Nightingale v. Wal-Mart Stores, Inc.

Filing 32

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. 22 ). Defendant's motion for summary judgment is GRANTED as to Plaintiffs FLSA/state law claims and contract claims but DENIED as to Plaintiff's claim for promissory estoppel. Signed by Judge Timothy S. Black on 4/15/2015. (mr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

PAUL NIGHTINGALE,
Plaintiff,
vs.
WAL-MART STORES, INC.,
Defendant.

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Case No. 1:13-cv-571
Judge Timothy S. Black

ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Doc. 22)

This civil action is before the Court on Defendant’s motion for summary judgment
(Doc. 22) and the parties’ responsive memoranda (Docs. 25, 28).
I. BACKGROUND FACTS
Plaintiff Paul Nightingale moved to Ohio to work at Defendant Wal-Mart Stores
Inc.’s South Point store as a pharmacist. The South Point store was apparently riddled
with problems, and Plaintiff alleges that his Supervisor Dwayne Childers (“Childers”)
promised Plaintiff that he would be paid overtime hours to address the problems at South
Point even though Plaintiff was a salaried pharmacy manager. Plaintiff contends that
after he complained about not getting paid additional compensation, Defendant fired him.
Plaintiff brings a four-count Complaint, alleging : (1) a violation of the Fair
Labor Standards Act (“FLSA”) and retaliation; (2) a violation of the state law analog to
the FLSA, Ohio Revised Code Chapter 4111; (3) breach of contract; and 4) promissory

estoppel (Doc. 1). Defendant has moved for summary judgment on all claims
contending that Plaintiff was exempt from the FLSA as a salaried professional, that
Plaintiff did not make a valid complaint under the FLSA or state law, that Plaintiff has no
claim for breach of contract (as pled) because his relocation contract controls regarding to
his move to South Point, and that Plaintiff’s promissory estoppel claim fails for lack of a
specific promise and for having been waived. Defendant further contends that it
terminated Plaintiff for making errors, not for his complaints regarding overtime
compensation.
Plaintiff responds that he has adequately supported a claim for retaliation such that
his federal FLSA and state law overtime claims should survive. He further argues that
Defendant did not follow its own policy in addressing his errors, and also trumped up
error against him, showing pretext for its action in terminating him. Finally, Plaintiff
claims that his other state law claims should survive as well.
The parties have fully briefed the issues, and the Court entertained oral argument
on March 3, 2015.
II.

STANDARD OF REVIEW

A motion for summary judgment should be granted if the evidence submitted to
the Court demonstrates that there is no genuine issue as to any material fact, and that the
movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). See Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). The moving party has the burden of showing the absence of genuine
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disputes over facts which, under the substantive law governing the issue, might affect the
outcome of the action. Celotex, 477 U.S. at 323. All facts and inferences must be
construed in a light most favorable to the party opposing the motion. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
A party opposing a motion for summary judgment “may not rest upon the mere
allegations or denials of his pleading, but . . . must set forth specific facts showing that
there is a genuine issue for trial.” Anderson, 477 U.S. at 248 (1986).
III.

ANALYSIS

A. Plaintiff’s Overtime and Retaliation Claims
The Fair Labor Standards Act (“FLSA”) was enacted in 1938 during the Great
Depression to protect vulnerable workers from substandard wages and oppressive
working hours. Barrentine v. Arkansas-Best Freight Sys., Inc., 450 U.S. 728, 739 (1981).
It sets forth employment rules concerning minimum wages, maximum hours, and
overtime pay. 52 Stat. 1060, 29 U.S.C. § 201 et seq.

Employers are required to pay

employees at an overtime rate not less than one-and-a-half times the employer’s regular
Kasten v. Saint-Gobain Performance Plastics Corp., 131 S.Ct. 1325 at 1335 (2011) rate
for every hour over forty hours worked in a given week. 29 U.S.C. § 207(a)(1).
However, certain professional employees are exempt from the FLSA’s overtime
provision. 29 U.S.C. § 213(a)(1).

There is no genuine dispute in this case that Plaintiff

was a salaried exempt professional employee, such that to the extent that he originally
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pleaded that he was not exempt (Doc. 1), such a contention is wrong. Accordingly,
Defendant is entitled to summary judgment as to Plaintiff’s claims that he was deprived
of overtime in violation of the FLSA and state law.
The remaining FLSA claim Plaintiff brings is that Defendant retaliated against
him for asserting his right to overtime pay. A retaliation claim is established when a
plaintiff demonstrates: (1) he engaged in a protected activity; (2) his exercise of protected
activity was known to Defendant; (3) Defendant took an adverse action; and (4) there was
a causal connection between the adverse action and the protected activity. Adair v.
Wayne County, 452 F.3d 482, 489 (6th Cir. 2006).
Defendant attacks Plaintiff’s retaliation claim under the theory that because he was
not entitled to overtime pay under the statute, he did not engage in protected activity
when he complained about it.

However, a plaintiff may assert a retaliation claim even

where he is an exempt employee, so long as he establishes his prima facie case for
retaliation. Visco v. Aiken County, 974 F.Supp. 2d 908, 925 (D.S.C. 2013) (Plaintiffs’
exemption from the protection of overtime provisions of the FLSA did not preclude them
from bringing a retaliation claim); Oberc v. BP PLC, No. 4:13-CV-01382, 2013 U.S.
Dist LEXIS 161831, *18-19 (S.D. Texas, November 13, 2013)(an attorney considered an
exempt professional and thus not entitled to overtime nonetheless permitted to pursue a
retaliation claim).

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Defendant next argues that Plaintiff’s complaints about extra pay were too
ambiguous — that Plaintiff had to tell it explicitly that he was complaining about a
violation of the law in order for his complaints to constitute protected activity (Doc. 22).
Defendant cites to Riffe v. Wal-Mart Stores, Inc., No. 1:11-CV-266, 2012 U.S. Dist.
LEXIS 7987, *1 (N.D. Ohio, January 24, 2012) for the proposition that complaints must
be framed in terms of a FLSA violation. At minimum, contends Defendant, under Kasten
v. Saint-Gobain Performance Plastics Corp., 131 S.Ct. 1325 at 1335 (2011), “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 statute
and a call for their protection.”
The Court finds no genuine dispute that Plaintiff asserted his entitlement to
additional compensation based on his understanding that he was allegedly promised such
compensation by Childers when Childers negotiated his hiring. Plaintiff’s assertion was
not made on the basis that he was invoking statutory rights, but rather on the basis of such
alleged promise. Moreover, the context here shows Defendant’s longstanding system
referred to “overtime” for exempt employees not in the statutory sense, but rather in the
sense of pre-approved coverage for otherwise unstaffed time. 1 Due to this particular
context, Plaintiff’s repeated complaints regarding “overtime” were not sufficiently clear
and detailed to be understood as an assertion of FLSA rights. Kasten, 131 S.Ct. at 1335.
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It appears Defendant’s employees referred to such pay as “overtime,” while in fact Defendant defined it as “extra
shift pay”for exempt employees of $3.00 per hour above the regular rate for each additional hour worked during a
scheduled extra shift. According to Defendant, when it is short-staffed, its exempt employees can log into its
scheduling system to get permission to work such hours.
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Considering both the reason for Plaintiff’s complaints and Defendant’s understanding of
what he was complaining about—the Court finds Plaintiff did not engage in statutorily
protected activity under the FLSA that was known by Defendant to be such. Adair, 452
F.3d 482. Accordingly, Plaintiff’s claim for FLSA retaliation fails. Because Plaintiff
does not establish a prima facie case of retaliation, the Court need not reach the parties’
arguments regarding pretext.
B. Plaintiff’s Contract Claims
Plaintiff’s contract claim is stated in the Complaint at ¶¶ 37-39:
37. Plaintiff and Defendant had an agreement with respect to monies owed in
connection with expense reimbursement, Ohio licensure, and PTO.
38. Defendant breached the agreement when it failed to pay Plaintiff monies
owed.
39. As a direct and proximate cause of Defendant’s conduct, Plaintiff has suffered
damages for which he is entitled to recovery.
(Doc. 1).
Accordingly, as an initial matter, Plaintiff does not plead a claim for breach of
contract for failure to pay additional compensation. Instead, Plaintiff states his claim for
additional pay as promissory estoppel claim. See Section C. infra.
As to the claim for breach of contract which is pled (i.e., for failure to pay
licensure fees and unpaid mileage), the Court’s review of Plaintiff’s deposition shows
that these claims are unavailing. Plaintiff concedes he is not entitled to licensure fees,
(Nightingale Dep.II, pp. 101-02, 154), and Plaintiff proffers no evidence of a verbal or
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written agreement regarding his claim for unpaid mileage or paid time off (PTO). 2 As
such, Defendant is entitled to summary judgment on Plaintiff’s contract claim.
C. Plaintiff’s Claim for Promissory Estoppel
Plaintiff framed his claim for additional compensation as a cause of action
pursuant to the doctrine of promissory estoppel. Such a claim requires four elements:
(1) there must be a clear and unambiguous promise, (2) the party to whom the promise
was made must rely on it, (3) the reliance is reasonable and foreseeable, and (4) the party
relying on such promise must have been injured by the reliance. Patrick v. Painesville
Commercial Properties, Inc., 123 Ohio App.3d 575, 583 (1997).
Defendant contends Plaintiff’s promissory estoppel claim fails for two reasons
(Doc. 22). First, Defendant argues there was no clear and unambiguous promise by
Childers or anyone else that Plaintiff would be entitled to “overtime” in the “time and a
half” sense. A review of the deposition testimony of both Childers and Plaintiff shows
starkly different understandings of their discussions leading up to Plaintiff’s employment.
Plaintiff contends he said to Childers regarding Plaintiff’s potential employment at South
Point, “well, at time and a half, wages can add up on this,” to which Childers allegedly

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The parties’ written Relocation Repayment Agreement clearly states that Plaintiff is not entitled to any
relocation expenses beyond what is outlined in the Agreement (Doc. 22). This Agreement does not
speak to reimbursement for mileage and contains an integration clause which precludes the creation of a
claim for mileage reimbursement.
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responded, “well, Wal-Mart’s got an open checkbook. Whatever it takes, whatever it
costs, you’re the man for the job.” (Nightingale Dep.II, p. 198). 3
It is the province of the jury to make credibility determinations, and in the Court’s
view, should a jury believe Plaintiff regarding the “open checkbook,” he will have
established a clear and unambiguous promise made to him by Childers. In any event,
taking all inferences in favor of the non-moving party, as the Court is required to do in
evaluating a motion for summary judgment, Plaintiff has sufficiently established a “clear
and unambiguous promise.”
The second reason Defendant contends Plaintiff’s promissory estoppel claim fails
is based on Whisman v. Ford Motor Co., 157 Fed. Appx. 792 (6th Cir. 2005). Under
Whisman, argues Defendant, a promissory estoppel claim is barred in an at-will
employment situation where the employer changes the terms of the employment
agreement and the employee accedes to such changes by not quitting. (Doc. 22). Here,
however, taking all inferences in favor of Plaintiff, it is unclear that Defendant ever
changed the terms of Plaintiff’s employment such that he had a chance to accept or reject
such changes. At best, Plaintiff’s queries regarding overtime as he understood it were
met with “we will get caught up,” and that his requested hours “would be reviewed.”
Such ambiguity in response to his queries does not show that he and Defendant came to
an understanding that Plaintiff was not entitled to the compensation he sought. Nor does

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In contrast, Childers stated Plaintiff “had my blessing that he could take all the shifts that he wanted” (in
the sense of pre-approved “extra shift pay.”) (Childers’ Dep. p. 126).
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it show Plaintiff decided to live with the different understanding. Indeed, from Plaintiff’s
standpoint, he increasingly protested until he was fired. For this reason, the Court simply
finds Whisman inapposite.
A review of the record shows that Plaintiff understood that Childers promised him
he would be entitled to extra pay for overtime hours needed to address the problems at
South Point, in exchange for Plaintiff’s agreement to move there. The Court has already
addressed whether such alleged promise could be viewed as clear and unambiguous and
answered in the affirmative. The Court finds that Plaintiff meets the remaining prongs of
a promissory estoppel claim: a jury might find Plaintiff relied on the promise to be paid
to fix South Point, that Plaintiff relied on such promise by moving to South Point and
working long hours, that Plaintiff reasonably expected to be paid, and that he was
ultimately injured when he lost both the additional pay and his job. As such, the Court
finds Plaintiff’s claim for promissory estoppel survives Defendant’s challenge.
IV.

CONCLUSION

Accordingly, for the foregoing reasons, Defendant’s motion for summary
judgment (Doc. 22) is GRANTED as to Plaintiff’s FLSA/state law claims and contract
claims but DENIED as to Plaintiff’s claim for promissory estoppel.
IT IS SO ORDERED.
Date: 4/15/15

s/ Timothy S. Black
Timothy S. Black
United States District Judge
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