Opinion
IP 00-1230-C-T/K
January 28, 2002
ENTRY ON SUMMARY JUDGMENT AND RELATED MOTIONS,
This Entry is a matter of public record and is being made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
Plaintiff, Ivan Krieg, sued Defendant, Pell Incorporated ("Pell"), for overtime pay under the Fair Labor Standards Act of 1938 (the "FLSA"), 29 U.S.C. § 201-219. Pell moves for summary judgment and Mr. Krieg moves for partial summary judgment regarding Pell's liability to pay him overtime under his FLSA claim. The court decides as follows.
The Complaint's caption refers to the Defendant as "Pell's Incorporated." It appears from Defendant's filings, however, that its name is "Pell" rather than "Pell's," and the court will use the former.
I. Summary Judgment Standard
Summary judgment is appropriate where "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of informing the court of the basis for its motion and demonstrating the "absence of evidence on an essential element of the non-moving party's case," Celotex Corp., 477 U.S. at 323, 325. To withstand a motion for summary judgment, the non-moving party may not simply rest on the pleadings, but rather must "make a showing sufficient to establish the existence of [the] element[s] essential to that party's case, and on which that party will bear the burden of proof at trial. . . ." Id. at 322. If the non-moving party fails to make this showing, then the moving party is entitled to judgment as a matter of law. Id. at 323.
When ruling on a motion for summary judgment, the court cannot make credibility determinations, weigh the evidence or draw inferences from the evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). "With cross-motions, [the] review of the record requires that [the court] construe all inferences in favor of the party against whom the motion under consideration is made." O'Regan v. Arbitration Forums, Inc., 246 F.3d 975, 983 (7th Cir. 2001).
These facts are not disputed. Additional facts may be set forth in the Discussion section as necessary. That section also will address various disputes about factual submissions proffered by the parties.
Pell is engaged in the retail sale of shoe repair services and foot and shoe care products and keys. Pell has 150 stores in eight states. Mr. Krieg worked for Pell as a store manager, managing Store #141 in a Meijer store in Kokomo, Indiana. He was required to repair shoes, stock shelves, cut keys, wait on customers and work the cash register as part of his job duties. At all times, Mr. Krieg was expected to work 45 hours per week. He normally worked each shift by himself and, it was standard practice of Pell for only one employee to work a shift at a time. Mr. Krieg had two associate employees. These employees worked less than a combined eighty hours per week.
Mr. Krieg was an hourly employee from the date of his hire until June 1997 at which time he was transferred to salary status and paid a weekly salary of $425. On August 21, 1998, his salary was raised to $475.
In March 2000, Mr. Krieg filed a complaint with the U.S. Department of Labor relating to the overtime sought in this case (the "DOL complaint"). Pell's President and General Counsel, Brent Clark, interposed a defense to the DOL complaint based on the provisions of 29 C.F.R. § 779.
On April 28, 2000, Kim Anderson, a Pell service manager who had oversight responsibilities for several Pell stores, including the Store #141, visited the store to address Mr. Krieg's alleged discriminatory or harassing conduct toward his African American subordinate, Shirley Evans. Mr. Krieg and Ms. Anderson had a disagreement at that time. Ms. Anderson left the store, telephoned Mr. Clark, then returned and terminated Mr. Krieg's employment.
Mr. Krieg received no disciplinary reports, written or oral, from Pell during his employment until after filing his DOL complaint. Pell has never received any customer complaints about Mr. Krieg. By all accounts, his performance was quite satisfactory up until the time he filed his DOL complaint. In fact, in late 1996, he was highlighted in a letter from Mr. Clark to Pell employees as having superior performance as a store manager. Mr. Krieg, however, did receive a disciplinary report for wearing a hat while in the Kokomo store approximately five weeks after filing the DOL complaint. He had worn a hat while working in the store since 1995 with no negative repercussions.
Pell placed a classified ad in the Kokomo Tribune for a store manager of the Kokomo store approximately three weeks after Mr. Krieg filed his DOL charge and three weeks before his job was terminated.
III. Discussion
Both Pell and Mr. Krieg move for summary judgment on Mr. Krieg's claim for overtime pay under the FLSA. Mr. Krieg argues that he is not an exempt employee under the FLSA, 29 U.S.C. § 213, specifically under the executive exemption. Pell responds that the executive exemption is applicable and that Mr. Krieg offers no evidence to show that neither the administrative nor professional exemptions apply.
Pell further contends that Mr. Krieg's claim for overtime pay is barred by 29 U.S.C. § 259. Mr. Krieg argues that § 259 is inapplicable because Pell claims reliance on a regulation, 29 C.F.R. § 779.301, that was based on a repealed section of the FLSA, 29 U.S.C. § 213(a)(2). Pell further contends that Mr. Krieg's retaliation claim fails because the decision-maker who initiated his termination had no knowledge of his complaint with the U.S. Department of Labor and because his termination was warranted in any event.
A. FLSA Claims for Overtime Pay
Mr. Krieg brings a claim under the FLSA for overtime pay. Under the FLSA, employees who work more than forty hours in a workweek must be paid not less than one and one-half times the regular rate of pay for their hours worked in excess of forty. 29 U.S.C. § 207(a)(1).
1. Good Faith Defense
Because the good faith defense Pell asserts is a complete defense to a FLSA claim, the court first considers whether the defense is available. Pell contends that it is shielded from liability on Mr. Krieg's overtime claim by 29 U.S.C. § 259 because of its reliance on 29 C.F.R. § 779.301 which provides that an employee of certain retail or service establishments is exempted from the minimum wage and overtime pay provisions of the FLSA. Section 259 provides an affirmative defense to an employer who "proves that the act or omission complained of was in good faith in conformity with and in reliance on any written administrative regulation, order, ruling, approval, or interpretation, of [the Administrator of the Wage and Hour Division of Department of Labor] . . . or any administrative practice or enforcement policy of such agency. . . ." 29 U.S.C. § 259. This defense is "intended to apply only where an employer innocently and to his detriment, followed the law as it was laid down to him by government agencies, without notice that such interpretations were claimed to be erroneous or invalid." Olson v. Superior Pontiac-GMC, Inc., 765 F.2d 1570, 1579 (11th Cir.) (quoting Clifton D. Mayhew, Inc. v. Wirtz, 413 F.2d 658, 661 (4th Cir. 1969)), modified on other grounds by 776 F.2d 265 (11th Cir. 1985). To establish the defense, an employer must prove three elements: (1) that the act complained of was taken in good faith and (2) was in conformity with and (3) in reliance on a written administrative interpretation of the Administrator of the Wage and Hour Division of the Department of Labor. Cole v. Farm Fresh Poultry, Inc., 824 F.2d 923, 926 (11th Cir. 1987). The test is an objective one, and an employer must show that it acted as a reasonably prudent employer would have acted under similar circumstances. See Cole, 824 F.2d at 926; id. at 930 (Roney, J., dissenting); Olson, 765 F.2d at 1580; 29 C.F.R. § 790.15. At best, there are genuine issues of material fact as to whether Pell can prove the availability of the good faith defense.
In arguing for application of the good faith defense, Pell relies exclusively on he district and appellate court decisions in Marshall v. Baptist Hospital, Inc., 473 F. Supp. 465 (M.D.Tenn. 1979), rev'd 668 F.2d 234 (6th Cir. 1981). This reliance is misplaced.
There the employer, a hospital, invoked the good faith defense to the FLSA minimum wage claims of X-ray students in its clinical program. 668 F.2d at 235. The hospital claimed reliance on an ambiguous administrative interpretive ruling. The first sentence of the ruling suggested that the administrative agency retained discretion to judge medical training programs on a case by case basis. The next sentence stated a specific rule that eliminated agency discretion in cases of nurses and X-ray technicians. Id. at 238. The court concluded that the hospital acted in good faith when it chose to follow the specific rule rather than the indefinite standard. Id. There was no suggestion in the district court or appellate court opinions that the administrative interpretation upon which the hospital claimed reliance conflicted with any amendment to the statutory provisions of the FLSA, thus the Marshall case has no application to this case.
Pell contends that an employer may avail itself of the good faith defense where the complained of acts occurred before the employer was aware of the administrative interpretation upon which it claims reliance. In support it relies on Marshall. Pell's reliance is again misplaced. The plaintiff in Marshall argued that after-the-fact reliance on an administrative ruling rendered the good faith defense unavailable to the hospital employer. On that point, the court said "it would be patently absurd to hold as a general rule that defendants whose pre-existing views happen to comport with administrative pronouncements could never be said to act thereafter in reliance on them." Marshall, 473 F. Supp. at 479-80 (emphasis added). These comments, however, were dicta as the district court had already concluded that the good faith defense was unavailable to the hospital. Id. at 478. In addition, as the language emphasized above elucidates, the district court did not write out of the statute the requirement that the employer actually rely on the administrative interpretation. The court did not say that an employer could be said to act in reliance on an administrative ruling where the employer was unaware of that ruling. Such a conclusion would be absurd.
The court in Donovan v. I J, Inc., 567 F. Supp. 93 (D.N.M. 1983), looked at this very issue and concluded that an employer must be aware of the administrative interpretation upon which it claims reliance. Id. at 106 ("In this case, however, the Defendants' knowledge of the FOH guideline comes too late to avail them of the defense. . . . It is clear that the Defendants could not have relied upon the FOH section prior to their knowledge of its existence.") This conclusion is logical and gives meaning to all of the language in § 259; Pell's understanding of the district court's opinion in Marshall does not.
Mr. Krieg has offered evidence from which a trier of fact could infer that it was only after Pell was informed of Mr. Krieg's DOL complaint, that Pell became aware of § 779.301. (See Stacey Collins Aff. (Ex. M. to Pl.'s Resp. Mot. Summ. J.), ¶ 8 (stating that after Pell was informed of Mr. Krieg's DOL complaint, Mr. Clark spent the day out of the office and told Ms. Collins he had been researching the FLSA), ¶ 9 (stating that Mr. Clark told Ms. Collins that during his research he had found a regulation pertaining to small retail operations with multiple stores)). If Pell had no knowledge of § 779.301 until after Mr. Krieg made his DOL complaint, its practice of not paying store managers overtime pay simply could not have been "in reliance on" that regulation. For this reason, irrespective of any repeal issues, Pell cannot demonstrate at this stage that it is entitled to the good faith defense.
Pell argues that Mr. Krieg's evidence demonstrates only that Mr. Clark may not have mentioned § 779 to his subordinates until after the DOL claim was filed. But the statements in paragraphs 7 and 8 in Ms. Collins' affidavit support not only that Mr. Clark did not mention the regulation to Ms. Collins until after the complaint was filed, but also that Mr. Clark just "found" the regulation after the complaint was filed. Perhaps Pell forgets that in assessing the facts related to its motion for summary judgment, the court must draw all reasonable inferences in favor of Mr. Krieg.
The decision in Olson v. Superior Pontiac-GMC is instructive because of its similarities to the instant case. In Olson the employer relied on the good faith defense to the plaintiff's claim for minimum wages under the FLSA. The court held that the defense was unavailable to the employer for two independent reasons. Olson, 765 F.2d at 1580. Relevant to this case, the court concluded that the employer did not act in good faith. It noted that the regulations require the employer "to have honesty of intention and to be without knowledge of circumstances which ought to put him upon inquiry." Id. (citing 29 C.F.R. § 790.15)). The court observed that the employer's president and one of its top administrators had differing interpretations of the provision in the amendment of the Wage and Hour Field Operations Handbook upon which they relied in asserting good faith. The court concluded: "If such differing interpretations existed, a prudent person would have sought professional advice. There is no evidence that such advice was sought or ascertained in this instance." Olson, 765 F.2d at 1580.
Mr. Krieg has offered evidence from which a trier of fact could reasonably infer that Pell was on notice that its practice of not paying overtime wages to store managers may have been in violation of the FLSA. Stacey Collins, Pell's Payroll Administrator from September 1998 until May 2000, states that she learned that the majority of Pell's store managers were paid based on a salary rate, not by the hour and were not paid overtime. (Collins Aff., 10/24/00, ¶¶ 2, 3.) She also states that in 1999 she informed
Brent Clark, Pell's CEO, "that the manner in which they were paying store managers was illegal under the [FLSA]." (Id. ¶ 4.) In addition, Ms. Collins informed Cindy Powers, Pell's controller, that "failure to pay overtime wages to the store managers was a violation of the FLSA." (Id. ¶¶ 6-7.) Given these statements, a trier of fact could reasonably infer that Pell was on notice that its failure to pay store managers overtime pay was in violation of the FLSA. Under Olson, a prudent person with such notice would have sought professional advice. Pell offers no evidence that it did. Given this evidence, there is a genuine issue of fact as to whether Pell acted in good faith.
Pell takes issue with the statements of Ms. Collins as to the lawfulness of its payment practices, contending these statements are entitled to no weight whatsoever since she has no legal training. Ms. Collins is not offered as a legal expert. Instead, her statements are offered to show that Pell may have been on notice that its failure to pay overtime to store managers violated the FLSA. Ms. Collins's opinion would not weigh heavily against a contrary view by a legal specialist in FLSA matters; nonetheless, if she made such a statement, summary judgment cannot be awarded to Pell on its good faith defense if it did nothing to investigate whether she was correct.
Pell maintains that the repeal of Section 13(a)(2) upon which 29 C.F.R. § 779.301 is based is of no consequence. The court cannot agree. This matter goes directly to Pell's good faith. The case of Clifton D. Mayhew, Inc. v. Wirtz, 413 F.2d 658 (4th Cir. 1969), though not directly on point, offers guidance. The employer claimed protection under the good faith defense based on an administrative interpretive bulletin under which it would not have been covered by the FLSA. However, the evidence showed that the employer was aware of amendments to the statutory provisions under which the complaint alleged the employer was covered by the FLSA. Id. at 660-61. Applying an objective standard to determine good faith, the court said "we think . . . that [the employer] could not after enactment of the . . . [a]mendments have entertained a good faith belief in the continuing vitality of the Interpretative Bulletin 776 in its application to [the employer]." Id. at 662. The court explained that if an employer has knowledge of the amendments to the FLSA and of language of an interpretive bulletin and the two conflict, the employer "does not objectively act in 'good faith' when he chooses to 'believe' the one exempting him from coverage." Id. The court continued: "The law had been changed and the employer knew it. If he did not know, it was because he did not look, or looking, did not see, or want to see what was so plainly there." Clifton D. Mayhew, 413 F.2d at 663. There are triable issues as to whether Pell's claimed reliance on a regulation based on a statutory provision that had been repealed is objectively reasonable and whether, in failing to read the statutory provision cited in the regulation, Mr. Clark, who has taken continuing legal education on the FLSA, acted as a reasonably prudent employer would have acted under similar circumstances.
2. Exempt Status
The FLSA exempts from the requirement of overtime pay "any employee employed in a bona fide executive, administrative, or professional capacity." 29 U.S.C. § 213(a)(1). Mr. Krieg contends that he is not exempted. Pell, as the employer, bears the burden of proving that Krieg is exempt. See Shaw v. Prentice Computer Pub., Inc., 151 F.3d 640, 642 (7th Cir. 1998). Exemptions are to be narrowly construed against employers. See Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960); Adams v. Dep't of Juvenile Justice of N.Y. City, 143 F.3d 61, 65 (2nd Cir. 1998).
Mr. Krieg claims that it is undisputed he does not qualify for the administrative or professional exemption. He argues he does not qualify for the executive exemption either because, inter alia, he did not customarily and regularly supervise at least two employees. 29 C.F.R. § 541.105.
Because Mr. Krieg was compensated on a salary basis of not less than $250 per week, he is considered a "high salaried" employee and the "short test" for determining whether he is exempt as employed in a bona fide executive capacity is applied. See Shaw, 151 at 642-43 (7th Cir. 1998); Demos v. City of Indianapolis, 126 F. Supp.2d 548, 552 (S.D.Ind. 2000), reconsidered on other grounds, 139 F. Supp.2d 1026 (S.D. Ind. 2001); 29 C.F.R. § 541.119(a). One requirement of the "short test" is that "the employee's primary duty . . . includes the customary and regular direction of the work of two or more other employees[.]" 29 C.F.R. § 541.119(a); 29 C.F.R. § 541.1; see also Demos, 126 F. Supp.2d at 552, 557.
That the employee direct the work of two or more employees, by itself, is insufficient to satisfy this test. The employee must supervise at least two full-time employees or the equivalent. 29 C.F.R. § 541.105(a); see also Herman v. Harmelech, No. 93 C 3458, 2000 WL 420839, at *7 (N.D.Ill. April 14, 2000) (holding that managers of jewelry stores did not qualify for executive exemption where none of them supervised employees working more than eighty hours per week total). "For example, 'executive' supervises one full-time and two part-time employees of whom one works morning[s] and one, afternoons; or four part-time employees, two of whom work mornings and two afternoons, this requirement would be met." 29 C.F.R. § 541.105(a).
Pell is correct that district court decisions have no precedential value to other courts, short of principles of collateral estoppel or res judicata. However, district court opinions may be considered to the extent their analyses are persuasive. Herman is such an opinion. In addition, Mr. Krieg's failure to attach the Herman decision to his reply brief is no bar to this court's consideration of it. Certainly, the court can and does go beyond the case authorities cited by parties when ruling on summary judgment motions. Mr. Krieg was not required by Local Rule 7.1(b) to append a copy of the decision to his reply since the decision is available on Westlaw, and the court notes his willingness to supply a copy to defense counsel should they be unable to obtain a copy for themselves.
The term "equivalent" used in the regulation means any number of part-time employees that together work a total of eighty hours per week. See, e.g., Murray v. Stuckeys, Inc., 50 F.2d 564, 568-69 (8th Cir. 1995) (quoting U.S. Dep't Labor's Field Operations Handbook)); Sec'y of Labor v. Daylight Dairy Prods., Inc., 779 F.2d 784, 787 (1st Cir. 1985); Herman, 2000 WL 420839, at *7.
Pell relies on Haines v. Southern Retailers, Inc., 939 F. Supp. 441, 446 (E.D.Va. 1996), Sturm v. TOC Retail, Inc., 864 F. Supp. 1346 (M.D.Ga. 1994), and Meyer v. Worsley Cos., 881 F. Supp. 1014, 1018 n. 1 (E.D.N.C. 1994), for the proposition that the executive need not be physically present at the store at the same time as the other employees in order to supervise their work. This is beside the point as none of these cases reject the eighty hour rule.
The court can't help but comment on the irony in Pell's reliance on district court decisions since in response to similar reliance by Mr. Krieg, it argues such decisions have no precedential value.
At this point it is appropriate to consider Pell's motion to strike Mr. Krieg's reply brief. Pell argues that Mr. Krieg's reply is essentially an out-of-rule motion for summary judgment that should be stricken. Critical to the FLSA overtime claim is the assertion and argument in the reply brief pertaining to whether Mr. Krieg worked with two or more other employees who worked a total of eighty hours.
Mr. Krieg contended in his opening brief that he did not customarily or regularly supervise two or more employees and therefore did not qualify under the executive exemption. Though he did not contend in his opening brief that this requirement was not satisfied because the other two employees did not work a total of eighty hours, it is clear from his moving papers that the store was open 94 hours per week, Mr. Krieg worked 40 or more hours per week, two other employees worked in the same store, and Pell's standard practice was for only one employee to work per shift in each store.
The last fact was asserted in Mr. Krieg's Statement of Material Fact # 12 to which Pell responded in its Response to Plaintiff's Statement of Material Facts "appears accurate, although not material." (Def.'s Resp. Pl.'s Statement Material Facts No. 12.) Simple arithmetic reveals that under such conditions, it would be impossible for the two other employees to work a total of 80 hours per week. Given that the underlying facts were presented in Mr. Krieg's moving papers and the critical conclusion is reached by simple arithmetic, this is not sandbagging by Mr. Krieg. See Pike v. Caldera, 188 F.R.D. 519, 531 n. 23 (S.D.Ind. 1999).
Though it is true that Mr. Krieg did not submit a Reply to Statement of Additional Material Facts with his reply brief, filed on May 14, 2001, as required by Local Rule 56.1(c), (d)(2), (f), he "attempted" to cure that noncompliance by filing "Plaintiff's Statement Of Additional Material Fact" on June 8, 2001. The court uses the word "attempted" because the June 8 filing is incorrectly entitled; it should have been called a Reply to Statement of Additional Material Facts, S.D. Ind. L.R. 56.1(c), and does not comply with Local Rule 56(f)(1)'s numbering requirement. However, it should be noted that Pell's Statement Of Additional Material Facts, filed April 13, 2001, also fails to comply with the numbering requirement.
The court finds that to strike Mr. Krieg's reply brief and disregard the arguments made therein would be inappropriate under the circumstances, particularly since Pell's brief in support of its motion to strike addresses not only its arguments for striking the reply but also responds to various arguments raised in the reply, thus serving as a surreply; and, Mr. Krieg's reply brief identified the evidence upon which he relied in arguing that the two employees did not work a total of eighty hours per week. The court may excuse the failure to strictly comply with Local Rule 56.1 when it serves the interests of justice to do so, S.D. Ind. L.R. 56.1(k), and has a concomitant duty to construe and apply the Federal Rules of Civil Procedure "to secure the just, speedy, and inexpensive determination" of an action. Fed.R.Civ.P. 1. Excusing Mr. Krieg's failure to strictly comply serves these purposes as the record before the court demonstrates no genuine issue as to whether Mr. Krieg supervised two or more employees who worked a total of eighty hours. Pell's motion to strike Mr. Krieg's reply brief is therefore DENIED.
The court finds that the uncontradicted evidence establishes that the eighty hour rule cannot be satisfied. It is noted that from January 1, 1998 through March 18, 2000, the eighty hour rule was satisfied the week of December 3, 1998 and the week of March 4, 1999. This is insufficient as a matter of law to establish that Mr. Krieg customarily and regularly directed the work of two or more full-time employees or the equivalent. Pell therefore cannot demonstrate that Mr. Krieg customarily and regularly directed the work of two or more employees such that he would fall within the executive exemption to the FLSA overtime pay requirements.
Pell argues that Mr. Krieg has the burden of offering evidence to show that he does not fall within the administrative or professional exemptions to the overtime requirements. Pell is wrong. As stated, the employer bears the burden of proving an employee's exempt status. See Shaw v. Prentice Computer Pub., Inc., 151 F.3d 640, 642 (7th Cir. 1998). Thus, once Mr. Krieg moved for partial summary judgment on Pell's liability to pay him overtime, "it became incumbent upon [Pell] to respond by, at the very least, raising in [its] opposition papers any and all arguments or defenses [it] felt precluded judgment in [Mr. Krieg's] favor." Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234, 1264 (11th Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Harper v. Del. Valley Broadcasters, Inc., 743 F. Supp. 1076, 1090-91 (D.Del. 1990) (burden is on defendant to adduce evidence supporting affirmative defense, not upon movant to negate its existence), aff'd, 932 F.2d 959 (3d Cir. 1991); Fed.R.Civ.P. 56(e) ("When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.")); Celotex, 477 U.S. at 322 (explaining that to defeat a motion for summary judgment a nonmovant must "make a showing sufficient to establish the existence of [the] element[s] essential to that party's case, and on which that party will bear the burden of proof at trial"). Moreover, there is absolutely no suggestion in Pell's legal theories set forth in the parties' Case Management Plan that Pell may assert that any exemption other than the executive exemption applies. (Case Management Plan, ¶ III.B ("Plaintiff's testimony indicates the executive exemption under the FLSA is applicable."))
In any event, it is apparent that Mr. Krieg fits neither exemption. To qualify as an employee employed in a bona fide administrative capacity, an employee must, inter alia, have primary duties consisting of either:
(1) The performance of office or non-manual work directly related to management policies or general business operations of his employer or his employer's customers, or (2) The performance of functions in the administration of a school system, or educational establishment or institution, or of a department or subdivision thereof. . . .29 C.F.R. § 541.2(a). Mr. Krieg worked in a shoe repair store. He clearly does not satisfy (2) above, and there is no hint in the record that he performed work which would qualify him under (1) above. To qualify as an employee employed in a bona fide professional capacity, an employee must, inter alia, have primary duties consisting of:
(1) Work requiring knowledge of an advance type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study . . . (2) Work that is original and creative in character in a recognized field of artistic endeavor . . . (3) Teaching, tutoring, instructing, or lecturing in the activity of imparting knowledge . . . or (4) Work that requires theoretical and practical application of highly-specialized knowledge in computer[s].29 C.F.R. § 541.3(a). The work performed by Mr. Krieg required none of these.
The court concludes that there is no genuine issue as to any material fact and Mr. Krieg is entitled to partial judgment on Pell's liability to pay him overtime. Pell's motion for summary judgment on the FLSA overtime claim is thus DENIED and Mr. Krieg's motion for partial summary judgment will be GRANTED.
B. FLSA Retaliation Claim
Mr. Krieg claims that he was retaliated in violation of 29 U.S.C. § 215. Pell argues that Mr. Krieg does not claim this is a mixed motive case and that his claim should be analyzed under the familiar framework set forth by McDonnell Douglas v. Green, 411 U.S. 792 (1972). Under that framework, which is applicable to FLSA retaliation claims, Mr. Krieg must present sufficient evidence to make out a prima facie case of retaliation. See, e.g., Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1394 (10th Cir. 1997). Once he does, Pell bears the burden of producing a legitimate, non-discriminatory reason for terminating his employment. Id. If Pell discharges this burden, Mr. Krieg must present evidence that the reason offered is a pretext for retaliation. Id. "The factfinder's disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the prima facie case, suffice to show intentional discrimination. Thus, rejection of the defendant's proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)).
A "mixed-motive" is an affirmative defense, see Price Waterhouse v. Hopkins, 490 U.S. 228, 245-52 (1988); Speedy v. Rexnord, 243 F.3d 397, 401-02 (7th Cir. 2001), so the court is puzzled as to why Pell takes issue with the fact that Mr. Krieg has not claimed this to be a mixed-motives case.
Pell claims that Mr. Krieg cannot prove a prima facie case of retaliation because he cannot demonstrate a causal link between his protected expression and his discharge. Pell further argues that at least four non-discriminatory reasons justified Mr. Krieg's termination and he cannot establish pretext.
The other two elements of Mr. Krieg's prima facie case have been established without dispute: (1) he engaged in statutorily protected expression by filing a complaint with the DOL; and (2) the termination of his employment was an adverse action.
Pell maintains that Mr. Krieg cannot establish a causal link because the decision-maker, Kim Anderson, was unaware at the time of his discharge of any protected activity by Mr. Krieg. Even assuming that Ms. Anderson was the decision-maker with respect to the termination of Mr. Krieg's employment, Mr. Krieg has come forward with enough evidence to create a triable issue as to whether she knew before his termination that he had made a DOL complaint. Ms. Anderson stated in her affidavit that she had no knowledge of Mr. Krieg's DOL complaint at the time she terminated him, however, Mr. Krieg proffers the statements in the affidavits of former Pell employees Stacey Collins, Kerrie Kiplinger and Carrie Reuter that Ms. Anderson told each of them before Mr. Krieg's termination that he was "pushing the wrong buttons."(Collins Aff. ¶ 11; Kiplinger Aff. ¶ 9; Reuter Aff. ¶ 7.) Though this evidence alone may not be sufficient to raise a reasonable inference that Ms. Anderson was aware of Mr. Krieg's DOL complaint, when viewed in light of other evidence in the record, such an inference becomes reasonable. Mr. Krieg was discharged within six weeks of having filed his DOL complaint, and Pell had placed an ad for Mr. Krieg's job in the local paper within three weeks after he made his complaint and three weeks before the events of April 28 which Pell maintains led to his discharge. A reasonable trier of fact could infer from the placement of the classified ad that Pell had decided to terminate Mr. Krieg's employment well before the events of April 28 and only three weeks after he made his DOL complaint. Though timing alone may not be sufficient to establish a causal link, the passage of such a short period of time is suggestive of a connection between Mr. Krieg's protected activity and the decision to replace him as manager of the Kokomo store. See, e.g., Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1225 ("the timing of a discharge or other adverse personnel action in relation to the employee's act that invited retaliation can be circumstantial evidence of retaliation"); Holland v. Jefferson Nat'l Ins. Co., 883 F.2d 1307, 1315 (7th Cir. 1989) ("For the purposes of establishing a prima facie case, [a] 'telling' temporal sequence demonstrates a causal link between Mrs. Holland's opposition and Jefferson's adverse action.").
And there may be some reasonable doubt as to whether she was the sole decision-maker or, alternatively, whether her decision was influenced by the retaliatory animus of Mr. Clark who was well aware that Mr. Krieg had made a complaint with the DOL, as there is evidence of record that Ms. Anderson telephoned Mr. Clark that day before terminating Mr. Krieg. The court, however, need not reach these issues in concluding there is a genuine issue for trial of Mr. Krieg's retaliation claim.
In reaching this conclusion the court does not consider the evidence submitted with Mr. Krieg's surreply or related arguments therein. Though such evidence and arguments may bolster the conclusion, it is not necessary in order to reach the conclusion that the record contains sufficient evidence to raise a reasonable inference that Ms. Anderson was aware of Mr. Krieg's DOL complaint. As consideration of the surreply and evidentiary submissions are unnecessary, Pell's motion to strike the surreply is DENIED.
Ms. Kiplinger's affidavit provides even more evidence to support a reasonable inference that Ms. Anderson was aware of Mr. Krieg's DOL complaint: Once Mr. Krieg became aware of the ad in the newspaper, Ms. Anderson asked Ms. Kiplinger to tell him that it was for stores in Indianapolis rather than Kokomo. (Kiplinger Aff. ¶ 10.)
Moreover, Ms. Anderson advised Ms. Kiplinger in March 2000 that Pell's operations manager was going to the Kokomo store to discipline Mr. Krieg for wearing a hat, she believed he was stubborn enough that he would not accept the discipline and remove his hat, thus giving the operations manager a reason to discharge him. (Id. ¶¶ 11-12.)
These things raise a reasonable inference that Pell had it in for Mr. Krieg long before his termination on April 28 and that Ms. Anderson was aware of his DOL complaint — why else would Pell need a reason to discharge him? Pell makes much of Mr. Krieg's testimony that he did not tell Ms. Anderson about his DOL complaint until after she had fired him. This proves little since Mr. Krieg was not the only possible source of information about his DOL complaint.
The evidence creates a reasonable inference of a causal connection between Mr. Krieg's DOL complaint and his termination. Thus, the court finds that the record is sufficient to support his prima facie case, and the burden shifts to Pell to proffer legitimate, nondiscriminatory reasons for its decision to terminate Mr. Krieg's employment.
Pell, however, argues in its reply brief that if Mr. Krieg can establish Ms. Anderson's awareness of his DOL complaint, then this should be analyzed as a mixed-motives case. The "mixed-motives" affirmative defense was established in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), where the Supreme Court said that "when a plaintiff in a Title VII case proves that her [protected conduct] played a motivating part in an employment decision, the defendant may avoid a finding of liability only by proving by a preponderance of the evidence that it would have made the same decision even if it had not taken the plaintiff's [protected conduct] into account." Id. at 258. Though the Civil Rights Act of 1991 overruled this holding with respect to claims of discrimination based on race, color, religion, sex, or national origin, 42 U.S.C. § 2000e-2(m), the mixed-motives defense remains available in cases of retaliation claims.
See Speedy v. Rexnord, 243 F.3d 397, 401 (7th Cir. 2001). To establish this defense, it is not enough for an employer to offer a legitimate, reason for its decision where the reason "did not sufficiently motivate the employer at the time of the decision." Speedy, 243 F.3d at 402; see Price Waterhouse, 490 U.S. at 252 ("[A]n employer may not . . . prevail in a mixed-motives case by offering a legitimate and sufficient reason for its decision if that reason did not motivate it at the time of the decision."). Rather, the employer "'must show that its legitimate reason, standing alone, would have induced it to make the same decision.'" Id. (quoting Price Waterhouse, 490 U.S. at 252).
Pell advances four reasons for discharging Mr. Krieg: (1) Mr. Krieg's sex- or race-based discriminatory conduct toward Shirley Evans; (2) his refusal on April 28 to take instruction from Ms. Anderson on how to treat Ms. Evans and other subordinates; (3) his intention on April 28 to disregard managerial direction from Ms. Anderson; and (4) misinforming Ms. Anderson as to a potential employee. As for misinforming Ms. Anderson about a potential employee, this is after-acquired evidence of which Ms. Anderson had no knowledge until after she had fired Mr. Krieg. It, therefore, could not have motivated the decision to terminate his employment.
As for the remaining reasons, the trier of fact must decide whether they, by themselves, would have motivated Pell to discharge Mr. Krieg. In support of these reasons, Pell offers only Ms. Anderson's self-serving, conclusory statements in her affidavit and the written complaint of Shirley Evans dated April 28, 2000, complaining of Mr. Krieg's treatment of her and suggesting that he had a problem with ethnicity (Anderson Aff., Ex. A at 1) and that his treatment of her may have a connection with her "being of color." (Id. at 4.) Mr. Krieg, on the other hand, has offered some evidence that he did not consider Ms. Evans' race when directing her how to repair shoes and in discussing her performance with Ms. Anderson on April 28, 2000. (Krieg Aff. ¶¶ 16-17.)
Ms. Evans's complaint says nothing about Ms. Evans' gender, though.
He also offers his affidavit statement that he never behaved aggressively toward Ms. Anderson before or after he was terminated on April 28. (Krieg Aff. ¶ 20.) Mr. Krieg's statements, considered together with the other evidence suggesting that even before April 28 Pell was looking for and creating reasons to justify his termination, create a triable issue as to whether the remaining reasons offered by Pell standing alone were sufficient to and, in fact did, motivate his discharge. Cf. Speedy, 243 F.3d at 402-03 (an employer's naked affidavit that it would have made fired employee absent his protected activities is insufficient to establish the mixed-motives defense). Therefore, Pell's motion for summary judgment should be DENIED on the FLSA retaliation claim.
Whether analyzed as a mixed-motives case or under the McDonnell Douglas framework, Mr. Krieg has produced evidence sufficient to reach a jury on his retaliation claim.
IV. Conclusion
For the foregoing reasons, Pell's motion to strike Mr. Krieg's reply brief is DENIED, Pell's motion to strike Mr. Krieg's surreply brief is DENIED, Pell's motion for summary judgment is DENIED, and Mr. Krieg's motion for partial summary judgment on Pell's liability to pay him overtime will be GRANTED.
Because related issues remain to be resolved with respect to the FLSA overtime claims of the opt-in plaintiffs, no judgment on Mr. Krieg's overtime claim will be entered at this time.
A pretrial status conference will be set under separate order.