Waste removal driver unable to revive Title VII and FLSA claims on appeal

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By Thomas K. Lauletta, J.D.

An African American truck driver failed to raise genuine issues of material fact that would require the Fifth Circuit to overturn a district court decision granting summary judgment in favor of his former employer on his Title VII race discrimination and FLSA unpaid overtime and retaliation claims. In an unpublished opinion, the Court of Appeals held that the driver provided insufficient evidence that race was a motivating factor in his dismissal, even though his supervisor had made racially insulting remarks. The FLSA overtime claim failed because there was no evidence that the employer miscalculated his compensation. Further, the employer’s piece-rate system was meant to compensate drivers for both productive and nonproductive time and the employee had agreed to it. Finally, the driver’s informal complaints did not qualify as protected activity under the FLSA (Lockhart v. Republic Services Incorporated, October 25, 2021, Wiener, J.).

Calculation of pay. The employee, who is African American, provided waste removal service to Republic’s customers in San Antonio as a roll-off driver. 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). Can values were set by Republic and communicated to the drivers on a detailed spreadsheet. At the end of the day, the driver filled out a route sheet, recording the containers he had hauled that day and the values associated with each haul.

The driver believed that he was not being properly compensated for each haul that he completed because Republic classified some hauls as container “swaps,” rather than “dump and returns,” which are compensated at a higher rate because they involve more travel. He 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.

Infractions and termination. In November 2017, he was terminated under the employer’s four-step progressive disciplinary procedure. First, he was given a verbal warning for recording an incorrect container pay on his route sheets. For the second infraction, he received a written warning 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. He was suspended as a result of his third infraction 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 the shop manager. His fourth infraction, for his entering a landfill through an exit gate in violation of company policy, resulted in termination.

Following his discharge, he sued his former employer alleging 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. The district court granted summary judgment against all of these claims, and the appellate court affirmed.

Title VII violations. Title VII makes it unlawful for an employer to fire or otherwise discriminate against an employee because of race. The court, assuming that the driver had established his prima facie case under the McDonnell Douglas framework and the employer had provided a nondiscriminatory reason for his firing, analyzed the driver’s claim based on whether he had shown the employer’s proffered reason for his termination was pretext for racial discrimination. He did not establish pretext.

First, although the driver characterized the events leading to his termination as “highly contested,” the court noted that three of the four infractions against the driver were based on the reports of third parties. Although there was dispute over whether the on-site supervisor of the landfill facility had given the driver permission to enter the landfill through the exit gate, the court held that this factual dispute alone would not permit a reasonable fact finder to conclude that the employer’s proffered explanation for the termination was pretextual.

Evidence of slurs. Second, although the court found evidence that the driver’s supervisor had made racially insulting slurs referring to him, the court noted that the driver had committed four disciplinary violations that led to his termination. Accordingly, the disturbing racial slurs were insufficient by themselves to create a genuine issue of fact disputing the veracity of the employer’s explanation for the termination and there was no evidence that race had anything to do with the termination.

FLSA overtime violations. For purposes of determining the proper compensation required by FLSA for overtime pay for piece-rate workers such as the driver, the number of hours worked for a workweek must include hours for both productive and nonproductive hours. The court noted that the employer presented evidence that its rules for compensation under its “can system” were meant to pay drivers both for their productive and nonproductive hours.

However, the court saw the underlying issue here as whether the driver and Republic had made an agreement evidencing that they had a “clear and mutual understanding” that the compensation plan was meant to cover both productive and nonproductive time. Based on the evidence presented, the court concluded that the driver had agreed to be compensated under his employer’s plan encompassing both productive and nonproductive hours worked. Accordingly, the court found that there was no evidence from which a reasonable jury could find that the driver did not agree to the employer’s piece rate compensation system, which covered both productive and nonproductive time.

FLSA retaliation. It is unlawful for an employer to terminate an employee for engaging in an activity protected by FLSA. The appeals court noted that although even an informal complaint with the employer may meet this protected activity requirement, such a complaint must “concern some violation of the law” that puts the employer on notice that the employee is making a complaint that could subject the employer to a later claim of retaliation. Here, the court concluded that although the driver raised some objections to Republic’s compensation system for calculating his pay—mostly focusing on Republic’s assignment of “can values”—the driver’s complaints never raised the suggestion that this system was unlawful. Accordingly, the driver did not engage in a protected activity under the FLSA, and the district court’s grant of summary judgment rejecting this claim was appropriate.

The case in No. 20-50474.

Attorneys: David Montgomery Evans (David M. Evans, Attorney at Law) for Ricky Danell Lockhart. Kimberly Rives Miers (Littler Mendelson) for Republic Services, Inc., Republic Waste Services of Texas, Ltd., Allied Waste Systems, Inc. and BFI Waste Services of Texas, L.P.

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