United States District Court, W.D. Oklahoma
JERRY D. McGAHA, Plaintiff,
ORION SECURITY SOLUTIONS, L.L.C., Defendant.
CHARLES B. GOODWIN UNITED STATES DISTRICT JUDGE
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.
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
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)
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
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.
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.
“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.”).
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
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,  Service Division Manager. See id.
at p. 22, ll. 15-24.
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.”).
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”).
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
also went to Service Division Director Bell. 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.
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.
But despite the lack of responses and answers from
McLoud 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.