June 22, 2018

Tenth Circuit: Summary Judgment for Employer Affirmed on FMLA and FLSA Claims

The Tenth Circuit issued its opinion in Brown v. ScriptPro, LLC on Tuesday, November 27, 2012.

The plaintiff, Frank Brown, brought Fair Labor Standards Act (FLSA) and Family Medical Leave Act claims against his former employer, ScriptPro, who had terminated him. The district court granted summary judgment to ScriptPro.

Brown brought both FMLA interference and FMLA retaliation claims. Brown was fired only two days after his emails and meeting with supervisors about taking time off to care for his wife and new baby. While the court agreed that timing can be particularly suggestive in determining whether termination relates to the exercise of FMLA rights, it found that Brown would have been terminated regardless of his FMLA request. The court based this determination on a partially unfavorable performance evaluation and strong evidence of continuing performance issues after the evaluation. Because an employer’s intent is not necessary to FMLA interference claims and there is no burden-shifting McDonnell Douglas analysis, the court analyzed Brown’s arguments regarding ScriptPro’s proffered reason for firing him not as pretext, but rather as attempting to show a genuine dispute regarding its affirmative defense.

Regarding Brown’s FMLA retaliation claim, the court did use a burden-shifting McDonnell Douglas analysis. The court held that “‘[t]o raise a fact issue of pretext,’ Mr. Brown must ‘present evidence of temporal proximity plus circumstantial evidence of retaliatory motive.’” The court held that Brown had not raised a triable issue of fact on this claim either.

The Tenth Circuit also affirmed summary judgment on Brown’s FLSA claim. While he had shown he actually worked overtime, he failed to prove the amount of overtime he worked. The burden would have been on ScriptPro to show the amount of overtime worked only if it failed to keep accurate records. Because Brown failed to enter his time in ScriptPro’s timekeeping system as required, the failure to pay him overtime was not an FLSA violation.

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