Labor & Employment Law Daily Prison guard who made DOL complaint against employer will present claims to jury
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Friday, May 1, 2020

Prison guard who made DOL complaint against employer will present claims to jury

By Brandi O. Brown, J.D.

A jury will hear his claims that he was harassed and threatened after reporting to the agency that his employer, a prison operating on a federal contract, was not compensating employees appropriately.

In a lawsuit brought by a former Leavenworth prison guard, a federal district court in Kansas has ruled that for two of his claims—retaliation under the False Claims Act and the Fair Labor Standards Act—a jury trial was warranted. Allegations of harassment by both management and coworkers raised a reasonable inference of a retaliatory motive. The warden told him he had “big balls” for making the complaint and a training manager explicitly instructed new employees to avoid him because he was a trouble-maker. The employer’s motion for summary judgment was granted in part (Baldwin v. CoreCivic of Tennessee, LLC, April 23, 2020, Broomes, J.).

“Big balls” for report to DOL. For eight years the employee worked as a correctional officer at the Leavenworth Detention Center, a prison operated by the employer under a contract with the United States Marshals Service. The period before the employee’s complaint to the Department of Labor was not without problems—he was both the instigator and subject of complaints. A grievance he made in late 2013, related to the prison’s paid leave policy, was denied in 2014, which led him to contact the Department of Labor.

The prison warden learned of the complaint by the beginning of 2015. He called the employee in for a meeting and asked him what he thought he was doing. He told the employee that nothing would change. He also accused the employee of being like a Walmart shopper who poured water onto the floor and then slipped in it. He told the employee he had “very big balls for doing this.”

Harassment during and after investigation. According to the employee’s allegations, things went downhill for him after that. He was assigned to work in an undesirable job for the next 18 months, driving the perimeter alone in a non-air conditioned car with a broken seat. He asserted that he was not allowed to take breaks during his 12-hour shifts, even to use the bathroom, and that he worked the entire shift alone.

After the DOL concluded that the employer failed to pay employees for missed holidays and vacations, as required, the employer was required to retroactively compensate employees to the tune of over $25,000. The DOL also concluded that the employer had violated the recordkeeping requirements of the FLSA. Around this time the warden called a staff meeting wherein he told the employees that the facility might have to close if the employee “keeps it up.” In addition to the job reassignment, the employee recounted multiple negative encounters with coworkers and others, both during and after the DOL investigation, including altercations and threats. He was also threatened with disciplinary action on several occasions.

In 2016, in a report that he was told would remain anonymous, the employee told a captain of thefts by other workers. However, his name was linked to the report and he alleged that further threats were made against him. The air was let out of his tires, he was told that “snitches end up in ditches,” and he learned from an inmate that a rumor was going around that anyone who “shanked” the employee would get $100. He resigned in early 2017 and subsequently filed suit against the employer. After discovery, the employer moved for summary judgment.

False Claims Act retaliation. With respect to the first count in the employee’s complaint—the FCA claim—the court denied the employer’s summary judgment motion. First, it explained that conduct in furtherance of an FCA action, required to state a claim for retaliation, was not limited to the filing of a lawsuit, as argued by the employer. In fact, it was not even necessary for the employee to be aware of the existence of such a claim in order to engage in protected activity. All that was required was that he be able to show that the prison presented a claim for government reimbursement that was knowingly false or fraudulent. His descriptions in the grievance to the DOL were sufficient.

There was also evidence that the employer was on notice that the employee was taking action to pursue a potential FCA action. He filed an internal grievance, first, and then, second, the employer was on notice of a possible lawsuit because of the employee’s complaint because it had triggered a DOL investigation. With regard to adverse employment actions, the court determined that the employee put forth sufficient evidence of harassment to create triable issues of fact that were suitable for a jury to consider. Taken together, the actions potentially drew a “picture” of harassment for a jury, including: the actions of the warden (the “big balls” and shut-down comments); his co-workers (name-calling and threats); the undesirable work assignment; and the training manager’s warnings to new employees about him (up to including his photo in her introductory presentation).

FLSA claim survives too. With respect to the employee’s FLSA retaliation claim, the protected conduct was reflected in the DOL’s report. The agency reviewed the employer’s practices to ensure its compliance with that law and found a violation. Thus, there were genuine issues regarding whether the DOL complaint constituted protected activity. The remainder of the analysis was aligned with that employed for the FCA claim and the court likewise denied the motion with regard to that claim.

Constructive discharge claim. However, the employee’s constructive discharge claims, under Kansas public policy, could not move forward because the Kansas Supreme Court has not yet recognized constructive discharge as a basis for a retaliatory termination claim.

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