Conner v. Schnuck Markets, Inc., 95-3408.

• Decision Date: 05 August 1997
• Docket Number: No. 95-3408.,95-3408.
• Parties: Steven D. CONNER, Plaintiff-Appellant, v. SCHNUCK MARKETS, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

121 F.3d 1390

Steven D. CONNER, Plaintiff-Appellant, v. SCHNUCK MARKETS, INC., Defendant-Appellee.

No. 95-3408.

United States Court of Appeals, Tenth Circuit.

August 5, 1997.

COPYRIGHT MATERIAL OMITTED

Stephen J. Dennis of Dennis, Stanton & Relingshafer, Fairway, KS, for Plaintiff-Appellant.

Dennis G. Collins of Greensfelder, Hemker & Gale of St. Louis, MO, (Lisa K. Boyer of Greensfelder, Hemker & Gale, St. Louis, MO and J. Nick Badgerow and Gregory L. Ash of Spencer Fane Britt & Browne, Overland Park, KS with him on brief) for Defendant-Appellee.

Before PORFILIO, BARRETT,¹ and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Plaintiff-Appellant Steven D. Conner ("Conner") appeals the district court's grant of summary judgment to Schnuck Markets, Inc. ("Schnuck") on his retaliatory discharge claims under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201-219 (1994 & Supp.1997) and the public policy exception to Kansas' at-will employment doctrine. We agree with both the district court's determination that Conner has failed to produce sufficient evidence of retaliatory motive to survive summary judgment on his FLSA claim and its determination that Conner's common law claim is precluded by the availability of statutory relief. Accordingly, we AFFIRM the judgment of the district court.

I. BACKGROUND

Conner was hired by Schnuck in January, 1991, as a food clerk at one of its Kansas stores. In October, 1992, one of Conner's co-employees reported to Schnuck that she believed that it was not paying overtime in accordance with federal law. After determining that it had violated federal overtime laws, Schnuck distributed surveys that allowed employees to claim any unpaid overtime hours. Conner received a survey but did not return it until he was told that he was required to return the survey before he could receive his overtime back pay. In January of 1993, Conner took his completed survey to Ken Ringkamp, the store manager, claiming unpaid wages. Conner alleges that Ringkamp read the survey in Conner's presence and said: "Are you sure that you filled this out correctly? ... If you want to go anywhere with the company, you'll reconsider this."² Conner then filled out a new survey, took his paycheck and left.

After his meeting with Ringkamp, Conner alleges a change in the way he was treated on the job. Specifically, Conner claims that Ringkamp became cold toward him, that he and his wife were no longer invited to social functions or company sporting events, that his hours and responsibilities were changed, and that he was not allowed to have lunch with vendors, although other employees were allowed to do so. In March, 1993, two months after Conner turned in his overtime survey, Conner accepted a Tombstone Pizza jacket from a Tombstone Pizza Representative, Mark Leisman. In April, 1993, Conner accepted another jacket from Leisman. The acceptance of gifts or "premiums" from vendors is purportedly prohibited by Schnuck, although Conner claims that he did not know of such a policy and has never known of an employee who was investigated or disciplined for accepting gifts from a vendor. Conner also claims to have seen other employees openly wear items of clothing they had received from vendors, both inside and outside the workplace, and that he had been to sporting events with other employees who had received tickets to those events from vendors.

Other undisputed evidence points to Conner's knowledge of Schnuck's policy against the acceptance of gifts from vendors, however. Upon the receipt of each of the Tombstone Pizza jackets, Conner told Leisman not to bring the jacket inside the store but to take his keys and put the jacket inside his car. Leisman had earlier tried to bring jackets inside the store, but Ringkamp, the store manager, had ordered Leisman to leave the store upon discovering his purpose. Conner and a co-employee were present at this confrontation, at which time the co-employee said to Conner, "That was a close one," prompting Conner to respond, "No Shit."

Leisman told Ringkamp on May 7, 1993, that he had given jackets to Conner, prompting a meeting between Ringkamp, Conner, and the produce manager on the same day. Conner denied taking the jacket, at which time he was suspended pending an investigation. The investigation yielded written statements from Leisman and one of Conner's co-employees alleging that Conner had, in fact, taken the jackets. On May 12, 1993, Ringkamp asked Conner to meet with him and Schnuck's Loss Prevention Coordinator, Renee Dettmer. Again, Conner was asked about the jackets, and again Conner denied that he had taken the jackets. All told, Conner denied having taken the jackets seven times: twice at the May 7th meeting, and five times at the May 12th meeting. Conner later admitted to these lies during his April 26, 1995 deposition, claiming he lied to avoid "getting in trouble."

Dettmer referred the Conner matter to her supervisor, Linda Walker, whose office was located in the Schnuck headquarters in St. Louis, Missouri. Ms. Walker recommended to Schnuck's manager of security, Mike Panneri, that Conner be terminated for two reasons: first, for violating the company's policy in accepting gifts from a vendor; and, second, for lying to various company representatives during the subsequent investigation. Ms. Walker noted in support of Schnuck's past policy that a 14 year employee of Schnuck had been discharged in 1988 for accepting beer from a vendor. Conner was then terminated.

Conner subsequently initiated a four-count action, claiming that Schnuck: "(1) breached its promise to pay him overtime compensation for hours he worked in excess of eight hours per day; (2) violated the Fair Labor Standards Act by failing to pay him overtime compensation for hours he worked in excess of 40 hours per week; (3) violated the Fair Labor Standards Act by terminating him for asserting a claim for overtime compensation due him; and (4) also violated state common law by terminating him for asserting such claim."

The first two counts were dismissed with prejudice on February 13, 1996, upon the agreement of the parties to settle, and the last two counts were dismissed as a matter of law on Schnuck's motion for summary judgment. Conner now appeals the district court's grant of summary judgment to Schnuck. Conner argues that having presented a prima facie case of retaliatory discharge, he should survive summary judgment without presenting any evidence with regard to the employer's articulated reasons for his discharge. In the alternative, Conner argues that he has presented sufficient evidence of pretext to survive summary judgment. We disagree with both of these contentions.

II. DISCUSSION

A. FLSA Retaliation Claim.

Section 215(a)(3) of the FLSA provides that it is unlawful for any person "to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to the FLSA...." 29 U.S.C. § 215(a)(3) (1994). The district court determined that Conner failed to produce sufficient evidence to survive summary judgment on his section 215(a)(3) claim. We review the district court's grant of summary judgment de novo, Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir.1996).

We have held that "when 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.'" Love v. RE/ MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir.1984) (quoting Brennan v. Maxey's Yamaha, Inc., 513 F.2d 179, 181 (8th Cir. 1975)). In a later case, we explained that Love's "motivating factor" test is equivalent to the "but for cause" test, so that "the discharge is unlawful only if it would not have occurred but for the retaliatory intent." Martin v. Gingerbread House, Inc., 977 F.2d 1405, 1408 n. 4 (10th Cir.1992) (emphasis in original). Thus, if a jury finds that a FLSA retaliation plaintiff "would have been terminated regardless of her FLSA activity, then it is required to find in favor of the defendants." McKenzie v. Renberg's, Inc., 94 F.3d 1478, 1484 (10th Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 1468, 137 L.Ed.2d 682 (1997) (citing Reich v. Davis, 50 F.3d 962, 966 (11th Cir.1995)).

In analyzing FLSA retaliation claims, we apply the shifting burden of proof scheme initially articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Richmond v. Oneok, Inc., 120 F.3d 205, 208 (10th Cir.1997) (citing Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir.1997)). Under this standard, a plaintiff must first establish a prima facie case of retaliation. Id. The burden then shifts to the employer to offer a legitimate reason for the plaintiff's termination. Id. Once the employer offers such a reason, "the burden then shifts back to the plaintiff to show that `there is a genuine dispute of material fact as to whether the employer's proffered reason for the challenged action is pretextual.'" Id. (quoting Morgan, 108 F.3d at 1323).

To establish a prima facie case of FLSA retaliation, a plaintiff must show that: (1) he or she engaged in activity protected by the FLSA; (2) he or she suffered adverse action by the employer subsequent to or contemporaneous with such employee activity; and (3) a causal connection existed between the employee's activity and the employer's adverse action. Id. (citing Archuleta v. Colorado Dep't of Insts., 936 F.2d 483, 486 (10th Cir.1991)). We believe that Conner has satisfied the first two prongs of the prima facie case, and we assume arguendo for the purposes of this appeal that Conner has satisfied the third prong.

With regard to the first prong, protected activity, we note that section 15(a)(3) of the FLSA, by its terms, only protects employees who have "filed any complaint or instituted or caused to...