Donald Shrable v. Eaton Corporation , 695 F.3d 768 ( 2012 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-1404
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Donald Shrable
lllllllllllllllllllll Plaintiff - Appellant
v.
Eaton Corporation
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: September 20, 2012
Filed: October 3, 2012
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Before WOLLMAN, BEAM, and MURPHY, Circuit Judges.
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MURPHY, Circuit Judge.
Donald Shrable was terminated by Eaton Corporation in July 2009 after
receiving three formal written warnings about his job performance and conduct.
Shrable then filed this action under the Employee Retirement Income Security Act of
1974 (ERISA), the Fair Labor Standards Act (FLSA), and the Arkansas Civil Rights
Act of 1993 (ACRA), alleging that Eaton had retaliated against him after he raised
complaints protected by those statutes. The district court1 granted summary judgment
to Eaton on the federal law claims and dismissed the state law claims without
prejudice. Shrable appeals, and we affirm.
Eaton manufactures hoses for use in the hydraulic, aerospace, and automotive
industries. Shrable was the most senior hourly employee at its plant in Mountain
Home, Arkansas. He was first reprimanded in September 2008 for using the incorrect
stock in a machine at the plant. The production supervisor and manager noted at that
time that Shrable had already been "talked to" about three other incidents. Although
it was Eaton's policy to terminate an employee after four incidents, Shrable was
issued only a "first-level" written warning. Later that fall the production manager
raised additional concerns about Shrable's job performance after receiving a
complaint that he was frequently away from his assigned machine.
Shrable was subsequently disciplined for his conduct during a meeting in
January 2009. In 2008 Eaton had ceased its regular practice of providing employees
with gift cards and an extra half hour of paid lunch time for Thanksgiving and
Christmas. The meeting facilitators asked employees to identify opportunities to
improve production and their work environment, and Shrable asked whether
employees would receive gift cards and extra break time for the holidays in 2009.
According to Eaton, Shrable asked, "Don't you think this is why we have bad
attitudes?" Shrable subsequently received a written warning for disruptive conduct
during the meeting.
Shortly after the January meeting the plant's production managers realized that
in December Shrable had again used the wrong component in his machine. Shrable
1
The Honorable Jerome T. Kearney, United States Magistrate Judge for the
Eastern District of Arkansas, presiding by consent of the parties pursuant to 28 U.S.C.
§ 636(c).
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explained that it had been a mistake. He was subsequently placed on an performance
improvement plan and told that any future corrective action would result in
termination.
In the spring of 2009 Shrable volunteered for unpaid leave as part of a
downsizing effort by Eaton. On his return Shrable had a new supervisor who was
unaware of his disciplinary history. The supervisor observed that Shrable was
frequently away from his assigned work area and had other problems with
productivity and work quality, but he did not take disciplinary action. After Shrable
returned from a second period of leave in June 2009, the same supervisor noted that
Shrable left his machine twice in one day and neglected to notify others of his
location despite being reminded to do so. The supervisor gave Shrable a written
warning, and Shrable replied that he had received several prior warnings and this one
would likely result in his termination. The supervisor discussed Shrable's situation
with the plant manager, the production manager, and a human resources officer, who
decided to terminate Shrable's employment.
Shrable filed a complaint in Arkansas state court raising a variety of age and
disability discrimination claims, as well as harassment and retaliation claims. Eaton
removed the action to federal court and moved for summary judgment. Shrable then
abandoned all but his retaliation claims under ERISA, FLSA, and ACRA. The
district court granted summary judgment on the ERISA and FLSA claims, concluding
that Shrable had failed to make out a prima facie case of retaliation. The district court
declined to exercise supplemental jurisdiction over Shrable's ACRA claim and
dismissed it without prejudice.
Shrable appeals the adverse grant of summary judgment on his ERISA and
FLSA claims. He argues that there was a genuine issue of material fact because the
record showed that he had complained about changes to the 401(k) policy during the
January meeting, that this complaint was protected activity under ERISA, and that
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Eaton terminated him in retaliation for his complaint. Shrable also contends that his
complaint about the holiday meal time and gift cards was protected under FLSA.
This court reviews the district court's grant of summary judgment de novo,
viewing the record and all reasonable inferences in the light most favorable to the
nonmoving party. Trierweiler v. Wells Fargo Bank, 639 F.3d 456, 459 (8th Cir.
2011). If there is "no dispute of material fact and reasonable fact finders could not
find in favor of the nonmoving party, summary judgment is appropriate." Fercello
v. Cnty. of Ramsey, 612 F.3d 1069, 1077 (8th Cir. 2010).
We first consider Shrable's ERISA claim. Section 510 of ERISA makes it
unlawful to "discharge, fine, suspend, expel, discipline, or discriminate against a
participant . . . for exercising any right to which he is entitled under the provisions of
an employee benefit plan." 29 U.S.C. § 1140. ERISA discrimination claims are
analyzed under a burden shifting framework that requires Shrable to make out a prima
facie case of retaliation. See Rath v. Selection Research, Inc., 978 F.2d 1087, 1089
(8th Cir. 1992). To meet this burden Shrable must prove he participated in a
statutorily protected activity, he experienced an adverse employment action, and a
causal connection existed between the two. Id. at 1090. If Shrable makes out a prima
facie case, Eaton must articulate a nondiscriminatory reason for its actions, which
shifts the burden back to Shrable to prove that the proffered reason is mere pretext.
See id. at 1089–90 (citations omitted).
Shrable contends that Eaton terminated him in retaliation for raising concerns
about the company's 401(k) policy at the January meeting. We have not decided
whether informal complaints are covered by § 510 of ERISA, see Langlie v. Onan
Corp., 192 F.3d 1137, 1141 (8th Cir. 1999), but we need not reach that issue here
because the record does not show that Shrable participated in a statutorily protected
activity. Shrable testified that he had asked the meeting facilitators about the decision
to eliminate matching 401(k) contributions, but Eaton showed that Shrable could not
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have raised that concern at the January meeting because the 401(k) plan changes were
not announced until February. Shrable also asserts that he had asked whether the
changes to holiday benefits foreshadowed changes to the sick leave and 401(k)
policies, but he offers nothing aside from his own "self-serving allegations" to
support this assertion. Davidson & Associates v. Jung, 422 F.3d 630, 638 (8th Cir.
2005). Shrable's written warning following the meeting mentioned only his questions
about the holiday lunch hour and gift cards.
Shrable likewise fails to demonstrate a causal connection between his
comments at the January meeting and his termination in July. This court has
expressed "doubt" whether a plaintiff may establish a prima facie case of retaliation
when termination occurs six months after the protected activity. Rath, 978 F.2d at
1090; see also Kipp v. Mo. Highway & Transp. Comm'n, 280 F.3d 893, 897 (8th Cir.
2002). On the record before the court Shrable fails to alleviate that doubt here. We
conclude that Shrable has failed to make out a prima facie case of retaliation under
ERISA.
We next address Shrable's claim under FLSA. FLSA makes it unlawful for an
employer "to discharge or in any other manner discriminate against any employee
because such employee has filed any complaint . . . under or related to this chapter."
29 U.S.C. § 215(a)(3). The Supreme Court has held that FLSA's anti retaliation
provision covers oral complaints as well as formal written ones. Kasten v. Saint-
Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1336 (2011). To make out a
prima facie case of retaliation under FLSA, Shrable must show the same three
elements required for his ERISA claim. Ritchie v. St. Louis Jewish Light, 630 F.3d
713, 717 (8th Cir. 2011).
Shrable contends that his complaint about holiday mealtimes was protected by
FLSA because the schedule changes "would affect overtime." As the district court
correctly noted, however, "[b]ona fide meal periods are not worktime," 29 C.F.R.
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§ 785.19(a), and thus the elimination of a half hour of paid lunch would have no
effect on overtime. We conclude that Shrable has failed to make out a prima facie
case of retaliation under FLSA, and at any rate has failed to show a causal connection
between his complaint about holiday meal time and his termination six months later.
See Rath, 978 F.2d at 1010; Kipp, 280 F.3d at 897.
Eaton argues in its reply brief that the district court should have exercised
supplemental jurisdiction over his state law claim under ACRA and adjudicated it on
the merits. Since Eaton did not cross appeal, we will not consider its argument which
would have the effect of "enlarging [Eaton's] own rights . . . or of lessening the rights
of [Shrable]." El Paso Nat. Gas Co. v. Neztsosie, 526 U.S. 473, 479 (1999).
Accordingly, we affirm the district court's judgment.
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