Peters v. Venture, CV 214-083

ARVY PETERS, Plaintiff, v. ZWS/ABS JOINT VENTURE d/b/a ZERO WASTE SOLUTIONS, Defendant.

CV 214-083

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA BRUNSWICK DIVISION

February 16, 2016

ORDER

Currently before the Court are two motions: Defendant's motion for partial summary judgment (doc. 26) and Defendant's motion to strike (doc. 34). For the reasons discussed below, Defendant's motion for partial summary judgment is GRANTED, and Defendant's motion to strike is DENIED.

I. Background

This case stems from Plaintiff Arvy Peters's employment with Defendant ZWS/ABS Joint Venture ("ZWS"). ZWS holds a government contract, under which it provides janitorial services to the Federal Law Enforcement Training Center in Brunswick, Georgia. (Doc. 29, Ex. E ("Singh Dep.") at 7-8.) ZWS hired Peters in 2011 as an environmental coordinator, a position that required him to perform janitorial inspections and, important to this case, work certain Saturdays to pressure wash buildings. (Doc. 29, Ex. A ("Peters Dep.") at 19, 34.) At some point in 2011, Peters approached his supervisor, James McClinton, about concerns he had regarding his Saturday work. (Id. at 54-55.) Although the exact details of the conversation are not clear from the record, Peters claims that he spoke with McClinton about receiving overtime pay for that work.

Peters subsequently voiced similar concerns. At a meeting held in April 2013, McClinton informed Peters and others that they would need to report to work on Saturdays to perform pressure-washing duties, at which time Peters informed McClinton that working Saturdays would be difficult for him because his wife now worked many weekends. (Id. at 55-56.) Then, in either May or June 2013, Peters claims that McClinton changed his schedule to require Peters to work every Saturday and gave him every Tuesday off. (Id. at 63.) Although the record is not clear on this, it was apparently McClinton's normal procedure to give his employees a day off during the week when he required them to work on a Saturday. (See Doc. 29, Ex. D ("McClinton Dep.") at 108.) Peters complained about overtime pay again in August 2013.

Also relevant to the issues now before the Court, at a meeting in July 2013, McClinton used a racial epithet in front of Peters and other employees. (Peters Dep. at 96-97.) Peterssubsequently reported McClinton's racial comment to Jai Sharma, a ZWS corporate manager. (Doc. 28, Ex. M.)

In either September or October 2013, ZWS terminated Peters. Shavila Singh, the president of ZWS, testified that ZWS had to reduce its services under the contract because of a government sequestration. (Singh Dep. at 11-12.) According to Singh, ZWS addressed the sequestration by, in part, terminating positions, including Peters's, and it distributed his duties among supervisors. (Id. at 17-18, 28.) Additionally, prior to Peters's termination, ZWS hired Jon Hardwick as a "zone manager." (McClinton Dep. at 106.)

Also subsequent to his termination, Peters claims that he applied for two positions with ZWS: a marketing position and a supervisor position. (Peters Dep. at 163.) According to Peters, ZWS never contacted him about either position. In June 2014, Peters, after exhausting his administrative remedies, initiated this action and alleges that ZWS violated the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., by failing to pay him overtime, retaliated against him in violation of the Fair Labor Standards Act, 29 U.S.C. § 215, and retaliated against him in violation of Title VII, 42 U.S.C. § 2000e-3. (Doc. 1.) ZWS now moves for summary judgment on the FLSA and Title VII retaliation claims. ZWS also moves to strike certain documents Peters attached to his response in opposition to ZWS's motion for partial summary judgment.

II. Legal Standard

Summary judgment is appropriate only if "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). Facts are "material" if they could affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must view the facts in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), and must draw "all justifiable inferences in [its] favor." United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991) (en banc) (internal punctuation and citations omitted).

The moving party has the initial burden of showing the Court, by reference to materials on file, the basis for the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). How to carry this burden depends on who bears the burden of proof at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). When the non-movant has the burden of proof at trial, the movant may carry the initial burden in one of two ways-by negating an essential element of the non-movant's case or by showing that there is no evidence to prove a fact necessary to the non-movant's case. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 606-08 (11th Cir. 1991) (explaining Adickesv. S.H. Kress & Co., 398 U.S. 144 (1970) and Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). Before the Court can evaluate the non-movant's response in opposition, it must first consider whether the movant has met its initial burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Jones v. City of Columbus, 120 F.3d 248, 254 (11th Cir. 1997) (per curiam). A mere conclusory statement that the non-movant cannot meet the burden at trial is insufficient. Clark, 929 F.2d at 608.

If-and only if-the movant carries its initial burden, the non-movant may avoid summary judgment only by "demonstrat[ing] that there is indeed a material issue of fact that precludes summary judgment." Id. When the non-movant bears the burden of proof at trial, the non-movant must tailor its response to the method by which the movant carried its initial burden. If the movant presents evidence affirmatively negating a material fact, the non-movant "must respond with evidence sufficient to withstand a directed verdict motion at trial on the material fact sought to be negated." Fitzpatrick, 2 F.3d at 1116. If the movant shows an absence of evidence on a material fact, the non-movant must either show that the record contains evidence that was "overlooked or ignored" by the movant or "come forward with additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiarydeficiency." Id. at 1117. The non-movant cannot carry its burden by relying on the pleadings or by repeating conclusory allegations contained in the complaint. See Morris v. Ross, 663 F.2d 1032, 1033-34 (11th Cir. 1981).

In this action, the Clerk of the Court gave Peters notice of the motion for summary judgment and informed him of the summary judgment rules, the right to file affidavits or other materials in opposition, and the consequences of default. (Doc. 27.) Therefore, the notice requirements of Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985) (per curiam), are satisfied. The time for filing materials in opposition has expired, and the motion is now ripe for consideration.

III. Discussion

The Court will first address the FLSA and Title VII retaliation claims, followed by ZWS's motion to strike.

A. FSLA Retaliation

The FLSA prohibits employers from retaliating against employees who assert their rights under the statute. See 29 U.S.C. § 215(a)(3). In a retaliation claim based on circumstantial evidence, courts apply the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting framework. See Henderson v. City of Grantville, 37 F. Supp. 3d 1278, 1282 (N.D. Ga. 2014). Thus, an employee must first establish a prima facie case by showing that: "(1) [the employee] engaged inactivity protected under [the] act; (2) [the employee] subsequently suffered adverse action by the employer; and (3) a causal connection existed between the employee's activity and the adverse action." Wolf v. Coca-Cola Co., 200 F.3d 1337, 1343-44 (11th Cir. 2000) (second alteration in original) (citation omitted) (internal quotation marks omitted). If the employee successfully establishes a prima facie case, the burden shifts to the employer to proffer legitimate, non-retaliatory reasons for its actions. Id. at 1343. If the employer does so, the employee must then show pretext. Id.

In this case, Peters points to his complaints to McClinton about overtime pay as his statutorily protected activity. ZWS argues that Peters did not engage in protected activity because his complaints were to McClinton, who did not make final termination decisions. The Court, however, is satisfied that Peters meets this element of the prima facie case. Informal complaints are often considered protected activity as long as the employer has sufficient notice of the complaint. E.E.O.C. v. White & Son Enters., 881 F.2d 1006, 1011-12 (11th Cir. 1989); Traweek v. Glob. Sols. & Logistics, LLC, No. 2:14-cv-00308-LSC, 2015 WL 4545634, at *6 (N.D. Ala. July 28, 2015). And an employee need only reasonably believe that he is engaging in protected activity. See Traweek, 2015 WL 4545634, at *6. Here, Peters's complaints were to his direct supervisor, and although McClinton did not have plenary power to terminate employees, therecord reflects that he could recommend employees for termination. (McClinton Dep. at 56.) Peters, therefore, has satisfied the first prong of the prima facie case.

Peters points to three different actions that he claims amount to adverse employment actions: (1) his schedule change that required him to work every Saturday; (2) ZWS's failure to hire him to fill the openings he applied for; and (3) the termination of his employment with ZWS. The Court will address each of these actions in turn. Employees are protected "not from...