Travers v. Flight Servs. & Sys., Inc.

• Citation: 737 F.3d 144
• Decision Date: 12 December 2013
• Docket Number: No. 13–1438.,13–1438.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Parties: Joseph TRAVERS, Plaintiff, Appellant, v. FLIGHT SERVICES & SYSTEMS, INC., Defendant, Appellee.

737 F.3d 144

Joseph TRAVERS, Plaintiff, Appellant,

v.FLIGHT SERVICES & SYSTEMS, INC., Defendant, Appellee.

No. 13–1438.

United States Court of Appeals, First Circuit.

Dec. 12, 2013.

Brant Casavant, with whom Shannon Liss–Riordan and Lichten & Liss–Riordan, P.C. were on brief, for appellant.

Christopher M. Pardo, with whom Jeffery M. Rosin and Constangy, Brooks, & Smith LLP were on brief, for appellee.

Before LYNCH, Chief Judge, THOMPSON and KAYATTA, Circuit Judges.

KAYATTA, Circuit Judge.

Appellee Flight Services fired Appellant Joseph Travers as he pursued a lawsuit against the company under the Fair Labor Standards Act (“FLSA”). Flight Services says it terminated Travers for violating company policy. Travers says he was fired in retaliation for his FLSA lawsuit. Because a reasonable jury could return a verdict for Travers without relying on improbable inferences or unsupported speculation, we vacate the district court's grant of summary judgment to the company.

I. Background

The district court granted judgment to Flight Services before any factfinder could evaluate the competing evidence and inferences. We therefore describe the facts giving rise to this lawsuit in a light as favorable to Travers as the record will reasonably allow, without implying that the following is what actually occurred. McArdle v. Town of Dracut, 732 F.3d 29, 30 (1st Cir.2013).

Travers began work in 2004 as a skycap employed by Flight Services, a company that provides services to airlines, including JetBlue. In April 2008, Travers filed a lawsuit against JetBlue. Roughly a year later, he amended the complaint to include Flight Services as a defendant. As amended, the complaint brought five claims on behalf of Travers and ten other plaintiffs, representing a putative class of skypcaps. Count I of the complaint charged JetBlue and Flight Services with violating the FLSA by failing to pay the federal minimum wage.

By all accounts, Travers acted as the leader among the plaintiffs, encouraging others to join the suit, coordinating with counsel on behalf of the plaintiffs, and serving as the first named plaintiff on the complaint. According to Travers's former supervisor Robert Nichols, after Travers filed the suit, Flight Services CEO Robert Weitzel, Sr., repeatedly yelled at Nichols to “get rid of [Travers]” and “talk [Travers] into dropping the lawsuit.” Weitzel complained specifically about how much money the suit was costing the company. Weitzel made these statements on telephone conferences in which his son, the president of Flight Services, also participated. Nichols, in turn, told Travers to “be careful” because “the company would be coming after” him. Flight Services fired Nichols in April 2010. The record does not reveal the reasons for Nichols's termination, and no party has claimed that the termination is relevant to this case. Weitzel continued to serve as CEO.

By September 2010, Travers and Flight Services were awaiting decisions on Travers's motion to certify conditionally an opt-in class under the FLSA, and on Flight Services' motion for summary judgment. Meanwhile, on September 3, 2010, Flight Services received a complaint about Travers from a JetBlue passenger, who said that Travers had solicited a tip. Flight Services' employee handbook bars solicitation of tips, classifying it as grounds for termination:

Solicitation of tips shall not be condoned. This includes any form of solicitation to include but not limited to—advising passengers of the amount of the tip that they must give to the employee for the service provided, refusing to provide service without first receiving a tip, selling weight, etc. Employee who are [sic] found to have solicited tips will be terminated immediately[.]

The passenger complained about Travers to a JetBlue supervisor, whose report indicated that the passenger was “extremely upset” and felt “bullied.” At the supervisor's request, the passenger wrote a statement describing the incident:

The baggage man informed me that a tip is required just as you would tip in a restaurant. He said this is his lively hood [sic]. When I only tipped $1 he got angrier [and] said he was sorry I didn't like the service. He walked away, told someone he was going on break & slammed the door. I felt like [he] was hussling [sic] people.

Later that day, Flight Services suspended Travers pending investigation of the complaint and asked him to write a statement describing his interaction with the passenger. Travers's account read as follows:

I do Recall Customer, Whe[n] She Arrived At Podium I Requested I.D. and How many Bags[.] Proceeded To Check in Customer[.] Informed her of $2.00 fee Adv Customer fee was JetBlue and Tip was not included, Cust got upset and stated she didn't have To Tip, I responded tip was optional Just Like Restaurant and I Apoligize [sic] If she Didn't Like The Service. I Then went on Break.

Three and a half weeks later, on September 27, 2010, Lisa Varotsis, a general manager at Flight Services, fired Travers. Varotsis had recommended Travers's firing to Flight Services' director of human resources, who approved it. According to Travers, Varotsis gave just one reason for his termination: tip solicitation.

Travers filed his retaliation suit in January 2011. After discovery, the district court granted summary judgment to Flight Services.

II. Standard of Review

We review de novo the district court's grant of summary judgment. McArdle v. Town of Dracut, 732 F.3d 29, 32 (1st Cir.2013). Under Federal Rule of Civil Procedure 56, a “court shall grant summary judgment 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.Civ.P. 56(a). In this case, as in many others, deciding whether a factual dispute is “genuine” poses the most difficult challenge. We label a dispute genuine if “a reasonable jury, drawing favorable inferences, could resolve it in favor of the nonmoving party.... Conclusory allegations, improbable inferences, and unsupported speculation, are insufficient to establish a genuine dispute of fact.” Triangle Trading Co., Inc. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir.1999) (internal citations, quotation marks, and alterations omitted).

III. Analysis

Indisputably, Travers's evidence would enable a reasonable jury to conclude that Flight Services CEO Weitzel wanted to fire Travers because of the FLSA lawsuit. Nevertheless, Flight Services argues that the evidence concerning the circumstances of Travers's firing would not allow a reasonable jury to find a causal connection between Weitzel's retaliatory animus and that firing.

In support of its argument, Flight Services points, first, to the lack of any direct evidence that Weitzel had a role in the decision to fire Travers or that those who made the decision (Varotsis and the human resources director) were even aware of Weitzel's views. Flight Services correctly describes the evidence: the record contains no testimony or document chronicling any communication regarding Travers betweenWeitzel or Nichols and those who made the decision to fire Travers. In many cases, the lack of such direct evidence linking the person expressing animus to the allegedly retaliatory act would create a fatal gap in proof that could not be bridged except through implausible inference or unsupported surmise. See, e.g., Pearson v. Mass. Bay Transp. Auth., 723 F.3d 36, 41 (1st Cir.2013); Medina–Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 10 (1st Cir.1990); Gray v. New Eng. Tel. & Tel. Co., 792 F.2d 251, 255 (1st Cir.1986).

Here, though, the retaliatory animus resided at the apex of the organizational hierarchy. It repeatedly took the form of express directives to Travers's supervisor, Nichols, in the presence of another senior manager, Weitzel's son. A rational juror could conclude that such strongly held and repeatedly voiced wishes of the king, so to speak, likely became well known to those courtiers who might rid him of a bothersome underling. See Freeman v. Package Mach. Co., 865 F.2d 1331, 1342 (1st Cir.1988) (observing in a discrimination case that “[t]he battle plan of the admiral is a valid datum in assessing the intentions of the captain....”).

A CEO sets the tone and mission for his subordinates, many of whom presumably consider it an important part of their jobs to figure out and deliver what the CEO wants. This CEO, we must assume, bristled so fiercely that he expressly and repeatedly demanded that Travers be fired. Weitzel's instructions qualitatively differ from the less probative remarks found unable to carry the plaintiff's burden in other cases. They are neither “stray,” see Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 36 (1st Cir.2001), nor ambiguous, see Gonzalez v. El Dia, Inc., 304 F.3d 63, 70 (1st Cir.2002), nor stale, see Alvarado–Santos v. Dep't Of Health, 619 F.3d 126, 133 & n. 5 (1st Cir.2010). They hone in on a specific employee, direct the precise action taken, and flow from a source with the formal authority to enforce compliance. On such a record, it is neither irrational nor unfair to infer—if a jury is so inclined—that knowledge of Weitzel's directive spread to other managers, themselves likely reluctant to frustrate the CEO's objective. After all, if Weitzel would unabashedly and repeatedly voice such sentiments to Nichols, then why not to Nichols's replacement, Varotsis, or to the director of human resources, who approved the firing? No compelling evidence shows that Weitzel's ire, or the cause for that ire, abated. And the fact that Varotsis has not directly denied awareness of Weitzel's unhappiness with Travers adds further grist for such a line of thinking.

Flight Services next argues that Travers cannot show a causal link between retaliatory animus (no matter how widespread) and his discharge because he...