Ray Marshall, Secretary of Labor, United States Department of Labor v. Canada Dry Bottling Company of Nashville, Inc., and Robert N. Greene ( 1979 )

PER CURIAM.

This action was brought by the Secretary of Labor under Section 17 of the Fair Labor Standards Act (29 U.S.C. § 201 et seq.) to enforce its discriminatory discharge provisions. The Secretary's complaint alleges that defendants violated Section 15(a)(3) of the Act by terminating the employment of Charles L. Smith because he had filed an action against them to recover overtime compensation under the Act, and the complaint prayed for an injunction against future violations as well as for Smith’s reinstatement and back wages. In their answer, the defendants denied the charges and alleged that Smith had given two weeks notice of resignation. The Secretary perfected this appeal from an order of the district court dismissing the action on the ground that the plaintiff had failed to sustain the burden of proof.

On the day on which the two weeks notice was found by the district court to have been given, Smith went to appellee Robert N. Greene, president of appellee Canada Dry Bottling Company of Nashville, Inc., and complained about the fact that he was not being accorded treatment comparable to an employee of a related but separate bottling company who was doing similar work. According to Smith’s testimony concerning this confrontation, he told Greene that he would have to be paid more money for fewer work hours. According to Greene, his demands were limited to those concerning hours of work, and ended in Smith’s giving two weeks notice. After a careful study of the record, we conclude that the district judge’s findings of fact with reference to this conference and otherwise cannot be held to be clearly erroneous. Rule 52(a), FRCP; Brennan v. Braswell Motor Freight Lines, Inc., 396 F.Supp. 704 (D.C.Tex,1975); Mornford v. Andrews, 151 F.2d 511 (5th Cir. 1945). At the conclusion of his painstaking Memorandum, District Judge L. Clure Morton made this statement:

After viewing the witnesses and judging their credibility, the court finds that Charles L. Smith voluntarily resigned his position and had done so prior to the filing of this suit to collect overtime compensation. Plaintiff having failed to sustain the burden of proof, an appropriate order will be entered dismissing this cause. (Emphasis supplied.)

In view of the district court’s clear and emphatic finding that Smith’s resignation had been accomplished prior to the filing of the wage suit, such filing, and any other intervening factors which may have taken place during the period between the resignation and its effective date, is irrelevant. One such factor is that on the day following the filing of the lawsuit Smith and Greene had another discussion which ended in Greene’s telling Smith that he could take his pay and leave, and in his handing Smith a discharge slip. With reference to this circumstance, in a finding supported by the record the district court found, "So that Smith could qualify for unemployment compensation, the termination slip reflected that he had been discharged.”

The order of dismissal entered by the district court September 15, 1976, is affirmed.