United States District Court, N.D. Oklahoma
OPINION AND ORDER
JOHN
E. DOWDELL, UNITED STATES DISTRICT COURT CHIEF JUDGE
I.
Background
Plaintiff
Stan Smith was employed by the City of Sand Springs, Oklahoma
Fire Department beginning in 1996. He was promoted to the
position of Fire Marshal in 2007. Plaintiff's job duties
as Fire Marshal included conducting inspections of new and
existing structures, reviewing plans for new construction,
responding to fire emergencies, conducting investigations,
and serving as a public information officer. Plaintiff is a
member of the International Association of Fire Fighters
(IAFF), and his employment with Defendant is subject to a
collective bargaining agreement between the IAFF and the City
of Sand Springs. During his tenure with the Fire Department,
Plaintiff received strong performance evaluations. At the
time he filed this lawsuit, Plaintiff had no disciplinary
history.
Plaintiff's
scheduled workday was from 8 a.m. to 5 p.m. Monday through
Friday, with a one-hour unpaid meal period each day. The
office was closed for an hour each day for lunch. On some
days, Plaintiff conducted personal errands or personal
business during his meal period. Plaintiff was required to
carry his cell phone and to respond to phone calls and
emergencies while on duty, including during his unpaid meal
period. Plaintiff testified that, due to his workload, he
often worked in his office on his computer and phone during
lunchtime. Plaintiff asserts that he worked through his
unpaid meal period approximately three days per week, and
therefore regularly worked more than forty hours per week but
was not paid for the excess time that he worked during his
meal periods. For several years, Plaintiff requested that the
IAFF negotiate a change in his work schedule to an 8 a.m. to
4 p.m. schedule with a working lunch. However, his schedule
was not changed.
In June
2017, Plaintiff spoke to Fire Chief Michael Wood about his
schedule and told Wood that he had been working through
lunch. Wood instructed Plaintiff to submit overtime requests
for work he did during his meal period. Before this meeting,
Plaintiff had never been instructed to keep track of whether
he received a meal period or to submit an overtime request
for work he did during his meal period.[1] Plaintiff did not
submit any overtime requests for working during his meal
period either before or after receiving this instruction from
Wood. Plaintiff cannot identify any specific dates when he
worked through his meal period.
On
September 19, 2017, Plaintiff filed this lawsuit, alleging
that the City failed to pay him overtime for all hours he
worked in excess of forty per week at the rate of one and
one-half times his regular rate of pay, in violation of the
FLSA. Plaintiff's Complaint alleged that he worked nine
hours per day, totaling forty-five hours per week, throughout
his employment as Fire Marshal. Assistant City Manager Daniel
Bradley learned about Plaintiff's FLSA lawsuit within a
week after it was filed. Subsequently the City, led by
Bradley, began investigating Plaintiff's overtime claim.
During
the investigation, Human Resources Director Amy Fairchild
discovered emails between Plaintiff and his outside employer
relating to Plaintiff's work as a process server between
2014 and 2016. The City policy regarding off-duty employment
in effect at that time stated that “City employees may
take other jobs on a part-time or temporary basis if the
employee's efficiency and attendance is maintained to the
satisfaction of the Department Head or supervisor, there is
no conflict of interest and the Department Head had approved
such employment prior to the other employment. No. employee
shall engage in outside business or employment during regular
schedule duty hours.” (Doc. 52 at 4.) City policy also
provided that “City equipment is for official use only
and will never be used for personal reasons.”
(Id.) Deputy Fire Chief Justin Hall, who supervised
Plaintiff, was aware of Plaintiff's outside employment at
the time he worked as a process server and had not raised any
concerns or issues about the outside employment or with
Plaintiff's job's performance as Fire Marshal.
In
October 2017, the City began investigating Plaintiff for the
emails it found relating to his outside employment. Bradley
testified that in most cases, an employee would be notified
of an investigation into potential misconduct. (Bradley Dep.
at 59:12-16, Doc. 48-9). However, the City did not notify
Plaintiff of its investigation or interview him as part of
the investigation, as it has done in previous cases. Wood was
not informed that Bradley was investigating Plaintiff for
alleged misconduct until December 19, 2017. Wood testified
that he was surprised to learn that the City opened an
investigation into Plaintiff because Wood had no reason to
suspect him of doing anything that would warrant a formal
investigation. (Wood Dep. at 103-04, Doc. 48). Bradley
testified that the City would not have been investigating
Plaintiff for misconduct if he had not filed an FLSA
Complaint. (Bradley Dep. at 100-01, Doc. 53-9 (“Q:
Okay. So my - what I'm asking is you were investigating
the FLSA complaint -- A: Right. And it opened up some other
doors that need to be settled. Q: Okay. And so without the
FLSA complaint you would not have even been looking into that
issue, right? A. Probably not.”)).
On
December 27, 2017, the City placed Plaintiff on
administrative leave and notified him that he was being
proposed for termination. The City alleged Plaintiff violated
various City policies relating to his outside work as a
process server on eight separate dates (June 12, 2014;
November 6, 2014; April 15, 2015; May 4, 2015; August 13,
2015; October 14, 2015; January 4, 2016; and April 12, 2016).
Plaintiff was allowed to select one member of a three-person
panel to conduct a pre-determination hearing. He chose Rick
Portilloz, a Captain with the Sand Springs Fire Department.
The other two panel members were John Mars, the City's
Deputy Police Chief; and Patrick Boulden, a former attorney
for the City of Tulsa. The hearing was conducted on January
26, 2018. On January 30, 2018, a panel majority consisting of
Mars and Boulden issued written recommendation to sustain the
proposed termination of Plaintiff's employment. (Doc.
46-6). The panel's written findings included seven
specific incidents relating to Plaintiff's
process-serving work that the panel found were in violation
of City policy. Portilloz wrote a separate opinion discussing
his reasons for dissenting from the panel majority. (Doc.
48-7).
On
February 1, 2018, Defendant terminated Plaintiff's
employment. Plaintiff filed a Second Amended Complaint on
February 14, 2018, asserting claims for overtime compensation
under the FLSA and unlawful retaliation in violation of the
FLSA pursuant to 29 U.S.C. § 215(a)(3). (Doc. 31).
Defendant moves for summary judgment on both claims. (Doc.
46). Plaintiff moves for partial summary judgment on his FLSA
retaliation claim. (Doc. 48).
II.
Summary Judgment 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); see Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). “[S]ummary
judgment will not lie if the dispute about a material fact is
‘genuine,' that is, if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Id. at 248. The courts thus 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.” Id. at 251-52. The non-movant's
evidence is taken as true, and all justifiable and reasonable
inferences are to be drawn in the non-movant's favor.
Id. at 255.
III.
Defendant's Motion for Summary Judgment
A.
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