White v Denton County, et al

Filing 95

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 57 MOTION for Summary Judgment filed by Denton County. Signed by Magistrate Judge Don D. Bush on 8/25/2015. (baf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
TAYLOR WHITE, on behalf of himself
and on behalf of others similarly situated

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Plaintiffs,
VS.
DENTON COUNTY
Defendant.

Case No. 4:13cv13

REPORT AND RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE
Now before the Court is Defendant’s Motion for Summary Judgment (Dkt. 57). As set forth
below, the Court recommends that the motion be GRANTED and that Plaintiff take nothing by his
claims.
BACKGROUND
The facts giving rise to this suit are fairly straightforward. Plaintiff Taylor White was hired
as a detention officer for the Denton County Sheriff’s Office in December 2006. In January 2013,
while still employed by the Denton County Sheriff’s Office, Plaintiff filed this suit against his
employer alleging violations of the overtime pay provisions of the Fair Labor Standards Act (FLSA),
29 U.S.C. § 201 et seq. Plaintiff alleged that the County failed to pay him monetary overtime pay,
and instead compensated him with the granting of compensatory time, in violation of the FLSA.
After he filed this suit, Plaintiff was terminated from employment. Defendant alleges that
Plaintiff was terminated for his use of excessive force against an inmate. Plaintiff is alleged to have

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kicked milk crates out from underneath an inmate he was supervising, causing the inmate to fall to
the ground and complain of pain. Plaintiff, on the other hand, argues that his termination was
retaliation for his filing of his FLSA suit and that the reasons given for his termination were purely
pretextual. Plaintiff subsequently amended his complaint in this action to add claims of retaliation
under the FLSA.
In his Second Amended Complaint, Plaintiff alleged three violations of the FLSA’s pay
provisions: (1) forced compensatory time in lieu of straight time; (2) forced compensatory time in
lieu of overtime pay; and (3) failure to timely pay both straight time and overtime pay. Dkt. 29.
Plaintiff also asserted a claim for retaliation under the FLSA, sought declaratory relief under the
Declaratory Judgment Act, 28 U.S.C. §2201, and requested class certification of similarly situated
employees.
On March 28, 2014, the Court dismissed Plaintiff’s claims of forced compensatory time in
lieu of straight time, Plaintiff’s failure to pay straight time claim, and Plaintiff’s claim for declaratory
judgment as to the hours worked between 81 and 86 hours. See Dkt. 53 (adopting Dkt. 45). Not
satisfied that there were individuals similarly situated to Plaintiff, the Court also denied conditional
certification of Plaintiff’s proposed class. Id.
The Court found, however, that Plaintiff had sufficiently stated his FLSA retaliation claim
as well as his claims of forced compensatory time in lieu of overtime pay, his failure to pay overtime
pay claim, and his claim for declaratory judgment regarding payment for hours worked in excess of
86 hours. Id. The Court thus permitted those claims to proceed. Id.

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Defendant has filed a motion for summary judgment regarding Plaintiff’s remaining claims.
In its motion, Defendant argues that Plaintiff’s remaining FLSA overtime pay claims, as well as his
corresponding claim for declaratory relief, fail as a matter of law because the competent summary
judgment evidence makes it clear that Plaintiff agreed to be compensated with compensatory time
for overtime worked. Defendant also argues that Plaintiff’s FLSA retaliation claim fails because
Plaintiff cannot establish a prima facie case of retaliation and that, even if he could establish a prima
facie case of retaliation, the County has offered a legitimate nonretaliatory reason for terminating
him and Plaintiff cannot show that this reason is pretextual. Plaintiff has filed a response in
opposition, arguing there is a fact issue as to his remaining claims. See Dkts. 71 & 73. The Court
addresses the parties’ arguments below.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when, viewing the evidence and all justifiable inferences
in the light most favorable to the non-moving party, there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Hunt v. Cromartie,
526 U.S. 541, 549, 119 S. Ct. 1545, 143 L. Ed.2d 731 (1999). The appropriate inquiry is “whether
the evidence presents a sufficient disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52, 106 S. Ct. 2505, 91 L. Ed.2d 202 (1986).
The party moving for summary judgment has the initial burden to prove there are no genuine
issues of material fact for trial. Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th
Cir. 2001). In sustaining this burden, the movant must identify those portions of pleadings,

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depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2553, 91 L. Ed.2d 265 (1986). The moving party,
however, “need not negate the elements of the nonmovant’s case.” Little v. Liquid Air Corp., 37
F.3d 1069, 1075 (5th Cir. 1994) (en banc). The movant’s burden is only to point out the absence of
evidence supporting the nonmoving party’s case. Stults v. Conoco, Inc., 76 F.3d 651, 655 (5th Cir.
1996).
In response, the nonmovant “may not rest upon mere allegations contained in the pleadings,
but must set forth and support by summary judgment evidence specific facts showing the existence
of a genuine issue for trial.” Ragas v. Tennessee Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir.
1998) (citing Anderson, 477 U.S. at 255-57, 106 S. Ct. at 2513-14). Once the moving party makes
a properly supported motion for summary judgment, the nonmoving party must look beyond the
pleadings and designate specific facts in the record to show that there is a genuine issue for trial.
Stults, 76 F.3d at 655. The citations to evidence must be specific, as the district court is not required
to “scour the record” to determine whether the evidence raises a genuine issue of material fact. E.D.
TEX. LOCAL R. CV-56(d). Neither “conclusory allegations” nor “unsubstantiated assertions” will
satisfy the nonmovant’s burden. Stults, 76 F.3d at 655.
EVIDENCE PRESENTED
Defendant offers the following evidence in support of its Motion for Summary Judgment:
(1) Exhibit 1: the Affidavit of Sheriff William Travis with exhibits; (2) Exhibit 2: the Affidavit of
Chief Deputy Rex George with exhibit; (3) Exhibit 3: the Affidavit of Lieutenant Joseph Connolly

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with exhibits; (4) Exhibit 4: the Affidavit of Mandy Smithers with exhibits; (5) Exhibit 5: the
Affidavit of Amy Phillips with exhibits; (6) Exhibit 6: excerpts from the deposition of Taylor White;
(7) Exhibit 7: excerpts from the deposition of William Travis; (8) Exhibit 8: excerpts from the
deposition of Ray Davenport; (9) Exhibit 9: the Affidavit of Lisa Uhlich with exhibits; and (10)
Exhibit 10: Plaintiff’s Objections and Responses to Defendant’s First Set of Interrogatories. Dkt.
57-1S57-11.
In response, Plaintiff offers: (1) Exhibit 1: an email from Sheriff Travis; (2) Exhibit 2: Notice
of Disciplinary Action to Taylor White; (3) Exhibit 3: Denton County Internal Affairs Statement;
(4) Exhibit 4: documents from the investigation file of Officer EW; (5) Exhibit 5: documents from
the investigation file of Officer MM; (6) Exhibit 6: documents from the investigation file of Officer
JG; (7) Exhibit 7: documents from the investigation file of Officer NH; (8) Exhibit 8: documents
from the investigation file of Officer RG; (9) Exhibit 9: documents from the investigation file of
Officer WB; (10) Exhibit 10: documents from the investigation file of Officer TS; (11) Exhibit11:
documents from the investigation file of Officer CM; (12) Exhibit 12: documents from the
investigation file of Officer AT; (13) Exhibit13: documents from the second investigation file of
Officer AT; (14) Exhibit 14: documents from the investigation file of Officer RB; (15) Exhibit15:
documents from the investigation file of Officer BW; (16) Exhibit16: excerpts from the deposition
of Roy Davenport; (17) Exhibit 17: excerpts from the deposition of William Travis; (18) Exhibit 18:
Denton County Sheriffs Office Internal Affairs and Investigation Manual; (19) Exhibit 19: affidavit
of Plaintiff; and (20) Exhibit 20: videotape of EW incident. See Dkt. 71-1-6; Dkt. 73 (sealed
exhibits).

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The Court now addresses whether the summary judgment evidence creates a fact issue as to
Plaintiff’s remaining claims.
ANALYSIS
Forced Compensatory Time in Lieu of Overtime Pay (for hours in excess of 86)
In his remaining FLSA overtime pay claims (under counts 2, 3, and 4), Plaintiff claims that
he was not properly or timely paid cash at time-and-a-half his regular rate of pay for hours worked
in excess of 86 hours. Plaintiff further seeks declaratory relief that, for any 14-day work period in
which he worked in excess of 86 hours, he was not timely and properly paid cash for overtime hours
worked in excess of 86 hours. The County responds that any overtime was properly paid in
compensatory time under the County’s Policy.
Denton County’s policy for “Compensation of Overtime Worked: Non-Exempt Law
Enforcement” (“the Policy”) provides that “[o]vertime will be paid in either compensatory time or
pay when required” and “[h]ours worked in excess of eighty-six (86) hours shall be compensated on
a time and a half basis.” Dkt. 28-1 at 2. Under 29 U.S.C. §207(o):
(o) Compensatory time (1) Employees of a public agency which is a State, a political
subdivision of a State, or an interstate governmental agency may receive, in
accordance with this subsection and in lieu of overtime compensation, compensatory
time off at a rate not less than one and one-half hours for each hour of employment
for which overtime compensation is required by this section.
29 U.S.C. §207(o)(1).
Plaintiff acknowledges the exception set forth in Section 207(o) but claims that there is no
record of an agreement between him and the County as required by Section 207(o)(2) which
provides:

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(2) A public agency may provide compensatory time under paragraph (1) only (A)
pursuant to – (I) applicable provisions of a collective bargaining agreement,
memorandum of understanding, or any other agreement between the public agency
and representatives of such employees; or (ii) in the case of employees not covered
by subclause (ii), an agreement or understanding arrived at between the employer
and employee before the performance of the work....
29 U.S.C. § 207(o)(2)(A) (emphasis added).
In order for the exception to apply, “[t]he employer must arrive at an agreement or
understanding with employees that compensatory time will be granted instead of cash
compensation.” Christensen v. Harris County, 529 U.S. 576, 579, 120 S. Ct. 1655, 1658 - 59 (2000)
(citing 29 U.S.C. § 207(o)(2); 29 C.F.R. § 553.23 (1999)). The Supreme Court has noted that
“[s]uch an agreement or understanding need not be formally reached and memorialized in writing,
but instead can be arrived at informally, such as when an employee works overtime knowing that the
employer rewards overtime with compensatory time.” Id. at 579, n.1. As further explained by the
Federal Regulations:
An agreement or understanding may be evidenced by a notice to the employee that
compensatory time off will be given in lieu of overtime pay. In such a case, an
agreement or understanding would be presumed to exist for purposes of
section 7(o) with respect to any employee who fails to express to the employer an
unwillingness to accept compensatory time off in lieu of overtime pay. However,
the employee’s decision to accept compensatory time off in lieu of cash overtime
payments must be made freely and without coercion or pressure.
29 C.F.R. § 553.23(a)(1).
Plaintiff’s complaint alleges that “no such agreement for the granting of compensatory time
in lieu of cash has been reached between Defendant and Plaintiffs before the performance of work.
Nor is there any record of the existence of any such agreement.” Dkt. 29 at ¶29. The summary

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judgment record indicates otherwise.
In its motion, Defendant submits the Affidavit of Amy Phillips, Director of Human
Resources for Denton County, stating that when a new employee is hired, he or she receives and
acknowledges receipt of the County’s Employee Handbook. Dkt. 57-6 at 2-3. Attached to the
affidavit are a January 10, 2007 Employee Acknowledgment form signed by Plaintiff stating that he
had received and agreed to read and follow the Denton County Handbook, a copy of Denton County
Personnel Policy 3.3 for non-exempt employees, and a copy of the Denton County Handbook in
effect at the time of Plaintiff’s employment. Dkt. 57-6. The Handbook contains the following
provision:
OVERTIME PAY/COMPENSATORY TIME
Exempt Employees
Although the Fair Labor Standards Act does not require overtime payment to exempt
employees, Denton County grants compensatory time to exempt employees on a
straight time basis for each hour worked in excess of forty (40) hours per week.
Exempt employees will not be paid for compensatory time upon termination.
Non-Exempt Employees
Non-exempt employees shall be compensated on a time and a half basis, for all
overtime worked. Overtime compensation may be in the form of monetary payment
or compensatory time.
Please refer to Personnel Policies #3.3 & #3.4 for details on overtime pay or
compensatory time.
Dkt. 57-6 at 46. As noted above, Plaintiff signed an acknowledgment form stating that he “agree[d]
to read and follow” the Handbook during his employment. Dkt. 57-6 at 5. Plaintiff also signed a
“Denton County Sheriff’s Officer Personnel Manual Notification Form” noting where he could
locate electronic and hard copies to the manual and acknowledging that it was his responsibility to

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read and be familiar with the policies, procedures, and rules in it. Dkt. 57-4. Defendant further cites
to deposition testimony by Plaintiff agreeing that, assuming he received a copy of the Handbook, he
would have been informed by the language in it that “overtime compensation could be in the form
of monetary payment or compensatory time.” Dkt. 57-7 at 10-11. Plaintiff also conceded that the
County’s personnel policy contained details on overtime pay and compensatory pay. Id.
As part of its summary judgment evidence, the County also cites to a May 27, 2009 email
to County employees, including Plaintiff, setting forth information about the County’s modification
to the manner in which it calculated accrued compensatory time. Dkt. 57-5 at 79. Plaintiff agrees
that this email informed employees of changes to how compensatory overtime was going to be
calculated and that the email would have made him aware of this as of May 27, 2009. Dkt. 57-7 at
14.
In his summary judgment response, Plaintiff cites generally to his affidavit for the proposition
that “there is a fact issue over whether or not Plaintiff agreed to accept compensatory time in lieu of
overtime pay.” Dkt. 71 at 13. Plaintiff’s affidavit states that he never agreed to accept compensatory
time “in lie [sic] of overtime pay.” Dkt. 73-14 at 1. Plaintiff further states that, in August 2012, he
sent emails to the Denton County Treasurer regarding the manner in which he was being paid. Id.1
In his deposition, Plaintiff conceded that this correspondence was the first time he complained about
how overtime compensation time was being calculated. Dkt. 57-7 at 16-17. In turn, Plaintiff argues
that, at a minimum, there is a fact issue with respect to compensatory time after August 2012.

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Neither Plaintiff’s response nor his affidavit cite to the portion of the record containing
such correspondence with the County Treasurer. See generally Dkt. 71 at 14; 73-14.
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Having reviewed Defendant’s voluminous summary judgment evidence and Plaintiff’s
summary judgment response, the Court finds that Plaintiff has failed to demonstrate a fact issue as
to his alleged lack of agreement to be paid in compensatory overtime time from the time he was
hired until August 2012. Primarily, the Court notes that Plaintiff’s citations to the summary
judgment record in regard to his overtime pay claim lack the consistency and specificity
contemplated of the non-movant in summary judgment proceedings. The Court is not required to
“scour the record” to determine whether the evidence in the record raises a genuine issue of material
fact. E.D. TEX. LOCAL R. CV-56(d). Moreover, the evidence specifically cited by Defendant shows
repeated notice to Plaintiff – and acknowledgment thereof by Plaintiff – that he could be paid with
either compensatory time or monetary pay.
The only evidence in the record evidencing any complaint by Plaintiff regarding the manner
in which overtime pay was compensated or paid is his affidavit and deposition testimony regarding
the August 2012 email to the County Treasurer, Cindy Brown. See Dkt. 73-14; Dkt. 57-7 at 19. And
Plaintiff has not even cited to the email in the summary judgment record.
Indeed, there is no evidence in the record to demonstrate that he expressed any unwillingness
to accept the compensatory time in lieu of pay until August 2012 at the earliest. Thus, the agreement
or understanding is presumed to exist under Section 7(o), see 29 C.F.R. § 553.23(a)(1). Plaintiff has
offered no summary judgment evidence to rebut that. Nor has Plaintiff offered any evidence that any
acceptance by him of any compensatory time off in lieu of cash overtime payments prior to August
2012 was not made freely and without coercion or pressure. Id. There is no fact issue before the
Court, and summary judgment should be granted as to any overtime compensation Plaintiff seeks

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for time prior to August 2012.
This leaves for resolution Plaintiff’s claims regarding any overtime worked after August
2012, when Plaintiff claims that he first complained to the City Treasurer and arguably no longer
agreed to be compensated in compensatory overtime pay. Defendant has argued that Plaintiff’s
allegation that the Policy was more than three years old, coupled with Plaintiff’s concession that he
received compensatory time under the Policy should determine all overtime claims. The Court
agrees that Plaintiff may have waived his claim to any overtime pay – including any overtime
accrued after his first complaint in 2012 – by virtue of his own conduct. However, without any
authority directly on point and out of an abundance of caution, the Court reviews the record to
determine whether Plaintiff has created a fact issue as to any overtime pay accrued after August
2012.
An employee bringing an action for unpaid overtime compensation must first demonstrate
by a preponderance of the evidence: (1) that there existed an employer-employee relationship during
the unpaid overtime periods claimed; (2) that the employee engaged in activities within the coverage
of the FLSA; (3) that the employer violated the FLSA’s overtime wage requirements; and (4) the
amount of overtime compensation due. Johnson v. Heckmann Water Res. (CVR), Inc., 758 F.3d 627,
630 (5th Cir. 2014). “An employee bringing an action pursuant to the FLSA, based on unpaid
overtime compensation, must first demonstrate that she has performed work for which she alleges
she was not compensated.” Harvill v. Westward Commc’ns, L.L.C., 433 F.3d 428, 441-42 (5th Cir.
2005) (citing Anderson v. Mount Clemens Pottery Co., 328 U.S. 680, 687-88, 66 S. Ct. 1187, 90 L.
Ed. 1515 (1946)).

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Even assuming the County could be found to have violated the overtime wage requirements
by virtue of Plaintiff’s purported revocation of his consent to be paid in time rather than money in
accordance with 29 U.S.C. §207(o), Plaintiff has failed to make any specific allegations or present
any summary judgment evidence to show the amount of overtime compensation he contends is due.
Notably, Plaintiff’s summary judgment affidavit is silent as to any overtime pay he claims
he is owed after sending the August 2012 email. Indeed, Plaintiff cites to no summary judgment
evidence to demonstrate that he, in fact, performed overtime work for which he was improperly
compensated from August 2012 until his termination in April 2013. Harvill, 433 F.3d at 441-42
(affirming grant of summary judgment for employer defendant where the plaintiff offered no factual
allegations at all to substantiate her claim, presented no evidence of the amount or the extent of hours
she worked without compensation, and presented no evidence that her employer was aware that she
worked overtime hours without compensation). “[A]n unsubstantiated and speculative estimate of
uncompensated overtime does not constitute evidence sufficient to show the amount and extent of
that work as a matter of just and reasonable inference.” Ihegword v. Harris Cnty. Hosp. Dist., 555
F. App’x 372, 375 (5th Cir. 2014) (affirming grant of summary judgment in favor of employer on
a plaintiff’s FLSA claim) (internal citations omitted).
Here, Plaintiff does not even offer summary judgment evidence to show an unsubstantiated
estimate of any overtime worked. Plaintiff has failed to raise a genuine issue of material fact

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regarding the amount of uncompensated overtime pay he seeks,2 and summary judgment is proper
for Defendant as to Plaintiff’s claims of forced compensatory time in lieu of overtime pay and failure
to pay overtime pay.
Because those claims fail and because, as noted in Defendant’s reply, Plaintiff makes no
mention of – and cites to no summary judgment evidence in support of – his claim for declaratory
relief, Plaintiff has failed to sustain his burden as to his claim for declaratory judgment regarding
payment for hours worked in excess of 86 hours. There is no fact issue as to that claim either.
Summary judgment should be granted for Defendant as to Plaintiff’s remaining FLSA
overtime pay claims under counts 2, 3 and 4 regarding forced compensatory time in lieu of overtime
pay for hours exceeding 86. Plaintiff should take nothing by those claims.
Retaliation
This leaves Plaintiff’s claim of retaliation under Count 5 of his Second Amendment
Complaint. In his retaliation claim under 29 U.S.C. § 215(a), Plaintiff alleges that he was terminated
from employment on or about April 23, 2013 in retaliation for the filing of this lawsuit and otherwise
inquiring into Defendant’s alleged overtime and wage violations.
Retaliation claims under the FLSA are subject to the McDonnell Douglas analytical
framework. To make a prima facie showing of FLSA retaliation, Plaintiff must show: (1) his

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The Court notes that this is equally the case for the time worked before August 2012.
There is simply nothing in the record to show the overtime pay for which Plaintiff seeks
compensation.

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participation in protected activity under the FLSA; (2) an adverse employment action; and (3) a
causal link between the activity and the adverse action. Hagan v. Echostar Satellite, L.L.C., 529
F.3d 617, 624 (5th Cir. 2008). If Plaintiff meets this burden, the burden shifts to Defendant to
articulate a legitimate, non-discriminatory reason for its decision, and the burden then shifts back
to Plaintiff to demonstrate that the proffered reason is a pretext for discrimination. Id. “The FLSA
does not require that a plaintiff successfully prove a claim for overtime under the FLSA, but merely
that the plaintiff prove he was engaged in a protected activity.” Little v. Technical Specialty Prods.,
LLC, 940 F. Supp.2d 460, 478 (E.D. Tex. 2013). Thus, the Court proceeds with the retaliation
analysis despite finding that Plaintiff should take nothing by his FLSA overtime claims.
Prima Facie Case
In its motion for summary judgment, Defendant argues that Plaintiff cannot establish a prima
facie case of retaliation. Defendant does not dispute that Plaintiff engaged in a statutorily protected
activity or that suffered an adverse employment action. However, Defendant argues that Plaintiff
simply cannot demonstrate any causal connection between his termination and his complaints in this
lawsuit. Under current Fifth Circuit precedent, “in retaliation cases the employee must prove that
the adverse employment action would not have occurred ‘but for’ plaintiff’s protected activity.”
Kanida v. Gulf Coast Med. Personnel LP, 363 F.3d 568, 580 (5th Cir. 2004).
“To satisfy the causation prong, a plaintiff must show that the decisionmaker who committed
the adverse employment action was aware of the plaintiff’s protected activity.” Cole v. City of Port

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Arthur, Texas, 2014 WL 3513366, at *14 (E.D. Tex. July 16, 2014) (internal citations omitted). It
is undisputed that Denton County Sheriff William Travis (the elected official holding the power to
hire and fire detention officers subject to civil service review) was aware of the existence of
Plaintiff’s lawsuit against the County at the time of his termination. Defendant argues that there is
no evidence that this knowledge was in any way related to Plaintiff’s termination. Nonetheless,
there is evidence that Travis was aware of Plaintiff’s suit prior to his termination.
Plaintiff further argues that the fact that he was terminated a mere four months after this suit
was filed is evidence of a causal link. Plaintiff is correct in his assertion that “[c]lose timing between
an employee’s protected activity and an adverse action against him may provide the ‘causal
connection’ required to make out a prima facie case of retaliation.” Swanson v. Gen. Servs. Admin.,
110 F.3d 1180, 1188 (5th Cir. 1997). And, as to temporary proximity, the Court finds that Plaintiff
has offered sufficient summary judgment evidence to create a fact issue.3
In its analysis as to Plaintiff’s prima facie showing, the Court is mindful that “the
requirement that a plaintiff show at the prima facie case stage a ‘causal link’ between a protected
activity and an adverse employment action is ‘much less stringent’ than the ‘but-for’ causation that
a jury must find.” Miller v. Metrocare Servs., 2015 WL 477233, at *5 (N.D. Tex. 2015) (citing
3

Defendant has argued that the time between the adverse action and protected activity
proximity should be measured from the date of Plaintiff’s first complaint (August 2012) until his
termination (April 2013) rather than the date of filing suit (January 2013). Because the Court
finds that no fact issue has been demonstrated as to pretext, the Court does not address this
argument further. The Court finds that there is a sufficient fact issue as to temporal proximity to
satisfy a prima facie showing.

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Montemayor v. City of San Antonio, 276 F.3d 687, 692 (5th Cir. 2001) and Khanna v. Park Place
Motorcars of Hous., Ltd., 2000 WL 1801850, at *4 (N.D. Tex. 2000) (characterizing this prima facie
case burden as “minimal”)). Therefore, for purposes of this motion, the Court finds that Plaintiff has
satisfied his burden in showing a prima facie causal connection between the filing of his FLSA suit
and his termination.4
Non-Retaliatory and Pretext
Assuming Plaintiff’s evidence of the temporal proximity between his termination and filing
of this suit is sufficient to create a fact issue in satisfying his prima facie case of retaliation,
Defendant has offered sufficient summary judgment to show to its legitimate, nonretaliatory reason
for Plaintiff’s termination. See Dkt. 57-3. According to the record, Plaintiff was terminated for
“intentionally and recklessly” kicking two stacked milk crates, causing an inmate to fall to the floor
“in a supine position,” in violation of Denton Sheriff’s Office Code of Conduct, Section #2.01, IV,
T. Responsibilities and General Conduct (Treatment of Persons in Custody), Section #2.01 III, A.
Personal Conduct and Responsibilities (Unbecoming Conduct), and Section #2.01 II, A.
Confirmance to Rules and Law. See id. at 7.
According to the affidavit of Sheriff Travis, he “was shocked by the conduct,” “felt that this
was conduct unbecoming an officer... [and] so contrary to the behavior expected of Detention

4

The Court further finds that Defendant’s summary judgment argument and evidence
regarding the prima facie causal link – at least in this case – is more appropriately discussed in
the Court’s discussion below of pretext and but-for causation.

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Officers in the Denton County Sheriff s Office,” and “felt that, barring the investigation uncovering
extenuating circumstances which would have justified the detention officer’s conduct, this conduct
warranted termination.” Dkt. 57-1 at ¶6. According to Travis, “there is no excuse for a detention
officer to engage in an unprovoked use of force against an inmate which could cause that inmate
injury.” Id.
Defendant also cites to the affidavit of Joseph Connolly, the Lieutenant for Professional
Standards in the Denton County Sheriff’s Office. See Dkt. 57-3. Connolly conducted the internal
affairs investigation into Plaintiff’s conduct and prepared the internal memoranda and reports
regarding Plaintiff’s kicking of the milk crates. Attached to Connolly’s affidavit are the reports and
other materials pertaining to the investigation into Plaintiff’s conduct as well as the video recording
of the incident in question. See Dkt. 57-3. According to Connolly, “[a]fter completing the
investigation into Mr. White I determined that the allegations against him should be sustained due
to the fact that he engaged in behavior which was outside the scope of his responsibilities, was
irresponsible, was immature, had the potential to create liability, set a poor example, and possibly
constituted criminal conduct and/or a violation of the inmate’s constitutional rights.” Dkt. 57-3 at
3, ¶5. Connolly’s affidavit further states that, although he did not recommend any particular
disciplinary action with regard to Plaintiff, when he learned of Plaintiff’s termination he “did not
believe that this punishment was too harsh or was out of line with what was seen as appropriate in
the Sheriff’s Office” and that he “believed that Mr. White’s conduct was an offense serious enough

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to warrant termination, though [he] made no recommendation regarding same” because the Sheriff’s
Office Civil Service Commission which would have final authority regarding the conclusions of the
investigation and as to what disciplinary action, if any, was warranted. Dkt. 57-3 at 4, ¶5.
Connolly further provides that, although he was aware of Plaintiff’s lawsuit, no one ever
expressed a negative opinion to him about it. According to Connolly, “the fact that Mr. White had
a pending lawsuit against the County over an unrelated matter was not in any way considered as I
conducted my investigation into the April 5, 2013, incident, and no pressure was put upon me by any
person, formally or informally, to sustain an allegation against Mr. White in any manner.” Dkt. 57-3
at 4, ¶6.
Defendant having met its burden of production as to the reasons for Plaintiff’s termination,
the burden shifts back to Plaintiff to show to show “by a preponderance of the evidence that the
reasoning presented by the defendant[s] is a pretext for retaliation.” Smith v. Sw. Bell Tel. Co., 456
Fed. App’x 489, 492 (5th Cir. 2012) (per curiam) (quoting Mauder v. Metro. Transit Auth. of Harris
Cnty., Tex., 446 F.3d 574, 584 (5th Cir.2006)) (internal quotation marks omitted). A plaintiff can
demonstrate pretext “by showing that the employer’s proffered explanation is unworthy of credence.”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S. Ct. 2097, 147 L. Ed.2d 105
(2000) (citation and internal quotation marks omitted). “An explanation is false or unworthy of
credence if it is not the real reason for the adverse employment action.” Laxton v. Gap Inc., 333 F.3d
572, 578 (5th Cir. 2003).

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As noted above, in this case, Plaintiff cites to the proximity between the filing of this suit and
his termination as evidence of causation and pretext. However, the inquiry is not that simple because
“temporal proximity alone is insufficient to prove but for causation.” Strong v. Univ. Healthcare
Sys., L.L.C., 482 F.3d 802, 808 (5th Cir. 2007). Plaintiff must offer more.
Defendant cites to the Pittman decision out of this District to argue that Plaintiff cannot offer
sufficient circumstantial evidence in support of his retaliation claim because there is no evidence to
create a fact issue regarding factors such as: (1) knowledge of the claim by those making the decision
to terminate; (2) expression of a negative attitude toward the employee’s injured condition; (3)
failure to adhere to established company policies; (4) discriminatory treatment in comparison to
similarly situated employees; and (5) evidence that the stated reason for discharge was false. Pittman
v. Collin County, Texas, 2010 WL 1330752, at *5 (E.D. Tex. Mar. 30, 2010) (Schell, J.).5
As evidence of pretext, Plaintiff argues that Sheriff Travis knew about his lawsuit prior his
decision to terminate Plaintiff. Defendant cites to Travis’s affidavit in which he states that he at the
time he saw the video of the incident leading to Plaintiff’s termination prior he was not aware that
Plaintiff was the deputy who was involved but thought the conduct “warranted termination.” Dkt.
57-1 at 4. Plaintiff has cited to no evidence that would show that Travis’s knowledge of his suit was

5

As noted above, these factors are argued by Defendant in its discussion of Plaintiff’s
prima facie burden. The Court finds that they are more instructive in this case in the Court’s
analysis of pretext, as this is where Plaintiff primarily discusses them. Because Plaintiff
ultimately has the summary judgment burden as to pretext, the Court thus discusses the evidence
in that framework.

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the but-for cause of the adverse employment action, and, as discussed below, Ray Davenport’s
testimony about Sheriff Travis’s opinion regarding the lawsuit fails to create a fact issue here as to
ultimate caustation.
Plaintiff further cites to an email from the Sheriff to another employee regarding the filing
of suit by that employee against the County in which the Sheriff states to the officer “if you did file
a suit and you want to come back to work ...[t]he lawsuit has to be dropped.” Dkt. 71-1. Plaintiff
argues that this is evidence of a “negative attitude towards the protected activity.” Dkt. 71 at 9.
Because this email was not directed to Plaintiff regarding Plaintiff’s lawsuit, the Court finds that it
fails to create a fact issue as to pretext.
Plaintiff also argues that there is evidence of other officers who were not terminated for far
worse conduct. Plaintiff cites to examples of incidents where other Denton County officers were not
terminated for actions including being “amped up” and ramming an inmate’s head into a wall, having
a sexual relationship with an inmate’s wife, engaging in race discrimination, locking them in a safety
vestibule for no apparent reason, engaging in a pattern of non-compliance with duties, lying about
having a cell phone, removing a shirt, entering a cell and calling the inmates “punk a** b****s.”
See Dkt. 73-1 – 73-12. The Court is not convinced that this creates a fact issue as to Plaintiff’s
retaliation claim.
Defendant argues that Plaintiff cannot rely on incidents occurring under the old sheriff,
Sheriff Parkey, rather than Sheriff Travis, who terminated Plaintiff, because the decisions were not

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made “by the same supervisor.” See, e.g., Lee v. Kansas City Southern Ry. Co., 574 F.3d 253, 260
(5th Cir. 2009). The change in sheriffs happened in such close proximity to Plaintiff’s termination
that the Court declines to find that Plaintiff should be precluded from looking into the conduct of
past detention officers to determine whether there were similarly situated employees who were not
treated as Plaintiff was. Even so, Plaintiff’s reliance on prior incidents fails to create fact issue.
Of the many incidents cited by Plaintiff, the majority cannot be deemed to have been taken
under nearly identical circumstances. See, e.g., Lee, 574 F.3d at 260 (discussing similarly situated
analysis in race-based employment discrimination case). Nor has Plaintiff demonstrated how these
incidents involved conduct nearly identical to his. Id.
As argued by Defendant, two of the three incidents referenced by Plaintiff in his deposition,
did not involve any physical force and the one involving force also involved a non-compliant inmate.
Dkt. 57-7 at 64; 57-11 at 6; 57-5 at 3-58. The Court cannot find this to be “nearly identical conduct”
of other officers.
Plaintiff’s summary judgment response also cites to the treatment of Officer EW who was
only reprimanded (rather than terminated) for placing a hand on an arrestee’s shoulder and pushing
him to the ground during a pat down. Dkt. 73-1. Notably, in this circumstance (which occurred after
Plaintiff was terminated), the detention officer conceded that he “could have handled the situation
differently.” Dkt. 73-1 at 2. Nothing in the record indicates that Plaintiff conceded his wrongdoing
regarding the milk-crate incident or that he was truthful to investigators. Instead, the record indicates

21

that Plaintiff initially claimed that the incident was an accident but eventually changed his statement
to investigators to state that he did intentionally kick the crates but only meant to lightly do it. Dkt.
57-3 at 3; 87.
The Court has also reviewed the video recording of the July 6, 2013 incident involving EW
conducting the pat down on the arrestee in a holding area. See Plaintiff’s Exhibit 20 (DVD
recording). The circumstances under which the force was used – in a holding area in which the
arrestee was apparently being searched for contraband – involved an objectively heightened security
situation and a potential physical struggle. The use of force (even if ultimately determined to be
excessive) during an active search by an officer for contraband in a holding area cannot be said to
be substantially similar to the use of force against an individual already screened for contraband who
is passively sitting on stacked milk crates in a detention area. The circumstances in which the force
was used by each officer was thus not “under nearly identical circumstances” and fails to create any
fact issue here. See, e.g., Lee, 574 F.3d at 260.
The Court has also reviewed the video recording of Plaintiff kicking the milk crates out from
underneath an inmate. Dkt. 57-3 at 92 (Exhibit C to Connolly Affidavit, DVD recording). The
recording clearly shows an inmate sitting on stacked milk crates. The inmate does not stand or
appear to physically provoke Plaintiff in any manner. The video further shows a clearly purposeful
kicking of milk crates by Plaintiff.6 In the Court’s opinion, this unwarranted, unprofessional and
6

As to any suggestion by Plaintiff that the reason for his termination was “trivial,” (see
Dkt. 71 at 6), Defendant has offered voluminous evidence regarding the offensive nature of

22

unjustified conduct in and of itself is indisputable grounds for immediate termination.
Laughter and crying out can be clearly heard. Although Plaintiff argues that the inmate was
faking any injury resulting from his fall, the Court finds that whether there was malingering by the
inmate is irrelevant to whether Plaintiff’s conduct was provoked or professional or whether it
warranted termination. The Court finds that Plaintiff has failed to create a fact issue that his conduct
was appropriate, and given the clear recording likely could not offer any evidence to show otherwise.
Defendant has also cited to records of an incident where a former detention officer was
terminated for choking and hitting an inmate who had not violated any rules. See Dkt. 57-5 at 60.
Defendant argues that this incident is an incident involving nearly identical conduct because both
situations involved an unprovoked use of force by a detention officer. The Court agrees that this
misconduct is most similar to Plaintiff’s (even if Plaintiff argues that his actions were made in jest),
and finds that Plaintiff has not demonstrated that there is a fact issue regarding the treatment of
similarly situated employees. No pretext is shown by this evidence regarding other employees.
Plaintiff also argues that Defendant failed to follow established procedures and failed to
properly investigate the allegations against him. Plaintiff cites to former Assistant Chief Deputy Roy
Davenport’s testimony that Sheriff Travis did not follow established policy and that Davenport had
concerns about the investigation into Plaintiff. Dkt. 71-5 at 7-13. Indeed, in attempting to

Plaintiff’s conduct, as well as evidence to show the potential liability faced by the County.
Plaintiff has not rebutted that evidence with any summary judgment evidence to show that his
conduct was “trivial,” and the video recording of the incident clearly demonstrates otherwise.

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demonstrate pretext, Plaintiff relies heavily on the testimony of Davenport, who is no longer an
County employee.
At his deposition, Davenport testified as to how a termination decision was “typically” made,
stating that he would be consulted “in most instances.” Dkt. 87-1 at 4. Although Davenport’s
testimony criticizes the lack of policies within the Sheriff’s Department after Sheriff Travis took over
and notes that Plaintiff’s investigation file as a “little thin” (see Dkt. 71-5 at 6), Davenport did not
cite to – and Plaintiff does not cite to or show – any specific internal policy that was violated in the
course of Plaintiff’s termination.
Although Plaintiff also argues that an internal affairs investigation would not have been
opened had he not filed his FLSA suit, he does not show how this is evidence of pretext and he offers
no evidence to rebut Defendant’s summary judgment evidence, including Joseph Connolly’s
affidavit, setting forth the standard manner in which the internal affairs investigation was conducted.
See Dkt. 57-3.7 Plaintiff has simply not adduced sufficient evidence to create a fact issue regarding
the purported failure to follow policy in his termination. Miller v. Metrocare Servs., 2015 WL
477233, at *9 (N.D. Tex. Feb. 5, 2015) (“The fact that Metrocare ‘normally’ followed certain
procedures when terminating an employee that it did not observe when discharging Miller is

7

The Court further notes that Defendant cites to portions of the summary judgment record
indicating that Plaintiff failed to timely appeal his termination under the County’s internal
procedures. Because the Court finds that Plaintiff has failed to create a fact issue regarding
pretext, it does not address whether Plaintiff should have raised his challenges to the internal
procedures in an underlying administrative proceeding.

24

insufficient to permit a reasonable jury to find that Metrocare’s proffered reasons for terminating his
employment are pretextual.”); see also Paris v. Sanderson Farms, Inc., 542 Fed. App’x 370, 375
(5th Cir. 2013) (holding that employer was entitled to summary judgment on FMLA claim where
employee based pretext argument on employer’s violation of “its own company policy,” but failed
to offer evidence that employer had actually violated any company policy); Grubb v. Sw. Airlines,
296 Fed. App’x 383, 390 (5th Cir. 2008) (per curiam) (“Failure to follow internal procedures is
generally not enough to create a genuine issue of fact as to discriminatory motives.”).
Further, although Plaintiff offers deposition testimony from Davenport (who Defendant
characterizes as disgruntled) about Sheriff Travis’s alleged feelings regarding Plaintiff’s lawsuit,
Plaintiff has cited to no evidence that would rebut Defendant’s summary judgment evidence as to
Connolly’s conclusion that the allegations against Plaintiff should be sustained and belief that the
alleged conduct warranted termination. See Dkt. 57-3. The Court further finds that – even if taken
as true – Davenport’s claim that Travis was not “happy” about Plaintiff’s lawsuit (see Dkt. 71-5 at
16) fails to create a fact issue that the lawsuit was the but-for reason for his termination or that the
grounds for termination were pretextual. Notably, although Davenport testified that he would have
been consulted in most instances of termination, he had no involvement in the decision to terminate
Plaintiff. Dkt. 71-5 at 9. His testimony thus fails to create a fact issue as to causation and pretext
as it pertains to Plaintiff’s termination.

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The ultimate determination in an FLSA retaliation case is whether the conduct protected by
the FLSA was the “but for cause” of the adverse employment decision. Kanida v. Gulf Coast Med.
Personnel LP, 363 F.3d 568, 580 (5th Cir. 2004) (“This court has repeatedly stated that in retaliation
cases [under the FLSA] the employee must prove that the adverse employment action would not
have occurred ‘but for’ plaintiff’s protected activity.” (citing cases)); see also Univ. of Tex. Sw. Med.
Ctr. v. Nassar,__ U.S.__, 133 S. Ct. 2517, 2528, 186 L. Ed.2d 503 (2013) (“Title VII retaliation
claims require proof that the desire to retaliate was the but-for cause of the challenged employment
action.”); Little v. Technical Specialty Prods. LLC, 2013 WL 5755333, at *4 (E.D. Tex. 2013)
(noting that Fifth Circuit has repeatedly required that the plaintiff establish “but for” causation,
which “is consistent with the Supreme Court’s holding in Nassar, and, thus, the standard for FLSA
retaliation cases was not altered by the Nassar decision.”). When making a claim of retaliation “the
plaintiff must show a conflict in substantial evidence on the question of whether the employer would
not have taken the challenged adverse employment action but for the protected activity.” Kopszywa
v. Home Depot USA, Inc., 2015 WL 4737367, at *4 (5th Cir. Aug. 11, 2015) (internal citations
omitted).
Plaintiff has failed to demonstrate any such conflict in the substantial evidence here. Absent
the arguable temporal proximity between the date of his filing suit and the date of his termination –
a little more than four months apart – there is nothing that would create a fact issue as to the reason
for his termination. “Temporal proximity may only create a genuine dispute of material fact on the

26

issue of but-for causation if the employee also introduces other probative evidence of pretext.”
Kopszywa, 2015 WL 4737367, at *4 (internal citations omitted); see also Roberson v. Alltel Info.
Servs., 373 F.3d 647, 656 (5th Cir. 2004) (“Without more than timing allegations, and based on
Alltel’s legitimate, nondiscriminatory reason in this case, summary judgment in favor of Alltel was
proper.”). Plaintiff simply has not offered evidence to show that but-for this lawsuit he would not
have been terminated from the County’s employment.
The Court notes that, although the Court declined to dismiss Plaintiff’s retaliation claim for
failure to use the words “but for” in his complaint, the Court cautioned Plaintiff in its report and
recommendation that he would be required to present evidence showing that he would not have been
terminated but for his FLSA claims in order for his retaliation claim to survive. Dkt. 45 at 14-15.
Plaintiff has failed to do this and should take nothing by his retaliation claims.
RECOMMENDATION
For these reasons, the Court recommends that Defendant’s Motion for Summary Judgment
(Dkt. 57) be GRANTED, that Plaintiff take nothing by his remaining claims, and that Defendant be
awarded its costs herein.
Within fourteen (14) days after service of the magistrate judge’s report, any party may serve
and file written objections to the findings and recommendations of the magistrate judge. 28
U.S.C.A. § 636(b)(1)(C).

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A party is entitled to a de novo review by the district court of the findings and conclusions
contained in this report only if specific objections are made, and failure to timely file written
objections to any proposed findings, conclusions, and recommendations contained in this report shall
bar an aggrieved party from appellate review of those factual findings and legal conclusions accepted
by the district court, except on grounds of plain error, provided that the party has been served with
.

notice that such consequences will result from a failure to object. Id.; Thomas v. Arn, 474 U.S. 140,
148 (1985); Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc),
superseded by statute on other grounds, 28 U.S.C. § 636(b)(1) (extending the time to file objections
from ten to fourteen days).
SIGNED this 25th day of August, 2015.
.

____________________________________
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

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