Fernando J. Gaitan, Jr., United States District Judge
Pending before the Court is Defendants' Motion for Summary Judgment (Doc. No. 27).
Plaintiff was a paramedic employed by defendant City through May of 2014. In July of 2011, Plaintiff filed a lawsuit against the City under the Fair Labor Standards Act ("FLSA"), claiming that defendant failed to properly calculate overtime payments for paramedics and EMTs. Plaintiff claims in the present case that, beginning at the time she filed her FLSA case, defendants began to target her in retaliation, ultimately resulting in her termination. In the current suit, plaintiff brings two claims: Count I, FLSA Retaliation; and Count II, Wrongful Discharge.
Defendants City of Kansas City, Missouri ("City") and Paul Berardi ("Berardi") move for summary judgment on the following bases: (1) Plaintiff cannot satisfy the McDonnell-Douglas burden shifting analysis to show retaliation; (2) Plaintiff cannot sustain her wrongful discharge claims against the City due to sovereign immunity or against Defendant Berardi due to the lack of employer/employee relationship, official immunity, and qualified immunity;
Hermsen was employed by Metropolitan Ambulance Services Trust ("MAST") from 2003 until 2010 when MAST merged with KCFD. Plaintiff was then employed as a paramedic with the City of Kansas City, Missouri from April 2010 through May of 2014.
Sometime before March 7, 2011, Hermsen spoke to Lisa Minardi, Councilman Ed Ford's Assistant, concerning her intention to blow the whistle on the City for FLSA violations. Lisa Minardi was married to Paul Ferguson, who worked at Hermsen's fire station. Hermsen gave Minardi a document titled, Violations of FLSA Committed by KCFD concerning Ambulance Personnel and the Inevitable Financial Liability to Kansas City ("Warning Paper"), to give to Councilman Ford. (Warning Paper, Ex. 21 to Doc. No. 31); (Hermsen Dep., Ex. 1 at 16:13-18:24). Hermsen told paramedic supervisors Scott Raak and Laura Sanchen; her partners, Andrew Hanchette and Chad Huismann; and Michael Cambiano, International Association Fire Fighters Local No. 42 ("Union") Administrator; that she was going to give the Warning Paper to Lisa Minardi. Between March 2011 and July 29, 2011, Hermsen was blamed in union meetings and elsewhere for starting an investigation into the legality of the 24-hour shift for paramedics and EMTs.
On July 29, 2011, Plaintiff became the named plaintiff in a FLSA action filed in the Western District of Missouri which sought damages for the City's failure to pay paramedics and EMTs appropriate overtime wages. A second named plaintiff, Andrea Armillio, joined the FLSA lawsuit on August 15, 2011. The command staff was disappointed about the filing of the FLSA suit. According to Dyer's deposition, the suit turned back six months of the work that had been done. Captain Wright sent correspondence and had conversations with Chief Dyer and others at the City indicating his belief that the 24-hour shift policy for EMS units did not violate the FLSA, and on October 28, 2011, the Union filed a Motion to Intervene in plaintiff's FLSA action. (Civil Docket for Case No. 4:11-cv-00753-BP, Ex. 27). Chief Dyer and Chief Berardi were heavily involved in the integration of MAST personnel, including the 24-hour shift that became the subject of Hermsen's FLSA lawsuit. (Dyer Dep., Ex. 17 at 69:14-24, and 72:10-73:11).
On September 24, 2012, Judge Beth Phillips granted in part Plaintiffs' Motion to Certify the Class in the lawsuit against the City, with Plaintiff serving as the class representative for paramedics and Andrea Armilio as the class representative for EMTs. On May 15, 2013, Plaintiff filed her Second Phase (liability) Discovery Requests on the City in the FLSA lawsuit which were returned December 19, 2013. On July 22, 2013, Chief Berardi was deposed in plaintiff's FLSA suit. Hermsen attended Chief Berardi's deposition. On or about January 8, 2014, Plaintiff filed a Motion for Partial Summary Judgment as to liability in the FLSA lawsuit. On or about April 7, 2014, Plaintiff moved for leave to file supplemental authority in the FLSA lawsuit that rejected the City's defense.
A second FLSA class action was brought for the purpose of including those class members entitled to relief but who failed to opt in to the first class action. The named plaintiff in the second FLSA lawsuit was Diana Frisbee. In all, 244 paramedics and EMTs received compensation under the two lawsuits. All but six of those 244 paramedics and EMTs are still employed by the City, have retired, died, or have voluntarily resigned from the fire department. Of the six that were terminated, two were terminated for misconduct; two abandoned their job and were terminated; one was unable to perform the physical requirements of the job; and one was terminated after a felony conviction yielding a three-year prison sentence.
When Plaintiff joined the fire department in 2010, Chief Richard Dyer was the fire chief. In July 2012, Chief Dyer retired. Defendant Berardi was appointed interim fire chief in August 2012, and in January 2013, Defendant Berardi became the fire chief.
The Fire Chief is primarily responsible for serving as the hearing officer in all disciplinary matters involving fire personnel and usually knows of all discipline administered. During predetermination hearings, those facing discipline are afforded the right to be represented by counsel and the Union, to present evidence, to call and cross-examine witnesses, and make opening and closing statements.
The City's Whistleblower Protection Ordinance prohibits disciplinary action against City employees for reporting violations of law. (Ordinance No. 990311, Ex. 18). Chief Berardi is required to investigate all allegations of retaliation. The City also has to report allegations of harassment to the EEO office. Chief Berardi has never disciplined anyone for failing to report a complaint of discrimination, harassment or retaliation under the reporting requirement. The City's Discipline policy lists causes for disciplinary action that include, but are not limited to, offensive behavior, offensive language, and discrimination. Offensive conduct that is prohibited by includes "being boisterous towards your supervisor, using foul language in an aggressive manner, throwing things, refusing to follow an order ... being rude not only to your supervisor, but to a peer employee
On June 6, 2011, plaintiff responded to a motor vehicle accident involving an elderly woman, who had been t-boned but exhibited no symptoms. Plaintiff photographed the car, allegedly to show the ER physician the mechanism of injury. Because of this incident, a supervisor argued with her at the scene. On or about June 15, 2011, Plaintiff was disciplined for failure to use proper titles and being disrespectful of her supervisor; failure to obey a lawful order of her superior; and taking photographs of the accident in violation of the Fire Department's General Administrative Guidelines. Ex. K, Resolution of Personnel Matter, ¶¶ 1-3. Plaintiff received a twelve-hour suspension for her actions on June 6, 2011. Ex. K, ¶ 5. The June 6, 2011 incident was the first time Hermsen was disciplined by KCFD.
On June 15, 2011, Plaintiff was involved in an altercation with a co-worker. Plaintiff asserted that her co-worker Wayne Ashurst had been rude to her for weeks prior and was the aggressor when he yelled at her while retrieving supplies "Get the f__ out of my office," and they then exchanged words. Plaintiff's Ex. 3. For her part in this matter, plaintiff received a written reprimand. Ex. K, ¶ 6. With respect to this matter, Plaintiff waived her rights to a predetermination hearing and other remedies that she may have had available to her. Ex. K, ¶¶ 7, 8.
On June 30, 2011, Plaintiff left the station she was assigned to in order to go home; as a result, the ambulance she was stationed on missed a call. Ex. L, Human Resources Board decision, Case No. 11-32, ¶ 2. Plaintiff asserted that she had received permission from her direct supervisor, Paul Ferguson, on that date to tend to a personal matter. On August 4, 2011, Plaintiff attended a predetermination hearing concerning the June 2011 absence from work. On August 25, 2011, Chief Dyer recommended in his predetermination hearing report that Plaintiff be suspended for 24 hours. On September 1, 2011, Ms. Hermsen appealed the August 25, 2011 predetermination hearing report to the Human Resources Board. On March 13, 2012, the Human Resources Board held its hearing. The Human Resources Board ruled on May 8, 2012 that Plaintiff "did not properly follow the Fire Department's chain of command as set forth in the Fire Department's Rules." Ex. L, p. 3 ¶ 4. The Human Resources Board, however, found that Plaintiff "believed the captain of whom she asked permission to leave had the authority to grant her request." Ex. L, p. 3, ¶ 2. The Human Resources Board overturned the suspension recommended by Chief Dyer and, instead, reduced the suspension to a letter of reprimand and counseling. Plaintiff received a letter of reprimand and counseling for this incident on May 15, 2012. Plaintiff did not appeal the decision of the Human Resources
On or about December 11, 2012, Plaintiff responded to a medical call in an auditorium involving a female patient that fainted during a play. The following day, a Battalion Chief filed a complaint against Plaintiff because she did not "run" down the aisle to render aid. The City conducted a fact-finding into the complaint about the December 11 incident. Plaintiff was cleared of any wrongdoing and did not receive discipline for the December 11, 2012 call.
On January 31, 2013, Plaintiff received an oral reprimand for failing to report an accident to her supervisor and for failing to notify her supervisor of damage to City property. Ex. P, Memorandum of Oral Reprimand. As described by plaintiff, during a huge snow storm, Hermsen was riding in the ambulance with her partner, Andrea Armilio. Ms. Armilio slid off the road and went up a curb. While waiting for the tow truck Armilio and Hermsen got the ambulance off the curb. Hermsen and Armilio did not notice that snow had knocked the running board loose until they returned to the station. They continued to run calls for the next thirteen hours and the incident was verbally reported to a supervisor. (Hearing of May 14, 2014, Ex. 6 at 109:7-110:23). Plaintiff did not appeal the oral reprimand. Ex. E, ¶ 12.
On June 12, 2013, Plaintiff threw a water bottle at her supervisor, Brenda Paikowski. Doc. 1, ¶ 32; Ex. Q, 8/5/13 Predetermination report, p. 1. Plaintiff characterizes this incident as horseplay; however, plaintiff was investigated for committing a "violent act". On July 24, 2013, a predetermination hearing was held for the water bottle incident. On August 5, 2013, Defendant Berardi issued a predetermination hearing report that found Plaintiff "engag[ed] in offensive conduct toward another member of the Department when, at the Eastwood facility on June 12, 2013, Hermsen threw an object at Assistant Division Chief Brenda Paikowski which struck her on the leg." Ex. Q, p. 4. In his report, Defendant Berardi recommended that Plaintiff receive a 26.6 hour suspension, but that the suspension would be held in abeyance and shall not be served if Plaintiff participates in an Employee Assistance Program for Anger Management. Ex. E, ¶ 13; Ex. Q, p. 4-5. Plaintiff did not appeal the June 2013 water bottle incident to the Human Resources Board. Ex. E, ¶ 14; Ex. O, 91:5-14. On January 21, 2014, Assistant Chief Pat Reisenbichler emailed the EAP provider and asked "to delay the release of Marissa from the EAP mandate," despite the fact that Hermsen successfully completed EAP counseling on December 9, 2013. (EAP Progress Report of January 21, 2014, Ex. 43); (EAP Management Referral Update, Ex. 39).
On or about December 7, 2013, Plaintiff responded to a multi-vehicle fatality crash at 12th and Hardesty. Doc. 1, ¶ 38. The scene was a chaotic mess with three paramedics working on a deceased motorist while neglecting two other patients, and therefore Hermsen grabbed one of the paramedics on the scene (Elizabeth Bechtold) to communicate with her about the other patients. After Ms. Hermsen transported her patient to Truman Medical Center ("Truman") she saw Paramedic Jonathon Koen who was visibly upset. (Email of Dec. 9, 2013, from Hermsen to Latta and David Dexter, Ex. 40). A Truman nurse approached Hermsen and informed her that Koen accused Hermsen of putting her hands on a co-worker at the fatality accident scene. Hermsen went to the Truman garage and asked Koen what was going on. Paramedic Koen yelled at Ms. Hermsen, standing only inches from her face and said, "I saw what you did, fucking
On February 5, 2014, charges were brought against Hermsen for interfering with patient care and inappropriate conduct. After taking evidence on March 7, 2014, Defendant Berardi concluded that "while PM Hermsen feels it was appropriate to grab another employee to emphasize that she needed additional information about her patient, or to guide that employee through a narrow passage at an emergency scene, PM Bechtold, as well as other personnel on scene did not appreciate the gesture and felt it was inappropriate." Ex. R, 3/10/14 Predetermination Decision, p. 2. Plaintiff received a written reprimand for grabbing PM Bechtold. Ex. R, p.2.
On February 17, 2014, plaintiff went to Station 18 and had a conversation with Elizabeth Bechtold about the December 7, 2013 incident. Plaintiff and defendants dispute whether plaintiff was told prior to this incident to refrain from speaking with those who responded to the December 7, 2013 accident scene. While Hermsen spoke to Bechtold, Paramedic Schimming came across the bay, shouted vulgarities and stepped about two feet in front of Ms. Hermsen's face in a threatening manner and demanded that Ms. Hermsen leave the station. (Hearing of May 14, 2014, Ex. 6 at 33:24-34:4 and 134:6-135:4). On February 21, 2014, Ms. Hermsen learned that charges were filed against her for engaging in offensive conduct and interfering with a witness due to her conversation with Ms. Bechtold. (Fact Finding of Feb. 21, 2014, Ex. 45).
On March 17, 2014, Chief Berardi issued a Predetermination Hearing letter to Hermsen charging her with hindering the effective performance of a municipal government function and engaging in offensive conduct due to her questioning of Bechtold on February 17, 2014. On April 11, 2014, Chief Berardi notified Hermsen that she was immediately suspended without pay and would be terminated in seven days for the charge of engaging in offensive conduct and hindering the effective performance of a City function.
On April 14, 2014, Hermsen appealed Chief Berardi's termination of her employment to the HR Board. On May 14, 2014, the Human Resources Board conducted a hearing into the February 2014 confrontation. Ex. S, Human Resources Board decision, Case No. 14-06, p. 1. The Appeal before the City's Board concerning Hermsen's termination included a charge for abuse or improper treatment of a person in custody and conduct that was disruptive or caused deficiencies in the workplace. These two charges were not included in Chief Berardi's termination letter. The KCFD does not have arrest capability. There were no inefficiencies that occurred due to Hermsen's two minute conversation with Elizabeth Bechtold.
On August 11, 2014, the HR Board upheld Hermsen's termination. The Human Resources Board found that "[p]rior to [Ms. Hermsen's] predetermination hearing regarding the December [2013] incident, at which [Ms. Bechtold] would be called to
On August 18, 2014, Hermsen appealed the HR Board termination decision to City Manager, Troy Schulte.
In 2011, after the filing of the FLSA lawsuit, Ms. Hermsen was followed home from work by individuals in pick-up trucks that displayed KCFD stickers. Hermsen was warned by Lesa Gonzalez that fire fighters were trying to kill her dog. Additionally, fire fighters blocked Hermsen's car in at the station. These incidents were reported to fire administration Scott Raak, Laura Sanchen and Michael Cambiano.
On August 1, 2011 (three days after the FLSA suit was filed), Plaintiff's counsel in the underlying FLSA suit sent a letter to the City Attorney and Chief Dyer highlighting seven negative comments (including publication of her home address) made about Plaintiff on the website Tony's Kansas City (which is not affiliated with the City of Kansas City). Ex. T, 8/1/11 Ltr. from Hodgson.
On August 27, 2011, a message reading "New EMS CREWS!! If you don't like it Leave or if you do like it leave" was found on the white board attached to the EMS locker. Ex. V, 8/27/11 white board message. On August 30, 2011, a message reading "If you don't like it leave" was found on the white board attached to the EMS locker. Ex. V, 8/27/11 white board message. Chief Dyer agreed that the above-described comments posted on the white board on the EMS locker violated Rule 11,
On September 16, 2011, it was reported to Chief Dyer that an icon reading "Marissa Hermsen is a CUNT" existed on a computer at Station 35. Ex. W, 9/11 email chain, KCMO_0005244. Chief Dyer had the computers removed from Station 35 and reported the conduct to the City's EEO office. The City conducted interviews and a forensic analysis of the computer to determine who created the icon. The IT department was able to determine that the offensive icon was created under the login identification of Andrew Hanchette. However, Mr. Hanchette was logged onto five separate station's computers that day, and when questioned noted that he frequently forgot to log off of computers he was signed on to. Additionally, Mr. Hanchette was on leave the date that the icon was created and was one of the original reporters of the offensive icon. The City did not discipline any parties for the creation of the offensive icon. No further reports of offensive comments on City computers were made after Chief Dyer had the computers removed from Station 35.
On January 31, 2012, Dispatcher Anne Lewis posted a negative comment about Hermsen on the Union's Facebook page, which is open to those who are captain and below:
(Union Facebook Page, Ex. 30); (Hermsen Dep., Ex. 1 at 44:1-11). On February 6, 2012, Hermsen made a formal complaint to her supervisor that Anne Lewis dispatched her to a scene that was not secure:
(Email of Feb. 6, 2012 from Hermsen to Brenda Paikowski, Ex. 31). Chief Dyer admitted that he was aware of the information in Hermsen's complaint about Ms. Lewis and no one interviewed her. (Dyer Dep. Ex. 17 at 54:25-55:4 and 58:10-12).
In February 2012, Captain Cashen got out of his pumper and started yelling obscenities at Hermsen because he purportedly was upset that the police department delayed patient care. (Hermsen Dep., Ex.
In 2014, KCFD employees Tara Hill, Katee Schimming, Tara Baugher, Katie Zishka, Dave Clark, Rina Trowbridge and Captain Charlie Cashen all posted negative comments about Hermsen on the Union's Facebook page. (Hermsen Dep., Ex. 1 at 42:15-47:22).
On March 10, 2014, Hermsen responded to a call involving an injured fire fighter who was lying at the bottom of a ladder. ADC Paul Paikowski (who is the spouse of Brenda Paikowski), stood uncomfortably close to Hermsen and later yelled, "When I ask you a question you damn well better answer me." Hermsen asked ADC Paikowski why he was threatening her and he responded, "I'm warning you, give me attitude and it will be the last thing you ever do." Hermsen felt threatened by the actions of ADC Paikowski and filed a complaint with fire administration and City HR reminding them that she was a class action plaintiff and believed ADC Paikowski's actions were retaliatory. Hermsen's partner, Mike Williams, was questioned about the incident and confirmed that ADC Paikowski threatened Hermsen. On April 3, 2014, Hermsen sent an email to Kym Lewis, EEO Manager, asking why her complaint of harassment and retaliation had not been addressed. Lewis responded the following day and said the complaint for retaliation had no merit. (Email of Apr. 3, 2014, from Hermsen to Kym Lewis, Ex. 51); (Email of Apr. 4, 2014 from Kym Lewis to Hermsen, Ex. 51).
ADC Fennel, who was not the face of the FLSA complaint, was not terminated for choking Division Chief Mark Mauer. (Hearing of May 14, 2014, Ex. 6 at 173:21-174:7); instead, he was terminated as part of a progressive discipline process. Paramedic Koen, who was not the face of the FLSA complaint, was not terminated, despite the fact that both his partner and Hermsen filed complaints documenting abuse. (Vittori Complaint, Ex. 41). (Berardi Dep., Ex. 19 at 67:14-68:20). Instead, at some point, Koen left his employment with KCFD and was re-hired. (Berardi Dep., Ex. 19 at 65:7-9).
Summary judgment is appropriate if the movant demonstrates that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.
A nonmoving party must establish more than "the mere existence of a scintilla of evidence" in support of its position.
Defendants argue they are entitled to summary judgment because plaintiff cannot satisfy the McDonnell-Douglass burden shifting analysis. The FLSA makes it unlawful "to discharge or in any other manner discriminate against any employee because such employee has filed any complaint... under or related to this chapter." 29 U.S.C. § 215(a)(3). The Eighth Circuit uses the familiar McDonnell-Douglas burden-shifting analysis to analyze FLSA retaliation cases.
To establish a prima facie case of retaliation, a plaintiff must show that she engaged in protected activity, that the defendant took an adverse employment action against the plaintiff, and that there was a causal link between the protected activity and the adverse employment action.
Defendants argue that because the majority of adverse actions taken against plaintiff
Defendants argue that plaintiff did not exhaust her administrative remedies as to her claims regarding (1) leaving her post in June 2011; (2) throwing the water bottle in June 2013; (3) grabbing the arm of another paramedic in December 2013; and (4) confronting the paramedic in February 2014. With respect to the June 2011 and February 2014 incidents, plaintiff appealed both to the Human Resources Board, and with respect to the June 2011 incident the Board overturned the suspension that Plaintiff originally received and permitted, instead, a letter of reprimand and counseling. Plaintiff did not appeal this finding to the City Manager. With respect to the February 2014 confrontation, the Board found that there was sufficient evidence to support plaintiff's termination. Although defendants argue that plaintiff did not appeal the Board's decision to the City Manager, plaintiff notes that an appeal was filed; however, the result of that appeal does not appear in the record. In the case of the June 2013 water bottle incident (wherein she received a stayed suspension pending successful completion of EAP) and the December 2013 touching at the scene incident (wherein she received only a reprimand), plaintiff did not file an appeal with the Human Resources Board. Defendants therefore argue that these disciplinary decisions are final administrative decisions not subject to collateral attack.
In response, plaintiff first notes that written reprimands (such as what she received in the 2011 post abandonment case, and 2013 offensive touching case) are not appealable because they do not amount to a demotion, suspension or termination; thus, plaintiff argues that those decisions should not have a preclusive effect. Furthermore, with respect to the 2013 water bottle incident, plaintiff notes that the suspension was stayed, and mandatory EAP counseling is not appealable because it does not involve a demotion, suspension or termination.
The Court agrees with plaintiff that the City's findings on the four above-mentioned incidents should not be given preclusive effect, because those decisions were either not appealable or the results of the appeal are not in the record. Furthermore, the Court notes that for collateral estoppel to apply, the issues before the Court and the other tribunal must be identical to the issues presented in the present action.
Defendants also argue that plaintiffs' alleged adverse employment actions do not amount to a prima facie case of retaliation, arguing that (1) there is no temporal proximity between plaintiff's FLSA complaint and (a) the discipline for job abandonment in 2011, (b) the complaint regarding how she provided aid to a patient at a theater production in December 2012, (c) the June 2013 water bottle incident, (d) the December 2013 offensive touching at the scene of a motor vehicle accident, and (e) her termination for interfering with the investigation of the offensive touching incident; and (2) with respect to the comments made on Tony's Kansas City, as well as the writing on a white board at plaintiff's station and the phrase "Marissa is a c — t" on the station computer, defendants argue that (a) no one knows if the comments from Tony's Kansas City came from City personnel or not, and plaintiff cannot show that the harassment came from a non-supervisory co-worker (
Plaintiff responds that viewing the history of this matter in the light most favorable to Ms. Hermsen shows that questions of material fact exist as to whether her FLSA complaint was a motivating factor in the defendants' employment decisions. Plaintiff asserts that, here, she submitted her warning paper to Lisa Minardi in March 2011. Between March 2011 and July 29, 2011, Captain Wright announced at union meetings that someone had complained about FLSA violations and was out to harm KCFD. In June 2011, plaintiff was disciplined for the first time by KCFD for photographing a vehicle, not providing her name fast enough at an accident scene, and exchanging words with another employee (plaintiff asserts no one at KCPD had been discipline for a verbal altercation since at least 1999). Then, on July 13, 2011, plaintiff was charged with abandoning her post. On July 29, 2011, plaintiff filed her FLSA class action in federal court. Three days after the filing of the FLSA complaint, derogatory comments were published anonymously on Tony's Kansas City. Although plaintiff's attorneys reported these comments to the City, Chief Dyer took no action to investigate the media posts about Marissa Hermsen and did not tell employees to stop the harassment of Ms. Hermsen. After the FLSA suit was filed, fire fighters left threatening messages on a white board on the EMS supply locker instructing Ms. Hermsen to leave the department; followed Ms. Hermsen home from work; threatened to kill her dog; and blocked her vehicle in while parked at the station. Although plaintiff complained to fire administrators about this conduct, Chief Dyer was never made aware of it. On or about August 25, 2011 (less than a month after the FLSA suit was filed), Chief Dyer ruled that Marissa Hermsen was guilty as charged on the post abandonment and disciplined her by with an oral and written reprimand and a suspension, which decision was later reversed by the HR Board. On or about September 16, 2011, Marissa Hermsen's partner, Andrew Hanchette, saw "Marissa Hermsen is a cunt" on the desktop at Station No. 35. Chief Dyer did not disseminate any information or warnings to any fire fighter, EMT or paramedic telling them not to
On January 31, 2012, Dispatcher Anne Lewis posted negative comments about Marissa Hermsen and her FLSA suit on the Union Facebook page. Ms. Lewis later dispatched Ms. Hermsen to a scene that was not secured. Ms. Hermsen filed a written complaint about Ms. Lewis complaining of safety issues and retaliation, but Ms. Lewis was not disciplined for her post about Ms. Hermsen. In February 2012, Captain Cashen yelled obscenities at Marissa Hermsen, and had openly complained about Ms. Hermsen on the Union Facebook page. No disciplinary action was taken against Captain Cashen other than talking to him about his language and his body language. On or about June 13, 2013, Marissa Hermsen was investigated for engaging in a "violent act" for what she believed was tossing a water bottle in jest at the feet of her supervisor. On or about August 5, 2013, (14 days after Chief Berardi was deposed in the FLSA action, a deposition attended by Hermsen) he found Marissa Hermsen guilty of engaging in workplace violence for tossing a water bottle. Ms. Hermsen's 26.6-hour suspension for this incident was held in abeyance on the condition that she complete EAP counseling for engaging in "workplace violence."
On or about December 7, 2013, Marissa Hermsen had an encounter with Paramedic Jonathon Koen and felt threatened. She filed a complaint about Mr. Koen's conduct that same day. Fire administrators initially wanted to dismiss Ms. Hermsen's complaint as an issue between union members. Jonathon Koen was never disciplined for the aggressive manner in which he treated Ms. Hermsen. On or about December 13, 2013, Marissa Hermsen was investigated for her actions at a fatality motor vehicle accident scene, despite the fact that no one had complained about her conduct. Ms. Hermsen lightly grabbed the jacket of a paramedic who was working on a deceased patient to obtain information about another victim and to have her hand there in case she tripped on the equipment that covered the ground. On January 8, 2014, Marissa Hermsen filed a motion for summary judgment in the FLSA suit. On January 21, 2014 (thirteen days after summary judgment motion was filed) Assistant Chief Pat Reisenbichler emailed the EAP provider and asked her to delay the release of Ms. Hermsen from the EAP mandate, despite the fact that Marissa Hermsen concluded EAP counseling on December 9, 2013. On February 5, 2014, (less than a month after the summary judgment motion was filed), charges were brought against Marissa Hermsen for interfering with patient care and engaging in offensive conduct regarding her treatment of Elizabeth Bechtold at the fatality accident scene. On February 17, 2014, Ms. Hermsen spoke with Elizabeth Bechtold at the fire station and was threatened by Katee Schimming during the process. On February 21, 2014, Marissa Hermsen was informed that charges of engaging in offensive conduct and interfering with a witness were being brought against her for having a conversation with Elizabeth Bechtold about the fatality accident. On April 11, 2014, Chief Berardi immediately suspended Marissa Hermsen pending her termination of employment.
Although defendants argue that all plaintiff has done is list a laundry list of complaints without linking those negative experiences to the FLSA case, the Court finds that when the facts are taken in the light most favorable to plaintiff, plaintiff has sufficiently established a causal link between the actions complained about and the FLSA case she filed in 2011 and which was progressing throughout the time period where she has alleged retaliation. Summary judgment, therefore, is
Defendants note that the next step in the McDonnell-Douglas framework is to allow the defendants to present a non-retaliatory explanation for their actions, which they have done through providing the record of their hearings on each disciplinary event. Given that defendants have provided non-retaliatory explanations for their actions, the burden then shifts to plaintiff to show these reasons are pretextual.
"Pretext may be proved either `by persuading the court that a discriminatory [or retaliatory] reason more likely motivated the employer or ... by showing that the employer's proffered explanation is unworthy of credence.'"
Defendants argue that plaintiff has no proof of any other motivating reason for the alleged retaliatory acts. Defendants further argue that plaintiff was not the only individual fighting the City in the FLSA suit, as named in plaintiff's suit was also plaintiff's partner, Andrea Armilio, and a second suit was filed by Diana Frisbee. The City notes it took no disciplinary action against Armilio or Frisbee, and only two of the 244 individuals involved in the lawsuit were terminated for a disciplinary event (plaintiff and one other). Plaintiff, however, has produced evidence that suggests that defendants' reasons for disciplining her changed over time, and that even when no complaints had been filed against her, the people investigating Hermsen's complaints against others would turn their attention to her behavior. Plaintiff has produced evidence that she was disciplined for conduct that others were not, and terminated for conduct that no one else had been terminated for. With respect to the other class members, plaintiff notes it would have been impossible for defendants to terminate all the class members as it would result in a shortage of first responders. Instead, plaintiff suggests there was a target on her back because she brought the FLSA violations to light.
The Court finds that plaintiff has sufficiently demonstrated that questions of material fact remain as to whether defendants' stated motives were pretext for retaliation. Accordingly, defendant's motion
As discussed previously, in response to defendants' motion for summary judgment, plaintiff indicates that she will abandon her claims in Count II because she cannot demonstrate that the City does not have sovereign immunity, nor can she demonstrate that defendant Berardi is not protected by official immunity. Accordingly, defendants' motion for summary judgment is
Defendants argue that plaintiff is not entitled to punitive damages under the FLSA. Defendants note that, in 1991, the Eastern District of Missouri made a finding, without discussion in
However, as noted by plaintiff, courts are divided as to whether punitive damages are available for FLSA retaliation. Courts finding punitive damages available include:
Defendants note that the Eighth Circuit has previously stated that emotional distress damages are not available under the FLSA generally.
Although Missouri Court of Appeals decisions are not binding authority upon this Court, this Court is persuaded that it should allow plaintiff's emotional distress damages to proceed.
Accordingly, for all the reasons stated herein, Defendants' Motion for Summary Judgment (Doc. No. 27) is
Ex. T, 8/1/11 Ltr. from Hodgson.
