JEROME T. KEARNEY, Magistrate Judge.
This matter is before the Court on Defendant's Motion for Summary Judgement (Doc. No. 19). Plaintiff filed a Response to the motion (Doc. No. 26), and Defendant filed a Reply (Doc. No. 31). For the reasons explained below, the Motion for Summary Judgment is granted.
Plaintiff, Donald Shrable, filed a Complaint in the Sixth Division of the Pulaski County Circuit Court of Arkansas on October 20, 2010, alleging age and disability discrimination as well as harassment and retaliation (Doc. No. 2). Particularly, Plaintiff contends violations of the Employee Retirement Income Security Act of 1974 ("ERISA"), the Fair Labor Standards Act ("FLSA"), the Family and Medical Leave Act ("FMLA"), the Americans with Disabilities Act ("ADA"), the Arkansas Civil Rights Act of 1993 ("ACRA"), and presumably the Age Discrimination in Employment Act ("ADEA"). Defendant filed a Notice of Removal on December 29, 2010, on the grounds of federal question and diversity of citizenship (Doc. No. 1). Defendant thereafter filed an Answer to the Complaint (Doc. No. 5), and the parties consented to the jurisdiction of a United States Magistrate Judge on March 15, 2011 (Doc. No. 11). Plaintiff filed his Amended Complaint with a jury demand on July 26, 2011 (Doc. No. 17), and Defendant submitted its Answer to the Amended Complaint on July 27, 2011 (Doc. No. 18). Subsequently on December 2, 2011, Defendant filed the summary judgment motion now before the Court.
Eaton Corporation ("Eaton") has a facility in Mountain Home, Arkansas, that manufactures hoses that are used in the hydraulic, aerospace, and automotive industries (Doc. Nos. 21, 27, p. 1). Plaintiff, Donald Shrable, worked for Eaton at its Mountain Home facility. Id. He was the most senior hourly employee in the plant, and his job entailed running a brand strip machine.
The parties agree that, as of early 2007, the Mountain Home facility was a "problem facility," where it was not uncommon for management to "literally be cursed at when they made reasonable requests to hourly employees." Id. Eaton's Mountain Home facility had one of the worst safety records in the company, a poor record of on-time deliveries, and low employee morale. When the new plant manager, Jim Gardner, arrived at the facility, it was his desire to turn things around by encouraging cooperation and teamwork among the employees and management team. Therefore, the management team adopted policies and practices to encourage a better working relationship and to ensure a more standardized production process (Doc. No. 21, p. 2; Doc. No. 27, p. 2). Plaintiff notes however that, while Gardner and his management team may have sought to improve conditions at the facility, things at the Mountain Home facility did not change (Doc. No 27, p. 2).
Plaintiff was terminated on June 30, 2009 (Doc. No. 21-1, p. 9). He admits that he received his first-level written disciplinary in late September 2008 (Doc. No. 27, p. 3), that he was "talked to" about incidents on April 11, 2008; May 4, 2008; and June 14, 2008, and that a fourth offense ordinarily leads to termination (Doc. No. 27, p. 4). While the September 2008 offense would have led to Plaintiff's termination, management could not determine whether Plaintiff had ever been formally counseled about these prior incidents; therefore, the first-level written discipline was issued. Id. Also in the late fall of 2008, during a meeting with production supervisors, there were complaints that the floaters were spending too much time wandering the facility and socializing. Production manager, Ed Just, instructed the supervisors to assign the floaters to specific machines if they felt it would minimize on fraternizing (Doc. Nos. 21, 27, p. 4). According to Plaintiff, his supervisor, P.J. Shrable, assigned him to a specific extruder machine at Just's direction because Plaintiff was wandering the facility too much. Id. Plaintiff confronted Just sometime in December 2008, when Just informed Plaintiff that he made a general suggestion that floaters who were wandering too much be assigned to a machine but that he was not specifically referring to Plaintiff. Id. at 4-5. Plaintiff told Just that, if he had a problem with anything he was doing, he hoped Just would come to him directly. Just told Plaintiff that he would. Approximately two hours after this conversation, Just found Plaintiff on the floor talking with another employee and away from his machine. Just approached Plaintiff and essentially told him he was not doing his job because his machine was not running. Plaintiff returned to his machine.
In January 2009, the Mountain Home facility created empowered work team meetings
In February and April of 2009, the Mountain Home facility had a reduction in force (RIF), and it announced in February that the 401K matching would be suspended until further notice (Doc. No. 21, p. 8). All production employees were required to take one week's unpaid leave per calendar quarter, and other employees were asked if they would be interested in volunteering for an unpaid leave of absence to prevent further reductions. Approximately 100 employees, including Plaintiff, volunteered for such leave. Id. By this time P.J. Shrable was no longer Plaintiff's supervisor; his supervisor was Matteo Blanc, an engineer who was in management training. Id.
Plaintiff admits that Blanc knew nothing of his prior disciplinary history (Doc. No. 27, p. 8). Upon his return for the voluntary unpaid leave, Blanc had issues with Plaintiff's frequent time away from his post and he talked to Plaintiff about it (Doc. No. 21, p. 9). After discussion with other supervisors, Blanc reassigned Plaintiff to a mandrel machine in hopes that he would stay put and be more attentive to his duties
On or about June 25, 2009, an Eaton employee left early, and Blanc assigned Plaintiff to work that employee's machine. Blanc went to speak with Plaintiff at his assigned work station, and Plaintiff was not there. The machine was not running, and Plaintiff did not leave his location on the machine's message board.
Defendant is entitled to summary judgment if the affidavits, pleadings, and discovery materials 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." Allsup, Inc. v. Advantage 2000 Consultants, Inc., 428 F.3d 1135, 1138 (8th Cir. 2005); Fed. R. Civ. P. 56(a). A genuine issue of fact is "material" if it might affect the outcome of the case, and a factual dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Once the moving party has met this burden, the non-moving party cannot simply rest on mere denials or allegations in the pleadings or simply create a factual dispute; "rather, the non-movant `must set forth specific facts showing that there is a genuine issue for trial.'" Webb v. Lawrence County, 144 F.3d 1131, 1135 (8th Cir. 1998) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The Court views the facts in the light most favorable to the non-moving party and gives that party the benefit of all reasonable inferences which can be drawn from them—"that is, those inferences which may be drawn without resorting to speculation." Mathes v. Furniture Brands Int'l, Inc., 266 F.3d 884, 885-886 (8th Cir. 2001) (citing Sprenger v. Federal Home Loan Bank of Des Moines, 253 F.3d 1106, 1110 (8th Cir. 2001)).
Plaintiff alleges retaliation claims under ERISA, FLSA, and ACRA. In response to the summary judgment motion, he abandons all other claims (Doc. No. 26, p. 5).
Section 510 of ERISA provides in part that
29 U.S.C. § 1140. The only portion of section 510 that Plaintiff indicates is applicable to him is the sentence barring the discharge of "any person because he has given information or has testified or is about to testify in any inquiry or proceeding relating to this chapter." Plaintiff claims that Eaton terminated his employment because he participated "in a discussion regarding schedule changes, which would affect overtime, and fringe benefits like sick leave and the 401(k) retirement match," and he gave information in the form of testimony about his concerns with these changes (Doc. No. 26, p. 2-3). Plaintiff argues the Court should find his comments or "conduct" to be protected activity under ERISA's anti-retaliation statute because they were solicited during a company meeting. Id. at 3.
ERISA retaliation claims are analyzed using the same three prong analysis as employment discrimination cases. Rath v. Selection Research, Inc., 978 F.2d 1087, 1089 (8th Cir. 1992). First, the Plaintiff must make out a prima facie case of retaliation. Id. To do so, the Plaintiff must show (1) he engaged in a statutorily protected activity; (2) the employer took an adverse employment action against him; and (3) a causal connection exists between the two. Id. at 1090. The proximity of two events can be sufficient to establish a prima facie case of retaliation, but proximity alone is often insufficient to ultimately prove pretext for the employer's legitimate, nondiscriminatory reason. Arraleh v. County of Ramsey, 461 F.3d 967, 977 (8th Cir. 2006). Once the Plaintiff has successfully shown a prima facie case, the burden of production shifts to the Defendant to present a legitimate non-retaliatory reason for the adverse employment action. Kinkead v. Southwesern Bell Tel. Co., 49 F.3d 454, 456 (8th Cir. 1995). Once the Defendant meets this burden, the burden then shifts back to the Plaintiff to show the Defendant's stated reason is pretext for retaliation. Id.
Here, Plaintiff has failed to make out a prima facie case of retaliation because he has not shown that he engaged in a statutorily protected activity. The evidence indicates that, on January 6, 2009, Plaintiff took part in a company team meeting. During that meeting, someone asked about holiday benefits the company usually offered, including an extra half-hour lunch and gift cards (Doc. No. 21-1, Exhibit B; Doc. No. 21-2, p. 26-27). Plaintiff thereafter asked if there were any more fringe benefits for employees. Id. Upon inquiry, Plaintiff stated that bad attitudes caused problems, and Eaton took this to mean that it was creating these bad attitudes (Doc. No. 21-1, Exhibit B). The employees were advised that the purpose of the meeting was not to discuss benefits, but to remove obstacles they faced on the production floor. Plaintiff was among those who received employer action for his conduct; he received a written warning for exhibiting behavior that was disruptive and impeded the team's focus. While Plaintiff recalls mentioning changes to the 401K plan, an admitted ERISA benefit, during this meeting, Eaton produced evidence that shows that notification of such a changes to the plan was made in February 2009, which was subsequent to the meeting (Doc. No. 21-1, Exhibit E, p. 22-23).
Further, there is no evidence Plaintiff had given information or had testified or was about to testify in any inquiry or proceeding. The Eighth Circuit has left open the question of whether § 510 protects informal complaints or protests relating to plan changes that a participant reasonably believes to be illegal. Langlie v. Onan Corp., 192 F.3d 1137, 1141 (8th Cir. 1999). For purposes of the instant summary judgment motion, the Court will assume, without so deciding, that ERISA § 510 provides a claim for such informal complaints and protests. Plaintiff's evidence of a causal connection is the relatively short time between his comments during the team meeting on January 6, 2009, and his discharge on June 30, 2009. This close temporal nexus gives rise to a reasonable inference of retaliatory motive. However, establishing a prima facie case does not establish his ERISA § 510 claim.
Even if the Court were to find Plaintiff engaged in a protected activity and has established a prima facie case under ERISA § 510, Defendant has articulated a legitimate, non-discriminatory reason for Plaintiff's firing. In support of its summary judgment, Eaton submitted deposition testimony of Edward Just asserting a legitimate, non-discriminatory reason for Plaintiff's discharge— poor work performance. Also included is the improvement plan dated January 21, 2009, which outlined that Plaintiff's quality performance warranted termination, but that, due to his length of service and Eaton's hope that Plaintiff's attitude and performance could be turned around, the Termination Committee basically extended Plaintiff another opportunity to improve (Doc. No. 21-1, Exhibit D). Those areas included: staying at his work station and focusing on his job; following the standard work and performing all prescribed quality checks; and constructively participating in team problem solving. Id. Plaintiff was advised that future corrective actions would result in his termination. Plaintiff's last write-up from his relatively-new supervisor, Matteo Blanc, for being away from his work station, resulted in his termination as he had been warned. In response to the motion, Plaintiff has failed to set forth affirmative evidence that this reason is a pretext for interfering with his ERISA rights.
The anti-retaliation provision of the FLSA makes it unlawful for any person
29 U.S.C. § 215(a)(3). The United States Supreme Court recently held that the anti-retaliation provision of FLSA protects informal, oral complaints as well as written complaints of violation of the Act. See Kasten v. Saint-Gobain Performance Plastics Corp., 131 S.Ct. 1325 (Mar. 22, 2011); see also Ritchie v. St. Louis Jewish Light, 630 F.3d 713, 716 (8th Cir. 2011) (even if informal FLSA complaints were statutorily protected, employee failed to allege sufficient facts to indicate she even made an informal complaint).
In order to establish a prima facie case of retaliation under the FLSA, Plaintiff must show the same three prong analysis as employed above with his ERISA retaliation claim—that he participated in statutorily protected activity, that Eaton took an adverse employment action against him, and that there was a causal connection between his statutorily protected activity and the adverse employment action. See Ritchie v. St. Louis Jewish Light, 630 F.3d at 717. The Amended Complaint, Doc. No. 17, alleged that:
Plaintiff presumably contends that his complaint about the elimination of the extended holiday lunch periods was a FLSA complaint because "the elimination would have an effect on overtime" (Doc. No. 26, p. 3-4). However, it is clear that meal times here were not work time, and there would have been no effect on overtime. See 29 C.F.R. § 785.19(a) ("Bona fide meal periods are not worktime[.]") Further, there is no evidence that Plaintiff made any type of wage and hour complaint or that he thought he had engaged in any protected activity. See Saffels v. Rice, 40 F.3d 1546, 1550 (8th Cir. 1994) (FLSA "protects employees who are discharged based on their employer's mistaken belief that they reported violations or otherwise engaged in protected activity.") In fact, Plaintiff admits as much in his deposition testimony:
(Doc. No. 26-1, p. 47-49). Eaton is entitled to judgment as a matter of law as to Plaintiff's FLSA retaliation claim.
Plaintiff asserts a retaliation claim under the ACRA, stating that "since sick leave can be an accommodation, complaints about the elimination of sick leave easily fits into the definition of protected activity" (Doc. No. 26, p. 4-5). Eaton continues to deny that it ever eliminated sick leave (Doc. No. 31, p. 4 n. 2).
To show a prima facie case of retaliation under the ACRA, Plaintiff again must show that (1) he engaged in protected activity, (2) he suffered an adverse employment action, and (3) there is a causal connection between the protected activity and the adverse action. See Burkhart v. American Railcar Indus. Inc., 603 F.3d 472, 477 (8th Cir. 2010).
The Eighth Circuit has held that when federal and state claims are joined and the federal claims are dismissed on a motion for summary judgment, the supplemental state claims "are ordinarily `dismissed without prejudice to avoid [n]eedless decisions of state law . . . as a matter of comity.'" American Civil Liberties Union v. City of Florissant, 186 F.3d 1095, 1098-99 (8th Cir. 1999) (quoting Birchem v. Knights of Columbus, 116 F.3d 310, 314 (8th Cir. 1997)) (other citations omitted). See also Figg v. Russell, 433 F.3d 593, 600 (8th Cir. 2006) (noting that when court dismissed federal 42 U.S.C. § 1983 action, it should have exercised its discretion to dismiss state-law claims without prejudice, leaving it to plaintiff to determine whether to reassert them in state court); Johnson v. City of Shorewood, Minn., 360 F.3d 810, 819 (8th Cir. 2004) (district court has discretion to decline supplemental jurisdiction where it has dismissed all original jurisdiction claims). Accordingly, Plaintiff's state law ACRA claim will be dismissed without prejudice.
For the foregoing reasons, the Court grants Eaton's motion for summary judgment on Plaintiff's ERISA and FLSA retaliation claims and dismisses his state law ACRA claim without prejudice. An appropriate Judgment shall accompany this Memorandum and Order.
SO ORDERED.