Smith v. City of Sand Springs

          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. ...