Stewart v. Masters Builders Ass'n of King and Snohomish Counties

• Decision Date: 08 September 2010
• Docket Number: Case No. C09-1152-MAT
• Parties: Cecil STEWART, Plaintiff, v. MASTERS BUILDERS ASSOCIATION OF KING AND SNOHOMISH COUNTIES, Defendant.
• Court: U.S. District Court — Western District of Washington

736 F.Supp.2d 1291

Cecil STEWART, Plaintiff,
v.
MASTERS BUILDERS ASSOCIATION OF KING AND SNOHOMISH COUNTIES, Defendant.

Case No. C09-1152-MAT.

United States District Court,
W.D. Washington,
at Seattle.

Sept. 8, 2010.

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George Theodore Hunter, Connell Cordova Hunter & Gautschi PLLC, Timothy James Pauley, Pauley Law Group PLLC, Seattle, WA, for Plaintiff.

D. Michael Reilly, Laura T. Morse, Mary Schug Young, Lane Powell PC, Seattle, WA, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

MARY ALICE THEILER, United States Magistrate Judge.

INTRODUCTION

Plaintiff Cecil Stewart brought this employment action against defendant Master Builders Association of King and Snohomish Counties ("MBA") pursuant to the anti-retaliation provision of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 215(a)(3). He claims retaliation by and constructive discharge from his employment with defendant following his complaint that MBA employees were not being

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paid overtime as required by federal and state laws.

Defendant filed a motion for summary judgment and requested oral argument. (Dkt. 17; see also Dkt. 22.) Plaintiff opposes the motion. (Dkt. 21.) Now, having considered the parties' submissions, along with the remainder of the record, the Court finds oral argument unnecessary and defendant entitled to summary judgment based on plaintiff's failure to make a showing that he engaged in "protected activity" under § 215(a)(3).

BACKGROUND

Plaintiff began his employment with MBA as a Sales & Marketing Director in April 2006. (Dkt. 18, Ex. A at 15-16.) In a conversation with Lynda Hester, Human Resources Director/Director of Administration for MBA, in the summer of 2006, plaintiff raised the issue of overtime pay based on the complaints of a number of employees. (Dkt. 21-1, ¶ 3; see also Dkt. 18-2 at 30-33.) ¹ Hester responded that a consultant had looked into the issue and determined that MBA employees were exempt. (Dkt. 18-2 at 30-33.)

"Shortly after speaking to the Washington State Department of Labor and Industries [ (L & I) ] about overtime requirements[ ]" (Dkt. 21-1, ¶ 4), ² plaintiff sent an e-mail, on April 11, 2007, to Hester and Rick Miller, Chief Operating Officer of MBA, stating:

It seems from the Washington state Labor and Industries (L & I) documents on their website that we may be operating outside the law by having all our employees exempt.
Perhaps I am not interpreting what I see there correctly but it seems that even some of our Directors may not be "exempt" according to L & I.

Could you please clarify for me why all of our employees are categorized as exempt?

(Dkt. 20, Ex. A.) Hester replied: "Cecil-you aren't the first person to question this. We questioned it ourselves. However, we worked with a couple of HR specialists who confirmed that all of our staff would be considered administrative and exempt. Please see attached document." ( Id.) A subsequent e-mail from plaintiff on that same date stated:

In my role as director I have a responsibility to our employees and to our company. In light of what I have learned, I believe we as an organization may be exposed to the harsh realities of our legal system. I also know that I may very well be wrong as I am not an HR specialist.

The portion of the document I mentioned that directly relates to the majority of our workers is:

[Excerpt omitted]

According to L & I, the rule that affords the worker the most protection is the one that remains primary. Under the above-stated rules, a director who does not direct the activities at least two full time employees cannot be considered exempt. Therefore workers who have a manual-labor component in their responsibilities are non-exempt.

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I am attaching a copy of the document for your review.

( Id.)

Plaintiff subsequently spoke to Hester about this issue "[a] couple of times [,]" and she reiterated the response described above. ( Id. Dkt. 18-2 at 36.) In one of those conversations, also on April 11, 2007, plaintiff specifically identified Sales & Marketing Coordinator Andrea Morrison as an employee who had complained to him about the issue of overtime pay. (Dkt. 21-1, ¶ 4; see also Dkt. 18-2, Ex. A at 37, 59.) Plaintiff also, in a May 2007 e-mail to Hester and Miller, expressed concern that an incident in which an individual associated with MBA had declared to others that plaintiff was about to be let go was a result of his having asked the question " 'why are all our employees exempt?' " (Dkt. 18-3, Ex. I.) Hester replied: "Cecil-I'm sorry to hear about Bob's comments. Your question regarding exempt vs. nonexempt is a fair question which I hope we answered satisfactorily to you. The question does not have any bearing on your employment here. To my knowledge everyone seems happy with your work." ( Id.)

Plaintiff testified that he raised the issue of overtime pay with MBA based on complaints received from employees because he "needed to make sure that their complaints were addressed through HR[,]" and it was his "responsibility as the boss of someone that came to [him] and complained, that [he] should make that complaint in writing ... to HR." (Dkt. 18-2, Ex. A at 35-36.) He concedes that reporting employee complaints to human resources was his responsibility as an MBA director and supervisor. ( Id. at 36-37.) He maintains, however, that his "main purpose" in taking the above-described actions "was to correct what [he] thought was MBA's unlawful practice of not paying overtime to some employees of MBA including Andrea who reported to [him]." (Dkt. 21-1, ¶ 5.)

Plaintiff left his employment with MBA in February 2009. (Dkt. 18-2 at 39.) He concedes that, outside of the above-described conversations and e-mails, he did not raise the issue of overtime pay with anyone at MBA at any time prior to leaving or at the time he left his employment. ( Id. at 39-40.) ³

DISCUSSION

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of his case with respect to which he has the burden of proof. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548.

Genuine issues of material fact that preclude summary judgment are "disputes over facts that might affect the outcome of the suit under the governing law [.]" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In deciding a summary judgment motion, the court must view all facts and inferences therefrom in the light most favorable to the nonmoving party. See Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995). "[A] party opposing a properly supported motion for summary

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judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. 2505 (citing Fed.R.Civ.P. 56(e)).

A. Section 215(a)(3)

Plaintiff alleges MBA unlawfully retaliated against him in violation of FLSA provision § 215(a)(3). That provision makes it unlawful for an employer:

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 this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.

29 U.S.C. § 215(a)(3).

As a remedial statute, the FLSA is construed broadly. Lambert v. Ackerley, 180 F.3d 997, 1003 (9th Cir.1999) (quoting Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590, 597, 64 S.Ct. 698, 88 L.Ed. 949 (1944)). Its anti-relation provision is intended "to provide an incentive for employees to report wage and hour violations by their employers[,]" and "to ensure that employees are not compelled to risk their jobs in order to assert their wage and hour rights under the Act." Id. at 1003-04 (citing Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292-93, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960)). The Ninth Circuit Court of Appeals has, therefore, held that, "in order for the anti-retaliation provision to ensure that 'fear of economic retaliation' not 'operate to induce aggrieved employees quietly to accept substandard conditions,' it must protect employees who complain about violations to their employers, as well as employees who turn to the Labor Department or the courts for a remedy." Id. at 1004 (quoting Mitchell, 361 U.S. at 292, 80 S.Ct. 332).

To prevail on a retaliation claim under the FLSA, a plaintiff must first make a prima facie showing that: (1) he engaged in activity protected by the FLSA; (2) defendant took an adverse employment action; and (3) there was a causal link between the protected activity and the adverse action. Conner v. Schnuck Mkts., 121 F.3d 1390, 1394 (10th Cir.1997) (applying burden-shifting analysis articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to FLSA retaliation cases). Cf. Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1195-97 (9th Cir.2003) (applying same to Title VII retaliation claim). If a plaintiff meets this standard, the burden shifts to the employer to offer a legitimate, non-discriminatory reason for the adverse action. Conner, 121 F.3d at 1394. The burden thereafter shifts back to the plaintiff to demonstrate that the employer's proffered reason is pretextual. Id.

Defendant argues in its motion that plaintiff fails at every level, that there is no material factual dispute, and that these claims...