LeVan et al v. Sears, Roebuck & Co. (TV2)
Filing
74
ORDER that defendants motion for summary judgment as to LeVans causes of action 36 is hereby GRANTED in part and DENIED in part. Defendants motion for summary judgment as to Simss causes of action 38 is hereby DENIED. It is hereby ORDERED that LeVans claim against defendant pursuant to Tenn. Code Ann. § 50-1-304 be DISMISSED. Signed by Chief District Judge Thomas A Varlan on 11/25/13. (ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
ADAM W. LEVAN and
DARYL W. SIMS,
Plaintiffs,
v.
SEARS, ROEBUCK & CO.,
Defendant.
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No.:
3:11-CV-578-TAV-CCS
MEMORANDUM OPINION AND ORDER
This civil action is before the Court on defendant’s motions for summary
judgment [Docs. 36, 38], in which defendant moves the Court for summary judgment on
all of plaintiffs’ claims. Each plaintiff filed a response in opposition [Docs. 53, 54], to
which defendant replied [Docs. 60, 62]. Plaintiffs subsequently filed sur-replies [Docs.
68, 69]. The Court has thoroughly considered the arguments of the parties, the relevant
documents and exhibits, and the controlling law.
For the reasons stated herein,
defendant’s motion as to plaintiff Adam LeVan [Doc. 36] will be GRANTED in part and
DENIED in part, and defendant’s motion as to plaintiff Daryl Sims [Doc. 38] will be
DENIED. 1
1
After defendant filed its motion for summary judgment, plaintiffs filed an amended
complaint [Doc. 32-1] in which plaintiff Sims abandoned his Tennessee Public Protection Act
claim, and both plaintiffs abandoned one claim under the Fair Labor Standards Act. The Court
finds that the filing of the amended complaint should not moot the pending motion for summary
judgment because the causes of action in the amended complaint are substantially identical to
those in the original complaint [Doc. 1], and thus the Court will address the merits of the motion
for summary judgment. See Graham v. City of Oklahoma City, 859 F.2d 142, 144–45 (10th Cir.
1988) (initial motion for summary judgment properly granted where original complaint and
I.
Background
1. LeVan’s Complaints
Plaintiff Adam LeVan (“LeVan”) began working for defendant on November 10,
2008, and was employed by defendant in its Chattanooga, Tennessee, Fort Walton,
Florida, and Knoxville, Tennessee stores until defendant terminated his employment on
July 27, 2011 [Docs. 37, 36-1 pp. 55, 60]. LeVan transferred from the Fort Walton,
Florida store to the West Town Mall store (“West Town store”) in Knoxville at the end of
January 2011 [Doc. 36-1 p. 54].
At the West Town store, LeVan worked as a
Consultative Sales Associate in the Home Appliance/Brand Central department [Docs.
37, 53]. LeVan was compensated on a “draw vs. commission basis,” meaning that he
was paid the commissions he earned, but if his commissions per hour worked amounted
to less than minimum wage, then he was paid minimum wage for each hour worked
[Doc. 36-1 p. 100]. His average weekly gross pay was around $800, which amounts to
around $20 per hour [Id. at 106–07]. Moreover, LeVan stated that his commissions were
almost always more than the minimum wage “draw” [Id. at 99–100].
Commissioned members of the sales staff were sometimes required to perform
non-selling activities, such as training, stocking, and calling customers [Id. at 109–11].
LeVan and other sales employees questioned the legality of defendant asking its
commissioned employees to do more than two hours per week of this non-selling work
amended complaint were “substantially identical” and plaintiff had “adequate notice and
sufficient opportunity to meet defendants’ arguments contained in the initial motion for summary
judgment” (footnote omitted)).
2
without paying them a separate hourly wage for such work. In June 2011, LeVan printed
a compensation manual from the 88Sears website and took it to his supervisor, Melissa
Brabson (“Brabson”), to discuss the matter with her [Id. at 133, 139–40]. 88Sears is
defendant’s employee hotline [Doc. 37].
LeVan questioned the legality of the West Town store’s approach to this issue
because he alleges that he was separately compensated by defendant’s Fort Walton,
Florida store for such non-selling activities [Doc. 36-1 pp. 130–32]. Brabson turned the
88Sears manual over to Tim Lockhart (“Lockhart”), the general manager of the West
Town store [Id.]. According to LeVan, when Lockhart returned from vacation and
learned that employees were questioning defendant’s compensation policies, he became
“very upset” and said to a group of employees that defendant “was hiring everyday” [Id.
at 133].
LeVan did not witness this incident, and every employee who did interpreted
Lockhart’s words differently, but Lockhart’s boss, Kevin Dornfeld (“Dornfeld”), who
discussed the incident with Lockhart, recalls that Lockhart told Dornfeld he said: “I come
back, 88Sears is involved, I guess we’re hiring” [Doc. 53-1 p. 44]. Dornfeld recalls that
Lockhart called him after making the statement and expressed his frustration that the
employees did not bring the issue directly to him and brought it up with Brabson while
Lockhart was on vacation [Doc. 54-1 p. 28]. Lockhart was later disciplined for this
statement [Doc. 36-6 pp. 56–57]. Joyce Hill (“Hill”), a sales employee who witnessed
Lockhart’s statement, maintains that she “felt like it was something to do with [the
3
plaintiffs’ complaints regarding defendant’s pay policies]” and interpreted Lockhart’s
statement as “a threat” [Docs. 36-3 p. 36, 53-9 p. 38]. After LeVan learned of Lockhart’s
statement, he called 88Sears to complain about Lockhart’s behavior and defendant’s pay
policy, intending for the call to be anonymous [Doc. 36-1 p. 133]. In addition, LeVan
later complained to Dornfeld [Doc. 53-4 p. 151].
2. LeVan’s Termination
When LeVan was hired on November 10, 2008, he signed an acknowledgement
indicating that he had read defendant’s employee handbook, which states that abuse of
the employee discount privilege can result in termination [Doc. 36-1 ex. 1]. Defendant’s
policy regarding employee discounts was that only employees, spouses, and dependents
could use the discount [Id.]. LeVan submits that he believed, based on a sale he executed
at defendant’s store in Florida with his manager’s approval, that parents that live with
employees could also use the employee discount [Id.; Doc 53-4 pp. 33–34]. On July 17,
2011, approximately a month after LeVan complained to 88Sears, LeVan rang up a sale
for the parents of a fellow employee, Christopher Marrero (“Marrero”) [Doc. 36-1 pp.
199–200]. More specifically, LeVan went to another department and rang up a sale with
Marrero’s mother’s credit card and his own employee identification number, but allowed
Marrero’s mother to use her son’s employee discount card [Id. at 199; Id. ex. 7; Doc. 37].
LeVan argues that he made an honest mistake, but acknowledges that this
transaction violated defendant’s employee policy [Doc. 36-1 ex. 2]. Still, defendant’s
employee handbook emphasizes that “it is [the employee’s] responsibility to ask for the
4
associate discount only where [the employee is] eligible” [Id. ex. 2]. LeVan knew that
defendant took compliance with the employee discount policy very seriously, stating that
he “was concerned about every discount [he] took because [defendant] was so funny
about that” [Id. at 209]. On the same day that LeVan executed the sale with Marrero’s
mother, Marrero executed four sales to his parents using the employee identification
number of a fellow employee, William Hembree (“Hembree”), and his own employee
discount card because Marrero claims he wanted to help Hembree boost his commissions
[Doc. 62-2]. By using Hembree’s employee identification number, it would appear that
Hembree had executed the sales to the customers. As a result of these events, Marrero
was fired on July 25 or 26, 2011 [Doc. 62-2]. Lockhart did not participate in the decision
to terminate Marrero and is unsure who did [Doc. 53-8 p. 153].
LeVan was terminated on or about July 27, 2011 [Doc. 32-1 ¶ 11]. According to
Karen Hudson (“Hudson”), defendant’s Loss Prevention Manager, Jessie Coile (“Coile”),
the home improvement manager, asked Hudson to investigate what Coile characterized as
“suspicious activity” [Doc. 36-7 p. 24]. Hudson reviewed the video tape of LeVan’s
transaction with Marrero’s parents and spoke with LeVan [Doc. 36-1 ex. 6]. LeVan
admitted in a written statement to executing the transaction, but submitted that he was
unaware that the transaction violated defendant’s policy based on his experience at the
Florida store and his assumption that because Marrero appeared to be younger, Marrero
still lived with his parents [Id. at 210]. Notably, LeVan alleges that before Hudson asked
him about the incident with Marrero’s parents, she first accused him of another policy
5
violation involving a price adjustment with an employee named Scott Atchley [Doc. 53-4
p. 138]. LeVan claims that when he corrected Hudson’s version of events, she disputed
LeVan’s version, but then dropped the matter when LeVan asked for proof and moved on
to the Marrero discount incident [Id. at 138–39].
Subsequently, LeVan’s transaction with Marrero’s parents was reported to
Lockhart, who called Dornfeld to advise him that he planned to terminate LeVan for a
violation of defendant’s policy [Doc. 53-1 pp. 59]. Dornfeld told Lockhart to follow the
normal procedure of relaying the proposed termination to 88Sears [Id. at 59–60], who
found the termination “supported” [Doc. 36-5 ex. 29]. Dornfeld acknowledged that it
was atypical for him to be consulted before an employee at LeVan’s level was terminated
[Doc. 53-1 p. 60]. Yet, he states that he believed LeVan’s wage complaint to be totally
unrelated to his termination, given that defendant had video tape of LeVan violating its
policy and consulted with 88Sears regarding the termination [Id. at 61]. LeVan recalls
that when Lockhart told him that he was terminated and LeVan then mentioned laws
against retaliation, Lockhart responded that the termination “ha[d] nothing to do with
88Sears,” to which LeVan replied: “how did you know about that?” [Doc. 53-4 p. 134].
Defendant terminated four other employees for various violations of the employee
discount policy between January 1, 2008, and LeVan’s termination [Doc. 36-8].
Defendant also terminated three others for discount policy violations in August and
September of 2013, two of which were terminated for executing a transaction with a coworker’s parent using that co-worker’s discount card—the same type of transaction for
6
which LeVan was purportedly terminated [Doc. 62-4]. LeVan, however, points out that
defendant did not terminate Marc Rubin (“Rubin”), who rang up a sale to fellow
employee Jennifer Slagle’s (”Slagle”) brother with Slagle’s employee discount card in
2009, and Hembree, whose employee identification number Marrero used in some of the
transactions with his parents on the same day as LeVan’s transaction with his parents
[Doc. 53]. Slagle was fired as a result of the transaction involving Rubin [Id.]. Hembree
gave Marrero his number because Marrero allegedly wanted to help boost Hembree’s
sales numbers [Doc. 53-11 pp. 11–12, 26–27, Doc. 53-12 pp. 90–91]. Despite the fact
that LeVan was fired for being a part of a transaction that violated defendant’s policy,
Hembree was never interviewed by management about possible collusion or complicity
in Marrero’s violations, and defendant never investigated his involvement [Doc. 53-12
pp. 91–93]. Hudson apparently assumed that Hembree was not involved because he did
not actually execute the transactions [Id.], though Hudson assumed that LeVan executed
the transaction for Marrero to help out a friend [Doc. 53-3 p. 69].
Defendant responds by noting that these situations are inapposite because
Hembree did not actually ring up the sale using his identification number, and, unlike
LeVan, Rubin questioned the proprietary of the transaction, reasonably believed he had
permission from superiors to execute the transaction because Slagle told him as much,
and immediately reported the transaction to his superiors [Docs. 62, 62-5]. LeVan notes
that there is no documentation that Rubin did these things and attempts to impeach the
veracity of this claim by noting that defendant did not terminate Slagle for 20 days, which
7
LeVan characterizes as “odd,” if Rubin immediately reported the incident [Docs. 53, 68].
LeVan also submits that defendant had not disclosed the Rubin and Hembree incidents at
the time of LeVan’s deposition [Doc. 68].
LeVan also cites Brabson’s deposition, in which she stated that in her past
experience with defendant, defendant’s management had “[gone] after” employees that it
wanted to terminate [Doc. 53-6 pp. 83–84].
In further support of both plaintiffs’
retaliation claims, Hill stated that the three employees that she knows have called 88Sears
have all been terminated [Doc. 53-9 pp. 27–28]. Thus, Hill has concluded that she “will
never call 88Sears” because she is “terrified” that she “will lose [her] job” and avers that
“[n]obody on the floor will call [88Sears]” [Id. at 44].
In sum, defendant argues that LeVan cannot point to a similarly situated employee
who was not terminated for LeVan’s violation of defendant’s policy [Doc. 37], while
LeVan contends that the Rubin and Hembree cases are examples of such. LeVan alleges
that his termination violated the antiretaliation provision of the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. § 215(a)(3), and the Tennessee Public Protection Act’s (“TPPA”)
retaliatory discharge provision, Tenn. Code Ann. § 50-1-304. LeVan also contends that
his termination gives rise to a cause of action for common law retaliatory discharge under
Tennessee law. The basis of these allegations is that defendant’s purported reason for
terminating him is pretextual for its actual reason—retaliation for LeVan’s complaints
regarding defendant’s wage policy.
8
3. Sims’s Complaints
Plaintiff Daryl Sims (“Sims”), whose causes of action arise out of a very similar
set of facts and time frame as LeVan’s, was also employed as a Consultative Sales
Associate at defendant’s West Town store and, just like LeVan, was paid based on his
“draw vs. commission” numbers. [Docs. 39, 54]. Sims was employed at the West Town
store in this capacity beginning in February 2007 [Doc. 38-1 p. 57]. Thus, many of the
aforementioned facts and allegations are also relevant to Sims’s case. The last year of his
employment with defendant, Sims’s average weekly gross pay equated to an average
hourly rate of $18.43 to $22.46 [Id. at 101–02]. Like LeVan, Sims questioned the
legality of defendant’s pay practices as to non-selling activities, and he complained to
Brabson on several occasions leading up to June 2011 [Doc. 54-7 pp. 173–74]. Then, on
approximately June 11, 2011, Sims, along with LeVan and other “co-workers,” protested
to Brabson, citing the 88Sears material LeVan had printed off of the 88Sears website
[Doc. 54]. This was the aforementioned meeting after which Brabson notified Lockhart
of the complaints. When Lockhart returned, he allegedly made the aforementioned
comment to several employees, “I come back, 88Sears is involved, I guess we’re hiring,”
though Sims did not witness this statement [Doc. 54-1 p. 44].
Shortly after hearing reports of Lockhart’s statement from other employees, and
after talking with LeVan and two other employees, Sims made an anonymous complaint
about defendant’s pay practices to the 88Sears hotline [Doc. 38-1 pp. 164–65]. Later, he
provided his name to 88Sears in exchange for the promise that Dornfeld would conduct a
9
confidential investigation [Id. at 165]. This complaint prompted Umesh Patel (“Patel”) of
88Sears to call Dornfeld and ask him to investigate a concern at the West Town store
[Doc. 54-1 pp. 21, 24–25]. Patel also e-mailed Dornfeld a list of employees that he
should interview relating to the concern, which included Sims [Id. at 25]. Dornfeld avers
that he interviewed these employees [Id.], and Sims confirms that Dornfeld interviewed
him at a company meeting [Doc. 54-7 p. 166–67]. Sims also submits that despite the
promise of confidentiality, Dornfeld interviewed him “on the floor in the middle of [the
company meeting],” allowing employees to see this interview and leading Brabson to ask
Sims about the interview [Doc. 38-1 p. 165].
Sims states that in further derogation of this confidentiality, Lockhart was
apparently apprised of the investigation [Doc. 54-7 p. 166]. Specifically, Sims recalls
that Lockhart said to him: “I know you called 88Sears and filed a complaint” [Id.]. Sims
interpreted this comment as a threat implying that “there could be repercussions coming,
you could get fired” [Id.]. Further, Sims remembers that Lockhart told him that Lockhart
had not gotten his bonus the previous year and was not going to get it in 2011, noting that
this bonus depended on keeping store costs low, an aim augmented by having
commissioned employees do non-selling work rather than hiring other workers to do such
work [Id. at 166]. Ultimately, defendant decided to pay its sales associates for some nonselling activities between late 2010 and late 2011 [Doc. 38-7 p. 67, ex. 37].
10
4. Sims’s Termination
Defendant terminated Sims on August 13, 2011, approximately two weeks after
LeVan’s termination [Doc. 54]. Hudson was asked by Steve Komm (“Komm”), another
of defendant’s managers, to look into Sims’s timekeeping because Sims had fallen off of
defendant’s late report, but was not in defendant’s morning meetings [Doc. 54-3 p. 78].
Assuming he was on time, Sims should have been in these meetings, which Komm holds,
and therefore Komm wanted Hudson to determine when Sims was arriving at the store
[Id.]. Unless there is a preexisting problem where the employee has been “written up”
for tardiness, defendant does not typically make such attendance checks [Id. at 79–80].
Hudson alleges to have reviewed video camera footage that confirmed Sims was selfcorrecting his arrival time on his time cards because the footage indicated that Sims was
arriving later than his time cards reflected [Doc. 54].
Sims characterizes this self-
correcting as an “error” [Id.]. According to an e-mail from Hudson, the video footage
revealed Sims was tardy and self-corrected his time to his scheduled arrival time on seven
different occasions between July 9, 2011, and August 6, 2011 [Doc. 38-1 ex. 17]. Yet,
defendant cannot produce this footage [Doc. 38-8 p. 104].
When Hudson confronted Sims after reviewing the video footage, she had him
write a statement in which he noted that he had been made aware that his actions violated
defendant’s policy and that he would “correct this” and “not do raw punches” going
forward [Doc. 54-7, p. 230]. “Raw punches” are the mechanism by which employees
could self-correct their time. Sims submits that Hudson made him change aspects of this
11
statement, and specifically the aspect stating that he had been made aware that he was not
to do “raw punches,” and that she told him: “no, you need to state that you came in late
and did a raw punch . . . because we saw you on videotape” [Id. at 230–31]. Sims
contends that “Hudson was telling [him] what to write in this statement” [Id. at 231]. He
recalls that he complied because he believed he was receiving discipline for his actions,
not being terminated [Doc. 54]. Sims states that “many people” employed by defendant
self-corrected their time cards based on what they had told Sims [Doc. 54-7 p. 171].
When Sims began his employment with defendant, he signed an acknowledgement
that he had read the employee handbook, which states that employees “must accurately
record” their time to ensure defendant’s compliance with federal and state law and that
altering or falsifying timekeeping records could result in termination [Doc. 38-2 ex. 2]. If
defendant’s employees forgot to clock in or out, they were permitted to self-correct their
time cards to reflect the time they actually worked [Doc. 38-1 at 109–110], and
employees were allowed eight self-corrections, or “raw punches,” and two tardy arrivals
per month [Id. at 153–54, 158].
Sims violated these policies during several months in 2010 and 2011 and had been
disciplined multiple times for exceeding these monthly limits on self-corrections and
tardiness, dating back to a write-up for timekeeping violations from Komm in January
2010 [Id. at 147–48, 153–63]. In 2010, defendant placed Sims on plans for improvement
related to his excessive tardiness and self-correcting [Id. at 155–61]. As part of these
12
disciplinary actions, Sims admits that he was told he had to self-correct to the actual time
he worked, not his scheduled time [Id. at 220–21].
Yet, Sims emphasizes that defendant cannot point to a commissioned employee
fired for the same offense prior to Sims’s termination and can only identify one purported
comparator, who was fired after Sims filed this action [Id., Doc. 69]. Defendant avers
that it terminated John Price (“Price”), an employee in defendant’s loss prevention
department, on February 17, 2012, for self-correcting time records to his scheduled time,
rather than the actual time he worked [Doc. 38-9]. It is unclear whether Price was a
commissioned employee. Because Sims was paid by commission, rather than an hourly
wage, he submits that he was not stealing from the employer [Doc. 54], and LeVan states
that defendant’s management could tell if an employee had self-corrected his or her time
[Doc. 54-4 p. 74]. In fact, LeVan remembers that his manager at the Fort Walton, Florida
store told commissioned employees that if they came in late, they were actually stealing
from the company because they were “working a shorter shift with the same amount of
sales,” resulting in a higher “benefit rate,” which is how vacation and holiday pay was
calculated [Id. at 75].
Following Sims’s meeting with Hudson, Lockhart consulted with 88Sears
regarding Sims’s timekeeping and tardiness violations [Doc. 38-6 ex. 36]. During this
consultation, Lockhart apparently told 88Sears that Sims had been doing better in terms
of his previous timekeeping and tardiness problems [Id.]. Still, once Lockhart described
Sims’s previous disciplinary issues, Sims’s conduct in July and August of 2011, and the
13
video reviewed by Hudson, and after 88Sears reviewed Sims’s statement from the
meeting with Hudson in which he admitted to violating defendant’s policy, 88Sears
recommended that defendant proceed with its termination of Sims [Id.]. So, Lockhart
terminated Sims, telling him when he walked into the office that he was “going to make
this short and sweet” [Doc. 54-7 p. 170]. Sims interpreted this comment as indicative of
Lockhart’s retaliatory intent [Id.]. To this end, Lockhart recalls that Sims stated his belief
that Lockhart was executing a “revenge firing,” but Lockhart did not ask what Sims
meant by that statement [Doc. 54-8 p. 238–39]. Sims alleges that defendant’s termination
of his employment violated the antiretaliation provision of the FLSA and Tennessee’s
common law prohibition against retaliatory discharge [Docs. 32-1, 54].
II.
Standard of Review
Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is
proper “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). The
moving party bears the burden of establishing that no genuine issues of material fact
exist. Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2 (1986); Moore v. Philip Morris
Cos., Inc., 8 F.3d 335, 339 (6th Cir. 1993). All facts and all inferences to be drawn
therefrom must be viewed in the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Burchett v. Kiefer, 301 F.3d 937, 942 (6th Cir. 2002).
14
Yet, “[o]nce the moving party presents evidence sufficient to support a motion
under Rule 56, the nonmoving party is not entitled to a trial merely on the basis of
allegations.” Curtis Through Curtis v. Universal Match Corp., 778 F. Supp. 1421, 1423
(E.D. Tenn. 1991) (citing Celotex, 477 U.S. at 317). To establish a genuine issue as to
the existence of a particular element, the nonmoving party must point to evidence in the
record upon which a reasonable finder of fact could find in its favor. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The genuine issue must also be material; that is, it
must involve facts that might affect the outcome of the suit under the governing law. Id.
The Court’s function at the point of summary judgment is limited to determining whether
sufficient evidence has been presented to make the issue of fact a proper question for the
factfinder. Id. at 250. The Court does not weigh the evidence or determine the truth of
the matter. Id. at 249. Nor does the Court search the record “to establish that it is bereft
of a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479–
80 (6th Cir. 1989). Thus, “the inquiry performed is the threshold inquiry of determining
whether there is a need for a trial—whether, in other words, there are any 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.
15
III.
Analysis
1. FLSA Claims 2
The antiretaliation provision of the FLSA provides that an employer is prohibited
from “discharg[ing] or in any other manner discriminat[ing] against [an] employee
because such employee has filed [a] complaint or instituted . . . any proceeding under [the
FLSA].” 29 U.S.C. § 215(a)(3). The burden-shifting analysis in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), applies to an FLSA claim of retaliation. See, e.g.,
Adair v. Charter County of Wayne, 452 F.3d 482, 489 (6th Cir. 2006); Moore v.
Freeman, 355 F.3d 558, 562 (6th Cir. 2004).
To establish a prima facie case of retaliation under McDonnell Douglas, an
employee must prove that (1) he or she engaged in a protected activity under the FLSA;
(2) his or her exercise of this activity was known by the employer; (3) thereafter, the
employer took an employment action adverse to the employee; and (4) there was a causal
connection between the protected activity and the adverse employment action. See, e.g.,
Williams v. Gen. Motors Corp., 187 F.3d 553, 568 (6th Cir. 1999). Such a prima facie
showing of retaliation “creates a presumption that the employer unlawfully discriminated
against the employee.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993)
(quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)). If the
plaintiff establishes a prima facie case, then the burden then shifts to the defendant to set
2
In plaintiffs’ amended complaint [Doc. 32-1], they plead only a cause of action for
retaliatory discharge in violation of 29 U.S.C. § 215(a)(3), abandoning the original complaint’s
[Doc. 1] allegation of wage violations under the FLSA.
16
forth a legitimate, non-discriminatory reason for the adverse employment action.
McDonnell Douglas, 411 U.S. at 802. If the defendant carries this burden, “[the] plaintiff
must then prove ‘by a preponderance of the evidence’ that the defendant’s proffered
reasons were not its true reasons, but were merely a pretext for illegal discrimination.”
Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 883 (6th Cir. 1996) (quoting Burdine, 450
U.S. at 252–53). Plaintiffs claim that defendant violated the FLSA’s antiretaliation
provision by terminating them in retaliation for their complaints.
a. Prima Facie FLSA Claims
Though defendant submits that LeVan was terminated for violating the employee
discount policy, LeVan contends that this justification is mere pretext for defendant’s real
reason—retaliation for LeVan’s complaints regarding defendant’s pay policy and
Lockhart’s conduct [Docs. 37, 53]. Defendant does not appear to dispute the first three
elements of LeVan’s prima facie case, and the Court agrees that LeVan has satisfied his
burden on these elements at this stage.
More specifically, “[t]he FLSA protects
employees against retaliation for filing ‘any complaint.’” Loyless v. Oliveira, No. 1:09CV-239, 2010 WL 3862883, at *6 (E.D. Tenn. Sept. 28, 2010) (quoting 29 U.S.C. §
215(a)(3)).
Thus, element one is satisfied, as LeVan’s complaints were protected
activities under the FLSA.
And because it is undisputed that defendant knew of
plaintiffs’ complaints, element two is satisfied. Finally, element three is satisfied because
defendant took an adverse employment action against LeVan after his complaints, that is,
terminating his employment. Yet, defendant argues that the fourth prima facie element
17
is not satisfied, contending that LeVan cannot establish a causal connection between the
protected activity and adverse employment action. At the summary judgment stage,
LeVan’s “burden to show causation entails ‘requiring the plaintiff to put forth some
evidence to deduce a causal connection between the retaliatory action and the protected
activity and requiring the court to draw reasonable inferences from that evidence,
providing it is credible.’” Pettit v. Steppingstone, Ctr. for the Potentially Gifted, 429 F.
App’x 524, 533 (6th Cir. 2011) (quoting EEOC v. Avery Dennison Corp., 104 F.3d 858,
861 (6th Cir. 1997)).
Though temporal proximity between the protected activity and adverse
employment action is not, standing alone, enough to establish the requisite causal
connection, “temporal proximity combined with other evidence of ‘retaliatory conduct’
can be enough to prove this element of a plaintiff's prima facie case.” Id. (quoting
Spengler v. Worthington Cylinders, 615 F.3d 481, 494 (6th Cir. 2010)). In addition to the
fact that LeVan was terminated approximately a month and a half after complaining
about defendant’s pay policy, viewing the evidence in a light most favorable to LeVan,
he has offered evidence that: (1) Lockhart was upset with the complaints and made what
some employees considered to be a threat of termination; (2) Hudson accused LeVan of a
separate violation, which she then dropped when LeVan rebuffed that allegation and
moved on to the discount card incident with Marrero; (3) Lockhart mentioned that the
firing had nothing to do with the 88Sears complaint when he terminated LeVan, thereby
indicating his knowledge of LeVan’s complaint and that it was on his mind; (4) Brabson
18
believes that defendant’s management in the past went after employees that it wanted to
terminate; and (5) Hill stated that employees are now scared they will lose their jobs if
they contact 88Sears because the employees that did so have been terminated. This
evidence at least creates a genuine issue of material fact as to whether there was a causal
connection between LeVan’s complaint and his termination, and a reasonable inference
can be drawn to support the conclusion that such a causal connection existed.
As to Sims’s prima facie FLSA claim, defendant similarly appears to dispute only
the causation element of the claim. Element one of Sims’s prima facie claim is satisfied
because his complaints were protected activities under the FLSA, element two is satisfied
because defendant undisputedly knew of the complaints, and element three is satisfied
because defendant subsequently took an adverse employment action against Sims by
terminating him. In addition to the fact that Sims’s termination was less than two months
after his complaints to 88Sears, and the applicable evidence cited in the previous
paragraph, Sims has presented evidence that: (1) Lockhart told Sims that he knew Sims
had complained to 88Sears, and Sims interpreted this statement as a threat of
repercussions; (2) Lockhart was upset that he might not receive his bonus, which was at
least indirectly related to the pay policy issue; (3) Hudson allegedly coerced Sims into
writing a statement admitting his violations of company policy; (4) defendant had
apparently not terminated anyone for comparable violations until after Sims filed his
lawsuit; and (5) Lockhart told Sims he was going to make his firing “short and sweet”
19
[Doc. 54-7 p. 170]. This is sufficient proof of causation for Sims to satisfy his burden at
the prima facie stage.
Defendant argues that based on Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct.
2517 (2013), each plaintiff must prove that “his . . . protected activity was a but-for cause
of the alleged adverse action by the employer.” Id. at 2534. Defendant raises this
argument in its replies, and plaintiffs submit in their sur-replies that, even if it is assumed
that this standard applies to their FLSA claims, they have adequately addressed this issue
in their responses. Nassar involved a Title VII retaliation claim, but defendant argues
that this standard is applicable to the instant case based on one court’s statement that “it
appears that retaliation claims under the FLSA are analyzed identically to retaliation
claims under Title VII.” Equal Employment Opportunity Comm’n v. Se. Telecom, Inc.,
780 F. Supp. 2d 667, 685 (M.D. Tenn. 2011). Even assuming the but-for standard applies
to an FLSA claim, the Court finds that the aforementioned evidence creates a genuine
issue of material fact as to whether, but for plaintiffs’ protected activity, they would have
been terminated. So, to the extent Nassar applies to FLSA claims, plaintiffs’ FLSA
claims would survive the summary judgment stage under the Nassar standard.
b. Legitimate, Non-discriminatory Reasons
At the next stage of the McDonnell Douglas framework, defendant must produce a
legitimate, non-discriminatory reason for its action. Amini v. Oberlin Coll., 440 F.3d
350, 359 (6th Cir. 2006). As to both plaintiffs, defendant has proffered such a reason—
namely, that LeVan violated its employee discount policy and Sims violated its employee
20
tardiness and timekeeping policy. Novotny v. Elsevier, 291 F. App’x 698, 704 (6th Cir.
2008).
c. Pretext
Because defendant has satisfied this burden, LeVan and Sims must “prove the
employer’s proffered reasons for its adverse actions against the employee were, in fact,
pretext for retaliation.” Pettit, 429 F. App’x at 535. More specifically, at the summary
judgment stage:
To raise a genuine issue of fact as to pretext and defeat a summary
judgment motion, . . . the [p]laintiffs must show that (1) the
proffered reason had no factual basis, (2) the proffered reason did
not actually motivate [defendant’s] action, or (3) the proffered
reason was insufficient to motivate the action.
Id. (internal quotation marks omitted) (quoting Adair, 452 F.3d at 491). It is often the
case that plaintiffs’ evidence supporting the causation element of the prima facie case
overlaps with the evidence supporting allegations of pretext, but “[w]hile evidence of
causal connection at the prima facie stage is often probative of pretext also,” the burden
at the prima facie stage is more easily met and “that evidence may be insufficient,
standing alone, to raise a genuine issue as to pretext.” Id. Notably, “any requirement of
additional evidence ‘is limited to the production of evidence rebutting the defendant’s
proffered legitimate, nondiscriminatory reason for taking the challenged action.’” Id. at
536 (quoting Blair v. Henry Filters, Inc., 505 F.3d 517, 533 (6th Cir. 2007)).
LeVan argues that defendant’s articulated reason for his termination either has no
basis in fact or was insufficient to motivate that action. Conversely, defendant submits
21
that it has terminated seven employees since January 1, 2008, for violating the employee
discount policy, and thus, there was nothing unusual or pretextual about its stated reason.
LeVan contends that these cited individuals are not true comparators because they
knowingly violated defendant’s discount policy, while LeVan did not [Doc. 68].
Moreover, in addition to the aforementioned evidence supporting LeVan’s prima facie
case, LeVan argues that there are at least two employees, Rubin and Hembree, who were
not terminated for violating the policy, one of which, Hembree, was involved in the same
series of transactions with Marrero as LeVan. Hembree gave Marrero his employee
identification number because, as Marrero claims, Marrero wanted to help Hembree
boost his sales statistics. Yet, despite firing plaintiff for ringing up a transaction with
Marrero’s parents, defendant neither interviewed nor investigated Hembree’s possible
involvement or culpability in any discount policy violations.
LeVan believed that his transaction with Marrero’s parents did not violate
defendant’s policy based on a previous experience with defendant’s store in Florida and
expressed this misapprehension to defendant’s management.
Moreover, defendant’s
employee policy handbook states that “it is [the employee’s] responsibility to ask for the
associate discount only where [the employee is] eligible,” placing the onus on Marrero to
confirm the transaction’s validity in LeVan’s case [Doc. 36-1 ex. 2].
Though defendant attempts to distinguish the fact that it did not terminate Rubin
for executing an essentially identical transaction because Rubin asked the discounting
employee if the transaction was acceptable and immediately reported it to management,
22
these details seem less distinguishing when one considers LeVan’s representation that he
believed the transaction did not violate defendant’s policy. In other words, though
LeVan perhaps should have been more thorough in ensuring the propriety of the
transaction, he did not report the transaction because he did not believe it to be improper.
The Court agrees with LeVan that, if anything, the Rubin and Hembree incidents present
genuine issues of material fact as to whether these individuals were comparators who
defendant chose not to terminate. 3 To this end, LeVan points out that a factfinder might
equate Rubin’s transaction with LeVan’s, given that both believed that the transactions
were permissible [Doc. 68]. Even more, Rubin might be seen as more culpable, given
that he had doubts about the propriety of the transaction and executed it anyway [Id.]. As
such, whether Rubin and Hembree are comparators who were treated differently is a
question for the factfinder, as is the weight to be accorded to the fact that defendant
terminated three people for similar violations to LeVan’s while its motion for summary
judgment was pending.
Given this evidence and the aforementioned support for LeVan’s prima facie
causation argument, the Court finds that when such evidence and the resulting inferences
are viewed in a light most favorable to LeVan, there is a genuine issue of material fact as
to whether defendant’s stated reason for LeVan’s termination was insufficient to motivate
3
LeVan submits that Rubin’s affidavit should be accorded little to no weight because
Rubin’s transaction was not disclosed to LeVan until June 2013, twenty months after this case
began, and Rubin now purports to detail a transaction from several years ago [Doc. 68].
Moreover, LeVan states that defendant did not disclose that Hembree supplied Marrero with his
employee identification number until July 2013 [Id.].
23
that action and therefore pretextual. Consequently, defendant’s motion for summary
judgment as to LeVan’s FLSA claim will be denied.
As for Sims’s pretext argument, he similarly contends that defendant’s stated
reason for his termination was insufficient to motivate that action. In support, Sims cites
the evidence mentioned in addressing his prima facie causation argument and adds that
defendant could not point to another employee who had been terminated for comparable
actions prior to the filing of this lawsuit. Particularly persuasive as to Sims’s pretext
argument is Lockhart’s statement to several sales employees regarding 88Sears and
hiring, Lockhart’s statement to Sims that he knew of Sims’s complaint, which Sims
interpreted as a threat, Sims’s allegations of coercion against Hudson, Brabson’s
statement that she had known management to target employees that it wanted to
terminate, Hill’s statement that employees now fear calling 88Sears because of the firings
of those who did so, and Lockhart’s statement to Sims that he was going to make his
firing “short and sweet.” [Doc. 54-7 p. 170]. Notably, defendant offers evidence that
Sims had been disciplined for timekeeping and tardiness violations on multiple previous
occasions, and Sims admits as much. Still, the Court finds that Sims has presented
sufficient evidence to create a genuine issue of material fact as to whether his violation of
defendant’s policy was insufficient to motivate his termination.
Of particular importance is the multiple references that Lockhart made to Sims or
other sales employees regarding 88Sears complaints.
In Taylor, this court denied
summary judgment on the basis that the plaintiff “ha[d] presented evidence that the
24
[protected activity] was very much on [the decision-maker’s] mind.” Taylor v. City of
Gatlinburg, No. 3:06-CV-273, 2008 WL 4057805, at *3 (E.D. Tenn. Aug. 26, 2008). In
that case, such evidence included the fact that the decisionmaker told a co-worker that
she would not consider the plaintiff for the job because he was a part of the protected
activity and that the decisionmaker had used disparaging language in reference to the
protected activity and those involved. Id. Plaintiffs’ complaints were apparently on
Lockhart’s mind, and he had disparaged the complainants by essentially threatening their
jobs. He also mentioned the complaints to Sims individually. This is enough to create a
genuine issue of material fact as to defendant’s motive in terminating Sims. It bolsters
LeVan’s argument as well.
Though defendant contends that it was justified by the letter of its employee policy
handbook in firing both plaintiffs, such is not the question at the summary judgment
stage. Instead, the Court must discern whether, taking the evidence in a light most
favorable to plaintiffs, there is a genuine issue of material fact as to whether the policy
handbook violation was the true reason for defendant’s actions. Because the Court finds
that LeVan and Sims have presented sufficient evidence to create a genuine issue as to
this question, it must deny defendant’s motions as to plaintiffs’ FLSA claims.
2. Retaliatory Discharge Claims under Tennessee Common Law and the TPPA
Both plaintiffs have asserted claims for retaliatory discharge under the common
law of Tennessee, and LeVan additionally brings a cause of action under the TPPA,
25
codified at Tenn. Code Ann. § 50-1-304. In order to assert a common law retaliatory
discharge claim, a plaintiff must show:
(1) that an employment-at-will relationship existed; (2) that he was
discharged; (3) that the reason for his discharge was that he
attempted to exercise a statutory or constitutional right, or for any
other reason which violates a clear public policy evidenced by an
unambiguous constitutional, statutory, or regulatory provision; and
(4) that a substantial factor in the employer’s decision to discharge
him was his exercise of protected rights or his compliance with clear
public policy.
Clark v. Hoops, LP, 709 F. Supp. 2d 657, 670 (W.D. Tenn. 2010) (internal quotation
marks omitted) (quoting Franklin v. Swift Trans. Co., Inc., 210 S.W.3d 521, 528 (Tenn.
Ct. App. 2006)).
The TPPA provides in pertinent part:
(b) No employee shall be discharged or terminated solely for
refusing to participate in, or for refusing to remain silent about,
illegal activities.
...
(d)(1) Any employee terminated in violation of subsection (b) shall
have a cause of action against the employer for retaliatory discharge
and any other damages to which the employee may be entitled.
Tenn. Code Ann. § 50-1-304(b), (d). In order make out a TPPA claim, a plaintiff must
establish:
(1) his status as an employee of the defendant employer; (2) his
refusal to participate in, or remain silent about, ‘illegal activities’ as
defined under the TPPA; (3) his termination; and (4) an exclusive
causal relationship between his refusal to participate in or remain
silent about illegal activities and his termination.
26
Clark, 709 F. Supp. 2d at 669–70 (internal alterations and quotation marks omitted)
(quoting Franklin, 210 S.W.3d at 528).
The TPPA defines “illegal activities” as
“activities that are in violation of the criminal or civil code of this state or the United
States or any regulation intended to protect the public health, safety or welfare.” Tenn.
Code Ann. § 50-1-304(a)(3).
The statutory and common law causes of action for retaliatory discharge are very
similar, with the essential difference being that the common law cause of action requires
a plaintiff to show that his or her activity was a substantial factor in bringing about
plaintiff’s discharge, whereas the statutory cause of action requires a plaintiff to show it
was the sole reason for his or her discharge. Clark, 709 F. Supp. 2d at 670 (citing Guy v.
Mutual of Omaha Ins. Co., 79 S.W.3d 528, 537 (Tenn. 2002)). In analyzing both
statutory and common law retaliatory discharge claims, Tennessee courts follow the
McDonnell Douglas burden-shifting framework. Smith v. Bridgestone/Firestone, Inc., 2
S.W.3d 197, 200 (Tenn. Ct. App. 1999); see also Provonsha v. Students Taking a Right
Stand, Inc., 2007 WL 4232918, at *4 (Tenn. Ct. App. Dec. 3, 2007). As with FLSA
claims, the plaintiff faces the initial burden of setting forth a prima facie case of
retaliatory discharge, after which the burden shifts to the defendant to offer a legitimate,
nondiscriminatory reason for its action. Smith, 2 S.W.3d at 200. Then, the burden shifts
back to the plaintiff to show that the defendant’s proffered reason was pretextual. Id.
The plaintiff may do this by showing (1) that the proffered reason has no basis in fact, (2)
27
that the proffered reason did not actually motivate the discharge, or (3) that the proffered
reason was insufficient to motivate the discharge. Provonsha, 2007 WL 4232918, at *4.
a. Common Law Retaliatory Discharge Claims
As to LeVan and Sims’s common law claims, plaintiffs were at-will employees
and were discharged, and, given the Court’s findings as to the plaintiffs’ prima facie
FLSA claims, the Court concludes that there is a genuine issue of material fact as to
whether plaintiffs’ complaints constituted a substantial factor in defendant’s decisions to
terminate them. Consequently, the only question at the prima facie stage is whether
plaintiffs were terminated because they “attempted to exercise a statutory or
constitutional right, or for any other reason which violates a clear public policy evidenced
by an unambiguous constitutional, statutory, or regulatory provision.” Clark, 709 F.
Supp. 2d at 670 (quoting Franklin, 210 S.W.3d at 528).
Both LeVan and Sims
complained and inquired about the legality of defendant’s pay policies. Such complaints
amount to allegations as to, or at least inquiries into, defendant’s compliance with the
FLSA. And, as mentioned, “[l]odging a complaint against an employer is among the
activities protected by FLSA.” Loyless, 2010 WL 3862883, at *6 (citations omitted).
In construing this element of the prima facie retaliatory discharge claim, the
Tennessee Supreme Court has held that the “inquiry focuses on whether some ‘important
public policy interest embodied in the law has been furthered by the whistleblowing
activity.’” Guy, 79 S.W.3d at 538 (emphasis added) (quoting Gutierrez v. Sundancer
Indian Jewelry, 868 P.2d 1266, 1273 (N.M. 1993)). In other words, “[i]t is the court’s
28
task to determine whether the whistleblowing activity that brought to light an illegal or
unsafe practice has furthered an important public policy interest.”
Hajizadeh v.
Vanderbilt Univ., 879 F. Supp. 2d 910, 925 (M.D. Tenn. 2012) (citing Guy, 79 S.W.3d at
538). More specifically, “‘[s]o long as employees’ actions are not merely private or
proprietary, but instead seek to further the public good, the decision to expose illegal or
unsafe practices should be encouraged.’” Guy, 79 S.W.3d at 538 (quoting Wagner v. City
of Globe, 722 P.2d 250, 257 (Ariz. 1986)).
The Guy court cited a Tennessee case discussing the deleterious effect that
unscrupulous insurance agents can have upon the public in finding a clear public policy
in favor of encouraging the reporting of “the derelictions of agents.” Id. Thus, the court
held that “an agent of an insurance company, who seeks to ensure compliance with the
rules and regulations governing insurance agents, cannot be discharged without being
furnished a cause of action for retaliatory discharge.” Id. Furthermore, the Tennessee
court of appeals has held that bank regulations promulgated to aid investigations of
criminal, tax, and regulatory violations implicate “weighty public concerns on the same
order of gravity as protecting consumers from insurance fraud, and preventing the
unauthorized
practice
of
law.”
VanCleave
v.
Reelfoot
Bank,
No.
W200801559COAR3CV, 2009 WL 3518211, at *6 (Tenn. Ct. App. Oct. 30, 2009)
(citations omitted).
Likewise, there is a clear public policy, embodied in the FLSA and other
legislation concerning employee rights, in favor of encouraging employees and others to
29
ensure that employers comply with laws governing employment.
“Employees are
guaranteed certain rights by the FLSA, and public policy requires that these rights not be
compromised.” Bartlow v. Grand Crowne Resorts of Pigeon Forge, No. 3:11-CV-400,
2012 WL 6707008, at *1 (E.D. Tenn. Dec. 26, 2012) (quoting Crawford v. Lexington–
Fayette Urban County Gov., No. 06–299–JBC, 2008 WL 4724499, at *2 (E.D. Ky. Oct.
23, 2008)). 4 Defendant emphasizes that its pay policy did not violate the FLSA and
therefore argues that plaintiffs’ complaints merely pertained to Sears’ internal policies,
rather than a public concern. Yet, the important public interest furthered by the FLSA
and the common law of retaliatory discharge is that employees have the right to lodge
complaints and inquire as to the legality of employment practices, even if the practices
are ultimately determined to be in compliance with the law. Otherwise, employees would
be forced to guess whether the practice in question would ultimately be deemed illegal,
and if their judgment was wrong, their continued employment would be at the mercy of
4
To underscore that the aim of the FLSA was to advance the public good, the impetus for
the FLSA was described as follows:
The Congress finds that the existence, in industries engaged in commerce
or in the production of goods for commerce, of labor conditions
detrimental to the maintenance of the minimum standard of living
necessary for health, efficiency, and general well-being of workers (1)
causes commerce and the channels and instrumentalities of commerce to
be used to spread and perpetuate such labor conditions among the workers
of the several States; (2) burdens commerce and the free flow of goods in
commerce; (3) constitutes an unfair method of competition in commerce;
(4) leads to labor disputes burdening and obstructing commerce and the
free flow of goods in commerce; and (5) interferes with the orderly and
fair marketing of goods in commerce.
29 U.S.C. § 202(a).
30
their employer. In other words, this right undoubtedly furthers the public good as it
permits employees to redress their grievances without fearing that they will lose their
jobs as a result. Moreover, such complaints further the public good by serving as a
catalyst in obviating oppressive or illegal employment practices.
Therefore, the Court finds that LeVan and Sims have presented prima facie cases
under Tennessee common law for retaliatory discharge, as they have proffered sufficient
evidence to create a genuine issue of material fact as to whether they were terminated
because they attempted to exercise a statutory right, the FLSA right to lodge a complaint
against one’s employer, that furthers the clear public policy of encouraging employees to
report illegal or unsavory employer conduct. Clark, 709 F. Supp. 2d at 670 (quoting
Franklin, 210 S.W.3d at 528).
As for the final two stages of the McDonnell Douglas framework, because this
inquiry has already been detailed in the Court’s analysis of the FLSA claims, the Court
will not repeat it here. Summarily, the Court finds that defendant has articulated a
legitimate, nondiscriminatory reason for each plaintiff’s termination, and both plaintiffs
have proffered sufficient evidence to create a genuine issue of material fact as to whether
those reasons are pretextual. Thus, granting summary judgment would be improper.
b. LeVan’s TPPA Claim
Finally, the Court must consider LeVan’s TPPA claim.
As noted, the key
difference between the TPPA and the common law cause of action for retaliatory
discharge is that the TPPA requires the plaintiff to show that his or her protected activity
31
was the sole reason for his or her termination. A “plaintiff has indeed a formidable
burden in establishing elements number two and four of the cause of action.” Darnall v.
AN Homecare, Inc., No. 01-A-01-9807-CV00347, 1999 WL 346225, at *5 (Tenn. Ct.
App. June 2, 1999). But, courts have held that “the first three elements of statutory
retaliatory discharge are identical to the elements of the common-law claim.” Smith v.
C.R. Bard, Inc., 730 F. Supp. 2d 783, 797 (M.D. Tenn. 2010) (citing Bright v. MMS
Knoxville, Inc., No. M2005–2668–COA–R3–CV, 2007 WL 2262018, at *3 (Tenn. Ct.
App. Aug. 7, 2007)). Concerning the second element of a prima facie TPPA violation,
“[t]he Tennessee Supreme Court has stated that the TPPA’s ‘protection extends to
employees who have reasonable cause to believe a law, regulation, or rule has been
violated or will be violated, and in good faith report it.’” Gore v. Chardonnay Dialysis,
Inc., No. 3:11-CV-00808, 2012 WL 3552882, at *8 (M.D. Tenn. Aug. 16, 2012) (citing
Mason v. Seaton, 942 S.W.2d 470, 472 (Tenn. 1997)). Accordingly, and given the
Court’s previous findings, although defendant’s pay policy was not illegal, the Court
finds that there is a genuine issue of material fact as to whether LeVan had reasonable
cause to believe that defendant was violating the law and reported such in good faith.
Thus, the Court finds that LeVan has set forth a prima facie case as to the first three
elements.
Element four requires that plaintiffs show an exclusive causal relationship between
their protected activity and the adverse employment action. Clark, 709 F. Supp. 2d at
670 (citing Franklin, 210 S.W.3d at 528). In other words, LeVan must show that his
32
complaints were the sole reason for his discharge. Id. (citing Guy, 79 S.W.3d at 537).
Defendant has offered evidence that it had the authority to fire LeVan based on his
violation of company policy, and it is undisputed that LeVan violated company policy,
regardless of whether he did so knowingly. Accordingly, the Court finds that there is not
a genuine issue of material fact as to whether his complaint was the exclusive cause of his
termination. See Caruso v. St. Jude Children’s Research Hosp., Inc., 215 F. Supp. 2d
930, 938 (W.D. Tenn. 2002) (holding that because “[the defendant] . . . established that
there were reasons other than, or in addition to, [the plaintiff’s] complaints for her
discharge, [the plaintiff] . . . failed to meet the stringent standard of showing that her
complaints were the sole reason for her termination”).
Therefore, the Court will grant defendant’s summary judgment motion as to
LeVan’s TPPA claim.
III.
Conclusion
For all of the reasons set forth herein, defendant’s motion for summary judgment
as to LeVan’s causes of action [Doc. 36] is hereby GRANTED in part and DENIED in
part. Defendant’s motion for summary judgment as to Sims’s causes of action [Doc. 38]
is hereby DENIED. It is hereby ORDERED that LeVan’s claim against defendant
pursuant to Tenn. Code Ann. § 50-1-304 be DISMISSED.
IT IS SO ORDERED.
s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE
33
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