Johnson v. the Advertiser Co.
| Citation | 778 F.Supp.2d 1270 |
| Decision Date | 28 March 2011 |
| Docket Number | Case No. 2:09–CV–924–MEF. |
| Parties | David JOHNSON, Plaintiff,v.The ADVERTISER COMPANY, d/b/a The Montgomery Advertiser, Defendant. |
| Court | U.S. District Court — Middle District of Alabama |
OPINION TEXT STARTS HERE
Heather Newsom Leonard, Heather Leonard, PC, Birmingham, AL, for Plaintiff.Anita Kay Head, Johnston Barton Proctor & Rose, LLP, Birmingham, AL, for Defendant.
This cause is currently before the Court on the Defendant's motion for summary judgment. (Doc. # 20). This is a suit under the Fair Labor Standards Act for unlawful retaliation. The Plaintiff, David Johnson, claims that he was dismissed from his job at The Montgomery Advertiser (the Advertiser) because of his repeated complaints to the Advertiser's management regarding what he believed were unlawful compensation practices. Johnson claims that the Advertiser's decision to terminate his employment was retaliatory in nature and violated the Fair Labor Standards Act. (Doc. # 1). Because the Court finds that Johnson has not carried his burden to demonstrate unlawful retaliation, the Advertiser's motion for summary judgment is due to be GRANTED.
This Court has jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 (federal question). The parties do not contest personal jurisdiction or venue and the Court finds adequate allegations of both.
The Advertiser is a daily newspaper in Montgomery, Alabama. Johnson is a journalist who joined the Advertiser on May 30, 2006 as an assistant sports editor. He was assistant sports editor until March 30, 2007 when he accepted a position as the Advertiser's community conversations editor. In 2007, in response to a difficult financial environment for the Advertiser and newspapers in general, the Advertiser initiated an organizational restructuring. As a result of the restructuring, the Advertiser converted itself into a Local Information Center (LIC) to increase its coverage of topics of local interest in Montgomery. In April 2007, Johnson was promoted to sports editor. Johnson's changing responsibilities at the Advertiser coincided with the Advertiser's reorganization into an LIC. As a result of the reorganization, the Advertiser reduced its sports writing staff. (Doc. # 24, 2). Because of the staff reductions, Johnson assumed duties that were not previously performed by the sports editor. ( Id.). Johnson regularly worked more than 40 hours a week to complete all the work expected of him. Johnson claims that his sports reporters also worked more than 40 hours a week to complete all of their work. (Doc. # 24, 5). The excess hours worked by Johnson's staff are the source of the current lawsuit. According to Johnson, Mel Gray, the managing editor at the time, and Wanda Lloyd, the executive editor, instructed him to not allow his staff to report the overtime hours that they worked. (Doc. # 24, 7). Johnson states that his sports reporters were aware of this instruction and instead of accurately reporting their weekly hours, they consistently reported only 40 hours a week even though they had actually worked more. 2
Prior to his termination, Johnson voiced his concerns about the Advertiser's compensation policy. First, Johnson approached the human resources office as well as his own supervisors to inform them that his reporters were working more than 40 hours a week. (Doc. # 24, 19–20). According to Johnson, he told human resources and his supervisors that his reporters should either be paid for the time they worked or else they should receive compensatory time off. ( Id.). Neither Johnson's brief nor the citation to his deposition provide a date for these conversations. Second, Johnson informed Mel Gray that Johnson's reporters were intentionally under reporting their time in response to pressure not to submit overtime hours. (Doc. # 24, 20). Although Johnson does not provide a date for this conversation, it appears from Johnson's deposition that the conversation occurred shortly before Johnson's August 26, 2008 conversation with Linda Browder. (Johnson Depo. 232:4–234:11); (Johnson Depo. 291:1–23).3 Third, on April 29, 2008, Johnson sent Mel Gray an email claiming that he was one of a few people employed at the Advertiser “who has the courage to speak up in the face of injustices in [the] newsroom.” (Doc. # 24, 20). More generally, Johnson claims that he raised at least ten complaints regarding the Advertiser's hours reporting policy beginning in 2007 and continuing until he was placed on a performance improvement plan. (Doc. # 24, 18). According to Johnson, he was terminated for his efforts to bring to light the Advertiser's failure to properly compensate the sports writing staff for the overtime that they were working.
In its motion for summary judgment, the Advertiser claims that Johnson was an unsatisfactory employee who was unable to manage his staff's time, failed to execute directives from management, was rude to colleagues and customers, and ultimately showed no desire or ability to improve his behavior. (Doc. # 21, 4–6). The Advertiser provides several examples of Johnson's unsatisfactory performance. In September 2007, Johnson failed to attend the media luncheon hosted by the Ladies Professional Golf Association in connection with the Navistar golf tournament hosted in nearby Prattville, Alabama. (Doc. # 21, 6). On April 29, 2008, Mel Gray issued Johnson a disciplinary letter indicating that employees had reported that Johnson was contributing to an increasingly uncomfortable work environment in the newsroom during the evenings. (Doc. # 21, 7). On May 22, 2008, Wanda Lloyd issued Johnson a performance warning related to an incident where Johnson threatened a senior manager at the Advertiser. (Doc. # 21, 8). On June 18, 2008, Wanda Lloyd issued Johnson a verbal warning for misuse of a company credit card. On August 14, 2008, Mel Gray issued Johnson a verbal warning for failing to follow through on a story of local interest related to the 2008 Beijing Olympics. (Doc. # 21, 8–9).
On September 4, 2008, the Advertiser placed Johnson on a 90–day performance improvement plan, or PIP. (Doc. # 21, 9). The PIP identified five specific performance problems: (1) failure to plan; (2) failure to cover certain types of sporting events; (3) ineffective communication with reporters and managing editors; (4) failure to adhere to company policy; and (5) inappropriate workplace behavior. (Doc. # 22–7, 12). The PIP also listed the level of performance that it expected in each of the problem areas and set forth steps for correcting the problem areas. ( Id.). Over the next few weeks, Mel Gray tracked Johnson's progress through a series of weekly assessments that she sent to Johnson. (Docs. # 22–7, 15; # 22–7, 17; # 22–7, 20). The final weekly assessment, dated November 14, 2008, indicated that Johnson's performance was still not meeting the standards expected of him. (Doc. # 22–7, 15). On November 18, 2008, Wanda Lloyd issued Johnson a final performance warning related to a customer complaint she received claiming that Johnson was rude on the telephone. (Doc. # 22–7, 23).
The Advertiser terminated Johnson's employment on November 21, 2008. In the termination memorandum, Wanda Lloyd restated the five performance problems identified in the PIP and described how Johnson had failed to meet the standard of performance required in those areas. (Doc. # 22–7, 24). In the final five paragraphs of the memorandum Wanda Lloyd described Johnson's declining performance since the beginning of the PIP and points to specific dates and events where Johnson's performance failed to meet the standards set in the performance improvement plan. The first of those paragraphs describes Johnson's absence from a training meeting. The second paragraph indicates that Johnson failed to properly manage his staff's vacation schedule, submit proposed sports section content on time, and hold monthly staff meetings. The third paragraph describes Johnson's poor customer service and lack of self control. The fourth paragraph describes Johnson's failure to properly communicate assignments to his sports reporters resulting in staff confusion and also describes an incident where he shouted at a reporter over the telephone. The memorandum concludes with Wanda Lloyd stating that the Advertiser no longer had confidence in Johnson's ability to lead the sports team and terminating Johnson's employment effective November 21, 2008.
On October 2, 2009, Johnson filed a complaint for unlawful retaliation in violation of the Fair Labor Standards Act. (Doc. # 1). Johnson filed an amended on January 29, 2010. (Doc. # 17). The Advertiser filed a motion for summary judgment on June 28, 2010. (Doc. # 20). The Advertiser's motion for summary judgment has been fully briefed and is ripe for disposition.
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. of Civ. P. 56(a). A party may demonstrate the existence of or absence of a genuine dispute as to any material fact by pointing to materials in the record “including depositions, documents, electronically stored information, affidavits or declarations, stipulations ... admissions, interrogatory answers, or other materials.” Id. The movant “always bears the initial responsibility of informing the district court of the basis for its motion,” and identifying those evidentiary submissions “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant can meet this burden by presenting evidence showing there is no dispute of material fact, or by showing the non-moving party has failed to present evidence in...
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