Opinion
Case No. 2:00-cv-681.
February 23, 2005
ORDER OPINION
Plaintiff Michael Saville ("Saville") alleges unlawful retaliation in violation of the Fair Labor Standards Act ("FLSA") against Defendant International Business Machine ("IBM"). Before the Court is Defendant's Motion for Summary Judgment. Having considered the parties' arguments, briefs, and the relevant law, the Defendant's motion is GRANTED for the reasons set forth below.
BACKGROUND
Saville was employed by IBM from the mid-1960s until October 31, 1998. Saville was an Account Systems Services Representative, also known as a Customer Engineer ("CE"), from 1996 through 1998. IBM had different levels or "Bands" of CEs based on an employee's level of experience and responsibility. Saville was a Band 5 CE, the second highest level, and the most senior in his group. As a CE, Saville was responsible for maintaining IBM equipment at customer locations, serving as a technical resource for customers, managing customer accounts in a cost-efficient manner, and influencing customers to purchase additional IBM products and services. The three essential functions of Saville's job were: (1) installing and maintaining IBM equipment for customers; (2) developing positive relationships with customer management and staff to ensure a high level of overall customer satisfaction in all assigned accounts; and (3) mentoring and training less experienced CEs.
In 1995, Saville's managers began to note problems with the manner in which he interacted with customers, management, and peers. In Saville's annual performance review (known as a "Personal Business Commitment" or "PBC"), he received the lowest of three possible ratings — "More is expected." Saville's problems in mentoring and relating to his peers continued in 1996, as reflected in his PBC: "Mike . . . has had a hard time to mentor [sic] others because a lot of them prefers [sic] not to work with him . . . Mike should continue to work on his relationships with his peers." Despite these problems, however, Saville received the second highest rating in his 1996 PBC — "Achieved commitments."
Jim Fawver, Saville's manager, stated, "more is expected in his relationships and the way he communicates with others. This has lead [sic] some people to not want to use him in his specialist capacity or as a peer. Mike at times comes across negative and adversarial causing some people to not want to deal with him."
In January, 1997, Vickie Fullmer ("Fullmer") became Saville's supervisor. During her first year supervising Saville, Saville performed well technically, but continued to have problems with his peer relationships. As part of the annual PBC, IBM solicited comments from each employee's peers in "360 Degree Feedback." Saville's peers made positive comments about his technical ability, but some negative comments regarding his relations with them and with customers. Fullmer rated Saville as having "Achieved commitments" on his 1997 PBC because she had seen some improvement in his team building, customer relations, mentoring, and interpersonal skills, and because he had valuable technical abilities.
Saville's peers made the following comments:
"I know Mike is trying harder to have better `bedside manners' and I think he will accomplish the task. His customer relations is [sic] sometimes strained because of what he says. Mike has this problem with his peers too . . ."
"Mike is great to work with and I appreciate his skills as wells [sic] as his candor in approaching a problem. A possible point for improvement might be for Mike to be a little less forceful when working with customers when he tries to have them understand his approach with certain projects . . ."
"Mike works to [sic] many hours and it makes him grouchy." See IBM Ex. H.
In late 1997 and early 1998, Saville and Fullmer had ongoing e-mail discussions regarding IBM's goal of reducing the amount of overtime worked by CEs to control rising costs. Saville expressed his frustrations with IBM's overtime policy, namely that it was difficult for him and other CEs to fulfill their job requirements without incurring overtime. Saville did not state that he thought IBM was violating overtime laws in these e-mail discussions. Fullmer responded to Saville's concerns by telling him to record his overtime correctly and accurately.
According to Fullmer, Saville's problems with interpersonal relations and mentoring did not improve in 1998, and in fact, became worse. In June, Fullmer received a complaint from Orem City, one of Saville's customers. Orem City requested that Saville be taken off the account because he was "obnoxious and acted inappropriately" in his dealings with Orem City employees working on a systems upgrade. Saville claims that he was replaced on the Orem City account because he did not have the requisite skills to perform the task requested by the customer. Saville also testified that during this time period, he was disappointed he did not receive a promotion and was unhappy due to a lack of communication with Fullmer and other management personnel.
Because Fullmer thought that Saville's performance was headed in the wrong direction and was unacceptable, she decided to give him an interim PBC review. IBM uses interim reviews to tell employees that they are trending toward a potential lowering of their performance rating with the hope that they will correct their performance before the annual review. Fullmer met with Saville in July 1998 to discuss her concerns and tell him that he was being reviewed on an interim basis. She told him that his performance rating was heading downward and was a whole level below what he had been rated in 1997. Fullmer testified that she made this assessment based on Saville's negative attitude, lack of leadership, and continued problems dealing with his peers and customers.
Saville did not think his interim PBC was fair, and, therefore, submitted an anonymous complaint to IBM human resources through IBM's Speak Up program, which allows employees to raise issues, complaints, or concerns anonymously with human resources personnel. In his complaint, Saville stated that he believed the interim PBC was a result of Fullmer's reaction to a negative Employee Opinion Survey about her effectiveness as a manager. On July 17, 1998, Saville had a telephone conference regarding his Speak Up with Pat Pye ("Pye"), an IBM Human Resources officer. Pye suggested that Saville discuss his concerns with Brian Myers ("Myers"), his Second Line Manager.
On September 1, 1998, Saville met with Myers to discuss his concerns. Saville stated that he thought the interim review was unfair and that Fullmer was reacting to what he believed to be negative feedback on an employee opinion survey. Saville stated he thought Fullmer was an ineffective leader and his group's morale was down as a consequence. Saville also testified that he voiced his concern about how IBM's overtime directives were forcing CEs to work and not report overtime. Following the meeting, Myers investigated Saville's concerns by interviewing other members of his group. Myers concluded that Saville's concerns were without merit, and instead, that Saville had serious communication problems with Fullmer and other customer engineers.
Fullmer continued to see problems with Saville's performance following the interim PBC. In late September 1998, she met with Myers to tell him she had decided to put Saville on a formal performance improvement plan. Myers also suggested offering Saville the alternative option of a severance package, and Fullmer agreed that this would be a suitable alternative offer.
Both Fullmer and Myers testified that placing an employee on a performance improvement plan does not mean that the employee is automatically going to be terminated. Rather, it is a real opportunity for the employee to correct deficient performance. Myers also testified that he has had experience with other IBM employees who successfully completed improvement plans.
Myers met with Saville on September 30, 1998. Myers told Saville that his interviews with Saville's peers had not confirmed Saville's claim that Fullmer was the problem. Rather, the interviews had revealed that Saville had serious performance problems. Myers also told Saville that his attitude, leadership, mentoring, and support of Fullmer were unacceptable and that his attitude was causing customer complaints. Saville responded, in part, by admitting that he had a negative attitude, but blamed it on how he felt he had been treated by management. Myers explained to Saville that he needed to make an effort to turn things around and that changes had to be made immediately. Myers told Saville that he would have the option of going on a ninety-day performance improvement plan or leaving IBM with a severance package. Myers concluded the conversation by stating that Fullmer would provide further details regarding the two options.
On October 5, 1998, Fullmer met with Saville and explained the two options in more detail. She told him that he had fallen short of his job expectations and could go on a thirty-day performance improvement plan to correct his problems, or, alternatively, he could leave IBM and accept a severance package. Fullmer told Saville that he had thirty days to make a decision. Later that month, Saville rejected both options presented by Fullmer. Instead, he told Fullmer that he had decided to retire from IBM. Specifically, he rejected the IBM "Individual Enhanced Separation Allowance" and chose "Separation: Individual Separation/Retirement Reasons — Management Initiated." On August 24, 2000, Saville brought suit against IBM, alleging unlawful retaliation in violation of the FLSA.
According to Saville, Myers told Saville that the performance improvement plan would be ninety days, and then Fullmer shorted the time period to thirty days.
The corresponding Human Resources code is as follows: "8J — No Payment — Involuntary Separation (Permitted to Retire) — Inability meet IBM Standards of Job Performance."
DISCUSSION
After viewing the evidence and drawing all reasonable inferences in the light most favorable to Saville, the Court finds that Saville has failed to demonstrate a genuine issue of material fact in his allegations that IBM violated the FLSA through its employment decisions. Therefore, summary judgment is appropriate. Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In considering whether genuine issues of material fact exist, the Court determines whether a reasonable jury could return a verdict for the nonmoving party in the face of all the evidence presented. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Clifton v. Craig, 924 F.2d 182, 183 (10th Cir. 1991). The moving party need not negate the nonmoving party's claims, but need only point out that "there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). For purposes of this motion, the Court construes all facts and reasonable inferences in the light most favorable to plaintiff. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Wright v. Southwestern Bell Tel. Co., 925 F.2d 1288, 1292 (10th Cir. 1991).
Retaliation in Violation of the FLSA
Saville's sole claim against IBM is for retaliation under the FLSA. The FLSA prohibits any person from retaliating against an employee for asserting his rights under the Act. Specifically, the FLSA makes it unlawful for an employer
[t]o 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], 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). The Tenth Circuit applies a "motivating factor" analysis to claims of retaliatory discharge: "When 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 exist.' If retaliation is not the motivating factor, then the discharge is not unlawful." Marx v. Schnuck Markets, Inc., 76 F.3d 324, 329 (10th Cir. 1996) (quoting Martin v. Gingerbread House, Inc., 977 F.2d 1405, 1408 (10th Cir. 1992)).
The Tenth Circuit has held that the "motivating factor" test is equivalent to a "but for" test; a discharge is unlawful under § 215(a)(3) "`only if would have occurred but for the retaliatory intent.'" McKenzie v. Renberg's Inc., 94 F.3d 1478, 1483 (10th Cir. 1996) (quoting Martin, 977 F.2d at 1408 n. 4)) (emphasis in original).
FLSA retaliation claims are analyzed under a three-pronged test initially articulated in McDonnell Douglas Corp. v. Green, 441 U.S. 792 (1973). Richmond v. ONEOK, Inc., 120 F.3d 205, 208 (10th Cir. 1997) (citing Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)). Under this analysis, 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. Then the burden "shifts back to the plaintiff 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.'" Id. (quoting Morgan, 108 F.3d at 1323).
To establish a prima facie case of retaliation, Saville must demonstrate that (1) he engaged in activity protected by the FLSA; (2) he suffered adverse action by IBM subsequent to or contemporaneous with such employee activity; and (3) a causal connection existed between Saville's activity and IBM's adverse action. Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1394 (10th Cir. 1997).
1. Protected Activity
First, Saville must show that he engaged in activity protected by the FLSA. Id. Although § 215(a)(3) specifically lists the types of activities which are protected from retaliation, the Tenth Circuit has held that it also protects employees who articulate a good faith belief that the employer is violating their rights under the FLSA. Love v. RE/MAX of Am., Inc. 738 F.2d 383, 387 (10th Cir. 1984). Moreover, the provision "applies to the unofficial assertion of rights through complaints at work." Id.
Saville alleges he was engaged in protected activity when he made complaints to management that IBM's directive to reduce overtime was resulting in employees working overtime but not recording the hours, and thus, not being paid for overtime. IBM avers that Saville can only show that he disagreed with IBM's company policy regarding overtime, and this is not sufficient to assert his statutory rights under the FLSA. The Court agrees with IBM. The Tenth Circuit has stated, "we have never held that an employee is insulated from retaliation for participating in activities which are neither adverse to the company nor supportive of adverse rights under the statute which are asserted against the company." McKenzie, 94 F.3d at 1486. In order to be protected under § 215(a)(3), an employee is required to make a "`good faith assertion of [one's] statutory rights." Id. (quoting Love, 738 F.2d at 387) (emphasis and alteration in original). In other words, "it is the assertion of statutory rights (i.e., the advocacy of rights) by taking some action adverse to the company — whether via formal complaint, providing testimony in an FLSA proceeding, complaining to superiors about inadequate pay, or otherwise — that is the hallmark of protected activity under § 215(a)(3)." McKenzie, 94 F.3d at 1486 (emphasis in original).
Saville alleges that he made these overtime-related complaints to Fullmer, Pye and Myers. IBM claims that Saville has introduced no evidence that he made any such complaints to Fullmer. Viewing the evidence in the light most favorable to the non-moving party, the Court assumes without deciding that Fullmer, Pye, and Myers were aware of these alleged complaints.
In the instant case, Saville merely complained about IBM's company overtime policy and how it was forcing CEs to work and not report overtime. Saville never asserted a right adverse to the company. Saville did not initiate a FLSA claim against IBM on his own behalf or on behalf of another employee. Rather, he simply bristled at IBM's directive to reduce overtime. An employee must "either file (or threaten to file) an action adverse to the employer, actively assist other employees in asserting FLSA rights, or otherwise engage in activities that reasonably could be perceived as a directed towards the assertion of rights protected by the FLSA." Id. at 1486-87. Saville did none of these things. There is no evidence in the record to suggest that Saville was asserting any rights under the FLSA or that he took any action adverse to the company; rather, the record reflects that Saville merely voiced his disagreement with IBM's overtime policy. Saville therefore lacks an essential element of a retaliation claim — he did not take a position adverse to IBM or assert any rights under the FLSA. Accordingly, the Court finds that Saville did not engage in protected activity under § 215(a)(3).
2. Adverse Action
Even assuming that Saville engaged in protected activity, he cannot show that he suffered adverse action by IBM. An adverse employment action is a detrimental change in the terms or conditions of employment, such as termination. Conner, 121 F.3d at 1395 n. 4. IBM argues that it did not take adverse action against Saville, but rather, Saville chose to retire from IBM. Saville alleges that he was, in fact, constructively discharged. Constructive discharge "occurs when an employer, through unlawful acts, makes working conditions so intolerable that a reasonable person in the employee's position would feel forced to resign." Exum v. United States Olympic Committee, 389 F.3d 1130, 1135 (10th Cir. 2004) (citing Pennsylvania State Police v. Suders, ___ U.S. ___, 124 S.Ct. 2342, 2351 (2004) (further citation omitted)). Furthermore, "[w]orking conditions must be so severe that the plaintiff simply had no choice but to quit." Id. (citing Lighton v. Univ. of Utah, 209 F.3d 1213, 1222 (10th Cir. 2000); Yearous v. Niobrara County Mem'l Hosp., 128 F.3d 1351, 1357) (10th Cir. 1997)). "In contrast, a plaintiff who voluntarily resigns cannot claim that he or she was constructively discharged." Id.
The court's inquiry "is not whether working conditions at the facility were difficult or unpleasant." Id. (quoting Yearous, 128 F.3d at 1357). Rather, Saville must show that, at the time of his resignation, IBM did not offer him the opportunity to make a free choice regarding his employment relationship. Id. The Tenth Circuit has previously held that even requiring an employee to choose between resignation and termination is not necessarily a constructive discharge, unless the employee's decision is involuntary. Id.
Here, IBM gave Saville a choice of going on a thirty-day performance improvement plan or resigning from IBM with a severance package. Saville alleges that he was constructively discharged because IBM's performance plan was not "bona fide" in that it was only thirty days and he had not received written specifics regarding its terms. The Court disagrees, finding that Saville has failed to provide evidence from which a jury could find that his situation was so intolerable that a reasonable person in his position would have felt compelled to retire.
Indeed, Saville was given an opportunity for improvement — the thirty day performance plan — which he undisputedly did not take. Saville's contention that the performance improvement plan was not "bona fide" because it was only thirty days and not in writing fails. First, courts have not held that performance improvement plans must be ninety days or any other specific time period. See Agnew v. BASF Corp., 286 F.3d 307, 310 (6th Cir. 2002); Seely v. Runyon, 1998 U.S. App. LEXIS 31311, at *8 (10th Cir. Dec. 14, 1998) (unpublished); Peecook v. Northwestern Nat'l Ins. Group, 1998 U.S. App. LEXIS at *11-13 (6th Cir. 1998) (unpublished). Indeed, the shortened thirty day time frame may actually benefit the employee because the employee will only have to be on his or her "best behavior" for thirty days rather than ninety days. Second, the undisputed evidence reflects that Fullmer was prepared to give Saville a written description of the performance improvement plan if Saville accepted that option. The record also reflects that Fullmer told Saville that the plan would address leadership issues, as well as relations with customers, peers, and management. Moreover, neither of these contentions excuses Saville's failure to accept the performance improvement plan as an alternative to resignation.
Saville's own words establish that he voluntarily chose to retire from IBM, rather than participate in the thirty day performance plan. On October 30, 1998, Saville sent Fullmer an e-mail stating: "I have made my decision and I guess I am to put `in writing' my intent to [r]etire to you . . . I will be [r]etiring from IBM after 32 [y]ears and 35 days of [l]oyal [d]edicated [s]ervice on October 31, 1998." Because IBM offered Saville the opportunity to make a free choice regarding his employment relationship, the Court finds that Saville cannot establish constructive discharge.
3. Causal Connection
Even assuming that Saville has satisfied the first two prongs of a prima facie case of retaliation, Saville cannot demonstrate that a causal connection existed between his alleged protected activity and IBM's alleged adverse action. The Tenth Circuit has held that a plaintiff may establish a causal connection "by evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action." Conner, 121 F.3d at 1395 (citing Burrus v. United Tel. Co. of Kan., Inc., 683 F.2d 339, 343 (10th Cir. 1982) (other citations omitted)). However, if the termination is not very closely connected in time to the protected conduct, the plaintiff will need to rely on additional evidence beyond mere temporal proximity to establish causation. Id. See also Marx v. Schnuck Markets, 76 F.3d 324, 329 (10th Cir. 1996) (finding a causal connection where a pattern of retaliatory conduct began against the plaintiff shortly after he filed a FLSA complaint).
In the instant case, Saville alleges that Fullmer, Pye, and Myers were acting in concert with one another and this is sufficient evidence to establish causation. However, Saville has proffered no evidence, other than his own mere speculation, that this occurred. It would be one thing if Saville had evidence of any communication between Fullmer, Pye, and Myers — a phone call, an e-mail, a memorandum, another employee's testimony — showing that they were conspiring to discharge him as a result of his alleged overtime complaints. But the record is devoid of any such evidence. Conversely, IBM has proffered the sworn testimony of Fuller and Myers, which contradicts Saville's conspiracy theory. Fullmer testified that she did not learn of Saville's overtime comments in his meeting with Myers until after she had already decided to place him on a performance improvement plan. This evidence is undisputed. Moreover, Fullmer gave Saville his interim PBC before Saville even allegedly complained to Pye and Myers.
4. Pretext
Even assuming for the sake of argument that Saville has established a prima facie case of retaliation, he cannot satisfy his burden of establishing that IBM's legitimate non-retaliatory reasons for the alleged adverse employment action were pretextual. After a plaintiff has established a prima facie case of retaliation, the burden of production shifts to the employer to offer a legitimate non-retaliatory reason for the adverse employment action. Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir. 1990). The employer need not prove the absence of retaliatory motive; rather, the employer need only produce evidence that would dispel the inference of retaliation. Conner, 121 F.3d at 1395.
IBM proffers the following three non-retaliatory reasons for the alleged adverse employment action: (1) Saville was failing to interact positively with customers and peers to ensure customer satisfaction and to mentor the less experienced CEs in his group; (2) Fullmer received reports from peers and customers that Saville's communication style was preventing peers from seeking mentoring and was alienating customers to the point where customers requested that Saville be removed from work on their accounts; (3) Fullmer believed Saville was inappropriately challenging her authority in group meetings and denigrating her and other IBM management.
IBM claims that both Orem City and Weider Foods asked Fullmer to remove Saville from their accounts. Saville denies any conflicts with these two IBM customers. First, Saville claims that he was replaced on the Orem City account because he did not have the requisite skills to perform the task requested by the customer. This claim is contradicted by Fullmer's testimony as well as Clarke Christensen, an Orem City employee. Christensen testified that Saville was "obnoxious and acted inappropriately," so Orem City complained to IBM and asked that Saville be removed from the account. Regarding Weider Foods, Saville claims that he was removed from their account because they preferred to work with another CE. This statement is contradicted by Fullmer's testimony that Weider Foods asked that Saville be removed from the account because they were not receiving adequate customer support.
Saville argues that IBM's evidence supporting these non-retaliatory reasons is lacking and based largely on hearsay. Despite this broad assertion, Saville concedes that IBM's evidence is sufficient, asserting that he has raised a genuine issue of material fact as to whether such reasons are pretextual. Therefore, the Court finds that IBM has proffered sufficient non-retaliatory reasons.
Because IBM has legitimate non-retaliatory reasons for the alleged adverse employment action, the burden shifts back to Saville to show that these reasons are pretextual. A plaintiff may show pretext by demonstrating "`such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable fact finder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.'" Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999) (quoting Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (1997)). "Mere conjecture that the employer's explanation is pretext is insufficient to defeat summary judgment." Id.
Saville proffers three conclusory explanations in response to IBM's non-retaliatory reasons for the alleged adverse employment action: (1) his negative attitude was a product of Fullmer's misperception of his "articulate and forceful" sharing of his concerns; (2) his problems with peers was the result of IBM's job structure; and (3) his problems with customers were the fault of the customers and Fullmer's misinterpretation of customers' complaints. IBM argues that Saville has failed to demonstrate pretext because he has no evidence to show that Fullmer did not honestly and in good faith perceive Saville's performance as needing improvement. The Court agrees with IBM. Indeed, the record is devoid of any evidence that Fullmer's stated reasons for her decision to place Saville on a performance improvement plan were based on anything other than his failure to interact positively with customers, peers, and management.
Rather, the evidence on the record demonstrates that Saville has had difficulty interacting with peers, management, and customers since 1995, long before Saville's passing comments about overtime. Furthermore, this evidence is collaborated by Fullmer's uncontradicted testimony that this was the sole reason that she decided to place Saville on a performance improvement plan. In order to survive summary judgment, Saville can "not rest on his allegations of a conspiracy to get a jury without `any significant probative evidence tending to support the complaint.'" Liberty Lobby, Inc., 477 U.S. at 248 (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 290 (1968)). Despite the conspiracy theory Saville so artfully tries to craft, the Court finds he has failed to provide sufficient evidence showing IBM's proffered non-retaliatory reasons for the adverse action were pretextual.
CONCLUSION
In Liberty Lobby, the Supreme Court carefully announced the basis for summary judgment: the plaintiff "`may not rest upon the mere allegations or denials of his pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." Id. (quotation omitted). After viewing the evidence and drawing all reasonable inferences in the light most favorable to Saville, the Court finds that Saville has failed to demonstrate a genuine issue of material fact for trial. Accordingly, the Court GRANTS Defendant's Motion for Summary Judgment.
IT IS SO ORDERED.