Filed: Dec. 12, 2013
Latest Update: Mar. 02, 2020
Summary: however, find no provenance in any writing created prior to this, litigation, were not mentioned at all when Varotsis told Travers, why the termination was justified, and otherwise lack attributes, that would compel a jury to accept them as true.every employee accused of tip solicitation.
United States Court of Appeals
For the First Circuit
No. 13-1438
JOSEPH TRAVERS,
Plaintiff, Appellant,
v.
FLIGHT SERVICES & SYSTEMS, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Thompson and Kayatta, Circuit Judges.
Brant Casavant, with whom Shannon Liss-Riordan and
Lichten & Liss-Riordan, P.C. were on brief, for appellant.
Christopher M. Pardo, with whom Jeffery M. Rosin and
Constangy, Brooks, & Smith LLP were on brief, for appellee.
December 12, 2013
KAYATTA, Circuit Judge. Appellee Flight Services fired
Appellant Joseph Travers as he pursued a lawsuit against the
company under the Fair Labor Standards Act ("FLSA"). Flight
Services says it terminated Travers for violating company policy.
Travers says he was fired in retaliation for his FLSA lawsuit.
Because a reasonable jury could return a verdict for Travers
without relying on improbable inferences or unsupported
speculation, we vacate the district court's grant of summary
judgment to the company.
I. Background
The district court granted judgment to Flight Services
before any factfinder could evaluate the competing evidence and
inferences. We therefore describe the facts giving rise to this
lawsuit in a light as favorable to Travers as the record will
reasonably allow, without implying that the following is what
actually occurred. McArdle v. Town of Dracut, 732 F.3d 29, 30 (1st
Cir. 2013).
Travers began work in 2004 as a skycap employed by Flight
Services, a company that provides services to airlines, including
JetBlue. In April 2008, Travers filed a lawsuit against JetBlue.
Roughly a year later, he amended the complaint to include Flight
Services as a defendant. As amended, the complaint brought five
claims on behalf of Travers and ten other plaintiffs, representing
a putative class of skypcaps. Count I of the complaint charged
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JetBlue and Flight Services with violating the FLSA by failing to
pay the federal minimum wage.
By all accounts, Travers acted as the leader among the
plaintiffs, encouraging others to join the suit, coordinating with
counsel on behalf of the plaintiffs, and serving as the first named
plaintiff on the complaint. According to Travers's former
supervisor Robert Nichols, after Travers filed the suit, Flight
Services CEO Robert Weitzel, Sr., repeatedly yelled at Nichols to
"get rid of [Travers]" and "talk [Travers] into dropping the
lawsuit." Weitzel complained specifically about how much money the
suit was costing the company. Weitzel made these statements on
telephone conferences in which his son, the president of Flight
Services, also participated. Nichols, in turn, told Travers to "be
careful" because "the company would be coming after" him. Flight
Services fired Nichols in April 2010. The record does not reveal
the reasons for Nichols's termination, and no party has claimed
that the termination is relevant to this case. Weitzel continued
to serve as CEO.
By September 2010, Travers and Flight Services were
awaiting decisions on Travers's motion to certify conditionally an
opt-in class under the FLSA, and on Flight Services' motion for
summary judgment. Meanwhile, on September 3, 2010, Flight Services
received a complaint about Travers from a JetBlue passenger, who
said that Travers had solicited a tip. Flight Services' employee
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handbook bars solicitation of tips, classifying it as grounds for
termination:
Solicitation of tips shall not be condoned. This
includes any form of solicitation to include but not
limited to -- advising passengers of the amount of the
tip that they must give to the employee for the service
provided, refusing to provide service without first
receiving a tip, selling weight, etc. Employee who are
[sic] found to have solicited tips will be terminated
immediately[.]
The passenger complained about Travers to a JetBlue
supervisor, whose report indicated that the passenger was
"extremely upset" and felt "bullied." At the supervisor's request,
the passenger wrote a statement describing the incident:
The baggage man informed me that a tip is required just
as you would tip in a restaurant. He said this is his
lively hood [sic]. When I only tipped $1 he got angrier
[and] said he was sorry I didn't like the service. He
walked away, told someone he was going on break & slammed
the door. I felt like [he] was hussling [sic] people.
Later that day, Flight Services suspended Travers pending
investigation of the complaint and asked him to write a statement
describing his interaction with the passenger. Travers's account
read as follows:
I do Recall Customer, Whe[n] She Arrived At Podium I
Requested I.D. and How many Bags[.] Proceeded To Check
in Customer[.] Informed her of $2.00 fee Adv Customer
fee was JetBlue and Tip was not included, Cust got upset
and stated she didn't have To Tip, I responded tip was
optional Just Like Restaurant and I Apoligize [sic] If
she Didn't Like The Service. I Then went on Break.
Three and a half weeks later, on September 27, 2010, Lisa
Varotsis, a general manager at Flight Services, fired Travers.
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Varotsis had recommended Travers's firing to Flight Services'
director of human resources, who approved it. According to
Travers, Varotsis gave just one reason for his termination: tip
solicitation.
Travers filed his retaliation suit in January 2011.
After discovery, the district court granted summary judgment to
Flight Services.
II. Standard of Review
We review de novo the district court's grant of summary
judgment. McArdle v. Town of Dracut, 732 F.3d 29, 32 (1st Cir.
2013). Under Federal Rule of Civil Procedure 56, a "court shall
grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(a). In this
case, as in many others, deciding whether a factual dispute is
"genuine" poses the most difficult challenge. We label a dispute
genuine if "a reasonable jury, drawing favorable inferences, could
resolve it in favor of the nonmoving party. . . . Conclusory
allegations, improbable inferences, and unsupported speculation,
are insufficient to establish a genuine dispute of fact." Triangle
Trading Co., Inc. v. Robroy Indus., Inc.,
200 F.3d 1, 2 (1st Cir.
1999) (internal citations, quotation marks, and alterations
omitted).
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III. Analysis
Indisputably, Travers's evidence would enable a
reasonable jury to conclude that Flight Services CEO Weitzel wanted
to fire Travers because of the FLSA lawsuit. Nevertheless, Flight
Services argues that the evidence concerning the circumstances of
Travers's firing would not allow a reasonable jury to find a causal
connection between Weitzel's retaliatory animus and that firing.
In support of its argument, Flight Services points,
first, to the lack of any direct evidence that Weitzel had a role
in the decision to fire Travers or that those who made the decision
(Varotsis and the human resources director) were even aware of
Weitzel's views. Flight Services correctly describes the evidence:
the record contains no testimony or document chronicling any
communication regarding Travers between Weitzel or Nichols and
those who made the decision to fire Travers. In many cases, the
lack of such direct evidence linking the person expressing animus
to the allegedly retaliatory act would create a fatal gap in proof
that could not be bridged except through implausible inference or
unsupported surmise. See, e.g., Pearson v. Mass. Bay Transp.
Auth., 723 F.3d 36, 41 (1st Cir. 2013); Medina-Munoz v. R.J.
Reynolds Tobacco Co.,
896 F.2d 5, 10 (1st Cir. 1990); Gray v. New
Eng. Tel. & Tel. Co.,
792 F.2d 251, 255 (1st Cir. 1986).
Here, though, the retaliatory animus resided at the apex
of the organizational hierarchy. It repeatedly took the form of
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express directives to Travers's supervisor, Nichols, in the
presence of another senior manager, Weitzel's son. A rational
juror could conclude that such strongly held and repeatedly voiced
wishes of the king, so to speak, likely became well known to those
courtiers who might rid him of a bothersome underling. See Freeman
v. Package Mach. Co., 865 F.2d 1331, 1342 (1st Cir. 1988)
(observing in a discrimination case that "[t]he battle plan of the
admiral is a valid datum in assessing the intentions of the
captain . . . .").
A CEO sets the tone and mission for his subordinates,
many of whom presumably consider it an important part of their jobs
to figure out and deliver what the CEO wants. This CEO, we must
assume, bristled so fiercely that he expressly and repeatedly
demanded that Travers be fired. Weitzel's instructions
qualitatively differ from the less probative remarks found unable
to carry the plaintiff's burden in other cases. They are neither
"stray," see Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 36
(1st Cir. 2001), nor ambiguous, see Gonzalez v. El Dia, Inc.,
304
F.3d 63, 70 (1st Cir. 2002), nor stale, see Alvarado-Santos v.
Dep't Of Health,
619 F.3d 126, 133 & n.5 (1st Cir. 2010). They
hone in on a specific employee, direct the precise action taken,
and flow from a source with the formal authority to enforce
compliance. On such a record, it is neither irrational nor unfair
to infer--if a jury is so inclined--that knowledge of Weitzel's
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directive spread to other managers, themselves likely reluctant to
frustrate the CEO's objective. After all, if Weitzel would
unabashedly and repeatedly voice such sentiments to Nichols, then
why not to Nichols's replacement, Varotsis, or to the director of
human resources, who approved the firing? No compelling evidence
shows that Weitzel's ire, or the cause for that ire, abated. And
the fact that Varotsis has not directly denied awareness of
Weitzel's unhappiness with Travers adds further grist for such a
line of thinking.
Flight Services next argues that Travers cannot show a
causal link between retaliatory animus (no matter how widespread)
and his discharge because he committed an offense that would have
resulted in his termination anyway. The parties agree that the
applicable standard requires "but-for" causation.1 Flight Services
is therefore correct that Travers's claim would fail if Flight
Services would have fired him absent retaliatory animus. See
Kearney v. Town of Wareham, 316 F.3d 18, 24 (1st Cir. 2002). And
Flight Services also correctly reasons that the evidence here would
allow a reasonable jury to conclude that Flight Services would have
1
Because the parties agree, we need not determine the precise
standard of causation applicable to this case. We note, however,
that the Supreme Court has required "but-for" causation under the
similarly-worded anti-retaliation provision of Title VII of the
Civil Rights Act of 1964, rejecting the "motivating factor" test
applied by the lower court in that case. Univ. of Texas Sw. Med.
Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013).
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fired Travers for soliciting tips even if he had never filed the
FLSA lawsuit.2 On review of the entry of summary judgment for
Flight Services, however, the question is not whether a reasonable
jury could find that Flight Services would have fired Travers even
in the absence of retaliatory intent. Rather, the question
pertinent to our review of summary judgment is whether no
reasonable jury could find otherwise.
We conclude that the evidence in this case would not so
limit the range of the jury's findings. On the facts viewed
favorably to Travers, it remains plausible that the pre-existing
retaliatory motive tipped the scales when the company decided
whether Travers had violated company policy in a way that required
his termination. According to the statement Travers wrote on the
day of the passenger's complaint, he told the passenger that a tip
was "optional just like [at a] restaurant." Flight Services itself
posts a sign at the skycap stand similarly stating, "tipping is
optional but greatly appreciated," and Flight Services admittedly
allows its skycaps to tell customers directly that "tips are not
required but are appreciated." The company's policy, by
comparison, does not define "tip solicitation" but includes only
2
Flight Services also claims other non-retaliatory
justifications for Travers's firing. The other justifications,
however, find no provenance in any writing created prior to this
litigation, were not mentioned at all when Varotsis told Travers
why the termination was justified, and otherwise lack attributes
that would compel a jury to accept them as true.
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three examples, all of which are significantly more extreme than
the conduct Travers has admitted: "advising passengers of the
amount of the tip that they must give to the employee," "refusing
to provide service without first receiving a tip," and "selling
weight." Plausibly, then, Travers's conduct, while perhaps edging
beyond what was expressly permitted, did not indisputably cross
into what was clearly prohibited.
Flight Services counters that it does not matter whether
Travers himself admitted to conduct that made termination certain.
Rather, as long as an aggrieved customer made a first-hand
complaint, "termination is essentially assured." This argument,
though, runs aground on the testimony of Flight Services' own
director of human resources. She said that Flight Services
actually considers the statements of both the employee and the
passenger, and then terminates the employee when it "feel[s] that
it was, indeed, solicitation . . . ." Similarly, the written
policy calls for termination not when solicitation is alleged, but
when it is "found." In short, Flight Services' evaluation of
accusations left room for judgment and discretion.
Nor does the record show that Flight Services terminated
every employee accused of tip solicitation. Travers's former
supervisor, Nichols, related an occasion when he had an employee
transferred, not fired, for "bugging passengers for tips."
Although Flight Services disputes this testimony, if believed by a
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jury it would point in the direction of a finding that Travers
might well have been spared had he done only what he admitted
doing, but for a desire to get rid of him. See Che v. Mass. Bay
Transp. Auth., 342 F.3d 31, 38 (1st Cir. 2003) (holding that
"[e]vidence of discriminatory or disparate treatment," such as
evidence that other employees were not disciplined for engaging in
the same conduct as the plaintiff, can be sufficient to show
retaliation).
At least one of Travers's coworkers, Jing Wei, was also
accused by an apparently unbiased third party of soliciting tips,
yet remains employed. Flight Services argues that its retention of
Wei actually disproves Travers's case because Wei also participated
in Travers's wage lawsuit and was not fired. But Travers, not Wei,
acted as the organizing force behind the suit and found himself in
the CEO's crosshairs.
Additionally, Flight Services argues that one can draw no
reasonable inference favorable to Travers from Wei's survival
because the case against Wei was weaker than that against Travers
and was insufficient to warrant termination. The two cases must be
distinguished, says Flight Services, because the complaint against
Wei came from a passenger's daughter, who did not claim to have
witnessed the incident, while the complaint against Travers came
from the affected passenger herself. While this difference
plausibly explains why Flight Services fired Travers and not Wei,
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a rational jury could also conclude on this record that the first-
hand/second-hand distinction served merely as a post-hoc
justification for disparate treatment. Importantly, Flight
Services has produced no compelling evidence that it recognized
such a distinction before tendering it as an explanation in this
lawsuit.
The other proposed distinctions between Wei and Travers
are similarly open to question. In its brief, Flight Services says
that it was unable to confirm the allegation against Wei, but the
record contains nothing to show that the company made any effort to
do so. Flight Services also argues that Travers, unlike Wei,
harassed Varotsis during her investigation of the complaint against
him. But Flight Services failed to mention this distinction in
explaining why Travers and Wei were treated differently in the
statement of material facts submitted to the district court with
its summary judgment motion, and presents no contemporaneous
evidence to support it. Moreover, Travers denies it.
Besides attempting to distinguish Wei’s situation from
that of Travers, Flight Services also provides evidence that five
other employees were fired for tip solicitation between 2008 and
2011. It is true that these five instances comport with Flight
Services' proffered distinction between first-hand and second-hand
complaints: in each case, Flight Services fired the employee after
receiving a first-hand complaint against him. In four of the five
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instances, however, the employee engaged in conduct going well
beyond what Travers admitted to. One threatened to abandon a
passenger in a wheelchair unless he received a tip; a second
attempted to rob a customer; a third brought a wheelchair-bound
passenger to an ATM, demanded a tip, then dropped the passenger's
luggage and pushed the passenger into a cart; and the fourth
expressly demanded a tip of at least twenty dollars. The fact that
Flight Services fired these employees for such conduct does not
mean that it would have fired Travers for materially less egregious
conduct (assuming his account had been believed). Only the fifth
example lacks such additional elements pointing to a flagrant
violation of company policy, but the termination there occurred
almost one year after Travers filed this suit, greatly reducing the
persuasive force of the example.
In so reasoning, we offer an important note of caution.
In subjecting to considerable scrutiny Flight Services' comparison
of its treatment of Travers to its treatment of other employees
accused of tip solicitation, we do not suggest that this evidence
paints a sufficiently clear picture of disparate treatment among
employees to provide support for an inference of retaliation. We
hold only that the evidence is not so clear as to place beyond
reasonable challenge the assertion that Flight Services would have
fired Travers even had its CEO not been intent on doing so because
of Travers's FLSA lawsuit.
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IV. Conclusion
For the foregoing reasons, as the record now stands,
there remains a genuine dispute as to whether the people who
decided to fire Travers acted with awareness of the CEO's desire to
retaliate and, if so, whether Travers would have been fired anyway
for reasons other than pursuit of his rights under the FLSA. We
therefore vacate the district court's grant of summary judgment to
Flight Services, and we remand to the district court for further
proceedings consistent with this opinion. We award no costs.
So ordered.
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