F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
AUG 5 1997
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
STEVEN D. CONNER,
Plaintiff - Appellant,
v. No. 95-3408
SCHNUCK MARKETS, INC.,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 94-2498)
Stephen J. Dennis of Dennis, Stanton & Relingshafer, Fairway, KS, for Plaintiff -
Appellant.
Dennis G. Collins of Greensfelder, Hemker & Gale of St. Louis, MO, (Lisa K.
Boyer of Greensfelder, Hemker & Gale, St. Louis, MO and J. Nick Badgerow and
Gregory L. Ash of Spencer Fane Britt & Browne, Overland Park, KS with him on
brief) for Defendant -Appellee.
Before PORFILIO, BARRETT, 1 and EBEL, Circuit Judges.
EBEL, Circuit Judge.
1
Honorable James E. Barrett, Senior Circuit Judge, was unable to attend
oral argument. However, Judge Barrett participated fully in the decision of the
case.
Plaintiff-Appellant Steven D. Conner (“Conner”) appeals the district
court’s grant of summary judgment to Schnuck Markets, Inc. (“Schnuck”) on his
retaliatory discharge claims under the Fair Labor Standards Act (“FLSA”), 29
U.S.C. §§ 201-219 (1994 & Supp. 1997) and the public policy exception to
Kansas’ at-will employment doctrine. We agree with both the district court’s
determination that Conner has failed to produce sufficient evidence of retaliatory
motive to survive summary judgment on his FLSA claim and its determination
that Conner’s common law claim is precluded by the availability of statutory
relief. Accordingly, we AFFIRM the judgment of the district court.
I. BACKGROUND
Conner was hired by Schnuck in January, 1991, as a food clerk at one of its
Kansas stores. In October, 1992, one of Conner’s co-employees reported to
Schnuck that she believed that it was not paying overtime in accordance with
federal law. After determining that it had violated federal overtime laws,
Schnuck distributed surveys that allowed employees to claim any unpaid overtime
hours. Conner received a survey but did not return it until he was told that he was
required to return the survey before he could receive his overtime back pay. In
January of 1993, Conner took his completed survey to Ken Ringkamp, the store
manager, claiming unpaid wages. Conner alleges that Ringkamp read the survey
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in Conner’s presence and said: “Are you sure that you filled this out
correctly? . . . If you want to go anywhere with the company, you’ll reconsider
this.” 2 Conner then filled out a new survey, took his paycheck and left.
After his meeting with Ringkamp, Conner alleges a change in the way he
was treated on the job. Specifically, Conner claims that Ringkamp became cold
toward him, that he and his wife were no longer invited to social functions or
company sporting events, that his hours and responsibilities were changed, and
that he was not allowed to have lunch with vendors, although other employees
were allowed to do so. In March, 1993, two months after Conner turned in his
overtime survey, Conner accepted a Tombstone Pizza jacket from a Tombstone
Pizza Representative, Mark Leisman. In April, 1993, Conner accepted another
jacket from Leisman. The acceptance of gifts or “premiums” from vendors is
purportedly prohibited by Schnuck, although Conner claims that he did not know
of such a policy and has never known of an employee who was investigated or
disciplined for accepting gifts from a vendor. Conner also claims to have seen
other employees openly wear items of clothing they had received from vendors,
2
Ringkamp denies that he threatened Conner in this way. However, because
we examine the factual record and reasonable inferences therefrom in the light
most favorable to the party opposing summary judgment, see Kaul v. Stephan, 83
F.3d 1208, 1212 (10th Cir. 1996), we assume for the purposes of this appeal that
Conner’s version of the story is correct.
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both inside and outside the workplace, and that he had been to sporting events
with other employees who had received tickets to those events from vendors.
Other undisputed evidence points to Conner’s knowledge of Schnuck’s
policy against the acceptance of gifts from vendors, however. Upon the receipt of
each of the Tombstone Pizza jackets, Conner told Leisman not to bring the jacket
inside the store but to take his keys and put the jacket inside his car. Leisman had
earlier tried to bring jackets inside the store, but Ringkamp, the store manager,
had ordered Leisman to leave the store upon discovering his purpose. Conner and
a co-employee were present at this confrontation, at which time the co-employee
said to Conner, “That was a close one,” prompting Conner to respond, “No Shit.”
Leisman told Ringkamp on May 7, 1993, that he had given jackets to
Conner, prompting a meeting between Ringkamp, Conner, and the produce
manager on the same day. Conner denied taking the jacket, at which time he was
suspended pending an investigation. The investigation yielded written statements
from Leisman and one of Conner’s co-employees alleging that Conner had, in
fact, taken the jackets. On May 12, 1993, Ringkamp asked Conner to meet with
him and Schnuck’s Loss Prevention Coordinator, Renee Dettmer. Again, Conner
was asked about the jackets, and again Conner denied that he had taken the
jackets. All told, Conner denied having taken the jackets seven times: twice at
the May 7th meeting, and five times at the May 12th meeting. Conner later
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admitted to these lies during his April 26, 1995 deposition, claiming he lied to
avoid “get[ting] in trouble.”
Dettmer referred the Conner matter to her supervisor, Linda Walker, whose
office was located in the Schnuck headquarters in St. Louis, Missouri. Ms.
Walker recommended to Schnuck’s manager of security, Mike Panneri, that
Conner be terminated for two reasons: first, for violating the company’s policy in
accepting gifts from a vendor; and, second, for lying to various company
representatives during the subsequent investigation. Ms. Walker noted in support
of Schnuck’s past policy that a 14 year employee of Schnuck had been discharged
in 1988 for accepting beer from a vendor. Conner was then terminated.
Conner subsequently initiated a four-count action, claiming that Schnuck:
“(1) breached its promise to pay him overtime compensation for hours he worked
in excess of eight hours per day; (2) violated the Fair Labor Standards Act by
failing to pay him overtime compensation for hours he worked in excess of 40
hours per week; (3) violated the Fair Labor Standards Act by terminating him for
asserting a claim for overtime compensation due him; and (4) also violated state
common law by terminating him for asserting such claim.”
The first two counts were dismissed with prejudice on February 13, 1996,
upon the agreement of the parties to settle, and the last two counts were dismissed
as a matter of law on Schnuck’s motion for summary judgment. Conner now
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appeals the district court’s grant of summary judgment to Schnuck. Conner
argues that having presented a prima facie case of retaliatory discharge, he should
survive summary judgment without presenting any evidence with regard to the
employer’s articulated reasons for his discharge. In the alternative, Conner
argues that he has presented sufficient evidence of pretext to survive summary
judgment. We disagree with both of these contentions.
II. DISCUSSION
A. FLSA Retaliation Claim.
Section 215(a)(3) of the FLSA provides that it is unlawful for any person
“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 [the FLSA] . . . . ” 29 U.S.C. § 215(a)(3) (1994).
The district court determined that Conner failed to produce sufficient evidence to
survive summary judgment on his section 215(a)(3) claim. We review the district
court’s grant of summary judgment de novo, Kaul v. Stephan, 83 F.3d 1208, 1212
(10th Cir. 1996).
We have held that “[w]hen the ‘immediate cause or motivating factor of a
discharge is the employee’s assertion of statutory rights, the discharge is
discriminatory under § 215(a)(3) whether or not other grounds for discharge
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exist.’” Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir. 1984)
(quoting Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 181 (8th Cir. 1975)).
In a later case, we explained that Love’s “motivating factor” test is equivalent to
the “but for cause” test, so that “the discharge is unlawful only if it would not
have occurred but for the retaliatory intent.” Martin v. Gingerbread House, Inc.,
977 F.2d 1405, 1408 n.4 (10th Cir. 1992) (emphasis in original). Thus, if a jury
finds that a FLSA retaliation plaintiff “would have been terminated regardless of
her FLSA activity, then it [is] required to find in favor of the defendants.”
McKenzie v. Renberg’s, Inc., 94 F.3d 1478, 1484 (10th Cir. 1996), cert. denied,
117 S. Ct. 1468 (1997) (citing Reich v. Davis, 50 F.3d 962, 966 (11th Cir. 1995)).
In analyzing FLSA retaliation claims, we apply the shifting burden of
proof scheme initially articulated in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). Richmond v. Oneok, Inc., ___ F.3d ___, No. 96-6228, 1997 WL
411505, at *2 (10th Cir. July 23, 1997) (citing Morgan v. Hilti, Inc., 108 F.3d
1319, 1323 (10th Cir. 1997)). Under this standard, a plaintiff must first establish
a prima facie case of retaliation. Id. The burden then shifts to the employer to
offer a legitimate reason for the plaintiff’s termination. Id. Once the employer
offers such a reason, “the burden then shifts back to the plaintiff to show that
‘there is a genuine dispute of material fact as to whether the employer’s proffered
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reason for the challenged action is pretextual.’” Id. (quoting Morgan, 108 F.3d at
1323).
To establish a prima facie case of FLSA retaliation, a plaintiff must show
that: (1) he or she engaged in activity protected by the FLSA; (2) he or she
suffered adverse action by the employer subsequent to or contemporaneous with
such employee activity; and (3) a causal connection existed between the
employee’s activity and the employer’s adverse action. Id. (citing Archuleta v.
Colorado Dep’t of Insts., 936 F.2d 483, 486 (10th Cir. 1991)). We believe that
Conner has satisfied the first two prongs of the prima facie case, and we assume
arguendo for the purposes of this appeal that Conner has satisfied the third prong.
With regard to the first prong, protected activity, we note that section
15(a)(3) of the FLSA, by its terms, only protects employees who have “filed any
complaint or instituted or caused to be instituted any proceeding under or related
to [the FLSA], 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)
(1994). We have not read section 15(a)(3) literally, however, so that even the
“unofficial assertion of rights through complaints at work” is protected. Love v.
RE/MAX of Am., Inc., 738 F.2d 383, 387 (10th Cir. 1984) (finding that an
employee’s request for a raise pursuant to the Equal Pay Act was protected
activity).
-8-
In this case, Conner claimed that he was owed overtime wages under the
FLSA’s wage and overtime provisions, and we believe these requests involve the
“unofficial assertion of rights through complaints at work.” Id. In McKenzie v.
Renberg’s Inc., 94 F.3d 1478 (10th Cir. 1996), cert. denied, 117 S. Ct. 1468
(1997), we held that a plaintiff who had lodged complaints about wage and hour
practices had not engaged in protected activity, id., at 1486-87; however,
Conner’s claim is distinguishable from the one at issue in McKenzie. In
McKenzie, the plaintiff was employed as a personnel director who “never crossed
the line from being an employee merely performing her job as personnel director
to an employee lodging a personal complaint about the wage and hour practices of
her employer and asserting a right adverse to the company.” Id. at 1486. In this
case, Conner has no management responsibilities regarding the calculation of
overtime wages, and, therefore, Conner’s request for overtime wages was
“adverse to the company” and was a “personal complaint about the wage and hour
practices of [his] employer.” Id.
We also believe that Conner satisfied the second prong of the prima facie
case because Schnuck terminated Conner subsequent to Conner’s participation in
the wage survey. Finally, we will assume arguendo for the purposes of this
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appeal that Conner has shown a causal connection between his participation in
protected conduct and Schnuck’s decision to terminate him. 3
We have held that “[t]he causal connection may be demonstrated by
evidence of circumstances that justify an inference of retaliatory motive, such as
protected conduct closely followed by adverse action.” Burrus v. United Tel. Co.
of Kan., Inc., 683 F.2d 339, 343 (10th Cir. 1982) (citing Grant v. Bethlehem Steel
Corp., 622 F.2d 43, 46 (2d Cir. 1980); Womack v. Munson, 619 F.2d 1292, 1296
& n.6 (8th Cir. 1980)). In this case, however, the four month time lag between
Conner’s participation in protected activity and his termination by itself would
not be sufficient to justify an inference of causation. Compare Richmond, 1997
WL 411505, at *3 (a “three-month period between the [protected] activity and
termination, standing alone, does not establish a causal connection”) with Love v.
RE/MAX of Am., Inc., 738 F.2d 383, 386 (1984) (a two-hour gap between
protected conduct and adverse employment action was sufficient to satisfy the
causation prong of the prima facie case).
Unless the termination is very closely connected in time to the protected
conduct, the plaintiff will need to rely on additional evidence beyond mere
3
The district court found that, although the evidence was not strong, it was
sufficient to establish a prima facie showing of a causal relationship between the
protected conduct and the termination, based upon Ringkamp’s involvement in
both events, Ringkamp’s alleged change in attitude toward Conner, and all the
other circumstances in the case.
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temporal proximity to establish causation. For example, in Marx v. Schnuck
Markets, 76 F.3d 324 (10th Cir.), cert. denied, 116 S.Ct. 2552 (1996), we
determined that a plaintiff made a sufficient prima facie showing of causation to
avoid summary judgment when he showed that shortly after filing an FLSA
complaint a pattern of retaliatory conduct began that was apparently related to his
FLSA conduct even though he was not finally terminated until much later. Id. at
329.
In this case, Conner claims to have suffered adverse employment action
before he was terminated. Specifically, Conner testified in his deposition that his
hours were changed to less desirable times some time after he claimed overtime
wages. 4 However, Conner does not relate in his deposition testimony exactly how
soon after he filled out the wage survey that his hours were changed. Thus, the
record is devoid of evidence from which causation can be inferred by the mere
proximity of time. Whether there are sufficient other circumstances to sustain
Conner’s burden of proving the causation element of his prima facie case we need
4
Conner also testified that he and his wife were snubbed by his co-workers
with regard to after work social events after he filled out his wage survey.
However, we do not believe such treatment constitutes adverse employment action
within the meaning of our employment retaliation cases. To constitute adverse
employment action, the action at issue must relate to the terms and conditions of
employment. We decline Conner’s invitation to extend the FLSA’s reach to the
guest lists of those who host social events after work hours.
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not decide because the district court opinion can be affirmed on the basis of its
holding at the next stage of the McDonnell Douglas analysis that Conner failed to
rebut Schnuck’s evidence of a non-retaliatory reason for terminating him. Thus,
we turn to that step in the analysis.
We have explained that in a retaliation case,
[i]f a prima facie case is established, then the burden of production
shifts to the defendant to articulate a legitimate, nondiscriminatory
reason for the adverse action. The defendant need not prove the
absence of retaliatory motive, but only produce evidence that would
dispel the inference of retaliation by establishing the existence of a
legitimate reason. If evidence of a legitimate reason is produced, the
plaintiff may still prevail if [he] demonstrates the articulated reason
was a mere pretext for discrimination. The overall burden of
persuasion remains on the plaintiff.
Burrus, 863 F.2d at 343 (internal citations and quote marks omitted). Thus, once
the “defendant carries its burden of producing legitimate, nondiscriminatory
reasons for its decision, the presumption of discrimination created by the
McDonnell Douglas framework ‘drops from the case,’ and ‘the factual inquiry
proceeds to a new level of specificity.’” Combs v. Plantation Patterns, 106 F.3d
1519, 1528 (11th Cir. 1997) (quoting Texas Dep’t of Community Affairs v.
Burdine, 450 U.S. 248, 255 & n.10 (1981)). We believe the district court
correctly applied the shifting burdens framework to Conner’s claim.
After the district court determined that Conner had established a prima
facie case, the court shifted the burden of production to Schnuck, who was asked
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to proffer a legitimate reason for its termination of Conner. Schnuck maintained
that it terminated Conner for violating the company’s policy against accepting
gifts from vendors and for lying to management during the subsequent
investigation. After Schnuck met its burden of production, the presumption of
discrimination raised by Conner’s prima facie case was dropped from the case in
accordance with the Supreme Court’s holding in Burdine, 450 U.S. at 255 & n.10.
Consequently, to avoid summary judgment at this stage in the process,
Conner was required to produce evidence that his discharge was in retaliation for
his protected FLSA activity, either through the use of direct evidence or by
showing that Schnuck’s proffered non-retaliatory reasons for terminating him
were pretextual. Randle v. City of Aurora, 69 F.3d 441, 451-53 (10th Cir. 1995).
Conner asserts that he has no obligation to produce such evidence at the summary
judgment stage, arguing that “having presented a prima facie case, [he] should
have been permitted to present his case to the finder of fact.” (Aplt. Brief at 22).
Conner relies on the following quote from St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502 (1993), for the proposition that he has no obligation to rebut Schnuck’s
proffered reasons at the summary judgment stage because the jury might simply
disbelieve Schnuck’s proffered reasons at trial: “The factfinder’s disbelief of the
reasons put forward by the defendant . . . may, together with the elements of the
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prima facie case, suffice to show intentional discrimination.” Id. at 511. We
disagree with this interpretation of Hicks.
Conner’s argument ignores the fact that after the defendant has carried its
burden of production by offering a legitimate, non-discriminatory reason for its
actions, “the presumption [of discriminatory motive] . . . simply drops out of the
picture.” Id. at 510-11. Thus, at the third stage of the McDonnell Douglas
analysis, a discrimination case looks like any other civil case where the plaintiff
“at all times bears the ultimate burden of persuasion.” Id. at 511 (internal
punctuation omitted). Accordingly, under ordinary summary judgment principles,
the plaintiff must produce evidence from which a reasonable jury could believe
that the defendant’s proffered reason is a false one in order to survive summary
judgment. 5 As one commentator has noted, “[t]he [Hicks] Court did not purport
to limit the availability of summary judgment to either party upon consideration
of all the evidence relevant to pretext . . . . [T]he Court stressed in Hicks that
5
Of course, evidence bearing upon the falsity of the defendant’s proffered
reason does not have to challenge the proffered reason directly. At the third stage
of McDonnell Douglas, the plaintiff can always produce direct evidence of
discriminatory motive, and in this way challenge the truth of the defendant’s
proffered reason. See EEOC v. Flasher, Co., 986 F.2d 1312, 1317 (10th Cir.
1992) (explaining that at the third stage of McDonnell Douglas, “[t]he plaintiff
can prevail either directly by proving that the employer acted with a
discriminatory motive or indirectly by showing that the stated reason for the
discharge was a ‘pretext for the sort of discrimination prohibited by [law]’”)
(quoting McDonnell Douglas, 411 U.S. at 804-05).
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once a McDonnell Douglas-Burdine case reaches the pretext stage, it is to be
treated like any other civil case.” Deborah C. Malamud, The Last Minuet:
Disparate Treatment After Hicks, 93 Mich. L. Rev. 2229, 2305 (1995).
Indeed, we have stated in several post-Hicks cases that even though a
plaintiff has established a prima facie case, the defendant is entitled to summary
judgment unless the plaintiff produces either direct evidence of discrimination or
evidence that the defendant’s proffered reason for the action taken was pretextual.
See e.g., Durham v. Xerox Corp., 18 F.3d 836, 840 (10th Cir.), cert. denied, 513
U.S. 819 (1994) (granting summary judgment even after plaintiff had established
a prima facie case of race discrimination on the grounds that plaintiff had “not
offered sufficient evidence to support a finding that [defendant’s] stated reason
was a pretext for discrimination.”); Randle v. City of Aurora, 69 F.3d 441, 451 &
n.14 (10th Cir. 1995) (explaining that “it [is] . . . the plaintiff’s burden to show
that there is a genuine dispute of material fact as to whether the employer’s
proffered reason for the challenged action is pretextual -- i.e., unworthy of
belief[,]” and thus, “the defendant would . . . be entitled to summary judgment if
plaintiff could not offer evidence tending to show the defendant’s innocent
explanation for his employment decision was false.”); Marx v. Schnuck Markets,
Inc., 76 F.3d 324, 328 (10th Cir.), cert. denied, 116 S.Ct. 2552 (1996) (granting
defendant summary judgment on an ADEA claim even though plaintiff had
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established a prima facie case on the grounds that plaintiff’s pretext evidence did
not allow for an inference of age discrimination). 6
This is not to say that evidence introduced as part of the prima facie case
cannot also be used at the pretext stage of the analysis. See Burdine, 450 U.S. at
255 n.10 (“[i]n saying that the presumption drops from the case [at the third
stage], we do not imply that the trier of fact no longer may consider evidence
previously introduced by the plaintiff to establish a prima facie case.”) We
6
It is noteworthy that every other circuit has also held post-Hicks that a
plaintiff cannot survive summary judgment by simply producing a prima facie
case of discrimination. These courts hold that a plaintiff must produce either
direct evidence of discrimination or evidence that the defendant’s proffered
reason was pretextual in addition to establishing a prima facie case in order to
survive summary judgment. See Smith v. Stratus Computer, Inc., 40 F.3d 11, 16
(1st Cir. 1994), cert. denied, 514 U.S. 1108 (1995) (Title VII -- sex
discrimination); Holt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d Cir. 1996),
cert. denied, 117 S. Ct. 1819 (1997) (§ 1981 and Title VII -- race and sex
discrimination); Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir. 1994) (Title VII --
national origin discrimination); Evans v. Technologies Applications & Serv. Co.,
80 F.3d 954, 960 (4th Cir. 1996) (Title VII -- sex discrimination); Bodenheimer v.
PPG Industries, Inc., 5 F.3d 955, 958 (5th Cir. 1993) (ADEA); Boyd v. Harding
Academy of Memphis, Inc., 88 F.3d 410, 414-15 (6th Cir. 1996) (Title VII --
pregnancy discrimination); Anderson v. Baxter Healthcare Corp., 13 F.3d 1120,
1124-26 (7th Cir. 1994) (ADEA); Thomas v. Runyon,108 F.3d 957, 960-61 (8th
Cir. 1997) (Title VII -- race discrimination); Wallis v. J. R. Simplot Co., 26 F.3d
885, 890-91 (9th Cir. 1994) (Title VII -- retaliatory discharge; ADEA); Combs v.
Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir. 1997) (Title VII -- race
discrimination); Cf. Kolstad v. American Dental Ass’n, 108 F.3d 1431, 1437
(D.C. Cir. 1997) (Title VII -- sex discrimination) (denying employer summary
judgment after finding that plaintiff “introduced sufficient evidence for the jury to
conclude both that she had proven a prima facie case of discrimination and that
[defendant’s] proffered reasons were pretextual”) (emphasis added).
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simply reject Conner’s argument that the establishment of a prima facie case is
necessarily sufficient to survive summary judgment.
Conner next argues that even if rebuttal evidence is needed in the ordinary
McDonnell Douglas case, the Marx decision stands for the proposition that in a
FLSA retaliation case, a showing of temporal proximity between protected
activity and adverse employment action is always sufficient to survive summary
judgment. 76 F.3d at 329. We disagree both with the breadth of this argument
and the factual predicate as applied to this case.
In Marx, we considered the claim of one of Conner’s co-workers, Mr.
Marx, who was demoted, transferred, and ultimately terminated by Schnuck
Markets after he participated in the very overtime wage survey at issue in this
case. Id. at 326-27. Mr. Marx claimed in part that Schnuck took action against
him because of his participation in the wage survey, in violation of the FLSA. Id.
Schnuck responded with the claim that it demoted and transferred Mr. Marx
because he lied about whether he was harassing other employees into completing
the wage survey, and that it ultimately fired Mr. Marx when it discovered that Mr.
Marx had lied on his employment application. Id. After applying the
McDonnell Douglas shifting burden framework to Mr. Marx’s FLSA retaliation
claim, the district court granted Schnuck summary judgment on the grounds that
Mr. Marx “failed to present sufficient evidence to create a question of fact as to
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whether defendant’s proffered reasons for its actions [were] pretextual.” Marx v.
Schnuck Markets, Inc., 863 F. Supp. 1489, 1497 (D. Kan. 1994), rev’d, 76 F.3d
324 (10th Cir. 1996).
On appeal, we reversed with regard to Mr. Marx’s FLSA retaliation claim.
Marx, 76 F.3d at 329. In analyzing Mr. Marx’s FLSA claim, we did not address
the McDonnell Douglas framework but simply explained that “protected conduct
closely followed by adverse action may justify an inference of retaliatory motive,”
and that “[g]ranting plaintiff the benefit of every favorable inference, the pattern
of actions taken by defendant precludes summary judgment . . . .” Id. at 329
(emphasis added). Conner would have us read Marx as holding that
protected conduct closely followed by adverse action always justifies an inference
of retaliatory motive, and thus summary judgment is always inappropriate when
temporal proximity is established. We refuse to read Marx in this way. See
Burrus, 683 F.2d at 343 (after explaining that a plaintiff may establish the causal
connection prong of the prima facie case by temporal proximity, we noted that it
was still necessary to allow the defendant the opportunity to articulate a
legitimate nondiscriminatory reason for the adverse action, and the plaintiff then
still was required to prove actual discrimination); see also Morgan, 108 F.3d at
1324-25 (after noting that the plaintiff established a prima facie case of Family
and Medical Leave ACT (FMLA) retaliation by establishing temporal proximity
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between protected conduct and adverse employment action, we upheld the district
court’s grant of summary judgment because plaintiff produced no evidence to
rebut the proffered reasons of the employer). 7 Each case turns on its facts, and in
this case, we believe that Conner has simply produced insufficient evidence of
retaliatory motive or pretext to rebut Schnuck’s proffered non-retaliatory reasons
for terminating him.
Conner next argues that even if the production of pretext evidence is
required in his case, he has presented such evidence. Conner argues that his
observation of other employees wearing vendor-given clothes at work belies both
the assertion that there is a company policy against accepting gifts and that any
such policy is enforced impartially. We disagree. The district court correctly
observed that Conner’s assertions are “conclusory allegations without specific
supporting facts. . . . The plaintiff does not point to any specific instances, nor
does he indicate any similarly-situated employee who received vendor premiums
with impunity.” (Order, at 14-15).
In Durham v. Xerox Corp., 18 F.3d 836, 839-40 (10th Cir. 1994), cert.
denied, 513 U.S. 819 (1994), we explained that mere allegations of impartial
7
Accord Carter v. Ball, 33 F.3d 450, 460 (4th Cir. 1994) (granting
defendant summary judgment despite plaintiff’s ability to show temporal
proximity evidence because pretext evidence was lacking); Cross v. Bally’s
Health & Tennis Corp., 945 F. Supp. 883, 889 (D. Md. 1996) (same).
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treatment are not sufficient to survive summary judgment. Here, although Conner
claims that he knew of other employees who accepted gifts from vendors without
detection, he has neither claimed, nor produced any evidence showing, that
Schnuck knew of other employees who accepted gifts.
Further, Conner has not presented any evidence showing that Schnuck
treated other employees differently if they discovered such violations. Indeed, the
only evidence presented with regard to this inquiry supports Schnuck, as it
consists of Schnuck’s showing that it terminated a 14 year employee in 1988 for
accepting beer from a beer vendor.
Finally, Conner has not challenged Schnuck’s decision to terminate him
because of his dishonesty. Indeed, Conner admitted in his deposition that
Ringkamp told him that he was willing to forget about the violation of the no-
premium policy if Conner would simply admit to having taken the jackets.
Conner has not produced any evidence showing that Schnuck’s proffered reason
of dishonesty was pretextual. We believe that Conner’s failure to challenge
Schnuck’s proffered reason of dishonesty is fatal to Conner’s attempt to survive
summary judgment. We have explained that a “discharge is unlawful [under
§ 215(a)(3) of the FLSA] only if it would not have occurred but for the retaliatory
intent.” Martin v. Gingerbread House, Inc., 977 F.2d 1405, 1408 n. 4 (10th Cir.
1992) (emphasis in original). By failing to challenge Schnuck’s proffered reason
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of dishonesty, Conner has failed to produce evidence indicating that he would not
have been terminated but for retaliatory intent.
For these reasons, we AFFIRM the district court’s grant of summary
judgment to Schnuck on Conner’s FLSA claim.
B. Kansas Common Law Claim
In addition to his FLSA claim, Conner asserts a retaliatory discharge claim
under the public policy exception to Kansas’ employment-at-will doctrine, citing
Murphy v. City of Topeka, 630 P.2d 186, 187-88 (Kan. Ct. App. 1981). The
district court dismissed this claim as precluded by the alternative statutory remedy
available under the FLSA. The court relied on Polson v. Davis, 895 F.2d 705
(10th Cir. 1990), where we held the Kansas Supreme Court would not allow a
common law cause of action for retaliatory discharge when an adequate statutory
remedy exists under Kansas law. Id. at 709.
Conner claims that the Polson rationale is limited to situations where the
plaintiff has an adequate statutory remedy under state law, and does not apply to
situations where the plaintiff seeks statutory relief under federal law. However,
we have expressly held that the Polson rationale extends to plaintiffs seeking to
assert a common law cause of action for retaliation when they have a federal
statutory right. Masters v. Daniels Int’l Corp., 917 F.2d 455, 457 (10th Cir. 1990).
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Moreover, the district court determined that no reasonable jury could find
for Conner on a common law retaliation claim because the McDonnell Douglas
burden shifting approach is used for state as well as federal retaliatory discharge
claims. (citing Huffman v. Ace Elec. Co., Inc., 883 F. Supp. 1469, 1475 (D. Kan.
1995)). For the same reasons that Conner fails to survive summary judgment on
his FLSA claim if McDonnell Douglas is applied, he would fail to survive
summary judgment on his state claim, even if we were to recognize such a claim.
For these reasons, we affirm the district court’s grant of summary judgment to
Schnuck Markets with respect to Conner’s common law retaliation claim.
CONCLUSION
With respect to Conner’s FLSA retaliation claim, we AFFIRM the district
court’s ruling that Conner failed to produce sufficient evidence of retaliatory
motive to survive summary judgment. With respect to Conner’s common law
retaliation claim, we AFFIRM the district court’s ruling that under Kansas law, a
common law retaliation claim is precluded by an adequate statutory remedy.
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Conner v. Schnuck Markets, Inc.
Court: Court of Appeals for the Tenth Circuit
Date filed: 1997-08-05
Citations: 121 F.3d 1390, 1997 Colo. J. C.A.R. 1511, 4 Wage & Hour Cas.2d (BNA) 43, 1997 U.S. App. LEXIS 20672, 1997 WL 436255
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