Review
Federal Rule of Civil Procedure 56 governs summary judgment and provides that
“[t]he court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled judgment as a matter of law.” The
procedure set out in Rule 56(c) requires that “[a] party asserting that a fact cannot be or is
genuinely disputed must support the assertion.” This can be done by citation to “materials in
the record,” including depositions, documents, affidavits, stipulations, and electronically
stored information. Fed. R. Civ. P. 56(c)(1)(A). Rule 56(c)(1)(B) allows a party to “show[]
that the materials cited do not establish the absence or presence of a genuine dispute, or that
an adverse party cannot produce admissible evidence to support the fact.”
After the moving party has carried its initial burden of showing that there are no
genuine issues of material fact in dispute, the burden shifts to the non-moving party to present
specific facts demonstrating that there is a genuine issue for trial. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). “The ‘mere possibility’ of a factual
dispute is not enough.” Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1986). In order

8

to defeat a motion for summary judgment, the non-moving party must present probative
evidence that supports its position. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 24950 (1986). In determining a motion for summary judgment, the non-moving party’s evidence
is to be believed, and all justifiable inferences are to be drawn in that party’s favor. Id. at
255.
Discussion
Retaliatory Discharge under the FLSA
Plaintiff contends she was illegally terminated by Walmart in retaliation for seeking
pay from Walmart for off the clock overtime work in violation of the FLSA. The FLSA sets
forth employment rules concerning minimum wages, maximum hours, and overtime pay. 29
U.S.C. § 201 et seq. The FLSA forbids retaliation by “discharg[ing]” or “in any other manner
discriminat[ing] 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.” 29 U.S.C. § 215(a)(3). Among its prohibitions, the FLSA provides that
“no employer shall employ any of his employees . . . for a workweek longer than forty hours
unless such employee receives compensation for his employment in excess of the hours above
specified at a rate not less than one and one-half times the regular rate at which he is
employed.” 29 U.S.C. § 207(a)(1).
Claims of retaliation under the FLSA are subject to the burden-shifting framework set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). On a motion for summary
judgment, the district court considers whether there is sufficient evidence to create a genuine

9

dispute at each stage of the McDonnell Douglas inquiry. The plaintiff must first submit
evidence from which a reasonable jury could conclude that a prima facie case of
discrimination has been established. The defendant must then offer sufficient evidence of a
legitimate, nondiscriminatory reason for its action. If the defendant does so, the plaintiff must
identify evidence from which a reasonable jury could conclude that the proffered reason is
actually a pretext for unlawful discrimination. Pettit v. Steppingstone, Center for the
Potentially Gifted, Case No. 09-2260, 2011 WL 2646550, at * 4-5 (6th Cir. July 7, 2011).
To make out a prima facie case of retaliation, the plaintiff must prove that: (1) she
engaged in protected activity under the FLSA; (2) her exercise of this right was known by the
employer; (3) the employer took an employment action adverse to her; and (4) there was a
causal connection between the protected activity and the adverse employment action. Adair
v. Charter Cty. of Wayne, 452 F.3d 482, 489 (6th Cir. 2006).
Walmart contends it is entitled to summary judgment on plaintiff’s FLSA claim for
two reasons. First, plaintiff cannot establish a prima facie case of retaliation under the FLSA
and second, even if a prima facie case were established, it terminated plaintiff’s employment
for legitimate, nondiscriminatory reasons that plaintiff cannot demonstrate were a pretext for
discriminatory retaliation.
As to the prima facie case, Walmart contends plaintiff cannot demonstrate that she
engaged in “protected activity” under the FLSA’s anti-retaliation provision because she did
not “file any complaint” under or related to the FLSA. Although Walmart concedes that an
informal, internal complaint by an employee regarding the FLSA may constitute statutorily
protected activity for purposes of the FLSA’s anti-retaliation provision, Walmart cites

10

authority supporting the proposition that, in order to constitute protected activity, an
employee’s informal complaint must “concern some violation of law.” An employee’s
complaint expressing a “vague expression of discontent” is not sufficient. (Def. Mot. at 13,
citing Hagan v. Echostar Satellite, LLC, 529 F.3d 617, 625-26 (5th Cir. 2008).)
The Supreme Court recently addressed the relevant standard in Kasten v. SaintGobain Performance Plastics Corporation, 131 S. Ct. 1325, 1335 (2011). In Kasten, the
Supreme Court held that the anti-retaliation provision of the FLSA protects oral as well as
written complaints by employees. But the Supreme Court stated that the employee’s
complaint “must be sufficiently clear and detailed for a reasonable employer to understand it,
in light of both content and context, as an assertion of rights protected by the [FLSA] and a
call for their protection.” Kasten, 131 S. Ct. at 1335.
More fully, the Supreme Court held:
We agree with [defendant] that the statute requires fair notice. Although
dictionary definitions, statutes, regulations, and judicial opinions we
considered
. . . do not distinguish between writings and oral statements, they do suggest
that a “filing” is a serious occasion, rather than a triviality. As such, the phrase
“filed any complaint” contemplates some degree of formality, certainly to the
point where the recipient has been given fair notice that a grievance has been
lodged and does, or should, reasonably understand the matter as part of its
business concerns.
Moreover, the statute prohibits employers from discriminating against an
employee “because such employee has filed any complaint.” § 215(a)(3)
(emphasis added). And it is difficult to see how an employer who does not (or
should not) know an employee has made a complaint could discriminate
because of that complaint. But we also believe that a fair notice requirement
does not necessarily mean that notice must be in writing.
At oral argument, the Government said that a complaint is “filed” when “a
reasonable, objective person would have understood the employee to have put
the employer on notice that [the] employee is asserting statutory rights under
11

the [Act].” Tr. of Oral Arg. 23, 26. We agree. To fall within the scope of the
antiretaliation provision, a complaint must be sufficiently clear and detailed for
a reasonable employer to understand it, in light of both content and context, as
an assertion of rights protected by the [FLSA] and a call for their protection.”
Kasten, 131 S. Ct. at 1335.
Defendants contend the only “complaints” plaintiff made to her supervisors during her
time at Walmart were complaints about receiving telephone calls at home from associates
who needed assistance in the cash office. Defendants contend these complaints are
insufficient to trigger the anti-retaliation provision of the FLSA because plaintiff never
complained of a violation of the FLSA, and handling phone calls at home is not itself a
violation. The Court agrees. Plaintiff’s complaints of receiving calls at home, and her
conduct in seeking pay for her time by making electronic time adjustments using the
explanation “forgot badge,” do not constitute a “sufficiently clear and detailed” complaint
“for a reasonable employer to understand it, in light of both content and context, as an
assertion of rights protected by the [FLSA] and a call for their protection.” Kasten, 131 S. Ct.
at 1335.
Plaintiff contends in her opposition brief and in her brief in support of her own
summary judgment motion that she engaged in statutorily protected activity “by complaining
about being unable to get paid overtime for her after hours work and by entering her payroll
record adjustments as instructed by Wal-Mart.” (Pltf. Opp. at 2.) However, plaintiff fails to
cite to pertinent, admissible evidence in the record supporting her assertion that she
complained about “being unable to get paid overtime.”2 Defendants acknowledge that
2

“A district court is not required to speculate on which portion of the record the
nonmoving party relies, nor is it obligated to wade through and search the entire record for
12

plaintiff has submitted an affidavit in support of her motion for summary judgment in which
plaintiff states that she raised “overtime hours and compensation issues” with salaried
management. (See Pltf. Aff., ¶ 14.) But defendants correctly argue that this affidavit
testimony should be disregarded because it contradicts plaintiff’s earlier deposition testimony.
Specifically, when plaintiff was asked in her deposition about the complaints she made to her
supervisors, plaintiff did not testify that she complained about failing to receive proper
overtime or other compensation. (See Pltf. Dep. at 47-49.) Rather, plaintiff testified that she
complained to her supervisors only about receiving frequent calls at home when she was off
the clock and was not happy about that. She testified that her supervisors told her that she
should make sure she was paid for her time, and she sought to do this by making electronic
time adjustments to her time records. Plaintiff’s assertions in her affidavit that she
complained about not receiving “overtime” pay characterizes a situation where a deponent
was specifically questioned about a key factual issue in a deposition and then attempts to
change her testimony in a later affidavit. Therefore, plaintiff’s affidavit testimony as to this
issue is properly disregarded on summary judgment. See Reid v. Sears, 790 F.2d 453, 460 (6th
Cir. 1986).3
In her briefs, plaintiff does not cite legal authority demonstrating that she adequately

some specific facts that might support the nonmoving party’s claim.” InterRoyal Corp. v.
Sponseller, 889 F.2d 108, 111 (6th Cir. 1989).
3

Defendants move to strike multiple portions of plaintiff’s affidavit. (Doc. 19.)
Defendants’ motion to strike is granted to the extent that plaintiffs’ affidavit, as discussed
above, changes the testimony that plaintiff gave in her deposition as to the complaints she
made to supervisors.
13

filed a “complaint” under the FLSA’s anti-retaliation provision. Plaintiff cites authority
supporting the propositions that informal and oral complaints by an employee are sufficient.
(Pltf. Opp. at 2, citing Kasten, 131 S. Ct. 1325, and EEOC v. Romeo Community Schools, 976
F.2d 985, 989 (6th Cir. 1992).) However, plaintiff’s complaints are not insufficient because
they were oral or informal; rather, they are insufficient because they are not framed in terms
of an FLSA violation as required by Kasten. The complaints plaintiff testified she made to
her supervisors could not have reasonably been perceived by defendants as a complaint that
plaintiff was not being paid in accordance with the requirements of the FLSA or that
defendants otherwise violated the FLSA.4 Defendants’ argument is persuasive that plaintiff
has failed to demonstrate a prima facie case.
Even assuming plaintiff’s complaints are sufficient to demonstrate a prima facie case
and trigger the anti-retaliation provision of the FLSA, defendants have come forward with
evidence, in particular Mr. Hubbard’s affidavit, demonstrating that Walmart had legitimate,
non-discriminatory reasons for terminating plaintiff. Walmart found that plaintiff was
arriving late to work without permission and improperly using electronic time adjustments to

4

Plaintiff testified in her deposition that she began to think she should have been paid
overtime for the phone calls she handled while off duty because she was regularly scheduled
for forty hours of regular work per week; therefore, any call she took at home would
automatically put her into overtime. Plaintiff also repeatedly argues in her briefs that
Walmart had a “de facto” illegal policy of “cutting time” when employees were approaching
forty hours in a given workweek and that this policy violated Walmart’s obligations under the
FLSA. Apart from failing to cite legal authority demonstrating that it is illegal for an
employer to cut or reduce employees’ hours so as to avoid the employees’ working more than
40 hours in a workweek or that Walmart’s records do not accurately reflect the time its
employees actually worked, plaintiff does not point to admissible evidence in the record that
she made complaints of this nature to the defendants. Therefore, plaintiff has not
demonstrated a prima facie case.
14

roll back her start time while stating an untrue reason (“forgot badge”) for making electronic
adjustments. In addition, plaintiff did not keep records of her actual work time as Walmart’s
policies require.
To raise a genuine issue of fact of pretext and defeat a summary judgment motion, the
plaintiff must show that (1) the employer’s proffered reason for an adverse employment
action had no basis in fact; (2) the proffered reason did not actually motivate plaintiff’s
discharge; or (3) the proffered reason was insufficient to motivate the discharge. Adair, 452
F.3d at 491.
In her briefs, plaintiff claims pretext exists because Walmart’s justifications for
terminating her “has evolved to a multitude of changing pretextual reasons; beginning first as
payroll time theft, then gross misconduct, then absenteeism excess tardies, and finally a
failure to follow Wal-Mart policy.” (Pltf. Opp. at 12; see also Pltf. Mot. at 10-11.)
Plaintiff’s assertions are insufficient to demonstrate pretext. Except for citing
evidence (her deposition) that “Excessive Absences and/or Tardies” was stated as the reason
for plaintiff’s termination on her Exit Interview form, plaintiff does not support her position
that Walmart gave “multiple changing pretextual reasons” for her termination with any
relevant analysis or citation to supporting evidence in the record. As defendants point out,
plaintiff testified in her deposition that “fixing . . . punches for time not worked” was the
“only reason” she was given by anyone at Walmart for her termination. (Pltf. Dep. at 129130.) This explanation is entirely consistent with any representations Walmart may have also
made that plaintiff was terminated for claiming pay for time not worked (as plaintiff
characterizes it, “payroll time theft”), failure to follow Walmart policy, and gross misconduct.

15

As to the fact that plaintiff’s Exit Interview form stated that plaintiff was terminated
for “Excessive Absences and/or Tardies,” plaintiff does not explain how this fact alone
demonstrates pretext, and defendants have submitted evidence indicating that this information
on plaintiff’s exit interview form was a “clerical error.” (Doc. 18, Ex. 1, Hubbard Aff., ¶ 5.)
Indeed, plaintiff testified in her deposition that no one ever told her that her termination had
anything to do with absences or tardies. (Ptlf. Dep. at 130.) The mere fact that “Excessive
Absences and/or Tardies” was stated on plaintiff’s Exit Interview Form alone is insufficient to
support a reasonable finding that (1) Walmart’s proffered reasons for terminating plaintiff had
no basis in fact; (2) the reasons did not actually motivate plaintiff’s discharge; or (3) that the
proffered reasons were insufficient to motivate the discharge.5
In that plaintiff has failed to point to evidence demonstrating a genuine issue of fact
regarding pretext in her motion for summary judgment and in her brief opposing defendants’
motion, plaintiff’s FLSA retaliation claim fails.
For the reasons stated above, defendants have demonstrated that they are entitled to
summary judgment on plaintiff’s claim of retaliatory discharge under the FLSA, and plaintiff
has failed to come forward with sufficient evidence to make out a claim. Accordingly,

5

Plaintiff argues throughout her briefs that she was a good, fifteen year employee of
Walmart and genuinely believed she could seek pay for her work off the clock by making
electronic adjustments and was not trying to seek pay for time she did not work. Even
assuming that plaintiff’s assertions are true, it is Walmart’s prerogative to terminate plaintiff’s
employment for legitimate, nondiscriminatory reasons, and it is plaintiff’s burden to
demonstrate that Walmart’s asserted legitimate, non-discriminatory reasons are pretextual.
Plaintiff’s beliefs that she was entering her time correctly and that Walmart should not have
terminated her outright for her conduct are not sufficient to demonstrate pretext. They do not
demonstrate that Walmart’s justifications for terminating her had no basis in fact, were
insufficient to motivate a discharge, or did not actually motivate her discharge.
16

defendants’ motion for summary judgment is granted and plaintiff’s motion for summary
judgment is denied as to plaintiff’s first claim for relief.
Generally, when all federal claims are dismissed before trial, the state law claims
should ordinarily be dismissed or remanded to state court if the action was removed. See
Musson Theatrical, Inc. v. Federal Express Corporation, 89 F.3d 1244, 1254-55 (6th Cir.
1998). In the absence of a viable federal claim under the FLSA in this case, the Court finds
that plaintiff’s remaining state law claims should be remanded to state court where they were
originally brought. A state court is better suited to resolve plaintiff’s alleged state law claims,
in particular her claims under Ohio Rev. Code §§ 4111.13 and 4111.14.
Conclusion
For the reasons stated above, Defendants’ Motion for Summary Judgment is granted
and Plaintiff’s Motion for Summary Judgment is denied as to plaintiff’s federal FLSA
retaliation claim. Plaintiff’s remaining state law claims are remanded to state court.
IT IS SO ORDERED.

/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 1/24/12

17

18