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McGaha v. Orion Security Solutions L.L.C.

United States District Court, W.D. Oklahoma

March 14, 2019

JERRY D. McGAHA, Plaintiff,



         Now before the Court is the Motion for Partial Summary Judgment filed pursuant to Federal Rule of Civil Procedure 56 by Defendant Orion Security Solutions, L.L.C. See Def.'s Mot. (Doc. No. 35). Plaintiff Jerry D. McGaha has responded. See Pl.'s Resp. (Doc. No. 43. Defendant has replied. See Def.'s Reply (Doc No. 47).


         Defendant hired Plaintiff as a Service Division Manager and Systems Specialist. According to Plaintiff, he performed his duties satisfactorily, but was terminated after he complained about violations of the Fair Labor Standards Act of 1938 (“FLSA”), as amended, 29 U.S.C. §§ 201 et seq.

         Plaintiff brought suit on November 30, 2017, and alleged in his complaint that (1) Defendant failed to pay him “at the statutorily prescribed rate of one-and-one-half times the regular rate of pay for all hours worked in excess of forty (40) [hours] per week, ” Compl. (Doc. No. 1) ¶ 29; (2) Defendant illegally retaliated against him by discharging him after he reported Defendant's violation of the FLSA, see id. ¶¶ 33-37; and (3)

         Defendant violated Oklahoma common law when it converted Plaintiff's personal property, see id. ¶¶ 38-41. In the instant motion, Defendant has challenged only Plaintiff's retaliation claim, arguing that Plaintiff was properly terminated because he disregarded office policies and procedures and failed to perform basic duties.


         Summary judgment is a means of testing in advance of trial whether the available evidence would permit a reasonable jury to find in favor of the party asserting a claim. The Court must grant summary judgment when “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). “An issue is ‘genuine' if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). “An issue of fact is ‘material' if under the substantive law it is essential to the proper disposition of the claim.” Id.

         A party that moves for summary judgment has the burden of showing that the undisputed material facts require judgment as a matter of law in its favor. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the movant carries this initial burden, the nonmovant must then “go beyond the pleadings and ‘set forth specific facts' that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.” Adler, 144 F.3d at 671 (quoting prior version of Fed.R.Civ.P. 56(e)); see also LCvR 56.1(c). The Court must then determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Parties may establish the existence or nonexistence of a material disputed fact by:

• citing to “depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials” in the record; or
• demonstrating “that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.”

Fed. R. Civ. P. 56(c)(1)(A)-(B). While the Court views the evidence and the inferences drawn from the record in the light most favorable to the nonmoving party, see Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005), “[t]he mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient; there must be evidence on which the [trier of fact] could reasonably find for the [nonmovant].” Liberty Lobby, 477 U.S. at 252.


         Defendant “specializes in providing technical and physical security solutions to private-sector and public-sector clients.” Compl. ¶ 7. Plaintiff was hired on May 7, 2015, as a Service Division Manager and Systems Specialist. See Def.'s Mot. Ex. 1 (Employment Offer for Jerry McGaha) (Doc. No. 35-1), at 1 (hereinafter, “Employment Offer”). “[T]he skills emphasized in [Plaintiff's] . . . résumé . . . were important for . . . performing [necessary] job duties.” Def.'s Mot. Ex. 2 (Deposition of Sean Crain) (Nov. 20, 2018) (Doc. No. 35-2) at p. 4, ll. 8-10 (hereinafter, “Crain's Dep.”).[2]

         These duties included “fix[ing] customer issues with access control, CCTV, ” and “servicing equipment out in the field.” Pl.'s Resp. Ex. 1 (Deposition of Jerry McGaha) (Nov. 12, 2018) (Doc. No. 43-1) at p. 23, ll. 14-15 (hereinafter, “Pl.'s Dep.”); id. at p. 30, ll. 16-17. Plaintiff was required “to maintain his [company-issued] vehicle . . . [, ] to maintain his inventory of tools . . . [, ] to . . . timely . . . execute service tickets which are basically a recollection of his work effort at a particular job site to enable . . . [Defendant] to bill a client[, ] [and] to manage service calls.” Def.'s Mot. Ex. 2 (Crain's Dep.) (Doc. No. 35-2) at p. 8, ll. 7-13; see also Def.'s Mot. Ex. 1 (Employment Offer) at 1 (“As a Service Division Manager, . . . “[y]ou will be responsible for coordinating customer support related to their technical security systems, providing training, and supporting the other missions of the Service Division. As a Systems Specialist, you will be responsible for supporting the field operations teams with installation and configuration of security system management software and related hardware.”).

         During Plaintiff's employment, Defendant held weekly management meetings, which were attended by “the directors of each division and [Defendant's] . . . executive team.” Pl.'s Resp. Ex. 2 (Crain's Dep.) (Doc. No. 43-2) at p. 22, ll. 13-14. Executive team members included Sean Crain, Defendant's president and chief executive officer, and Greg Vance, Defendant's chief operating officer. Also attending were Trey Bell, Service Division Director, and Casey McLoud, [3] Service Division Manager. See id. at p. 22, ll. 15-24.

         During the hiring interview, Crain “discuss[ed] . . . the opportunity [for Plaintiff] to either be a salaried employee that was exempt [from certain FLSA provisions] or an hourly employee . . ., since the abilities that [Plaintiff] . . . had and the job duties he had would qualify for either.” Def.'s Mot. Ex. 2 (Crain's Dep.) (Doc. No. 35-2) at p. 4, ll. 12-15. Plaintiff “chose the salary, ” id. at p. 4, l. 16, and negotiated an annual base pay of $65, 000, see id. at p. 5, ll. 15-18. Plaintiff also discussed with Crain “about working excessive hours and being compensated.” Pl.'s Resp. Ex. 1 (Pl.'s Dep.) (Doc. No. 43-1) at p. 6, ll. 18-19. Compare Def.'s Mot. Ex. 2 (Crain's Dep.) (Doc. No. 35-2) at p. 5, ll. 1-4 (“I do not recall him discussing the overtime, that he was also authorized for overtime, but . . . I don't recall that part of the conversation, whether that happened or not”), with id. at p. 10, ll. 5-6 (“During his application process, when I was visiting with him, we discussed it.”).

         Payment of overtime compensation did not come up again until “late 2016, probably, ” Pl.'s Resp. Ex. 1 (Pl.'s Dep.) (Doc. No. 43-1) at p. 8, l. 21, when Plaintiff and his supervisor, McLoud, were “just talking about [their] . . . pay, ” id. at p. 8, l. 22. McLoud “complained a lot, ” id. at p. 8, l. 23, and Plaintiff and McLoud “had quite a few conversations about just pay and how much . . . [they] were working overtime, ” id. at p. 8, l. 24 to p. 9, l. 1. They “weren't talking as . . . supervisor and employee. [They] . . . were basically talking as friends.” Def.'s Mot. Ex. 4 (Pl.'s Dep.) (Doc. No. 35-4) at p. 4, ll. 16-18. See also id. at p. 4, ll. 18-19 (“he was blowing off steam and . . . I guess I was blowing off steam”).

         Sometime thereafter, either in March or April 2017, see Pl.'s Resp. Ex. 1 (Pl.'s Dep.) (Doc. No. 43-1) at p. 25, ll. 14-18, or in June or July 2017, see id. at p. 9, l. 21, Plaintiff saw a U.S. Department of Labor poster at Defendant's facility regarding the FLSA and overtime pay. See Pl.'s Resp. Ex. 9 (FLSA Information Poster) (Doc. No. 43-9). The poster reinforced what Plaintiff “already knew” and “confirmed that how [Defendant was] . . . paying and . . . had . . . classified [Plaintiff] was not right.” Pl.'s Resp. Ex. 1 (Pl.'s Dep.) (Doc. No. 43-1) at p. 9, ll. 18-19; id. at p. 10, ll. 7-8; see also id. at p. 26, ll. 22-24 (“After I saw the sign . . . I knew positively that . . . they were paying illegally.”). It was then that Plaintiff “probably . . . started complaining more than anything . . . .” Id. at p. 9, ll. 23-24. Plaintiff continued to discuss the matter with McLoud, and McLoud told Plaintiff that “he was going to . . . [Vance] to get [them] . . . some compensation.” Id. at p. 12, ll. 21-22; see also id. at p. 38, ll. 13-14 (McLoud “did tell me, on a couple of occasions, that he ha[d] talked to Greg.”).

         Plaintiff also went to Service Division Director Bell.[4] See id. at p. 27, l. 9. Bell, however, “never said really much back, ” id. at p. 37, ll. 23-24, and “really didn't give [Plaintiff] . . . any answers, one way or the other, ” id. at p. 37, ll. 24-25. Although Bell did tell Crain about his discussions with Plaintiff regarding overtime, Crain described Bell's discussions as “nothing more than passing about how it would be nice to make overtime.” Pl.'s Resp. Ex. 2 (Crain's Dep.) (Doc. No. 43-2) at p. 25, ll. 23-25.

         Plaintiff does not “recollect” when he first formally notified “a supervisor that [he] . . . felt like [he was] . . . supposed to be paid overtime.” Pl.'s Resp. Ex. 1 (Pl.'s Dep.) (Doc. No. 43-1) at p. 9, ll. 4-5.[5] But despite the lack of responses and answers from McLoud[6] and Bell, and even though he was aware of Crain's “open-door policy, ” see id. at p. 6, l. 12 to p. 7, l. 5; id. at p. 10, ll. ...

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