Employment Law Daily Contractor can’t revive FLSA reprisal claim asserting years-old ‘grudge’ due to past lawsuit as employee
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Wednesday, March 27, 2019

Contractor can’t revive FLSA reprisal claim asserting years-old ‘grudge’ due to past lawsuit as employee

By Marjorie Johnson, J.D.

The technician failed to refute the director’s assertion that he was fired because of low productivity, not because he participated in a class action and threatened litigation after a prior termination, which had resulted in his being cleared to return.

A technician who was released as a CenturyLink contractor in 2015 ostensibly due to low productivity, several years after his participation in a wage-hour suit while he was an employee, failed to revive his FLSA retaliation claim. Affirming summary judgment against him, the Eighth Circuit rejected his unsupported argument that pretext could be inferred by a director’s “grudge” against him stemming from the 2007 lawsuit and his 2011 threat of litigation. He also didn’t present any comparator evidence and admittedly had no reason to believe that the supervisor who recommended his latest discharge was being dishonest or malicious in reporting his low productivity rates, which he didn’t dispute (Engelhardt v. Qwest Corp., March 22, 2019, Smith, L.).

First firing follows class action. In 2001, the telecommunications technician began working for CenturyLink in Minnesota. In 2007, he joined a wage-hour class action lawsuit of over 300 employees. The suit settled, and he received a payment. Then, in 2008, CenturyLink terminated him for low productivity.

Hired as contractor. In 2011, he began working for a firm that supplied contractors to telecommunications companies. During his first assignment at a different company, he requested a transfer to CenturyLink. While the transfer was pending, his former CenturyLink supervisor noticed his request and asked the operations director how a terminated employee could return to the company as a contractor. Six days after the reassignment went through, he was released by the director, purportedly because he was on the “do not rehire” list of workers with a history of workplace violations.

Reassurances after mistakenly sent email. About a month later, the technician contacted the director and threatened to sue for retaliation. After investigating the matter, the director informed him on a Friday that he had been cleared to return as a contractor. The following Monday, someone from the contracting firm accidentally sent an email to the technician claiming that a CenturyLink employee had told him that neither he or anyone else at Century Link would have contact with the technician. Two days later, the sender reassured the technician that he had indeed been cleared to return to CenturyLink as a contractor. Shortly thereafter, CenturyLink laid off all its contractors for the winter, so the technician never reported to work. He then moved to North Dakota and did not reapply.

In 2015, the technician contacted CenturyLink associates after hearing it was hiring and they reassured him that he could return. He was then rehired by the contracting firm and assigned to work at CenturyLink. However, a little over a week into the job, his new CenturyLink supervisor sent an email to his prior supervisor suggesting that he be terminated due to his documented low productivity. The email was forwarded to the operations director, who almost immediately responded: “Send him home.” Following his termination, he brought this lawsuit.

FLSA retaliation. Affirming dismissal of the technician’s FLSA retaliation claim on summary judgment, the Eighth Circuit agreed that he failed to cast doubt on CenturyLink’s assertion that it terminated him due to low productivity. In particular, he asserted that the director held “a grudge” against him for his participation in the 2007 lawsuit and for threatening litigation after his 2011 termination. His lawsuit did not directly contest the earlier terminations, but instead contended that his 2015 firing arose from his activities in 2007 and 2011.

“Grudge” argument rejected. As evidence that the director harbored a “grudge” in 2015, the technician pointed to his 2011 communication with CenturyLink and the director, including his threatened lawsuit. He also questioned the sincerity of the director’s statement that he was cleared to return to CenturyLink, though he admittedly had no evidence “whatsoever” that the director had been untruthful. Nonetheless, he argued that the mistakenly forwarded email from the contracting firm created a triable issue as to whether he was truly cleared to return. The Eighth Circuit disagreed. Though the email indicated otherwise, CenturyLink both maintained contact with him and cleared him to return. The director also personally advised him he was cleared to return, as did the email’s sender.

Didn’t return due to slowdown. The technician was not able to return in 2011 because of a seasonal slowdown in work, not because of the director’s alleged animus. And it was undisputed that CenturyLink released its entire contract workforce for the winter in November 2011. Though the technician speculated that it did so to avoid rehiring him, “no reasonable jury could conclude that CenturyLink released its entire contractor workforce simply to avoid rehiring [him].”

Timing not suspicious. The court also rejected the technician’s assertion that the director’s “grudge” was evidenced by his involvement in his 2015 termination after only two weeks. Though he argued that the unusual timing and manner of his firing suggested an improper motive, the director testified to terminating contractors after just two weeks in the past. The technician also didn’t counter the director’s claim that he had not even recognized his name when he directed his termination. The director supervised about 325 employees and a contractor workforce with near 100 percent yearly turnover, lending credence to this assertion.

Low productivity undisputed. The record did, however, support CenturyLink’s contention that his low productivity played the key role in his release. Three managers all cited this as the primary reason for his termination and his supervisor in 2015 indicated that he was falling far short of the expected five to six jobs per day, as he had been completing no more than two or three jobs. This led the supervisor to suggest terminating him well before the director became involved. The technician did not challenge the accuracy of those numbers and admittedly had no reason to believe that the more recently hired supervisor was being dishonest or malicious. Considering the uncontroverted evidence of his low productivity and lack of comparators, he failed to demonstrate pretext.

Other claims. The appeals court also affirmed the dismissal of his claim under the Minnesota Whistleblower Act since the state’s definition of “employee” explicitly excluded “independent contractors.” And because CenturyLink and the director did not violate any law and their interference was not independently tortious, his tortious interference also failed.

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