Opinion
Case No. 3:01-CV-7499
June 24, 2003
ORDER
Plaintiff Erma Johnson brings this suit against the Ohio Department of Youth Services ("DYS") and, in his official capacity, DYS director Geno Natalucci-Persichetti, under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq. This court has jurisdiction under 28 U.S.C. § 1331 and § 1337. Pending is defendants' motion for reconsideration. For the following reasons, the motion shall be granted, and summary judgment shall be denied.
BACKGROUND
Plaintiff was employed as the Regional Administrator for the DYS Northwest Ohio Region in Toledo, Ohio, from 1987 through December, 2000. In September, 1998, plaintiff sued DYS in the Ohio Court of Claims, seeking overtime compensation under the FLSA. The trial court ruled in favor of DYS, and plaintiff appealed. The Tenth District Court of Appeals heard oral arguments in plaintiff's appeal on December 7, 2000. On the same day the appeal was argued, DYS allegedly demoted plaintiff to a lower job classification and transferred her to the position of Social Worker Supervisor at the Maumee Youth Center, a DYS facility in Maumee, Ohio, The facility allegedly was scheduled for closure before plaintiff was transferred there.
The state appeals court reversed the trial court. Johnson v. Ohio Dep't of Youth Servs., 749 N.E.2d 339 (Ohio Ct.App. 2000). The Ohio Supreme Court reversed. 772 N.E.2d 1157 (Ohio 2002).
Plaintiff began working at the Maumee Youth Camp on January 9, 2001. Three weeks later, she learned the facility was scheduled to close. The facility closed in August, 2001.
Plaintiff alleges that she was transferred to Maumee for pursuing the FLSA overtime action against her employer in state court, and brings this action under the FLSA's antiretaliation provision, 29 U.S.C. § 215(a)(3).
In her complaint, plaintiff named DYS, a department of the State of Ohio, and Geno Natalucci-Persichetti, the director of DYS, in his official capacity. She sought an injunction to prevent the defendants, jointly and severally, from engaging in future discriminatory and retaliatory action against her, and also for an injunction ordering defendant Natalucci-Persichetti to reinstate her to her position as Regional Administrator or a like position.
Defendants filed a motion for summary judgment. This court granted summary judgment as to DYS based on the department's Eleventh Amendment immunity, but denied summary judgment as to Natalucci-Persichetti. The remaining defendant, Natalucci-Persichetti, has filed a motion for reconsideration.
STANDARD OF REVIEW
Summary judgment must be entered "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party who "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (quoting FED. R. CIV. P. 56(e)).
Once the burden of production shifts, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is insufficient "simply [to] show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, Rule 56(e) "requires the nonmoving party to go beyond the [unverified] pleadings" and present some type of evidentiary material in support of its position. Celotex, 477 U.S. at 324.
In deciding the motion for summary judgment, the evidence of the non-moving party will be accepted as true, all doubts will be resolved against the moving party, all evidence will be construed in the light most favorable to the non-moving party, and all reasonable inferences will be drawn in the non-moving party's favor. Eastman Kodak Co. v. Technical Servs., Inc., 504 U.S. 451, 456 (1992). Summary judgment shall be rendered only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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).
DISCUSSION
Plaintiff alleges retaliation in violation of 29 U.S.C. § 215(a)(3), which provides that employers may not "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] . . ." 29 U.S.C. § 215(a)(3).
Plaintiff brings the suit under 29 U.S.C. § 216(b), which provides, in part:
Any employer who violates the provisions of section 15(a)(3) of this Act shall be liable for such legal or equitable relief as may be appropriate to effectuate the purposes of section 15(a)(3), including without limitation employment, reinstatement, promotion, and the payment of wages lost and an additional equal amount as liquidated damages. An action to recover [this] liability . . . may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated.29 U.S.C. § 216(b).
I. Eleventh Amendment
Defendant Natalucci-Persichetti, sued in his official capacity as director of DYS, argues that he is immune from suit under the Eleventh Amendment.
The Eleventh Amendment states:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
The Eleventh Amendment does not bar a suit against a state official seeking prospective injunctive relief to end a continuing violation of federal law. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 73 (1996). These suits are known as Ex parte Young suits, based on the first Supreme Court case to recognize this exception to the Eleventh Amendment's general grant of immunity. Ex parte Young, 209 U.S. 123, 159-60 (1908).
The Sixth Circuit noted in Wilson-Jones v. Caviness, 99 F.3d 203, 211 (6th Cir. 1996), that "a state employee can still sue a state officer in federal court for an injunction ordering the officer to comply with the FLSA" under Ex parte Young. Plaintiff's suit against defendant in his official capacity is not barred by the Eleventh Amendment.
Plaintiff's suit against defendant also complies with FLSA. The statute authorizes a plaintiff to sue "any employer (including a public agency)." 29 U.S.C. § 216(b). Defendant Natalucci-Persichetti, in his official capacity as director of DYS, is identical to DYS itself, a public agency employing plaintiff. Additionally, FLSA defines an "employer" as including "any person acting directly or indirectly in the interest of an employer in relation to an employee . . ." 29 U.S.C. § 203(d). As director of DYS, defendant acted in the interest of DYS in relation to plaintiff. Consequently, defendant, in his official capacity, may be named in a suit under § 216(b).
II. Retaliation
To make out a prima facie case for FLSA retaliation, plaintiff must demonstrate that: 1) she engaged in protected activity; 2) the employer knew of the protected activity; 3) she suffered an adverse employment action; and 4) a causal connection existed between the protected activity and the adverse action. See, i.e., EEOC v. Avery Dennison Corp., 104 F.3d 858, 860 (6th Cir. 1997) (citation omitted). If the employee demonstrates a prima facie case, the employer must produce a legitimate non-discriminatory reason for the adverse employment action. If the employer meets this burden of production, the employee must demonstrate by a preponderance of the evidence that the articulated reason was merely pretextual. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981).A. Prima Facie Case 1. Protected Activity
Defendant concedes that plaintiff's suit against DYS in state court, alleging a violation of FLSA, was protected activity under FLSA. 29 U.S.C. § 215(a)(3).
2. Employer Knew Of Protected Activity
Defendant Natalucci-Persichetti was aware of the plaintiff's lawsuit, according to the affidavit of Joseph Parrish, DYS Deputy Director of the Division of Finance and Planning, because it was discussed at weekly executive staff meetings.
3. Adverse Employment Action
Defendant argues that plaintiff's transfer was not an adverse employment action because she received a $.72/hour raise and a property interest in her job when she was transferred to Maumee. As a Regional Administrator in Toledo, plaintiff was an at-will employee and earned $28.19 per hour. As a Social Worker Supervisor in Maumee, plaintiff was a classified state employee with a property interest in her job under O.R.C. § 124.11, and earned $28.91 per hour. Plaintiff argues that the transfer to a closing facility constituted an adverse employment action, because DYS intended that she would be terminated when the facility closed.
An adverse employment action can include "termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation." Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 886 (6th Cir. 1996) (citation omitted).
While the Sixth Circuit has ruled that a "demotion" that does not result in a pay decrease is not an adverse employment action, Yates v. Avco Corp., 819 F.2d 630, 638 (6th Cir. 1987), the plaintiff's transfer, with its de minimis raise and benefits increase, may nevertheless constitute an adverse employment action if, as alleged, defendant knew the Maumee facility was slated for closure when the transfer occurred. This "unique" circumstance, Kocsis, 97 F.3d at 886, could constitute an adverse action akin to termination.
Defendant decided to transfer plaintiff to the Maumee Youth Center in November, 2000. On December 7, 2000, plaintiff was transferred. According to Parrish's affidavit, however, the DYS executive staff had decided no later than summer, 2000, that the Maumee Youth Center would be closed. In fact, Parrish stated that as early as 1998 and 1999, the executive staff decided to include no money for the Maumee Youth Center's capital construction for 1998-1999, as part of the decision to close the facility.
Plaintiff would have been terminated if she had not accepted the transfer. When the facility was closed, plaintiff was laid off. Consequently, there are issues of material fact from which a jury could conclude that plaintiff suffered an adverse employment action when she was transferred to the Maumee Youth Camp in December, 2000.
4. Causation
Plaintiff argues that she has shown a causal link between her protected activity and her alleged adverse action, because of the temporal connection between her transfer and her protected activity, and because the pattern of retaliation began soon after she filed her suit in state court. Defendant argues that the timing of her transfer is not enough to show causation, and that plaintiff has not presented proof of a retaliatory pattern.
Plaintiff's burden with respect to establishing a prima facie case is not onerous. Jackson v. RKO Bottlers of Toledo, Inc., 743 F.2d 370, 377 (citing Burdine, 450 U.S. at 253). Plaintiff "need only introduce evidence from which an inference can be drawn that he would not have been discharged had he not filed discrimination charges." Id. (citing Burdine, 450 U.S. at 254). This inference may be drawn where the evidence suggests that the defendant treated other employees more leniently. Id. at 377.
a. Timing of Transfer
On September 14, 1998, plaintiff filed her complaint against DYS alleging violations of Ohio's wage and hour law, and amended her complaint six weeks later to include FLSA claims.
As noted, plaintiff's transfer occurred on December 7, 2000, the same day her appeal was argued in state court. For temporal proximity to be sufficient to show a causal connection, the events must be "very close" in time. Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001). The decision to transfer plaintiff was made in November, 2000. While the date of defendant's announcement of plaintiff's transfer is, indeed, "very close" to a significant date in plaintiff's pursuit of her protected activity, plaintiff was transferred more than two years after her initial lawsuit was filed. Plaintiff does not argue that this, without more, supports the "causation" element of plaintiff's prima facie case, because plaintiff has shown more support for it.
b. Pattern of Retaliation
In August, 1998, immediately before she filed her lawsuit in state court, plaintiff was subjected to disciplinary action for improper use of her DYS cell phone. This is the only instance in the record in which plaintiff, a DYS employee since 1987, was disciplined before she filed her lawsuit. After plaintiff filed her lawsuit on September 14, 1998, she was written up for lateness and other rule infractions. The first warning was issued on November 3, 1998.
This incident occurred after plaintiff informed her supervisor that she believed DYS had violated the wage and hour laws, however. Plaintiff first voiced this concern in early 1998.
According to Parrish's affidavit, the Toledo region, for which plaintiff served as Administrator, also was subjected to more stringent oversight after she filed suit. Starting in late 1998, he alleges, defendant's assistant director, Carol Rapp-Zimmerman, told him "to pay much closer attention to the Toledo Region and its contracting and budget processes than she expected me to do with the other regions. She specifically wanted to know if any minor or major deviation from policies and practices was occurring there." (Parrish Aff. at ¶ 9).
Parrish alleges that DYS did not ask him to pay particular attention to either the Columbus Region or the Cincinnati Region, though both had contracting and financial monitoring problems similar to the Toledo Region's alleged problems. Though DYS asked him to request an audit of one Columbus contract, no other Regional Administrator was transferred as a result. Parrish also alleges that in May and June, 1998, he told DYS that the Toledo Region had problems monitoring its Barnel contract. DYS did not order him to investigate this in 1998, but in early 2000, during the pendency of plaintiff's lawsuit in state court, the Chief Inspector began examining the Toledo Region's monitoring of the Barnel contract. Parrish's affidavit continues:
[DYS] ordered a special audit of the Toledo Region on March 6, 2000 and . . . the audit was to, among other things, look at contracting practices. I am aware that the Columbus Region was experiencing similar [contracting] problems to the Toledo Region at about this time but that no special audit was ordered for that region at that time. In a later audit of the Columbus Region, the region was not monitoring a contract and overspending had occurred, but the executive director there was not disciplined or demoted.
Parrish Aff. at ¶ 17.
The investigation allegedly revealed some contracting irregularities at the Toledo region. Plaintiff's supervisor gave plaintiff a substandard performance review in October, 2000, and DYS decided to transfer her in November, 2000.
Protected conduct closely followed by adverse action may justify an inference of retaliation. Jackson, 743 F.2d at 377 n. 4. A pattern of retaliatory conduct may begin after the filing of the FLSA complaint and later culminate in discharge. Id. (A trial court must not ignore evidence introduced by plaintiff, which if believed, "would raise an inference that defendant had engaged in a pattern of retaliatory conduct beginning soon after plaintiff filed discrimination charges."). Here, plaintiff has produced evidence showing that the pattern of disciplinary action against her began after she alerted her employer to a possible wage-and-hour violation, escalated after she filed suit in state court, and culminated in her effective termination when she was transferred to Maumee.
Plaintiff has presented evidence from which "an inference can be drawn that [she] would not have been discharged" but for the protected activity. Jackson, 743 F.2d at 377 (citing Burdine, 450 U.S. at 254).
Plaintiff has met the four elements of prima facie retaliation.
B. Legitimate Non-Discriminatory Reason
After a plaintiff has established her prima facie case of retaliation, the defendant has the burden of producing a legitimate, non-discriminatory reason for the adverse employment action. Burdine, 450 U.S. at 252-53.
Defendant argues that it was motivated to transfer plaintiff because of her disciplinary write-ups for tardiness, failure to follow procedures, and lack of control of contracting procedures in the Toledo region.
C. Pretext
If the employer meets this burden of production, the employee must demonstrate by a preponderance of the evidence that the articulated reason was merely pretextual. Burdine, 450 U.S. at 252-53. A plaintiff may establish that the proffered reason was a mere pretext by showing that 1) the stated reason had no basis in fact; 2) the stated reason was not the actual reason; and 3) that the stated reason was insufficient to explain the defendant's action. Logan v. Denny's, Inc., 259 F.3d 558, 574 (6th Cir. 2001).
Plaintiff began her employment with DYS in 1987, and has produced evidence that she received written praise of her performance. It is undisputed that she received no disciplinary action until August, 1998. Plaintiff has produced evidence that DYS began scrutinizing the Toledo region after she filed her lawsuit in state court, even to the exclusion of other regions with similar patterns of irregularities. The resultant disciplinary write-ups were the result of that scrutiny. To the extent that these write-ups could have been a sufficient reason for the transfer, plaintiff has produced evidence that the write-ups, themselves, were produced in retaliation for filing the FLSA lawsuit.
Consequently, plaintiff has produced evidence from which a jury could conclude that DYS' articulated reason for her transfer was pretextual.
CONCLUSION
Plaintiff has met all the elements of a prima facie case of retaliation for filing a complaint to enforce a provision of the FLSA, and has produced evidence that defendant's articulated reason for the adverse employment action against her was pretextual.
It is, therefore, ordered that:
1) Defendant's motion for reconsideration be, and hereby is, granted; and
2) Defendant's motion for summary judgment be, and hereby is, denied.
So ordered.