25 No. 5 WJEMP 9
25 No. 5 Westlaw Journal Employment 9
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Westlaw Journal Employment
October 5, 2010
Fair Labor Standards Act
COURT TOSSES FEDERAL WAGE-AND-HOUR SUIT ALLEGING RETALIATION FOR COMPLAINTS
Stewart v. Master Builders Ass'n of King & Snohomish Counties
Copyright © 2010 Thomson Reuters
.
A federal judge in Seattle has dismissed a suit filed by a sales director who says he was constructively discharged in
retaliation for questioning why subordinates were not being paid overtime.
Stewart v. Master Builders Association of King and Snohomish Counties, No. C09-1152, 2010 WL 3505101
(W.D. Wash., Seattle Sept. 8, 2010).
U.S. District Judge Mary Alice Theiler of the Western District of Washington rejected Cecil Stewart's retaliation
claims because he failed to show he had engaged in an activity protected under the Fair Labor Standards Act, 29
U.S.C. § 201.
The judge agreed with the defendant employer that Stewart did not engage in a protected activity because his concern about whether company employees were exempt from overtime laws fell within his responsibilities as a director.
To prevail on a retaliation claim under the FLSA, Stewart was required to show that he took a position adverse to
the company, Judge Theiler said.
"The fact that plaintiff acknowledged in his e-mails that he knew he 'may very well be wrong' detracts from the
contention" that he was acting as an advocate for his subordinates and, therefore, had assumed a role adverse to his
employer, the judge said.
According to the opinion, several months after he began his job with the Master Builders Association of King and
Snohomish Counties, Stewart raised the issue of overtime pay with the company's director of human resources.
The HR director replied that a consultant had already investigated the issue and determined that Master Builders'
employees were exempt from the overtime provisions of the FLSA, the opinion says.
Stewart claimed he pursued the issue of overtime pay to confirm that all company employees were exempt from
overtime.
He allegedly contacted the Washington State Department of Labor and Industries, sent several e-mails about the
issue to HR in response to employee complaints about overtime, and e-mailed the company's chief operating officer
to question whether the company was "operating outside the law by having all of our employees exempt."
According to the complaint, after Stewart submitted the information he had gathered to management, his "commendable" and "outstanding" performance ratings dropped and his pay was cut.
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25 No. 5 WJEMP 9
25 No. 5 Westlaw Journal Employment 9
(Publication page references are not available for this document.)
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Stewart claimed the retaliation was so "intense" he was forced to resign. When he submitted a letter of resignation,
Master Builders promptly fired him, the complaint said.
He sued the company for retaliation and constructive discharge in violation of the FLSA.
Judge Theiler granted Master Builders' motion for summary judgment.
She agreed with the company's argument that Stewart could not make his case because he could not show he was
engaged in an activity protected under the FLSA.
She added the protected-activity requirement under the statute cannot be met without "stepping outside" the employee's professional role and taking a role adverse to the company.
Here, Stewart never "crossed the line" from being an employee performing his job as a sales and marketing director
to someone lodging a complaint about Master Builders' wage-and-hour practices and asserting a right adverse to the
company, Judge Theiler said.
"The mere fact that plaintiff raised objections on behalf of his subordinates does not establish protected activity," as
this was part of his managerial duties anyway, Judge Theiler said.
While contacting the Labor and Industries Department about a potential FLSA violation could be considered protected activity, Stewart still failed to show he had stepped outside his managerial role and was "actively assisting
other employees in asserting FLSA rights," the judge said.
She dismissed the case with prejudice.
Attorneys:
Plaintiff: George Hunter, Connell Cordova Hunter & Gautschi, Seattle, WA; Timothy Pauley, Pauley Law Group,
Seattle, WA.
Defendant: D. Michael Reilly, Laura Morse and Mary Young, Lane Powell PC, Seattle, WA.
END OF DOCUMENT
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