Blackman v. Omak School District

Opinion

1 2

3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6

7 CHRIS NEESE BLACKMAN, NO. 2:18-CV-0338-TOR 8 Plaintiff, ORDER GRANTING DEFENDANTS’ 9 v. MOTION FOR PARTIAL SUMMARY JUDGMENT RE 10 OMAK SCHOOL DISTRICT and PLAINTIFF’S FLSA CLAIM KENNETH ERIK SWANSON, 11 Defendants. 12

13 BEFORE THE COURT is Defendants’ Motion for Partial Summary 14 Judgment on Plaintiff’s Fair Labor Standards Act (“FLSA”) claim. (ECF No. 97). 15 This matter was submitted for consideration without oral argument. The Court has 16 reviewed the record and files herein, and is fully informed. For the reasons 17 discussed below, Defendants’ Motion for Partial Summary Judgment (ECF No. 97) 18 is granted. 19 20 1 BACKGROUND 2 This case concerns Plaintiff’s employment as principle of Omak Middle

3 School (“OMS”). Plaintiff filed an Amended Complaint on June 18, 2019, which 4 is now the operative Complaint. ECF No. 16. The following facts are not in 5 dispute, except where noted.

6 Plaintiff was hired by Omak School District (the “District”) as a middle 7 school principal assigned to OMS. ECF No. 16 at 3, ¶ 13. The parties dispute 8 whether Plaintiff was charged with FLSA oversight and compliance. Plaintiff 9 contends she was not responsible for enforcing or making sure the District

10 complied with the FLSA.1 ECF No. 98 at 2-3. Defendants disagree, citing to 11 Washington statutes, regulations, and caselaw to support their assertion that 12 Plaintiff, as principal of the OMS, was also responsible for FLSA compliance.

13 ECF No. 100 at 3-4. Defendants assert Plaintiff’s statements that she told 14 classified staff they would get paid overtime, and her complaints to two other staff 15 members about the District’s practice and policy of providing compensatory time 16

1 In support of this statement, Plaintiff cites to her own Declaration. ECF No. 18 33 at 2, ¶ 4; id. at 15-16, ¶ 37. However, neither paragraph mentions the FLSA or 19 Plaintiff’s duties as a middle school principal. Id. 20 1 (“comp time”) in lieu of overtime, further indicate Plaintiff had the responsibility 2 to ensure compliance with overtime wage law. Id. at 9-10.

3 The parties do not dispute that in early November 2017, an “administrative 4 team meeting” took place between Dr. Blackman, Dr. Swanson, and other District 5 administrators who were outside of Dr. Blackman’s chain of command. ECF No.

6 31 at 15, ¶ 74. During this meeting, the participants discussed the “Castle Rock 7 decision,”2 referring to a legal decision about pay for hourly employees who 8 engage in extracurricular activities. ECF No. 29 at 10, ¶ 25. 9

2 The “Castle Rock decision” apparently refers to the Washington Public 11 Employment Relations Commission, Castle Rock School District Decision 4722-B 12 (1995), which discusses the nuanced distinctions regarding salaried employees, 13 hourly employees, certificated employees, dual roles, volunteers, moonlighting, 14 extracurricular activities jobs, collective bargaining, union contracts, etc. 15 Concerning the FLSA, the Department of Labor promulgated rules and regulations 16 exempting certain employees, including “teachers and academic administrative 17 personnel” from FLSA coverage. See e.g., 29 C.F.R. part 541; 81 FR 32391-01, 18 2016 WL 2943519. For purpose of this opinion, it is sufficient to say that the 19 FSLA provisions at issue do not apply to everyone within a school district. 20 1 The parties disagree as to what was said before and during the November 2 2017 administrative meeting between Plaintiff, District Superintendent Dr.

3 Swanson, and other District administrators who were outside Plaintiff’s chain of 4 command. ECF No. 33 at 14, ¶ 34. Plaintiff alleges that prior to the meeting 5 Zachary Reese, a science teacher at OMS, raised the issue of non-payment for

6 overtime with Plaintiff, who said she would raise the issue with Dr. Swanson. Id. 7 at ¶ 35. Plaintiff also spoke with Human Resource Director Leanne Olson. ECF 8 No. 33 at 14-15, ¶ 36. According to Plaintiff, Ms. Olson admitted she was aware 9 of multiple employees who were being denied overtime pay and that she had

10 discussed the issue with Dr. Swanson, but he did not take it very seriously. Id. 11 Plaintiff also met with Rachelle Gaines, payroll officer, and Scott Haeberle, 12 Fiscal Administrator, prior to the November 2017 meeting to discuss classified

13 staff who worked in excess of 40 hours per week while chaperoning District 14 students on a college visit. ECF No. 33 at 15, ¶ 37. Mr. Haeberle informed 15 Plaintiff that classified staff who work over 40 hours per week received comp time 16 in lieu of overtime pay. Id.

17 Plaintiff spoke with an outside investigator hired by the District prior to the 18 November 2017 meeting. ECF No. 33 at 17, ¶ 39. His investigative role and their 19 discussion were unrelated to Plaintiff’s overtime pay concerns, but Plaintiff raised

20 the issue anyway. Id. Without any evidence to support her assertion, Plaintiff 1 assumed the investigator informed Dr. Swanson of Plaintiff’s concerns, to which 2 Plaintiff claims Dr. Swanson replied, “I really wish you hadn’t done that.” ECF

3 No. 98 at 6. 4 At the November 2017 administrative meeting, Plaintiff testified that Dr. 5 Swanson led a discussion informing the administrators of the District’s failure to

6 pay overtime to certain classified staff working in excess of 40 hours per week. 7 ECF No. 33 at 16, ¶ 38. Plaintiff claims Dr. Swanson stated the District could not 8 afford to pay overtime to the classified staff working dual jobs. Id. Plaintiff 9 testified that she objected to the statements at the meeting in front of Dr. Swanson

10 and other administrators. Id. Plaintiff claims she stated the District was violating 11 the wage law, committing fraud, and that as a principal she had complete authority 12 to sign off on timecards and extra duty contracts3 and would not be party to illegal

13 activity. Id. 14 Defendants contend the primary discussion during the November 2017 15 administrative meeting was what is referred to as the “Castle Rock decision” 16

3 Plaintiff’s Statement of Material Facts references Plaintiff’s authority to sign 17 off on timecards and extra duty contracts. ECF No. 31 at 18, ¶ 80. However, this 18 statement is not supported by Plaintiff’s Declaration, which does not mention that 19 authority. ECF No. 33 at 16, ¶ 38. 20 1 related to the use of hourly employees when they engage in extracurricular 2 activities, such as coaching or advising. ECF No. 29 at 10-11, ¶ 25. Dr. Swanson

3 testified that between January 2016 and August 2020 there had not been any 4 instances of documented overtime for hourly District employees, nor had there 5 been any complaints or the need to investigate issues of non-payment of overtime.

6 Id. 7 Leanne Olson, the Human Resources Director for the District, was present 8 with administrators when Plaintiff brought up a concern with classified staff filling 9 the roles of coaches and advisors for the District. Id. at 26, ¶ 69. Ms. Olson

10 reported that the District could be put in jeopardy if classified staff worked more 11 than 40 hours per week, bringing up the Castle Rock decision and its findings. Id. 12 The District agreed they wanted to continue filling the roles of coaches and

13 advisors with classified staff even if it meant paying overtime. Id. No one at the 14 meeting stated the District should not follow the Castle Rock decision. Ms. Olson 15 did not recall Plaintiff saying anything at the meeting. Id. Ms. Olson had never 16 known Dr. Swanson to compensate employees less than the employee was entitled

17 to receive. Id. 18 Assistant Superintendent Michael Porter was also present during the 19 November 2017 administrative meeting and recalled the discussion of the Castle

20 Rock decision as it pertained to classified staff who may need to be paid overtime 1 because of the number of hours they worked. Id. at 33, ¶ 95. He recalled Dr. 2 Swanson saying something to the effect of “We will pay—if it goes to overtime,

3 we will pay them.” Id. at ¶ 96. Mr. Porter recalled Ms. Olson saying something to 4 the effect that the District needs to be careful when someone is applying for a 5 position that is beyond 40 hours because the District wants to make sure that

6 proper compensation is paid. Id. at ¶ 97. Mr. Porter testified that Dr. Swanson4 7 did not say the District could not afford to pay classified employees overtime 8 wages. Id. at ¶ 99. 9 Omak High School Principal David Kirk was present at the November 2017

10 administrative meeting and did not recall Dr. Swanson saying anything to the 11 effect that the District could not afford to pay overtime to classified staff. Id. at 37, 12 ¶ 115. He further testified it would have been out of character for Dr. Swanson to

13 not properly compensate any employee of the District. Id. 14 North Omak Elementary School principal John “Jack” Schneider was 15 present during the November 2017 meeting and recalled a discussion regarding the 16

4 Defendants’ Motion for Partial Summary Judgment indicates Plaintiff made 17 the statement. ECF No. 97 at 5. However, Defendants citation to their Statement 18 of Specific Facts alleges it was Dr. Swanson who made the statement. ECF No. 29 19 at 33, ¶ 99. 20 1 Castle Rock decision. Id. at 39, ¶ 123. Mr. Schneider did not recall Dr. Swanson 2 saying the District could not afford to pay overtime. Id. at ¶ 124.

3 Mr. Haeberle recalled an administrative meeting in which a general 4 discussion took place regarding whether employees were being properly 5 compensated for overtime. Id. at 41, ¶ 132. Mr. Haeberle testified there was no

6 concern that any of the District employees were not being properly compensated, 7 nor was he aware of any reported claims that the District failed to properly pay 8 overtime. Id. at ¶¶ 134-135. 9 Omak Middle School principal Ryan Christoph recalled an administrative

10 meeting in which the “Newcastle decision” (sic) was discussed, but testified the 11 conversation was just seeking background information. Id. at 43, ¶ 143. 12 DISCUSSION

13 I. Summary Judgment Standard 14 The Court may grant summary judgment in favor of a moving party who 15 demonstrates “that there is no genuine dispute as to any material fact and that the 16 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In ruling

17 on a motion for summary judgment, the court must only consider admissible 18 evidence. Orr v. Bank of America, NT & SA, 285 F.3d 764 (9th Cir. 2002). The 19 party moving for summary judgment bears the initial burden of showing the

20 absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 1 317, 323 (1986). The burden then shifts to the non-moving party to identify 2 specific facts showing there is a genuine issue of material fact. See Anderson v.

3 Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). “The mere existence of a scintilla 4 of evidence in support of the plaintiff’s position will be insufficient; there must be 5 evidence on which the jury could reasonably find for the plaintiff.” Id. at 252.

6 For purposes of summary judgment, a fact is “material” if it might affect the 7 outcome of the suit under the governing law. Id. at 248. Further, a dispute is 8 “genuine” only where the evidence is such that a reasonable jury could find in 9 favor of the non-moving party. Id. The Court views the facts, and all rational

10 inferences therefrom, in the light most favorable to the non-moving party. Scott v. 11 Harris, 550 U.S. 372, 378 (2007). Summary judgment will thus be granted 12 “against a party who fails to make a showing sufficient to establish the existence of

13 an element essential to that party’s case, and on which that party will bear the 14 burden of proof at trial.” Celotex, 477 U.S. at 322. 15 II. Plaintiff’s FLSA Claims 16 The Fair Labor Standards Act (“FLSA”) prohibits retaliation by an employer

17 against an employee “because such employee has filed any complaint . . . under or 18 related to this chapter.” 29 U.S.C. § 215(a)(3). “To establish a prima facie case of 19 retaliation, a plaintiff must show: (a) that the Defendants [were] aware of

20 plaintiff’s participation in a protected activity; (b) that an adverse employment 1 action was taken against plaintiff; and, (c) that the protected activity was a 2 substantial motivating factor in the adverse employment action as to that plaintiff.”

3 Bowen v. M. Caratan, Inc., 142 F. Supp. 3d 1007, 1021 (E.D. Cal. 2015) (citing 4 Lambert v. Ackerley, 180 F.3d 997, 1007 (9th Cir. 1999)). The FLSA is a remedial 5 statute and should be interpreted broadly. Kasten v. Saint-Gobain Performance

6 Plastics Corp., 563 U.S. 1, 13 (2011). Here, it is undisputed that Plaintiff did not 7 file a written complaint. However, the Supreme Court in Kasten held that oral 8 complaints are sufficient to invoke the antiretaliation provision of the FLSA. Id. at 9 17. The FLSA also “seeks to establish an enforcement system that is fair to

10 employers.” Id. at 13. Therefore, concerning oral complaints, employers “must 11 have fair notice that an employee is making a complaint that could subject the 12 employer to a later claim for retaliation.” Id. The complaint must be “sufficiently

13 clear and detailed” such that a reasonable employer would be on notice that the 14 employee is asserting protected rights and calling for their protection. Id. at 14. In 15 other words, “a complaint is ‘filed’ when ‘a reasonable, objective person would 16 have understood the employee’ to have ‘put the employer on notice that the

17 employee is asserting statutory rights under the Act.’” Id. (internal brackets 18 omitted). Whether a complaint has been filed requires a case-by-case factual 19 analysis. Rosenfield v. GlobalTranz Enterprises, Inc., 811 F.3d 282, 286 (9th Cir.

20 2015) (citing Lambert v. Ackerley, 180 F.3d 997, 1008 (9th Cir. 1999)). 1 Defendants move for summary judgment on Plaintiff’s FLSA claims, 2 arguing the claims fall under the “manager exception” to FLSA complaints. Prior

3 to the Supreme Court’s “fair notice” standard outlined in Kasten, several circuit 4 courts adopted a “manager-specific legal standard” to help determine whether an 5 employee had filed an FLSA complaint. Rosenfield, 811 F.3d at 287. The rule

6 adopted in those circuits requires a manager employee to 7 step outside his or her role of representing the company and either file (or threaten to file) an action adverse to the employer, actively assist 8 other employees in asserting FLSA rights, or otherwise engage in activities that reasonably could be perceived as directed towards the 9 assertion of rights protected by the FLSA.

10 Id. (collecting cases). While the parties in Rosenfeld assumed the “manager rule” 11 differed from the “fair notice” rule, the Ninth Circuit observed “the two rules likely 12 are consistent.” Id. The Ninth Circuit held “we find it unnecessary to weigh in 13 definitively on that question. Whether the manager rule is broader, narrower, or 14 the same, the Supreme Court’s opinion in Kasten controls and provides the legal 15 rule of decision.” Id. The Ninth Circuit further explained: 16 The employee’s job title and responsibilities—in particular, whether he or she is a manager—form an important part of that “context.” 17 Generally speaking, managers are in a different position vis-a-vis the employer than are other employees because (as relevant here) their 18 employer expects them to voice work-related concerns and to suggest changes in policy to their superiors. That may be particularly true with 19 20 1 respect to upper-level managers who are responsible for ensuring compliance with the FLSA. 2 If an entry-level employee reported that someone is underpaid in 3 violation of the FLSA and requested that the employee be compensated in compliance with the Act, a reasonable employer 4 almost certainly would understand that report as a “complaint” (depending, of course, on all the circumstances). But if the identical 5 report were made by a manager tasked with ensuring the company’s compliance with the FLSA, a reasonable employer almost certainly 6 would not understand that report as a “complaint” (again, depending on all the circumstances). Rather, the employer naturally would 7 understand the manager’s report as carrying out his or her duties. In short, when determining whether an employee has “filed any 8 complaint,” the employee’s role as a manager often is an important contextual element. 9 10 Rosenfield, 811 F.3d at 286. The Ninth Circuit held that “an employee’s 11 managerial position is an important contextual element that must be considered 12 when assessing whether the employee has filed a complaint[]” and that “to focus 13 on only one specific factual element may obscure important nuances.” Id. at 287- 14 88. 15 To illustrate, the plaintiff employee in Rosenfield served as either the 16 Manager of Human Resources or Director of Human Resources during her 17 employment with the defendant. Id. at 288. The plaintiff was not responsible for 18 FLSA compliance; compliance issues fell within the purview of her boss’s 19 responsibilities. Id. When the plaintiff raised concerns about FLSA violations to 20 1 her boss, he “did not understand, appreciate, or welcome [plaintiff’s] bringing to 2 his attention the FLSA violations.” Id. (quotation omitted).

3 The plaintiff then went on to complain orally on at least eight occasions to 4 management; provided specific assertions and copies of the statute to management; 5 and raised the FLSA violations in at least 27 weekly and monthly reports to her

6 supervisors. Id. The Ninth Circuit found that, despite the plaintiff’s managerial 7 position, “a reasonable jury could find that [her] advocacy reached the requisite 8 degree of formality to constitute protected activity.” Id. 9 Here, construing the evidence in the light most favorable to Plaintiff, a jury

10 could not reasonably conclude that Plaintiff provided fair notice of her FLSA 11 claims to her employer. 12 First, Plaintiff contends she complained to an outside investigator about the

13 overtime issue, along with other issues. It is undisputed that the outside 14 investigator was not charged with investigating the overtime issue, but something 15 completely different. Conversations with a third party do not equate to “fil[ing] 16 any complaint” with the employer. This conversation did not reasonably “put the

17 employer on notice that the employee is asserting statutory rights under the Act.” 18 Second, Plaintiff speculates that the outside investigator told Dr. Swanson. 19 This speculation is not supported with admissible evidence and therefore does not

20 constitute a complaint filed with the employer. Nor does this speculation 1 reasonably put the employer on notice with a “clear and detailed” complaint 2 asserting protected rights and calling for their protection.

3 Third, Plaintiff recounts a conversation she had with Mr. Reese, a science 4 teacher at OMS. These conversations do not constitute “fil[ing] any complaint” 5 with her employer.

6 Fourth, Plaintiff recounts a conversation with Ms. Olson, the Director of 7 Human Resources. ECF No. 33 at ¶ 36. Significantly, Plaintiff claims this to be a 8 conversation where she learned certain information, but she does not contend that 9 she filed a complaint. This conversation does not constitute a complaint filed with

10 the employer which would put the employer on notice of a clear and detailed 11 assertion of protected rights. 12 Fifth, Plaintiff recounts a conversation she had with Ms. Gaines, the payroll

13 officer and Mr. Haeberle, the Fiscal Administrator for the District. ECF No. 33 at 14 ¶ 37. After gathering information from them, Plaintiff said she objected to the 1:1 15 ratio for awarding comp time, explaining that she told Mr. Haeberle “that is not 16 what I have told the classified staff and I did not believe that was correct under the

17 law. I told them they would get paid overtime.” Id. Again, Plaintiff does not 18 contend that this was her complaint filed with her employer which provided a clear 19 and detailed assertion of protected rights. Nor does this constitute such.

20 1 Sixth, Plaintiff recounts her version of the November 2017 administrative 2 team meeting. ECF No. 33 at ¶ 38. Significantly, Dr. Swanson led the discussion

3 and brought up the overtime issue. While the parties and all those in attendance 4 dispute what was said during the meeting, construing the evidence in the light most 5 favorable to Plaintiff, no “reasonable, objective person would have understood the

6 [Plaintiff]” to have “put the employer on notice that the [Plaintiff] [was] asserting 7 statutory rights under the Act.” It is undisputed that the Plaintiff’s statements were 8 made at work while she was attending the “administrative team meeting” which 9 was part of her job duties. While others attending may not have been within her

10 direct chain of command, it is undisputed that all attending were fellow employees 11 of the District and attended as part of their jobs, as well. In support of her 12 argument, Plaintiff submits evidence that it was not within her job duties to enforce

13 the FLSA, but she also submits statements that the issue came to her attention as 14 the principal and she told classified staff her interpretation of the law. It is clear 15 the administrative team meeting, led by Dr. Swanson, was to discuss management 16 issues. The evidence does not support her claim that the management meeting put

17 her employer on notice that she was filing a verbal complaint, sufficiently clear 18 and detailed such that “a reasonable, objective person would have understood the 19 employee” to have “put the employer on notice that the employee is asserting

20 statutory rights under the Act.” Kasten, 563 U.S. at 14 (internal brackets omitted). 1 || Plaintiff’s statements did not reach “the requisite degree of formality to constitute protected activity” under the FSLA. Rosenfeld, 811 F.3d at 288. 3 On this record and construing the evidence in the light most favorable to 4|| Plaintiff, considering all the circumstances and in context, no jury could reasonably conclude that Plaintiff's verbalization of the FSLA issue at the November 2017 6|| administrative team meeting was a complaint filed with her employer. 7 Defendants are entitled to summary judgment on this issue. 8|| ACCORDINGLY, IT IS HEREBY ORDERED: 9 Defendants’ Motion for Partial Summary Judgment (ECF No. 97) is GRANTED. Plaintiff’s FSLA retaliation claim is dismissed. 11 The District Court Executive is directed to enter this Order and furnish 12 || copies to counsel. 13 DATED October 5, 2020. 14 Ay Kes ae hwy. 0. Kes 15 on Ue THOMAS O. RICE <=> United States District Judge 16 17 18 19 20

ORDER GRANTING DEFENDANTS’ MOTION FOR PARTIAL