Brennan v. Maxey's Yamaha, Inc.

• Decision Date: 26 March 1975
• Docket Number: 74-1478,Nos. 74-1354,s. 74-1354
• Citation: 513 F.2d 179
• Parties: 22 Wage & Hour Cas. (BN 213, 76 Lab.Cas. P 33,224 Peter J. BRENNAN, Secretary of Labor, United States Department of Labor, Appellant-Cross-Appellee, v. MAXEY'S YAMAHA, INC., et al., Appellee-Cross-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 179

513 F.2d 179

22 Wage & Hour Cas. (BN 213, 76 Lab.Cas. P 33,224

Peter J. BRENNAN, Secretary of Labor, United States

Department of Labor, Appellant-Cross-Appellee, v. MAXEY'S YAMAHA, INC., et al., Appellee-Cross-Appellant.

Nos. 74-1354, 74-1478.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 8, 1975.

Decided March 26, 1975.

Sylvia S. Ellison, Atty., U. S. Dept. of Labor, Washington, D. C., for Secretary of Labor.

John J. Respeliers, Omaha, Neb., for Maxey's Yamaha.

Before GIBSON, Chief Judge, and HEANEY, and ROSS, Circuit Judges.

GIBSON, Chief Judge.

The Secretary of Labor brought this action to enjoin alleged violations of the Fair Labor Standards Act of 1938, as amended (FLSA), 29 U.S.C. § 201 et seq., including the withholding of overtime compensation due to employees of Maxey's Yamaha, Inc., a Nebraska corporation engaged in retail sales and service of motorcycles. Both parties appeal portions of the District Court's March 13, 1974, order denying the Secretary's requested injunction with respect to all but one of Maxey's various alleged violations of the Act. ¹ As to the remaining violation, the court enjoined Maxey's from withholding $1,708.54 in overtime compensation denied Donald Holub as a result of his misclassification under the Act as an exempt executive or administrative employee.

On appeal the Secretary challenges (1) the trial court's finding that another Maxey's employee, Judith Holman, was not discharged in violation of 29 U.S.C. § 215(a)(3) for asserting her rights under the Act, and (2) the trial court's omission of prejudgment interest from its award of unpaid overtime compensation to Holub. On cross-appeal Maxey's asserts that under 29 U.S.C. § 213(b)(10) Holub is exempt from the maximum hour provisions of the Act because he is a "mechanic primarily engaged in selling or servicing automobiles." We reverse the trial court's finding that Judith Holman's discharge was nondiscriminatory and its denial of prejudgment interest.

I. Discriminatory Discharge.

The Act ² prohibits discrimination against an employee who asserts or threatens to assert his or her FLSA rights. The Secretary charged Maxey's with having discriminatorily discharged Holman, an office worker, on July 28, 1972, because of her assertion of rights under the Act.

The discharge followed a 1972 investigation by the Department of Labor which disclosed minimum wage and maximum hour violations with regard to nine of Maxey's employees. At the Government's request, Maxey's promptly agreed to pay its employees all back wages found to be due and issued a check to each along with scheduled July 28 paychecks. At least five of the nine workers, however, were asked to endorse their back wage checks back to Maxey's and to sign wage receipt forms without actually receiving and retaining the check proceeds. Apparently these amounts were treated as loans to the company and later repaid.

The Secretary urges that the discharge of Holman by Maxey's president and sole owner, Mr. McBride, ³ was discriminatory because it was prompted by Holman's complaint that her rights under the FLSA were being violated. McBride admitted that before July 28 he had no intention to fire Holman, but decided to do so after a July 28 outburst following her refusal to take part in what she thought was an unlawful scheme. Although Maxey's argues that Holman was legitimately discharged because of unsatisfactory job performance and overall emotional conduct, it appears unrefuted that the check endorsement scheme, as Holman believed it to exist, was a patent violation of the Act and the immediate cause of her July 28 outburst.

Where the immediate cause or motivating factor of a discharge is the employee's assertion of statutory rights, the discharge is discriminatory under § 215(a)(3) whether or not other grounds for discharge exist. Goldberg v. Bama Manufacturing Corp., 302 F.2d 152 (5th Cir. 1962); Mitchell v. Goodyear Tire & Rubber Co., 278 F.2d 562 (8th Cir. 1960). In the Mitchell case we reversed as clearly erroneous the trial court's finding that an employee's discharge was unrelated to his mailing a letter of complaint to the Wage and Hour Division of the Department of Labor a few days earlier. On the contrary, the record revealed that although a few days before his wage-hour complaint he had been scheduled for future discharge, he would not have been discharged at that particular time but for his admission of authorship of the letter. Similarly, in Goldberg the Fifth Circuit remanded the trial court's refusal to grant reimbursement of lost wages to an employee who could have, and in the court's opinion, "probably ought" to have been fired for half a dozen reasons, where the firing was motivated in part by the assertion of her statutory rights. 302 F.2d at 153. In the instant case, however, Holman was not scheduled for discharge and had not been advised that McBride or any person with hiring authority considered her work unsatisfactory.

Holman's protest of what she believed to be unlawful conduct on Maxey's part was an act protected from reprisals and rendered her firing discriminatory regardless of the existence of other grounds for her discharge. As in Wirtz v. Ross Packaging Co., 367 F.2d 549 (5th Cir. 1966), she insisted on receiving and retaining her back wage check before signing her receipt and was promptly dismissed. Her discharge was a direct result of her insistence upon receiving retroactive benefits required under the Act. That a scheme was proved to exist in Wirtz but only believed to exist in the instant case does not deny Holman a remedy. Her reasonable belief was caused entirely by Maxey's conduct, and her lawful assertion of rights based on that belief must be protected. To hold otherwise would defeat the Act's purpose in § 215(a)(3) of preventing employees' attempts to secure their rights under the Act from taking on the character of "a calculated risk." Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 293, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960).

Three witnesses to the July 28 incident, McBride, Holman, and Mr. Rupiper, the company bookkeeper, testified as to the facts surrounding Holman's discharge. Holman testified that she first learned she was entitled to back wages on the morning of July 28 when she overheard McBride tell Rupiper to issue back wage checks to the employees from one account, to have the employees endorse them and sign government wage receipts, and then to deposit the checks in Maxey's account in another bank. ⁴ She voiced her disapproval at the time, but to no avail. ⁵ McBride then left and Rupiper presented a back wage check in the amount of $110.63 and a blank receipt to Holman, asking her to endorse both without receiving any money. ⁶ She refused. That afternoon McBride returned and in a private conversation in his office purportedly told Holman she would be fired if she did not sign. ⁷ She then signed, received her check, and was discharged.

McBride testified to two conversations with Holman on July 28. The first, in the morning, occurred just after he learned of the Government's determination that back wages were due Maxey's employees. McBride admitted that he was displeased with having to pay back wages. This is understandable as is his reaction that the overtime back wages might not be merited. But the Government ordered the wages paid. If McBride wanted to contest the order, he was free to do so; otherwise he should have made payment without giving with one hand and taking back with the other. This does not mean that legitimate loans between the company and the employees could not have been mutually agreed upon. But in Holman's case there was no agreement. When McBride returned later that afternoon, Holman was still upset. He talked with her privately in his office and reportedly tried to calm her in order to explain why she was being paid the back wages, but she was out of control. Finally, because of her continuing outburst, McBride discharged her. ⁸ McBride denied having personally ordered her to endorse the check and receipt without being paid.

Rupiper testified that he presented the check and receipt to Holman the morning of July 28. He admitted commenting to her that she did not deserve the money suggesting that she should endorse the check back to the company but he denied ordering her to do so. ⁹

The District Court's finding that there was no scheme to deprive employees of their back overtime wages appears correct. The three employees who were owed the greatest amounts ended up as part owners of the business; however, the manner in which the back wage payments were discussed and presented to Holman did appear highly suspect and could readily have been viewed by her as a scheme to circumvent the Act. Many of the employees felt similarly about the pay-back or lend-back angle. Even Rupiper admitted that he understood why Holman felt cheated. Under these circumstances it was incumbent upon the employer to promptly and effectively dispel and correct any coercive atmosphere or erroneous impression that its tactics in issuing the checks and requesting an endorsement back to the company might have formed in the minds of the employees. It appears that the company did not have sufficient funds to cover the back wage checks. The company should therefore have leveled with the employees and reached a mutually satisfactory arrangement on paying the back amounts. This it apparently did with most of its employees but not with Holman.

While on appeal we do not try a case de novo and we give great weight and deference to trial court factual findings, we are convinced that the District Court's finding that discrimination played no part in Holman's discharge is clearly erroneous and must be set aside. Rule 52(a), Fed.R.Civ.P. The whole episode resulted from Maxey's violation of the Act coupled with its ill-devised method of facial compliance.

Certainly the court cannot place its...