Opinion
Civil Action No. DKC 2003-3618.
March 4, 2005
MEMORANDUM OPINION
Presently pending and ready for resolution in this age discrimination and overtime compensation case is the motion of Defendant Washington Gas for summary judgment pursuant to Fed.R.Civ.P. 56. The issues are fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, the court grants Defendant's motion.
I. Background
On January 16, 2003, Defendant terminated the employment of Plaintiff Richard D. White, then 61 years old. Prior to termination, Defendant employed Plaintiff as a residential gas meter reader.
On December 22, 2003, Plaintiff filed a complaint with this court, alleging that (1) he was terminated because of his age, in violation of section 4(a)(1) of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 623(a)(1); and (2) he was never compensated work he performed during his breaks and lunch period, in violation of section 7(a)(1) of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207(a)(1).
As to the age discrimination claim, Plaintiff contends he was terminated because he was not meeting Defendant's performance standards. Plaintiff admits that on multiple occasions he did not meet the production standards set by Defendant for reading meters, and that he was suspended for one day on November 19, 2002, for not completing his route and taking too long to perform his duties. He contends, however, that Defendant's production standards were established "arbitrarily" and without regard for the "reasonable pace and effort and age of the employee," and that he was not issued two warnings (an initial warning and a "final" warning) before his suspension, as dictated by Defendant's disciplinary rules. (Plaintiff was told by his shop steward that he could file a grievance about the suspension, but states that he declined to do so for fear of aggravating his supervisor.)
Defendant, however, maintains that Plaintiff was terminated for violation of various company policies during December of 2002. On Saturday, December 21, 2002, Plaintiff did not complete some of his assigned readings. Despite knowing that he was prohibited from working on Sunday without permission from his supervisor, he completed the readings the following day, writing down the readings on a notepad, which is also prohibited by company policy. Although he took the readings on Sunday, he entered them into Defendant's computer on Monday, which Defendant characterizes as falsification of company records. Discipline swiftly followed. On January 3, 2003, Plaintiff was reassigned to work in Defendant's warehouse; on January 6, he was told he was suspended pending further investigation; and on January 16, he was terminated for falsifying company documents, failure to follow procedures, and failure to follow supervisor's direction. Plaintiff asserts that "after firing him[,] [D]efendant turned over his duties to substantially younger employees;" Defendant contends that his duties were meted out to several other meter readers, including one who was 56 years of age.
Plaintiff asked his union to file a grievance, and filed a complaint with the Equal Employment Opportunity Commission alleging age discrimination. In a June 9 letter, Defendant offered to allow Plaintiff to return to work as a meter reader, with back pay less a 15 day suspension. Plaintiff's union sought a position for him in the warehouse rather than as a meter reader, but Defendant offered only the meter reading job. Plaintiff declined to return to work as a meter reader, citing recent blackouts induced by hypertension which he feared could recur and jeopardize his safety while driving his routes.
As to the FLSA claim, Plaintiff claims he worked overtime hours that do not appear on his timesheets. He admits that he neither recorded having worked during his breaks and lunch period nor ever otherwise requested payment for those hours. He contends that he failed to do so because he was instructed that he would be paid only for approved overtime, and he had not been approved for work during those periods.
Defendant now moves for summary judgment, contending that Plaintiff has not made a prima facie case of age discrimination, that its termination of Plaintiff was legitimate and nondiscriminatory, and that it committed no FLSA violation in failing to pay Plaintiff for the hours Plaintiff now claims he worked during breaks and lunch periods.
II. Standard of Review
It is well established that a motion for summary judgment will be granted only if there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In other words, if there clearly exist factual issues "that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party," then summary judgment is inappropriate. Anderson, 477 U.S. at 250; see also Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir. 1987); Morrison v. Nissan Motor Co., 601 F.2d 139, 141 (4th Cir. 1987). The moving party bears the burden of showing that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Catawba Indian Tribe of South Carolina v. State of S.C., 978 F.2d 1334, 1339 (4th Cir. 1992), cert. denied, 507 U.S. 972 (1993).
When ruling on a motion for summary judgment, the court must construe the facts alleged in the light most favorable to the party opposing the motion. See United States v. Diebold, 369 U.S. 654, 655 (1962); Gill v. Rollins Protective Servs. Co., 773 F.2d 592, 595 (4th Cir. 1985). A party who bears the burden of proof on a particular claim must factually support each element of his or her claim. "[A] complete failure of proof concerning an essential element . . . necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 323. Thus, on those issues on which the nonmoving party will have the burden of proof, it is his or her responsibility to confront the motion for summary judgment with an affidavit or other similar evidence in order to show the existence of a genuine issue for trial. See Anderson, 477 U.S. at 256; Celotex Corp., 477 U.S. at 324. However, "[a] mere scintilla of evidence in support of the nonmovant's position will not defeat a motion for summary judgment." Detrick v. Panalpina, Inc., 108 F.3d 529, 536 (4th Cir.), cert. denied, 522 U.S. 810 (1997). There must be "sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).
III. Analysis
A. ADEA Violation
Section 4(a)(1) of the ADEA, 29 U.S.C. § 623(a)(1), provides, in pertinent part: "It shall be unlawful for an employer . . . to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age."
"In order to establish a cause of action under the ADEA, a plaintiff must demonstrate that but for the employer's motive to discriminate against the plaintiff on the basis of age, the plaintiff would not have been discharged." E.E.O.C. v. Clay Printing Co., 955 F.2d 936, 940 (4th Cir. 1992). "The Fourth Circuit recognizes two avenues of proof by which an employee can prove an ADEA violation: `(1) under ordinary principles of proof using any direct or indirect evidence relevant to and sufficiently probative of the issue, or (2) under a judicially created proof scheme originally used in the Title VII context in [ McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)] and subsequently adapted for use in ADEA cases.'" Burns v. AAF-McQuay, Inc., 96 F.3d 728, 731 (4th Cir. 1996) (quoting Tuck v. Henkel Corp., 973 F.2d 371, 374-75 (4th Cir. 1992)); Clay Printing, 955 F.2d at 940. Under the McDonnell Douglas framework, the plaintiff must first establish a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802; Bryant v. Bell Atl. Md., Inc., 288 F.3d 124, 133 (4th Cir. 2002). If a plaintiff establishes a prima facie case of discrimination through circumstantial evidence, the burden of production then shifts to the defendant to provide a legitimate, non-discriminatory reason for the differential treatment. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000); Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell Douglas, 411 U.S. at 802. The plaintiff must then "`prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.'" Reeves, 530 U.S. at 142, quoting Burdine, 450 U.S. at 253.
Here, Plaintiff presents no direct evidence of discrimination, so the court applies the McDonnell Douglas test. To establish a prima facie case of age discrimination, Plaintiff must show that (1) he is a member of a protected class; (2) he suffered an adverse employment action; (3) he was performing his job duties at a level that met his employer's legitimate expectations at the time of the adverse employment action; and (4) the position remained open or was filled by similarly qualified applicants outside the protected class. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004) (citing Brinkley v. Harbour Recreation Club, 180 F.3d 598, 607 (4th Cir. 1999)).
Plaintiff clearly satisfies the first two criteria: At 61 years of age, he is within the protected age group, see 29 U.S.C. § 631(a); and he was fired. Defendant contends, however, that Plaintiff was not performing his job at a level that met Defendant's legitimate expectations at the time he was terminated because in the December 2002 incident, Plaintiff "failed to follow his supervisor's direction by reading meters without authorization on a Sunday morning; failed to follow procedures by writing meter readings on paper, instead of entering them in a computer; and falsified Company documents by entering meter readings in a computer not on the day they were read, but on another day." Defendant asserts its right to fire Plaintiff for such actions because the operative labor contract states:
The Company may discharge an employee for any just cause including, but not limited to, the following: dishonesty; falsification of Company documents; incompetence; poor job performance . . . failure to carry out instructions of supervisors to the best of the employee's ability; refusal to carry out instructions of supervisors . . . or for any just cause.
Paper no. 21, Exh. 5, Attachment #1, Art. 5(2)(a).
The court notes that Defendant's argument that Plaintiff was terminated for just cause might more properly be considered as a legitimate, non-discriminatory reason for the differential treatment, i.e., after Plaintiff's prima facie burden has been met, rather than as an argument against Plaintiff having met the prima facie burden itself. In this case, however, the court need not choose: Either way, Plaintiff admits Defendant's allegations that he took meter readings on Sunday without prior approval and that he took them on a notepad rather than directly into his handheld computer, both in violation of Defendant's policies. Plaintiff has introduced no evidence that these policies were illegitimate, that he had any reasonable expectation of being excused for these violations, nor that these behaviors were overlooked in other cases despite the policies. In short, Plaintiff simply cannot "demonstrate that but for the employer's motive to discriminate against the plaintiff on the basis of age, the plaintiff would not have been discharged." Clay Printing, 955 F.2d at 940. He is therefore unable to meet his burden, so summary judgment will be granted on the ADEA claim.
B. FLSA Violation
29 U.S.C. 207(a)(1) states, in pertinent part: "[N]o employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed." Another court recently summarized the standard for determining whether a plaintiff's overtime hours are compensable under FLSA:
For compensation to be awarded, plaintiff's activities must . . . be performed with the employer's knowledge. Work performed off-site must be counted as time worked only "if the employer knows or has reason to believe that work is being performed." 29 C.F.R. § 785.12 (1997); see also 29 C.F.R. § 785.11 (1997) ("If the employer knows or has reason to believe that [the employee] is continuing to work . . . the time is working time."); Forrester v. Roth's I.G.A. Foodliner, Inc., 646 F.2d 413, 414 (9th Cir. 1981) ("An employer who knows or should have known that an employee is or was working overtime must comply with the provisions of [29 U.S.C.] § 207 [mandating overtime pay].").
Moreover, once an employer knows or has reason to know that an employee is working overtime, it cannot deny compensation even where the employee fails to claim overtime hours. See Caserta v. Home Lines Agency, Inc., 273 F.2d 943, 946 (2nd Cir. 1959); Newton v. City of Henderson, 47 F.3d 746, 748 (5th Cir. 1995); Forrester, 646 F.2d at 414. An employer need not have actual knowledge of such off-site work; constructive knowledge will suffice. See Reich v. Department of Conservation and Natural Resources, 28 F.3d 1076, 1082 (11th Cir. 1994).Holzapfel v. Town of Newburgh, 145 F.3d 516, 524 (2nd Cir. 1998). Here, Plaintiff contends that he is owed money for 291 hours of breaks and lunch periods during which he worked but for which he was not compensated. See paper no. 21, Exh. 7. He admits, however, that he never reported those hours on his timesheets, nor did he ever ask to be paid for those hours until this lawsuit, see paper no. 21, Exh. 8, at 144-45. The only evidence in the record to support his contention that he worked the claimed overtime hours is his affidavit, which is directly contradicted by his signed timesheets. As such, it amounts only to a "scintilla of evidence," so summary judgment is appropriate. See, e.g., Bill Call Ford, Inc. v. Ford Motor Co., 830 F.Supp. 1045, 1050 (N.D.Ohio 1993) ("Plaintiff's affidavit contradicting his own contemporaneous correspondence is, it is believed, only a scintilla of proof on this issue, rendering summary judgment appropriate."); Prince v. Farmers Ins. Co., 790 F.Supp. 263, 267 (W.D.Okla. 1992) (summary judgment granted where "[t]he documentary evidence in this case, . . . which directly contradict[s] statements made in the affidavits, demonstrates that the affidavits are incredible and totally without merit. Plaintiff has failed to proffer even a scintilla of credible evidence raising a factual issue. . . ."), rev'd on other grounds, 982 F.2d 529 (10th Cir. 1992). Plaintiff cites Turner v. Human Genome Scis., Inc., 292 F.Supp.2d 738, 748 (D.Md. 2003), for the proposition that in FLSA overtime cases, "[i]n the absence of an exact record of hours, . . . [a] prima facie case can be made through an employee's testimony giving his recollection of hours worked." Id. Here, however, his timesheets — "an exact record of hours" — are plainly available. Turner is therefore inapposite. Accordingly, summary judgment will be granted on the FLSA claim.
IV. Conclusion
For the reasons stated above, the court grants Defendant's motion. A separate Order will follow.