Lockhart v. Repub Srv ( 2021 )

Case: 20-50474 Document: 00516067614 Page: 1 Date Filed: 10/25/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-50474 October 25, 2021
Lyle W. Cayce
Clerk
Ricky Danell Lockhart,
Plaintiff—Appellant,
versus
Republic Services, Incorporated; Republic Waste
Services of Texas, Limited; Allied Waste Systems,
Incorporated; Kenny Ramzinski; Ryan Whiteside; BFI
Waste Services of Texas, L.P., doing business as Allied
Waste Services of San Antonio, doing business as
Republic Services of San Antonio,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:18-CV-766
Before Wiener, Dennis, and Duncan, Circuit Judges.
Wiener, Circuit Judge:*
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-50474 Document: 00516067614 Page: 2 Date Filed: 10/25/2021
No. 20-50474
Plaintiff-Appellant Ricky Danell Lockhart appeals the district court’s
grant of summary judgment in favor of his former employer, Defendant-
Appellee Republic Services, Inc. (“Republic”). Lockhart has raised no
genuine issues of material fact with respect to either his claims of racial
discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”)
or overtime violations and retaliation under the Fair Labor Standards Act
(“FLSA”), so we affirm.
I. BACKGROUND
Ricky Danell Lockhart, an African American man, worked for
Republic as a roll-off driver before being fired in November 2017. In that job,
he provided waste removal service to Republic’s customers in San Antonio,
Texas. Republic’s drivers were paid on a piece-rate basis, also known as “can
pay,” which was computed weekly by multiplying the individual driver’s
personal “can rate” (determined by that driver’s experience and seniority)
by each haul’s “can value” (based on the location of the can, its distance
from the landfill, and the difficulty of the haul). 1 Can values were set by
Republic and communicated to the drivers on a detailed spreadsheet. At the
end of the day, each driver filled out a route sheet, recording the containers
he had hauled that day and the values associated with each haul. Drivers also
clocked in and out of work every day.
In 2017, Republic General Manager Ryan Whiteside selected
Lockhart to participate in the 2017 ROAD-EO, an annual event designed to
showcase the company’s best drivers. At the ROAD-EO in Phoenix, Arizona,
Lockhart complained to a Republic District Manager about his can pay. Back
1
Republic illustrates this payment system as follows: “For example, if Lockhart’s
can rate was $15 and a particular haul was valued at three cans, Lockhart was paid $45 for
that haul.”
2
Case: 20-50474 Document: 00516067614 Page: 3 Date Filed: 10/25/2021
No. 20-50474
in San Antonio, Lockhart discussed his complaint with Whiteside. Lockhart
believed that he and his colleagues were not being properly compensated for
each haul they completed because the company classified some hauls as
container “swaps,” rather than “dump and returns.” A swap occurs when a
driver travels to a customer’s location with an empty container, exchanges
the empty container for the full container, and takes the full container to the
landfill. This trip involves two legs. A dump-and-return involves traveling to
a customer’s location, picking up and transporting the full container to the
landfill, and returning the empty container to the customer’s location. This
trip involves three legs. Because a dump-and-return involves more travel, it
is compensated at a higher rate. Although Republic predetermined how a
particular can was to be treated, Lockhart believed that he could be more
productive if he could decide whether to treat a given haul as a swap or a
dump-and-return while he was still in the field.
Shortly after returning from the ROAD-EO, Lockhart was involved in
four separate disciplinary incidents. Republic uses a progressive discipline
plan to address employee infractions: The first infraction elicits an oral
warning; the second a written warning; the third a suspension; the fourth the
termination of employment. Kenny Ramzinski, Lockhart’s supervisor, orally
reprimanded Lockhart in April 2017 for recording the incorrect container pay
on his route sheets. Lockhart next received a warning in June of that year for
abuse of company equipment, charging him with causing more than $4,000
in damage to his company-owned vehicle by pushing the truck’s “regen
button” in excess of forty times. A few months later, Lockhart was suspended
for (1) discussing his personal vehicle with an on-duty mechanic, (2) refusing
to wear personal protective equipment as required, and (3) being
insubordinate to Shop Manager Hilda Juarez. Finally, in November 2017,
Lockhart was terminated after he entered a landfill through an exit gate, in
violation of company policy.
3
Case: 20-50474 Document: 00516067614 Page: 4 Date Filed: 10/25/2021
No. 20-50474
Lockhart filed a discrimination charge with the Equal Employment
Opportunity Commission, received a Notice of Right to Sue, and filed this
lawsuit against Republic, BFI Waste Services of Texas, LP, Republic Waste
Services of Texas, LTD., Allied Waste Systems, Inc., Kenny Ramzinski, and
Ryan Whiteside (collectively, “Defendants” or “Republic”). Lockhart
alleged that he had been discriminated against on the basis of race, religion,
and sex, and retaliated against in violation of Title VII and 42 U.S.C. § 1981.
He also made claims for overtime violations and retaliation under the FLSA.
Following the district court’s dismissal of Lockhart’s religion and sex
discrimination claims, Defendants moved for summary judgment on all
remaining claims. The court granted the motion and dismissed Lockhart’s
case. He timely appealed.
II. APPLICABLE LAW
Summary judgment grants are reviewed de novo, “applying the same
legal standards as the district court.” 2 The court of appeals must consider
“[t]he evidence and inferences from the summary judgment record . . . in
the light most favorable to the nonmovant.” 3 Summary judgment is
appropriate only “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” 4
“A fact is material if it ‘might affect the outcome of the suit,’” and “[a]
2
Petro Harvester Operating Co. v. Keith, 954 F.3d 686, 691 (5th Cir. 2020) (quoting
Tradewinds Envtl. Restoration, Inc. v. St. Tammany Park, LLC, 578 F.3d 255, 258 (5th Cir.
2009)).
3
Minter v. Great Am. Ins. Co. of New York, 423 F.3d 460, 465 (5th Cir. 2005).
4
Fed. R. Civ. P. 56(a).
4
Case: 20-50474 Document: 00516067614 Page: 5 Date Filed: 10/25/2021
No. 20-50474
factual dispute is genuine ‘if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’” 5
III. ANALYSIS
On appeal, Lockhart contends that the evidence creates genuine
issues of material fact as to whether he was (1) fired because of his race; (2)
paid overtime in compliance with the FLSA; and (3) retaliated against for
complaining of Republic’s refusal to pay him in accordance with the FLSA.
A. Title VII
Title VII makes it unlawful for an employer to “discharge any
individual, or otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because
of such individual’s race.” 6 When a claim relies on circumstantial evidence,
the court applies the burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). 7 Under that framework, the
plaintiff must establish a prima facie case of discrimination. 8 If he does, the
burden “shifts to the employer to articulate a legitimate, nondiscriminatory
reason for its actions.” 9 If a legitimate explanation is offered by the employer,
the plaintiff may nevertheless defeat summary judgment by establishing
5
Thomas v. Tregre, 913 F.3d 458, 462 (5th Cir. 2019) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)).
6
42 U.S.C. § 2000e-2(a)(1). Because Title VII and § 1981 are “parallel causes of
action” that “require the same proof to establish liability,” Harville v. City of Houston,
Miss., 945 F.3d 870, 874 n.10 (5th Cir. 2019) (quotation marks omitted), this opinion
discusses only Lockhart’s Title VII claim.
7
Lockhart concedes that this is not a direct evidence case.
8
McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 2007).
9
Alvarado v. Texas Rangers, 492 F.3d 605, 611 (5th Cir. 2007).
5
Case: 20-50474 Document: 00516067614 Page: 6 Date Filed: 10/25/2021
No. 20-50474
either that (1) the proffered reason is pretextual or (2) “the employer's
reason, while true, is not the only reason for its conduct, and another
‘motivating factor’ is the plaintiff’s protected characteristic.” 10
We can decide this case on the basis of pretext, so we assume,
arguendo, that Lockhart has established a prima facie case of racial
discrimination. A plaintiff pursuing a racial discrimination claim under
McDonnell Douglas typically must establish that he “(1) is a member of a
protected group; (2) was qualified for the position at issue; (3) was discharged
or suffered some adverse employment action by the employer; and (4) was
replaced by someone outside his protected group or was treated less favorably
than other similarly situated employees outside the protected group.” 11
The vast majority of our cases concerning McDonnell Douglas in a
racial discrimination context recite the elements in this fashion, but a handful
of cases employ a broader formulation. For example in Autry v. Fort Bend
Independent School District, we defined the fourth element as requiring proof
that the employer “either gave the promotion to someone outside of that
protected class or otherwise failed to promote the plaintiff because of his race.” 12
Similarly, in Ebbs v. Folger Coffee Co., we required evidence that the plaintiff
“was replaced by a person outside the protected class or . . . otherwise that his
discharge was due to race.” 13 In light of this apparent confusion and the fact
10
Id. (quoting Rachid v. Jack In The Box, Inc., 376 F.3d 305, 312 (5th Cir. 2004)).
11
McCoy, 492 F.3d at 556.
12
704 F.3d 344, 347 (5th Cir. 2013) (emphasis added); see also Pratt v. City of
Houston, Tex., 247 F.3d 601, 606 (5th Cir. 2001) (defining the fourth element in similar
terms).
13
140 F.3d 1037, at *2 (5th Cir. 1998) (unpublished) (emphasis added); see also
Nguyen v. Univ. of Tex. Sch. of Law, 542 F. App’x 320, 323 (5th Cir. 2013) (unpublished)
(defining fourth element in similar terms).
6
Case: 20-50474 Document: 00516067614 Page: 7 Date Filed: 10/25/2021
No. 20-50474
that “[t]he McDonnell Douglas rule was intended to be a flexible one,” 14
clarification of the proper legal standard for such claims might be necessary
in short order. But because we can resolve this case on simpler grounds, we
decline to do so today.
Assuming that Lockhart has set forth a prima facie case, Republic
satisfied its burden of providing a nondiscriminatory reason for Lockhart’s
termination. It asserted that he was fired in compliance with the company’s
progressive discipline policy after committing four disciplinary infractions in
a twelve-month period.
To rebut Republic’s explanation, Lockhart had to demonstrate that
the proffered reason was pretextual by showing that the explanation for his
termination was “false or unworthy of credence.” 15 Such evidence “must be
enough to support a reasonable inference that the proffered reason is false; a
mere shadow of doubt is insufficient.” 16 Evidence that a proffered
explanation is false, coupled with a prima facie case, permits a jury to find
that intentional discrimination occurred. It does not, however, compel such
a conclusion in every case: There are cases in which, despite such evidence,
“no rational factfinder could conclude that the action was discriminatory.” 17
14
Barnes v. Yellow Freight Sys., Inc., 778 F.2d 1096, 1100 (5th Cir. 1985); see also
McDonnell Douglas, 411 U.S. at 802 n.13 (“The facts necessarily will vary in Title VII cases,
and the specification above of the prima facie proof required from respondent is not
necessarily applicable in every respect to differing factual situations.”).
15
Vaughn v. Woodforest Bank, 665 F.3d 632, 636 (5th Cir. 2011) (quotation marks
omitted) (quoting Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)).
16
Bauer v. Albemarle Corp., 169 F.3d 962, 967 (5th Cir. 1999) (quoting EEOC v. La.
Off. of Cmty. Servs., 47 F.3d 1438, 1443–44 (5th Cir. 1995)).
17
Price v. Fed. Exp. Corp., 283 F.3d 715, 720 (5th Cir. 2002) (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000)).
7
Case: 20-50474 Document: 00516067614 Page: 8 Date Filed: 10/25/2021
No. 20-50474
Lockhart contends that (1) the “highly contested” nature of the
events leading to his termination and (2) evidence of racial slurs used by
Republic employees, including his supervisor, Ramzinski, demonstrate that
Republic’s explanation for his termination was false. We disagree.
The contested nature of Lockhart’s violations is insufficient to
establish that his termination was pretextual. Lockhart disputes the
underlying basis for three of the disciplinary violations he received. He
stresses, for example, that (1) he never abused his truck’s regen button, (2) it
was common practice for drivers to speak to mechanics about their personal
vehicles, and (3) the exit gate to the landfill was not properly marked. But
Title VII does not allow us to second guess an employer’s reasonable
business decisions. 18 We have noted that “evidence that the employer’s
investigation merely came to an incorrect conclusion does not establish a
racial motivation behind an adverse employment decision. Management does
not have to make proper decisions, only non-discriminatory ones.” 19
There is no evidence that Ramzinski did not reasonably believe
Lockhart had committed these infractions before he was disciplined.
Ramzinski’s decision to discipline Lockhart was, in all three disputed
instances, based on the reports of third parties. With respect to the
equipment abuse incident, it is undisputed that a third-party mechanic
reported that the regen button had been pushed over forty times and that
Lockhart had driven that truck on all but five days in the eleven-week period
preceding the mechanical issue. As to the incidents of insubordination
18
Bryant v. Compass Grp. USA Inc., 413 F.3d 471, 478 (5th Cir. 2005) (citing
Bienkowski v. Am. Airlines, Inc., 851 F.2d 1503, 1507–08 (5th Cir. 1988)).
19
Id.; see also Little v. Republic Ref. Co., 924 F.2d 93, 97 (5th Cir. 1991) (“We do not
try in court the validity of good faith beliefs as to an employee’s competence. Motive is the
issue.”).
8
Case: 20-50474 Document: 00516067614 Page: 9 Date Filed: 10/25/2021
No. 20-50474
reported by Juarez, “[i]n cases in which an employer [disciplines] an
employee based on the complaint of another employee, the issue is not the
truth or falsity of the allegation, but ‘whether the employer reasonably
believed the employee’s allegation and acted on it in good faith.’” 20 The
same is true of the gate incident. Although it is disputed whether Garza gave
Lockhart permission to enter the landfill through the exit gate, Ramzinski
reasonably believed that Lockhart had not received permission to do so and
relied on Garza’s report of the infraction in disciplining Lockhart. The factual
dispute regarding Lockhart’s job performance would thus not permit a
reasonable fact finder to conclude that Republic’s proffered explanation is
false or unworthy of credence.
Evidence that Ramzinski used racial slurs to refer to Lockhart requires
closer attention. Discriminatory remarks can constitute circumstantial
evidence of pretext if they display discriminatory animus on the part of the
person responsible for making the adverse employment decision or someone
with influence over that person. 21
Citing deposition testimony of former employee Juan Puga, Lockhart
contends that Ramzinski used a Spanish-language racial slur to refer to
Lockhart behind his back. 22 Puga testified that Ramzinski used the slur
20
Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 379 (5th Cir. 2010) (quoting
Waggoner v. City of Garland, 987 F.2d 1160, 1165 (5th Cir. 1993)).
21
See McMichael v. Transocean Offshore Deepwater Drilling, Inc., 934 F.3d 447, 457–
58 (5th Cir. 2019) (citing Squyres v. Heico Cos., 782 F.3d 224, 236 (5th Cir. 2015)); Laxton,
333 F.3d at 583 (applying this standard in a Title VII case); Spears v. Patterson UTI Drilling
Co., 337 F. App’x 416, 420–21 (5th Cir. 2009) (unpublished) (same).
22
Lockhart also contends that Republic was a hostile work environment in which
racial slurs were commonplace. However, he never raised a hostile work environment
claim. Therefore, evidence that landfill employees often used racial slurs to refer to him
and ordered him to dump his haul in dangerous areas of the landfill are irrelevant at this
juncture.
9
Case: 20-50474 Document: 00516067614 Page: 10 Date Filed: 10/25/2021
No. 20-50474
“multiple times during the day,” and that “for him it was a joke. It was
something cool.”
As an initial matter, we disagree with Republic’s contention that
Ramzinski’s use of the racial slur did not display racial animus simply because
he used the term as a joke. The word Ramzinski allegedly used is the Spanish-
language equivalent to the n-word, which the Ninth Circuit has described as
“perhaps the most offensive and inflammatory racial slur in English,” 23 and
“evoking a history of racial violence, brutality, and subordination.” 24
Because of such words’ history, using them to refer to an individual or group,
particularly in the employment context, typically will imply discriminatory
animus on the part of the speaker, regardless of whether the speaker believes
he uses such words in jest.
Even though use of this slur is relevant to the pretext inquiry, it is
nevertheless insufficient to create a genuine issue of fact about the veracity
of Republic’s proffered explanation. Puga’s testimony about Ramzinski’s use
of the slur is non-specific in time and context. Neither has Lockhart provided
evidence that use of the word had any bearing on his termination, especially
not in contrast to the ample evidence that Lockhart was terminated, pursuant
to company policy, because he committed four disciplinary violations in a
23
Swinton v. Potomac Corp., 270 F.3d 794, 817 (9th Cir. 2001) (quotation omitted).
24
McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1116 (9th Cir. 2004); see also Rhines
v. Salinas Constr. Techs., Ltd., 574 F. App’x 362, 364 n.2 (5th Cir. 2014) (unpublished)
(recognizing that the slur is the Spanish equivalent of the n-word); Johnson v. PRIDE
Indus., Inc., No. EP-18-CV-00044-FM, 2018 WL 6624691, at *4 (W.D. Tex. Dec. 18, 2018)
(“‘Mayate’ is an extremely derisive and offensive term used to describe black people and
has the same taboo status as the n-word.”).
10
Case: 20-50474 Document: 00516067614 Page: 11 Date Filed: 10/25/2021
No. 20-50474
twelve-month span. 25 Further, this remark is the only arguable evidence of
pretext. As such, it is not probative of discriminatory intent under Palasota v.
Haggar Clothing Co. 26 We conclude that, at best, this evidence creates only a
“weak issue of fact,” insufficient to overcome the “uncontroverted
independent evidence that no discrimination had occurred.” 27
A Title VII plaintiff can also survive summary judgment with evidence
that race was a motivating factor in the adverse employment decision. 28 It is
unclear whether Lockhart intends to pursue this theory on appeal. He never
argued mixed motives to the district court, and his appellate brief is devoid
of any reference to this theory, save for a single cite to Bostock v. Clayton
County, Georgia, 29 in support of the idea that the district court impermissibly
required him to prove that race was “the sole or primary cause” of his
termination. Typically, Lockhart’s failure to raise the issue in the district
court would result in the waiver of this argument. 30 However, even if we
entertained the argument on appeal, such a claim would fare no better than
Lockhart’s pretext claim. The undisputed evidence indicates that Lockhart
was terminated in accordance with Republic’s progressive disciplinary
policy. Nothing in the record suggests that Lockhart’s infractions were
reported more often or punished more severely than those of other
25
See Reed v. Neopost USA, Inc., 701 F.3d 434, 443 (5th Cir. 2012) (finding no issue
of fact regarding hostile work environment when the allegedly discriminatory statements
were presented with “little detail regarding their nature and context”).
26
342 F.3d 569, 577 (5th Cir. 2003) (“[S]o long as remarks are not the only
evidence of pretext, they are probative of discriminatory intent.”); see also Bissett v. Beau
Rivage Resorts Inc., 442 F. App’x 148, 154 (5th Cir. 2011).
27
Reeves, 530 U.S. at 148.
28
42 U.S.C. § 2000e-2(m); Alvarado, 492 F.3d at 611.
29
140 S. Ct. 1731, 1748 (2020).
30
See Nasti v. CIBA Specialty Chems. Corp., 492 F.3d 589, 595 (5th Cir. 2007).
11
Case: 20-50474 Document: 00516067614 Page: 12 Date Filed: 10/25/2021
No. 20-50474
employees. The record simply would not allow a reasonable jury to conclude
that Lockhart’s race had anything to do with his termination.
B. FLSA
Lockhart contends that Republic violated the FLSA by failing to
compensate him properly for overtime hours and by firing him in retaliation
for making wage-related complaints. We disagree.
i. Overtime Violations
The FLSA obligates employers to pay non-exempt employees no less
than one and a half times their “regular rate” of pay for all overtime hours
worked, i.e., for all hours worked in excess of forty hours per week. 31 The
“‘regular rate’ under the Act is a rate per hour,” so when an employee is
paid on a basis other than hourly, the employee’s “compensation must be
converted to an hourly rate” before overtime can be properly assessed. 32 The
“regular rate” for a piece-rate employee like Lockhart “is computed by
adding together total earnings for the workweek” and dividing that sum by
“the number of hours worked in the week.” 33
With respect to piece-rate workers, “[i]n determining the number of
hours for which overtime compensation is due, all hours worked . . . in a
particular workweek must be counted.” 34 Although it is unlawful for an
employer to fail to count and pay an employee for nonproductive hours, such
31
29 U.S.C. § 207(a)(1); see also Hills v. Entergy Operations, Inc., 866 F.3d 610, 614
(5th Cir. 2017) (quoting O’Brien v. Town of Agawam, 350 F.3d 279, 294 (1st Cir. 2003))
(“Calculation of the correct ‘regular rate’ is the linchpin of the FLSA overtime
requirement.”).
32
Hills, 866 F.3d at 614 n.13; id. at 614; see also 29 C.F.R. § 778.109.
33
29 C.F.R. § 778.111(a).
34
Id. § 778.315.
12
Case: 20-50474 Document: 00516067614 Page: 13 Date Filed: 10/25/2021
No. 20-50474
as time “spent in waiting . . . [or] time spent in travel on the employer’s
behalf,” 35 “it is permissible for the parties to agree that the pay the
employees will earn at piece rates is intended to compensate them for all
hours worked, the productive as well as the nonproductive hours.” 36
Lockhart contends that Republic violated overtime laws by
mischaracterizing the can values associated with particular hauls, which had
the effect of reducing his overall piece rate and the overtime rate based on it.
He also claims that his “overtime premium was improperly diluted” by non-
productive hours spent on the clock.
As an initial matter, there is no record evidence that Republic
miscalculated can values in the fashion Lockhart suggests. Contrary evidence
is clear: Roll-off drivers were given a spreadsheet that indicated the value
associated with each particular can haul and were instructed to record that
predetermined value on their route sheets at the end of each day. Although
Lockhart might believe that the values assigned to particular hauls
undervalued his work or failed to properly consider the amount of time a
particular haul took to complete, there is no evidence that Republic paid less
for a particular can than it had promised.
Whether Lockhart agreed that his piece rate was intended to
compensate him for nonproductive time is a more nuanced question. FLSA
regulations do not specify what is required for the existence of such an
agreement, and there is little caselaw addressing the matter. However, a
recently issued guidance letter from the Department of Labor (“DOL”) is
instructive. In that letter, the DOL explained that it is lawful for an employer
to use a piece rate system designed to cover both productive and
35
Id. § 778.318(a).
36
Id. § 778.318(c).
13
Case: 20-50474 Document: 00516067614 Page: 14 Date Filed: 10/25/2021
No. 20-50474
nonproductive time, even without a “specific agreement . . . regarding
the . . . method of computing the regular rate and overtime pay.” 37
Analogizing to the FLSA’s fluctuating workweek provisions, the DOL
explained that an agreement requires a “clear and mutual understanding”
between the parties about the intended compensation, but that such
understanding “may be inferred from the parties’ conduct.” 38 Further, the
employees need not “understand[] the precise mathematical
methodology . . . in how the regular rate is computed.” 39
The DOL guidance letter relies heavily on Espenscheid v. DirectSat
USA, LLC, 40 in which the court considered the existence of an agreement by
reference to the FLSA’s fluctuating workweek provisions. It noted that when
a fixed salary is intended to compensate an employee for all hours worked in
a particular week, regardless of the actual number of hours worked, there
must be a “clear mutual understanding” between the employer and the
employee regarding what the weekly salary is meant to cover. 41 The court
reasoned that the existence of an “agreement” with respect to piece rate
employees mirrored the “clear mutual understanding” requirement, because
“both [systems] insure [sic] that employees are made aware of methods of
compensation that depart from the general rules of compensation under the
FLSA.” 42 Although non-binding, the DOL’s approval of this position is
37
U.S. Dep’t of Labor, Wage & Hour Div., Opinion Letter (Nov. 30, 2020) at 1.
38
Id. at 2 (citing Espenscheid v. DirectSat USA, LLC, No. 09-CV-625-BBC, 2011
WL 10069108, at *29 (W.D. Wis. Apr. 11, 2011)).
39
Id. at 3.
40
2011 WL 10069108.
41
Id. at *29 (quoting 29 C.F.R. § 778.114(a)).
42
Id.
14
Case: 20-50474 Document: 00516067614 Page: 15 Date Filed: 10/25/2021
No. 20-50474
persuasive, and we agree that evidence of a “clear mutual understanding”
between employer and employee may be inferred from the parties’ conduct. 43
The record demonstrates that (1) Republic’s piece rate system was in-
tended to compensate roll-off drivers for both their productive and non-pro-
ductive time, and (2) Lockhart agreed to be compensated in that fashion. It
is undisputed that Lockhart and his fellow drivers’ piece rates were deter-
mined by multiplying their personal can rate by each haul’s can value. For
overtime, Republic calculated each driver’s hourly rate by dividing the total
weekly earnings by the total hours that driver clocked in that week. All hours
worked in excess of forty were compensated at one-and-one-half times that
hourly rate. The daily route sheets did not require drivers to differentiate be-
tween productive and nonproductive time, and there is no evidence that Re-
public intended to compensate drivers differently for productive and non-
productive activities, or communicated as much to its employees.
The record also reflects that Lockhart agreed to being compensated in
this manner. For one thing, he testified that, in accepting employment with
Republic, he agreed to be paid “just on the can rate,” with “no other type of
pay like hourly pay.” He also accepted payment in this fashion for many years
before beginning to complain to his supervisors about his pay.
More importantly, Lockhart’s complaints about the pay structure
focused not on the productive versus nonproductive time issue, but on the
value of each can haul. These are two entirely different grievances. He
expressly complained about how specific hauls were classified as swaps rather
than dumps-and-returns, believing he could be more productive if he were
43
See Samson v. Apollo Res., Inc., 242 F.3d 629, 636–37 (5th Cir. 2001) (“[T]he
FLSA does not require that the ‘employer hold an employee’s hand and specifically tell
him or her precisely how the payroll system works.’” (quoting Griffin v. Wake Cnty., 142
F.3d 712, 717 (4th Cir. 1998))).
15
Case: 20-50474 Document: 00516067614 Page: 16 Date Filed: 10/25/2021
No. 20-50474
allowed to determine how to treat a particular haul while in the field.
Ramzinski and others explained the payment system to Lockhart on multiple
occasions, clarifying why some hauls were coded as they were. And in fact,
Lockhart testified that, after Republic modified the pay plan in 2017 to
incorporate his suggestions, he was “real happy” with the adjustment, even
though he continued to be paid in the exact same fashion as before (i.e., his
piece rate covering both productive and nonproductive time).
Neither is there evidence that Republic ever communicated to its
drivers that they would be paid separately for nonproductive time or that
Republic ever departed from this payment scheme. However, Lockhart also
suggests that Serrano v. Republic Services, Inc. 44 demonstrates that there was
no such agreement here. In Serrano, a group of industrial drivers sued
Republic for overtime violations. Following a bench trial, the court concluded
that the drivers had not agreed that their piece rate was meant to compensate
them for both productive and nonproductive time, citing evidence that (1) no
one had ever explained the system to the drivers; and (2) when they
complained about not being paid for non-productive time, they were ignored
or told that their supervisors would handle the matter. These responses, the
Serrano court found, “implied a promise of additional compensation or at
least a matter that was up for negotiation rather than a pay structure that was
set and agreed to.” 45 Additionally, the Serrano court stressed that Republic’s
own witnesses took a number of inconsistent positions about the way
nonproductive time was compensated, including testifying that:
(1) there is no non-production time in the waste hauling
business; (2) the only non-production time is sick leave or
annual leave; (3) Republic does not compensate for down time;
44
No. 2:14-CV-77, 2017 WL 2531918 (S.D. Tex. June 12, 2017).
45
Id. at *11.
16
Case: 20-50474 Document: 00516067614 Page: 17 Date Filed: 10/25/2021
No. 20-50474
(4) non-production time is compensated by day rates that are
applied for down time over four hours in a day or when
production does not exceed the day rate; and (5) all non-
production time is included in, and compensated by, the zone
rates. 46
This case is different. Here, Republic’s supervisors explained the
payment structure to Lockhart on multiple occasions in response to his
confusion, and there is no evidence that the company was ever inconsistent
in the manner it explained or applied the payment plan.
Finally, the only indication that Lockhart did not agree to this
compensation scheme exists in the form of a self-serving declaration that he
wrote after Republic moved for summary judgment. In that declaration,
Lockhart asserted that he “never agreed that the can rate was supposed to
reimburse [him] for both productive and non-productive time.” But nowhere
in his pleadings did Lockhart make this claim, and his affidavit cannot
controvert the ample evidence, cited above, indicating that he understood
and agreed to this payment scheme. Furthermore, his declaration itself belies
his apparent confusion about the payment scheme. In it, he states:
[H]ow much I made in overtime was dependent on how much
the cans I serviced were worth divided by how many hours I
worked to service those cans. In other words, I was paid based
on my productivity, not based solely on how many hours I
worked. The more cans I picked up and/or the less time I took
to pick them up, the more I made per hour, and therefore the
more I made in overtime. But not all cans are created equal.
Considering the foregoing, there is simply no evidence from which a
reasonable jury could find that Lockhart did not agree to his piece rate
covering productive and nonproductive time.
46
Id. at *10 (citations omitted).
17
Case: 20-50474 Document: 00516067614 Page: 18 Date Filed: 10/25/2021
No. 20-50474
ii. Retaliation
The FLSA makes it unlawful “to discharge or in any other manner
discriminate against any employee because such employee has filed any
complaint or instituted or caused to be instituted any proceeding under or
related to this chapter.” 47 To establish a prima facie claim for such
retaliation, a plaintiff must demonstrate that (1) he participated in an activity
protected by the FLSA; (2) he suffered an adverse employment action; and
(3) there exists a causal link between the activity and the adverse action. 48
“[I]f [Lockhart] cannot prove that he was engaged in protected
activity . . ., then he cannot make out a viable claim under the FLSA.” 49
“[A]n informal, internal complaint may constitute protected activity,” 50 as
may an oral complaint, 51 but “not all ‘abstract grumblings’ or vague
expressions of discontent are actionable.” 52 To constitute protected activity,
the informal complaint must “concern some violation of the law” 53 that puts
the employer on “notice that [the] employee is making a complaint that could
subject the employer to a later claim of retaliation.” 54
47
29 U.S.C. § 215(a)(3).
48
Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 624 (5th Cir. 2008).
49
Id.
50Id. at 625.
51
Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 14 (2011).
52
Hagan, 529 F.3d at 626 (quoting Hagan v. Echostar Satellite, L.L.C., No. H–05–
1365, 2007 WL 543441, at *4 (S.D. Tex. Feb. 16, 2007)).
53
Id. (holding that the plaintiff had not engaged in protected activity because his
informal complaint involved only the “possibility of field technicians receiving less overtime
pay,” but “did not frame any of his objections in terms of . . . potential illegality”).
54
Kasten, 563 U.S. at 13.
18
Case: 20-50474 Document: 00516067614 Page: 19 Date Filed: 10/25/2021
No. 20-50474
Lockhart’s informal complaints are not protected by the FLSA. All of
his complaints to management focused on the value of different can hauls,
meaning that he was complaining about the amount of his compensation. In
calling for allowing drivers to determine whether a haul should be treated as
a swap or as a dump-and-return, Lockhart was advocating for increasing the
value of his work. He was not suggesting that Republic’s manner of
calculating the hauls was unlawful. True, a change in the value of a driver’s
hourly rate would necessarily impact his overtime rate, but that does not
mean that Lockhart’s complaints were reasonably understood as a challenge
to the lawfulness of Republic’s compensation scheme. 55 Both Ramzinski and
Whiteside testified that Lockhart never mentioned overtime pay, but focused
his complaints only on specific can values, which he believed should have
been higher. Because Lockhart did not engage in a protected activity under
the FLSA, summary judgment rejecting this claim was appropriate.
IV. CONCLUSION
Based on the foregoing, the judgment of the district court is
AFFIRMED.
55
See id. at 14.
19