Employee Failed To Show He Engaged In Conduct Protected By ERISA Or FLSA, Eighth Circuit Rules

An employee terminated after receiving three formal written warnings about his job performance and conduct could not maintain a retaliation action under ERISA or the FLSA, ruled the Eighth Circuit in Shrable v. Eaton Corporation (No. 12-1404), affirming a lower court’s grant of summary judgment in favor of his employer. Because the employee failed to show that he raised complaints protected by those statutes, the Eighth Circuit determined that he failed to make out a prima facie case of retaliation under either the ERISA or the FLSA.

Performance issues. The most senior hourly worker in the plant, the employee was discharged after a series of complaints concerning his job performance and frequency away from his assigned machine. Specifically, in September 2008, he was reprimanded for using the incorrect component in a machine. He was subsequently disciplined for disruptive conduct during a January 2009 meeting. Soon after that, the plant’s production manager discovered that the employee had again used the wrong component in his machine. The employee was placed on a performance improvement plan and told that future corrective action would result in termination.

In the spring of 2009, the employee volunteered for unpaid leave as part of the employer’s downsizing effort. Upon his return, he had a new supervisor who was unaware of his disciplinary history. The new supervisor observed that the employee left his machine twice in one day and neglected to notify others of his whereabouts. After the supervisor discussed the situation with the plant manager, the production manager, and HR, the employer decided to terminate the employee.

The employee filed a complaint raising a variety of claims, including age bias, disability discrimination, harassment and retaliation. He abandoned all but his retaliation claims under ERISA, the FLSA, and a state civil rights statute. The appeal examined whether the district court properly granted summary judgment in favor of the employer on the employee’s ERISA and FLSA claims.

Complaints not protected. The employee asserted that the record showed he complained about changes to the 401(k) policy during the January meeting after which he was disciplined, this complaint was protected activity under ERISA, and the employer terminated him in retaliation for this complaint. Similarly, he alleged that his complaint about the employer ending its practice of providing employees with gift cards and an extra half hour of paid lunch time for Thanksgiving and Christmas was protected under the FLSA.

Although the Eighth Circuit has not decided whether informal complaints are covered by ERISA Sec. 510, it concluded that it need not reach that issue in this case because the record failed to show that the employee participated in statutorily protected activity. Although the employee testified that he asked a meeting facilitator about the decision to eliminate matching 401(k) contributions during the January meeting, those changes were, in fact, not announced until February. Moreover, the written warning that was issued following the meeting mentioned only his questions about the holiday lunch hour and gift cards. The employee also failed to demonstrate a causal connection between his comments in the January meeting and his termination in July. Thus, he failed to make out a prima facie case of retaliation under ERISA.

Next, the Eighth Circuit addressed the employee’s retaliation claim under the FLSA. Although he alleged that his complaint about holiday mealtimes was protected by the FLSA because the schedule changes “would affect overtime,” the Eighth Circuit again concluded that he failed to make out a prima facie case of retaliation. At any rate, the employee failed to show a causal connection between his complaint about holiday meal time and his termination six months later.

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