FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 10, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
FRED WINTERS,
Plaintiff - Appellant,
v. No. 15-7011
(D.C. No. 6:11-CV-00441-JHP)
BOARD OF COUNTY (E.D. Okla.)
COMMISSIONERS OF MUSKOGEE
COUNTY, OKLAHOMA; CHARLES
PEARSON, in his official capacity as
Sheriff of Muskogee County, Oklahoma,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, HOLMES and PHILLIPS, Circuit Judges.
_________________________________
Plaintiff Fred Winters appeals from the district court’s decision granting
summary judgment in favor of Defendants Board of County Commissioners of
Muskogee County (“the Board”) and Sheriff Charles Pearson. We have jurisdiction
under 28 U.S.C. § 1291. We affirm in part and reverse and remand in part.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
I. Procedural Background
Plaintiff filed an amended complaint alleging that Defendants terminated him
from his position as a deputy sheriff in retaliation for his complaint about violations
of the Fair Labor Standards Act (FLSA). He also alleged that he was terminated in
violation of a clearly articulated public policy of the State of Oklahoma.
Defendants filed a partial motion to dismiss and shortly thereafter a motion for
summary judgment. Plaintiff filed a response to the partial motion to dismiss and
filed what he thought was a separate response to the motion for summary judgment.
Plaintiff, however, had mistakenly filed a duplicate copy of his response to the
motion to dismiss instead of a separate response to the motion for summary
judgment.
Plaintiff’s counsel did not realize his mistake until the district court issued its
decision granting summary judgment in favor of Defendants. In the decision, the
district court noted that Plaintiff had not included a statement of facts in response to
Defendants’ statement of undisputed facts, and therefore that the court was going to
deem admitted all of the Defendants’ facts.
Plaintiff filed a motion for relief from and reconsideration of final judgment.
The district court granted the motion, finding that “counsel’s failure to file a response
to Defendants’ Motion for Summary Judgment was due to excusable neglect under
Fed. R. Civ. P. 60(b)(1).” Aplt. App., Vol. III at 98.
Plaintiff was then able to file a Supplemental Response in Opposition to
Defendants’ Motion for Summary Judgment, which included responses to
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Defendants’ statement of undisputed material facts. Defendants filed a reply to the
supplemental response, and then the district court issued an “Amended Order and
Opinion.”
In its Amended Order and Opinion, the district court again granted summary
judgment in favor of Defendants. The district court dismissed Plaintiff’s FLSA claim
against the Board after concluding it was not Plaintiff’s employer and that Plaintiff’s
claims were properly brought only against the Sheriff. The district court then
determined that Plaintiff did not engage in any protected activity under the FLSA,
and, alternatively, that Plaintiff’s evidence did not support a retaliation claim.
Finally, the district court concluded that Plaintiff’s state-law claim failed because he
had not set forth a sufficient public policy to support his claim. Plaintiff now
appeals.
II. Discussion
“We review a district court’s summary judgment decision de novo, applying
the same standard as the district court.” McBride v. Peak Wellness Ctr., Inc.,
688 F.3d 698, 703 (10th Cir. 2012) (internal quotation marks omitted). Under the
relevant standard, 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. Civ. P. 56(a). “In applying this standard, we examine the
factual record and draw reasonable inferences therefrom in the light most favorable
to the nonmoving party . . . .” McBride, 688 F.3d at 703 (internal quotation marks
omitted).
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A. FLSA Retaliation Claim
We first address Plaintiff’s claim that he was wrongfully discharged in
retaliation for engaging in protected activity under the FLSA. This court reviews
retaliation claims under the McDonnell-Douglas analytical framework. Richmond v.
ONEOK, Inc., 120 F.3d 205, 208 (10th Cir. 1997). Under that standard, the Plaintiff
must initially establish a prima facie case of retaliation. To do so, the Plaintiff must
show that: (1) he engaged in protected activity; (2) he suffered an adverse action;
and (3) a causal connection existed between the protected activity and the adverse
action. Id. at 208-09.
We first note that the analysis of Plaintiff’s FLSA claim in the district court’s
Amended Order and Opinion is almost the same as its analysis in its original Order
and Opinion. The “Introduction” section of the amended opinion, which includes the
factual background, is identical to that in the original order. Compare Aplt. App.,
Vol. II at 265-68 with id., Vol. III at 224-26. Similarly, the discussion of Plaintiff’s
FLSA claim in the amended opinion is identical to that in the original opinion.
Compare id., Vol. II at 268-271, 275-76 with id., Vol. III at 227-29, 234-35. Both
versions include the statement that “Plaintiff has not shown, under the facts as
deemed admitted, that he engaged in any protected activity or that his termination
was in retaliation for complaining about the purported denial of overtime.” Id., Vol.
II at 270 and id., Vol. III at 228-29 (emphasis added). Both decisions also contain a
subsection titled, “The Evidence Does Not Support any Retaliation Claim,” in which
the district court explains that because Plaintiff did not include any statement of facts
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in response to Defendants’ statement of undisputed facts, the Court “deems admitted
all material facts set forth in the statement of the material facts of the movant.” Id.,
Vol. II at 275-76 and id., Vol. III at 234.
The problem with the district court’s using in its amended decision the facts
and analysis from its original decision is that the factual background and analysis
ignore that Plaintiff’s supplemental pleading (filed with the permission of the district
court) includes factual statements contradicting Defendants’ statements of undisputed
material facts. See id., Vol. III at 107-11. The district court erred by not considering
Plaintiff’s facts when ruling on the motion for summary judgment.
We view the facts in the light most favorable to the Plaintiff as the
non-moving party, see McBride, 688 F.3d at 703. Plaintiff was a deputy sheriff in
the Muskogee County Sheriff’s Department. In early January 2010, the night before
his day off, he was called and asked to drive a new patrol car to Tulsa the next day to
be outfitted with equipment. He did not want to drive the patrol car to Tulsa, but did
so since he was asked to do so. Later, on his time sheet, he requested 2.5 hours of
“comp time” (overtime) for doing so. The time sheet was returned to him stating that
the request for comp time had been denied.
After learning that his comp time request had been denied, he went to Chief
Deputy Terry Freeman and asked why he was denied the hours. Plaintiff testified at
his deposition that Chief Deputy Freeman said, “per the sheriff, you’re denied, and
what are you going to do about it.” Aplt. App., Vol. III at 164. Plaintiff stated that
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he “could ask the Labor Board.” Id. Chief Deputy Freeman then jumped up and told
Plaintiff to stay in his office.
Chief Deputy Freeman returned with Sheriff Charles Pearson and Undersheriff
Randy Perryman. Plaintiff testified that upon returning, Chief Deputy Freeman
walked behind his desk and started pointing his finger and yelling and said, “you
don’t come in here yelling and screaming at me. And I said, oh, like you’re doing to
me right now, and I did it in a monotone voice.” Id. Plaintiff further testified that
Sheriff Pearson then said, “I’ve given you a 30,000 car and you’re disputing two-and-
a-half hours comp time.” Id.
Plaintiff said that it wasn’t his car, it was the county’s car, and that he “was
there wanting to know why [he] wasn’t getting [his] two-and-a-half-hours, my comp
time.” Id. Plaintiff testified that Sheriff Pearson said something like, “what are you
going to do about it,” and Plaintiff responded, “well, I can ask the Labor Board.” Id.
at 165. Plaintiff further testified that the Sheriff then became “agitated,” and said:
“You know something, Fred? Your services are no longer needed.” Id. at 164.
In their motion for summary judgment, Defendants argued that they were
entitled to summary judgment because Plaintiff failed to meet his burden of proving
causation. In support, Defendants reasoned as follows: “Plaintiff’s only evidence
that his termination was retaliatory is his own testimony that while Sheriff Pearson
was in Chief Deputy Freeman’s office, Plaintiff mentioned contacting the
[Department of Labor (DOL)] regarding the denial of his overtime for the Tulsa trip.”
Id., Vol. II at 30. Defendants further noted that “each of the three individuals in the
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room, Sheriff Pearson, Chief Deputy Freeman and Undersheriff Perryman, testified
that Plaintiff never mentioned the DOL after Freeman returned and Sheriff Pearson
and Undersheriff Perryman came into the room.” Id. Defendants also argued that “in
Plaintiff’s initial testimony, he did not indicate he mentioned the DOL when Sheriff
Pearson and Perryman were in the room.” Id.
On appeal, Defendants note in their statement of the facts that there was a
discrepancy between Plaintiff’s testimony and the testimony of the other three people
in the room about whether Plaintiff mentioned the Labor Board in front of the
Sheriff. Defendants further note their position that Plaintiff did not initially testify
about mentioning the Labor Board in front of Sheriff Pearson but instead mentioned
it “[i]n subsequent testimony.” Aplee. Br. at 6.1 Defendants appear to recognize in
their argument section, however, that a dispute over what was said at the meeting is
1
Defendants’ assertion that Plaintiff’s not initially testifying that he had
mentioned the DOL when Sheriff Pearson was in the room suggests that he testified
about it at a later date. But his deposition testimony on that issue occurred almost
immediately after he first testified about what happened on the day he was
terminated. See Aplt. App., Vol. III at 164-165. After he testified about what
happened that day, the attorney deposing him started to ask him another question
when Plaintiff interrupted him to say:
A Oh, I did -- I did mention that I was going to the Labor Board.
Q Oh, you did?
A Yes. I mentioned that – when – when [Sheriff Pearson] asked me
about the same thing, he said, well, what – what are you doing to do about
it. I also mentioned, well, I can ask the Labor Board. And that’s when he –
he said, your services are no longer needed.
Id. at 165. There was no significant time-gap between Plaintiff’s initial testimony about
what happened on the day he was terminated and his testimony that he had mentioned
going to the Labor Board in front of Sheriff Pearson.
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not proper for resolution at the summary judgment stage. They now state that
“viewing the evidence in the light most favorable to [Plaintiff], he asked Sheriff
Pearson if the purported denial of compensatory time was final, and, when he was
told it was, made a single statement about going to the ‘Labor Board.’” Id. at 16.
Defendants argued below and on appeal that even if Plaintiff testified that he
did mention the Labor Board, his comment would not be material to causation. They
contend this is so because the Sheriff had already decided to credit Plaintiff’s time
for the Tulsa trip and submitted written approval for it before he terminated Plaintiff.
Defendants therefore argued that “any alleged threat to call the DOL was irrelevant
as on the day Plaintiff was terminated, the two officials knew Plaintiff’s
compensation was in complete compliance with overtime requirements.” Aplt. App.,
Vol. II at 30.
Defendants did not cite to any legal authority to support this proposition, and
we do not agree that it alters the causation analysis. Plaintiff’s claim is that he was
fired after he had complained about not getting paid overtime and had threatened to
advise the Labor Board about it. To bring a retaliation claim, Plaintiff does not have
to show that the Defendants’ conduct was actually illegal under the FLSA. See Love
v. Re/Max of Am., Inc., 738 F.2d 383, 387 (10th Cir. 1984) (explaining that the
retaliation provision in the FLSA “protects conduct based on a good faith, although
unproven, belief that the employer’s conduct is illegal.”). When Plaintiff
complained, he knew only that the Sheriff had denied his request for comp time.
Even if Defendants had decided to credit the time without telling Plaintiff, they could
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still have terminated him in retaliation for complaining about the denial of comp time
and threatening to go to the Labor Board.
Viewing the evidence in Plaintiff’s favor, one can infer that the Sheriff was
upset about Plaintiff’s decision to claim the comp time and then to complain about its
denial. A few days after the Tulsa trip, but before the personal meeting described
above, the Sheriff sent a text message to Plaintiff, asking: “Did you charge for taking
your 24000 dollar car I worked to get yaw. To have 6000 worth of the top of the line
equipment installed. Did u charge comp?” Aplt. App., Vol. III at 129. And the
Plaintiff testified that the Sheriff was “agitated” at the meeting when Plaintiff was
asking about the comp time and said to him, “I’ve given you a 30,000 car and you’re
disputing two-and-a-half hours comp time.” Id., Vol. III at 164. The Sheriff
terminated Plaintiff within about three minutes of making that statement.
Plaintiff’s complaint that he was not getting paid for overtime and his threat to
go to the Labor Board are material to causation. The Sheriff’s earlier decision to pay
Plaintiff’s request for comp time/overtime in compliance with the FLSA would not
prevent or protect him from retaliating against Plaintiff for complaining about the
issue and threatening to go to the Labor Board.
Finally, Defendants argued on summary judgment that Plaintiff “acted
belligerently” and that it was “further undisputed that when Sheriff Pearson
terminated Plaintiff’s employment, he specifically stated that he would not tolerate
Plaintiff speaking to Chief Deputy Freeman in that manner as Chief Deputy Freeman
had previously saved his life.” Id., Vol. II at 30-31 (emphasis added). But Plaintiff
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testified to the contrary, swearing that he “was under control the whole time” and
“did everything as professional as could be.” Id., Vol. III at 169. Plaintiff also stated
that at no time during the meeting did the Sheriff state why he was terminating
Plaintiff. See id. at 129. Although Plaintiff did acknowledge that the Sheriff had
said something about the Chief Deputy’s having shot and killed somebody for him,
nothing connected that information to Plaintiff’s demeanor or tone while speaking to
the Chief Deputy. See id. at 164. Moreover, in the Sheriff’s deposition, he never
said that he made the statement asserted by Defendants. He testified that “[Plaintiff]
wouldn’t calm down and I said your services are no longer needed.” Id., Vol. II
at 61.
The Sheriff terminated Plaintiff within about three minutes of Plaintiff’s
challenging the denial of his overtime hours and threatening to go to the Labor
Board. Viewing the record in the light most favorable to Plaintiff, factual disputes
exist about the Sheriff’s motivation for terminating Plaintiff.
The district court made two rulings related to Plaintiff’s FLSA claim. First, it
ruled that the claim failed because Plaintiff had not engaged in protected activity.
Alternatively, the district court ruled that the claim failed because no material facts
were in dispute on causation. Turning first to the alternate ruling, as noted above, the
district court based this ruling solely on Defendants’ facts, noting erroneously that
Plaintiff had failed to contest the facts and that therefore all of Defendants’ facts
were deemed admitted. As discussed above, viewing all of the facts in the light most
favorable to Plaintiff, there are material issues of fact in dispute on causation.
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Second, the district court’s ruling that Plaintiff had not engaged in protected
activity as a matter of law was based on the its conclusion that “Plaintiff’s idle and
stray comment [about going to the Labor Board] does not rise to the level of a
complaint or proceeding under the FLSA, and therefore Plaintiff’s activity is not
protected.” Id., Vol. III at 229. We note that the Defendants did not even make this
argument below and that the district court relied solely on the statutory language.
The statutory language makes retaliation unlawful where a plaintiff “filed any
complaint or instituted any complaint or caused to be instituted any proceeding under
[the FLSA] or has testified or is about to testify in any such proceeding.” 29 U.S.C.
§ 215(a)(3). But we have interpreted this section to “also appl[y] to the unofficial
assertion of rights through complaints at work.” Love, 738 F.2d at 387. Plaintiff
went to his supervisor and complained that he was being denied compensation for
hours he had worked on his day off and threatened to go to the Labor Board
regarding the denial of comp time. These circumstances are sufficient to constitute
protected activity under our decision in Love.
In sum, the district court erred in concluding that Plaintiff did not engage in
protected activity as a matter of law. The district court also erred by not considering
the Plaintiff’s facts in ruling on the FLSA claim and there are material facts in
dispute that preclude summary judgment.
B. The Board is not Plaintiff’s Employer
For substantially the same reasons stated in the district court’s decision, we
agree that the Board is not Plaintiff’s employer and is not subject to liability under
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the FLSA. Under Oklahoma law, the Board is statutorily separate and distinct from
the independently elected sheriff. The Sheriff is charged with the authority to
appoint undersheriffs and deputy sheriffs, for whose official acts he is responsible.
See Okla. Stat. tit. 19 §§ 516, 547, and 548 (delineating the Sheriff’s authority). The
Board has no authority or control over the Sheriff’s employees. See Okla. Stat. tit. 19
§ 339 (delineating the Board’s powers). The Board therefore cannot be held liable as
Plaintiff’s employer under the FLSA. Cf. Bristol v. Bd. of Cty. Comm’rs, 312 F.3d
1213, 1215 (10th Cir. 2002) (en banc) (holding that because a “Board lacks the power
to control the hiring, termination, or supervision of a Sheriff’s employees, or
otherwise control the terms and conditions of their employment, there can be no basis
upon which a jury could determine that the Board owes a [duty to provide
accommodation under the Americans with Disabilities Act].”). The district court
properly dismissed Plaintiff’s FLSA claim against the Board.
C. State-law claim
For substantially the same reasons stated in the district court’s decision, we
agree that summary judgment was appropriate on Plaintiff’s state-law claim for
wrongful discharge in violation of public policy. We briefly address Plaintiff’s
argument that the Defendants and the district court misconstrued the basis for his
claim. He contends that the Sheriff’s Department had a policy of paying overtime as
part of an employee’s regular wages and that therefore his termination violated the
clearly articulated public policy expressed in the Protection of Labor Act (PLA) that
employers shall pay all wages that are due and owing. Oklahoma recognizes an
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exception to at-will employment when an employee has been wrongfully discharged
in violation of public policy. See Wilburn v. Mid-South Health Dev., Inc., 343 F.3d
1274, 1277 (10th Cir. 2003) (citing Burk v. K-Mart Corp., 770 P.2d 24, 28 (Okla.
1989)). These “Burk” tort actions, however, are to be “‘tightly circumscribed’” and
“available only ‘where an employee is discharged for refusing to act in violation of
an established and well-defined public policy or for performing an act consistent with
a clear and compelling public policy.’” Id. (quoting Burk, 770 P.2d at 29). And
“[t]he clear and compelling public policy on which the plaintiff relies must be
articulated by state constitutional, statutory, regulatory or decisional law.” Id.
(emphasis added). We find persuasive Defendants’ argument that the PLA’s policy
on payment of wages “cannot logically serve to transform what is, essentially, a
county policy regarding the accrual, calculation and form of [overtime] compensation
into state policy,” Aplee. Br. at 30. Because Plaintiff has not identified the existence
of a “clear mandate of public policy as articulated by constitutional, statutory or
decisional law,” Burk, 770 P.2d at 28, the district court properly granted summary
judgment on his state-law claim for wrongful discharge.
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III. Conclusion
We reverse the district court’s decision on the FLSA claim against Defendant
Sheriff Pearson and remand for further proceedings. We affirm the district court’s
decision in all other respects.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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