The First Circuit Court of Appeals recently took an expansive view of the type of evidence that is sufficient to raise a genuine issue of material fact to defeat an employer’s motion for summary judgment in a wage and hour case. Specifically, in Travers v. Flight Services & Systems, Inc., No. 13-1438 (1st Cir. Dec. 12, 2013) the court considered the evidence needed to defeat a retaliation claim brought under the Fair Labor Standards Act (FLSA).
In April 2008, Joseph Travers, then a skycap at Boston’s Logan International Airport, sued JetBlue Airways Corporation alleging, among other things, that the airline had failed to pay minimum wages in violation of the FLSA. Travers brought claims on his own behalf and on behalf of 10 other workers, representing a putative class of skycaps, and subsequently amended his complaint to add his employer, Flight Services & Systems Inc. (a company that provided services to JetBlue) as a defendant.
The record included evidence that after Travers filed his lawsuit, Flight Services CEO Robert Weitzel repeatedly instructed Travers’s direct supervisor to “get rid of” Travers and to “talk [Travers] into dropping the lawsuit.” Travers’s direct supervisor, in turn, told Travers to “be careful” because “the company would be coming after” him.
In September 2010, while motions for conditional class certification and summary judgment were pending, Flight Services received a complaint from a JetBlue passenger who claimed that Travers had aggressively solicited a tip and that the passenger felt “extremely upset” and “bullied.” Flight Services’s employee handbook explicitly prohibits solicitation of tips and states that a violation of that rule is a basis for immediate termination. Flight Services suspended Travers pending an investigation into the complaint and, after concluding its investigation, terminated Travers’s employment. Travers then filed an FLSA retaliation claim against Flight Services. The U.S. District Court for the District of Massachusetts subsequently granted Flight Services’s motion for summary judgment on that claim and Travers appealed.
Before the district court and on appeal, Flight Services argued that Travers’s retaliation claim failed because there was no direct evidence that the CEO had had any role in the decision to terminate Travers’s employment or that the individuals who had made the decision were aware of the CEO’s views. The First Circuit Court of Appeals agreed that Flight Services had correctly described the record evidence—that there was no direct evidence linking the person expressing animus (in this case, the CEO) to the act of alleged retaliation. Although it agreed with Flight Services’s characterization of the evidence, the court disagreed that the evidence gap was fatal to Travers’s retaliation claim. The court reasoned that,
[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. . . . On such a record, it is neither irrational nor unfair to infer—if a jury is so inclined—that knowledge of Weitzel’s directive spread to other managers, themselves likely reluctant to frustrate the CEO’s objective.
Consequently, even though there was no direct evidence of retaliatory animus on the part of the decision makers, and no direct evidence that the decision makers had any awareness of Weitzel’s attitude, the court found that, because of Weitzel’s position of power within the company, a reasonable jury could find a causal connection between Weitzel’s retaliatory animus and Travers’s termination.
The court also rejected Flight Services’s argument that Travers’s retaliation claim failed because it would have fired him for violating the tip policy regardless of any alleged retaliation, and that he therefore could not prove the requisite “but-for” causation. The court disagreed with Flight Services’s characterization of the required proof of causation:
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.
Based on the evidence before it, the court stated that it was “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.” Thus, the court held that there were genuine disputes of material fact as to whether the individuals who decided to fire Travers acted with awareness of the CEO’s desire to retaliate and, if so, whether they would have fired him anyway, for reasons other than his FLSA lawsuit. For those reasons, the court vacated the district court’s grant of summary judgment to Flight Services.
The Travers decision reflects the First Circuit’s willingness to broaden the factors that it will take into consideration when analyzing causation at the summary judgment stage. At summary judgment, employers routinely argue that a complete lack of evidence suggesting retaliatory animus on the part of the relevant decision maker is fatal to an employee’s claim. The court’s willingness to entertain the notion that a CEO’s retaliatory animus might have trickled down to the relevant decision maker, absent direct evidence that it actually did could, in some circumstances, make that argument more difficult to sustain.
Nicole S. Corvini is an associate in the Boston office of Ogletree Deakins.
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