First Circuit Allows Retaliation Claim to Proceed Absent Direct Evidence of Decision Makers’ Retaliatory Animus

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact

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).

Background

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.

The Decision

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.

Impact

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.

- See more at: http://blog.ogletreedeakins.com/first-circuit-allows-retaliation-claim-to-proceed-absent-direct-evidence-of-decision-makers-retaliatory-animus/#sthash.5t73486A.dpuf

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).

Background

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.

The Decision

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.

Impact

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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact
more
less

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.