Russell v. Kloeckner Metals Corporation

Filing 33

MEMORANDUM. Signed by District Judge Todd J. Campbell on 4/18/14. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(tmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
LORENZO RUSSELL
v.
KLOECKNER METALS CORP.

)
)
) NO. 3-13-0316
) JUDGE CAMPBELL
)
MEMORANDUM

Pending before the Court is Defendant’s Motion for Summary Judgment (Docket No. 18).
For the reasons stated herein, Defendant’s Motion is DENIED.
FACTS
Plaintiff is a former employee of Defendant Kloeckner Metals. Plaintiff brings this action
pursuant to the Fair Labor Standards Act (“FLSA”), alleging that Defendant retaliated against
Plaintiff because of his complaints, which were protected activity under the FLSA.
Plaintiff contends that he worked in Defendant’s Murfreesboro location as a machine
operator. He asserts that on September 11, 2012, all Murfreesboro plant employees were called into
a meeting during the lunch hour when employees typically were off the clock. Plaintiff avers that
later that day, Plaintiff contacted a human resources professional at Defendant’s Cincinnati location
and reported that he and other hourly, non-exempt workers had been required to attend a plant
meeting off the clock.
Plaintiff alleges that the next day, September 12, 2012, Defendant retaliated against him for
making this report by posting a sign that employees would no longer be allowed to dump
landscaping debris on Defendant’s property, a practice in which Plaintiff had participated for six or
seven years. Plaintiff claims that, on September 13, 2012, he discussed with both his manager of
plant operations, Michael Drake, and Defendant’s president of the southern region, Joey Johnson,

about being required to attend a meeting off the clock. Plaintiff asserts that he also told Johnson that
he felt as though he had been retaliated against with the landscaping debris posting. Plaintiff claims
that Johnson responded by saying, “If you are so unhappy, why don’t you leave?”
Plaintiff avers that, because of his complaints, he and the other hourly, non-exempt
employees eventually were paid for the time they were required to attend the meeting. Plaintiff
alleges that, on October 31, 2012, Johnson made the decision to “lay him off” and Defendant fired
Plaintiff. Plaintiff contends that his firing was in retaliation for his complaining about Defendant’s
unlawfully requiring its hourly, non-exempt employees to attend a meeting without being paid.
Defendant has moved for summary judgment on Plaintiff’s claims.
SUMMARY JUDGMENT
Summary judgment is appropriate where there is no genuine issue as to any material fact and
the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Pennington v. State
Farm Mut. Automobile Ins. Co., 553 F.3d 447, 450 (6th Cir. 2009). The party bringing the summary
judgment motion has the initial burden of informing the Court of the basis for its motion and
identifying portions of the record that demonstrate the absence of a genuine dispute over material
facts. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003). The moving party may satisfy this
burden by presenting affirmative evidence that negates an element of the non-moving party’s claim
or by demonstrating an absence of evidence to support the nonmoving party’s case. Id.
In deciding a motion for summary judgment, the Court must review all the evidence, facts
and inferences in the light most favorable to the nonmoving party. Van Gorder v. Grand Trunk
Western Railroad, Inc., 509 F.3d 265, 268 (6th Cir. 2007). The Court does not, however, weigh the
evidence, judge the credibility of witnesses, or determine the truth of the matter. Anderson v.

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Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court determines whether sufficient evidence
has been presented to make the issue of fact a proper jury question. Id. The mere existence of a
scintilla of evidence in support of the nonmoving party’s position will be insufficient to survive
summary judgment; rather, there must be evidence on which the jury could reasonably find for the
nonmoving party. Rodgers, 344 F.3d at 595.
FLSA RETALIATION
Under the Fair Labor Standards Act, it is unlawful for any person to discharge or in any other
manner discriminate against any employee because that employee has filed a complaint or instituted
or caused to be instituted any FLSA proceeding or has testified or is about to testify in any such
proceeding. 29 U.S.C. § 215(a)(3). To establish a prima facie case of retaliation, the employee must
prove that (1) he engaged in a protected activity under the FLSA; (2) his exercise of the protected
right was known by the employer; (3) thereafter, the employer took an adverse employment action
against him; and (4) there was a causal connection between the protected activity and the adverse
employment action. Adair v. Charter County of Wayne, 452 F.3d 482, 489 (6th Cir. 2006).
If the employee establishes a prima facie case, the burden then shifts to the employer to set
forth a legitimate, non-retaliatory reason for the adverse employment action. Id. If the employer
carries that burden, then the employee must prove that the employer’s proffered reason was not the
true reason but merely a pretext for retaliation. Id.
Defendant’s first argument is that Plaintiff cannot show that he engaged in protected activity
under the FLSA. Defendant asserts that Plaintiff’s comments to management concerning being paid
for the lunch meeting did not give Defendant fair notice that a grievance had been lodged under the
FLSA and also that Plaintiff presented a question or inquiry, not a complaint or grievance.

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The Supreme Court has held 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 the FLSA. Kasten v. Saint-Goban Performance Plastics Corp., 131
S.Ct. 1325, 1335 (2011). The fair notice does not necessarily have to be in writing. Id. The
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. Id.
The parties disagree about the factual aspects of Plaintiff’s alleged complaints. Defendant
argues that Plaintiff merely inquired about lunch breaks and Tennessee law, but Defendant’s human
resources officer testified that Plaintiff called her with a concern that he would not be paid for a
meeting they held at lunch and that he expressed a concern to her that he was not going to get paid.
Docket No. 24, ¶ 18. Defendant claims that Plaintiff testified that he was not concerned about being
paid for the lunch meeting as of September 13, but Plaintiff shows how Defendant’s assertion is
taken out of context. Docket No. 24, ¶ 24. Plaintiff has also stated that he complained to both
Johnson (President of the Southern Region) and Drake (Manager of Plant Operations) about the
concern he raised to human resources. There are issues of fact as to whether Plaintiff’s comments
can be construed as complaints.
In addition, Plaintiff has also presented evidence sufficient to create a genuine issue of
material fact as to whether he engaged in protected activity when he complained about Defendant’s
alleged “retaliation” of not allowing him to dump landscaping debris on Defendant’s property.
There being genuine issues of material fact as to what Plaintiff’s alleged protected activity
actually was, there are certainly questions for a jury about whether that activity gave fair notice to
a reasonable employer of Plaintiff’s assertion of FLSA rights. Defendant’s assertion that Plaintiff’s
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complaints were not objectively reasonable and made in good faith also raises factual issues which
are not appropriately decided on a summary judgment motion.
Defendant next contends that Plaintiff is unable to show that he was subject to an adverse
employment action in retaliation for his protected activity. The Court agrees that enforcing the antidumping policy was not an adverse employment action,1 but there is no question that being fired is
an adverse employment action.
Defendant argues that Plaintiff cannot show a causal connection between his protected
activity and the decision to terminate his employment. Plaintiff contends that immediately after he
complained about the lunch meeting, Defendant changed its long-standing policy of allowing him
to dump landscaping debris on Defendant’s property and, within less than two months, Defendant
fired him. Plaintiff also asserts that Mr. Johnson responded to Plaintiff’s complaint by saying, “If
you are so unhappy, why don’t you leave?”
In order to establish a causal connection between the protected conduct and the adverse
action, a plaintiff must produce enough evidence of a retaliatory motive such that a reasonable juror
could conclude that the adverse action would not have occurred but for his engagement in protected
activity. Dye v. Office of the Racing Commission, 702 F.3d 286, 205 (6th Cir. 2012). A causal link
can be shown through direct or circumstantial evidence, including showing temporal proximity
between engaging in protected activity and suffering an adverse employment. Id.

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This finding does not preclude the relevance of this “new” enforcement of the
anti-dumping policy to Plaintiff’s allegation of retaliation. Incidents of misconduct that do not
rise to the level of an adverse employment action may be relevant at trial to show a pattern of
mistreatment on the job based on plaintiff’s protected activities. Dye v. Office of the Racing
Commission, 702 F.3d 286, 205 (6th Cir. 2012).
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Plaintiff alleges that the decisionmakers, including the human resources professional in
Cincinnati, Mr. Johnson, Mr. Drake and Mr. Fitzgerald (his supervisor) all knew about his protected
activity. Plaintiff contends that he was the only production employee fired, despite his years of
experience and his ability to operate all machines. Defendant argues that Plaintiff was terminated
by Mr. Johnson as part of a reduction in force because his position was eliminated. The Court finds
that there is a genuine issue of material fact as to the causation element and, therefore, this issue also
must be presented to a trier of fact.
Finally, Defendant asserts that Plaintiff cannot show that its decision to fire him was
pretextual. In order to show pretext, Plaintiff must establish that Defendant’s legitimate, nondiscriminatory reason for its action was not the true reason for its action but merely a pretext for
retaliation. Adair v. Charter County of Wayne, 452 F.3d 482, 489 (6th Cir. 2006).
For the reasons stated above, the Court finds that there are genuine issues of material fact
with regard to both Plaintiff’s and Defendant’s actions concerning the lunch meeting, the antidumping policy, and Plaintiff’s firing. A jury will have to determine whether Plaintiff’s allegedly
protected activity caused Defendant to retaliate against him.
CONCLUSION
Defendant’s Motion for Summary Judgment (Docket No. 18) is DENIED.
IT IS SO ORDERED.

___________________________________
TODD J. CAMPBELL
UNITED STATES DISTRICT JUDGE

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