The opinion
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
)
ANDREA JAYE MOSBY, )
)
Plaintiff, )
)
)
v. ) No. 2:23-cv-02099-SHM-tmp
)
REAVES LAW FIRM PLLC, )
)
Defendant. )
)
ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Andrea Jaye Mosby sues Defendant Reaves Law Firm
PLLC (“the Firm”) for retaliation in violation of Title VII of
the Civil Rights Act of 1964, the Fair Labor Standards Act, and
the Equal Pay Act.
Before the Court is Defendant’s Motion for Summary Judgment.
(ECF No. 33.) For the reasons that follow, Defendant’s Motion is
DENIED.
I. Background
Plaintiff filed her Complaint against Defendant on February
24, 2023. (ECF No. 1.) Plaintiff filed her Amended Complaint the
same day. (ECF No. 8.) Defendant filed a partial Motion to
Dismiss on May 8, 2023. (ECF No. 11.) The Court denied
Defendant’s Motion to Dismiss on August 11, 2023. (ECF No. 18.)
Discovery in this case closed on October 2, 2024. (See ECF No.
32.) Defendant filed its Motion for Summary Judgment on November
4, 2024. (ECF No. 33.) Plaintiff filed her Response in Opposition
on December 9, 2024. (ECF No. 34.) Defendant filed a Reply on
December 23, 2024. (ECF Nos. 35, 36.) On January 17, 2025, the
Court granted the Parties’ Motion to Continue the Trial, which
is now set for May 5, 2025. (ECF Nos. 37-39.)
Plaintiff is a lawyer with 27 years’ experience in labor
and employment law. (ECF No. 34-1 at 2.)1 Defendant is a personal
injury law firm in Memphis, Tennessee. (Id. at 1.) Defendant
hired Plaintiff to serve as Chief People Officer (“CPO”) for the
Firm in May 2022. (Id.) Before joining the Firm, Plaintiff worked
at Memphis Light, Gas, and Water (“MLGW”) for 18 years. (ECF No.
36 at 1.) At MLGW, Plaintiff was the labor and employment in-
house counsel before serving as the Labor Engagement, Diversity,
and Inclusion Manager in the human resources (“HR”) department
from 2018 to 2022. (Id.)
Plaintiff learned of the CPO position from a prior coworker,
who had spoken to Henry Reaves about Plaintiff. (ECF No. 36 at
2.) Henry Reaves is the founding attorney and Chief Executive
Officer (“CEO”) of the Firm, and his wife, Neva Reaves, is the
Chief Experience Officer of the Firm. (ECF No. 36 at 11.)
1 All citations to the Parties’ Statements of Material Facts (ECF Nos. 34-1
and 36) are inclusive of the Parties’ internal citations to record
evidence.
Henry Reaves was “looking for...someone who could be a kind
of visionary and kind of help build [HR] out and take it to the
next level...designing and installing the right process and
procedures for HR for [the Firm] to flourish.” (Id.) Plaintiff
and Reaves spoke on the phone and had an interview in his office.
(Id.) Reaves offered Plaintiff the job. (Id.) Plaintiff was to
“do everything related to the people” who worked at the Firm,
with “more of an emphasis on culture,” and essentially “work as
a buffer between [Reaves] and the employees.” (Id. at 2-3.)
Cumulatively, as CPO, “Plaintiff was responsible for
building an HR infrastructure, managing all HR and employment-
related matters, recruiting and interviewing prospective
employees, the hiring and firing of employees, and handling all
employee-related matters... . Plaintiff was also responsible for
ensuring compliance with all state and federal laws as they
related to employees.” (ECF No. 34-1 at 3.) That included
“ensuring that Defendant was in compliance with the laws that
govern employee compensation” and receiving “complaints
regarding wages.” (ECF No. 34-1 at 3.)
While working as CPO, Plaintiff sat in on an interview for
an attorney candidate with Sheena Payne and Mark Shirmer. (ECF
No. 36 at 3.) After Plaintiff, Payne, and Shirmer had interviewed
the candidate, they took him upstairs to Henry Reaves’ office.
(Id. at 3.) Plaintiff asked the candidate about his salary
expectations, and Reaves interjected, saying, “let’s just cut to
the chase, I want you and we are willing to bring you in at
85,000.” (Id. at 4.) Plaintiff walked the candidate out, and
then met with Payne. (Id.) Plaintiff testified that Payne asked
her, “why would he offer him 85,000 when I have a young lady
that is making 65,000 that reports to me.”2 (Id.) Plaintiff
requested an explanation and additional facts, and Payne
“explained that she had a young, female third-year associate
that moved from Atlanta to work for the Firm and was making
$65,000.” (Id.)
After hearing Payne, Plaintiff “went to talk to Reaves and
explained that how he acted in the interview was unprofessional
and started to question why he offered the male candidate
$85,000.” (Id.) Reaves responded that it was what the candidate
“deserves,” and that the candidate was moving to Memphis. (Id.
at 4.) Plaintiff said that there was a female attorney at the
Firm making $65,000. (Id. at 4-5.) Reaves allegedly responded,
“I don’t care,” said that the male candidate had more experience
2 Defendant objects to the Court’s consideration of Payne’s alleged statement,
arguing that this evidence is inadmissible hearsay under Federal Rule of
Evidence (“FRE”) 802. (ECF No. 36 at 4.) However, when Payne allegedly made
her statement, she was an employee of Defendant making a statement about her
management of a Firm employee. Payne is currently the Firm’s COO and was
formerly a managing attorney. (ECF No. 33-6 at 3.) The statement may also be
offered, not for its truth, but as evidence, true or not, about whether
Plaintiff had a reasonable basis to believe there was a Title VII or EPA
violation to report. Payne’s statement is not hearsay, but an opposing party
statement pursuant to FRE 801(d)(2), or a statement not offered for its truth
under FRE 801 (c)(2). The Court will consider Payne’s alleged statement at
this stage.
and was relocating, and asked Plaintiff “who she had been talking
to and stated that she was not being loyal to him.” (Id. at 5.)
Plaintiff and Reaves “went to Mr. Cummins’s office, where
Mr. Reaves continued to state that [Plaintiff] was ‘disloyal,’
and that she was not ‘looking out for the Firm.’” (Id.) Reaves
allegedly said, “How dare [Plaintiff] tell [Reaves] what he can’t
bring people in at...and how [Plaintiff is] always telling him
what he can’t do. That’s not [Plaintiff’s] job to tell him what
he can’t do. [Plaintiff is] supposed to be supporting him.” (Id.)
Plaintiff then raised a second issue with Reaves, telling
him that he was not paying his executive assistant, PaQuita
Redmond, “what she is supposed to be making” and “questioned
whether she was classified correctly under the FLSA.” (Id. at
6.) Plaintiff alleges that Redmond had voiced her concerns to
Plaintiff, saying that Redmond was “getting calls all time of
night.”3 (Id. at 9.) Reaves then allegedly told Plaintiff:
“[Y]ou’re disloyal. You’re just trying to set me up for a
3 Defendant also objects to the Court’s consideration of Redmond’s alleged
statement, arguing that this evidence is inadmissible hearsay under FRE 802.
(ECF No. 36 at 9.) Redmond is an employee of the Firm who was speaking about
her employment with the Firm to the Firm’s CPO. Her statement may be
admissible as an opposing party statement. Her statement would also not be
hearsay if it were not offered for the truth of the matter asserted. To
support Plaintiff’s claim, it would not matter whether Redmond’s statement
were true and whether she was indeed misclassified under FLSA. The probative
value of Redmond’s statement is whether, true or not, it formed a basis for
Plaintiff to reasonably believe there was a FLSA violation to report.
Redmond’s statement is admissible as an opposing party statement pursuant to
FRE 801(d)(2), or as a statement not offered for its truth under FRE 801
(c)(2). The Court will consider Redmond’s alleged statement at this stage.
lawsuit. That’s what you do. You sue people...You’re disloyal to
me. You don’t have my best interest at heart.” (Id.) Reaves and
the Firm dispute the accuracy of Plaintiff’s recollection of her
conversations with Reaves about the two pay issues. (See id. at
4-7; ECF No. 34-1.) Reaves testified that he did not recall the
exact language or the context in which he called Plaintiff
disloyal. (Id. ECF No. 36 at 6-7.) He does admit that he told
her he “questioned her loyalty,” but was unsure whether he “used
the term trust or loyal.” (Id.)
“Shortly thereafter,” within the first 30 days of her
employment, Reaves told Plaintiff that she “obviously didn’t
understand how the firm operates,” was demoted to intake
specialist, and would begin a rotation plan to learn how the
Firm operated. (Id. at 7; ECF No. 34-1 at 5.) Plaintiff’s salary
was unaffected by this change. (ECF No. 34-1 at 6-7.) She
understood “that it was a temporary plan to work one month in
each of the divisions” and that she “would be assessed upon
completion.” (Id.) Plaintiff agreed to participate in the
rotation plan, but believed that Reaves’ plan was “not the most
logical way,” and that “there were other ways that [Plaintiff]
could have learned” about the Firm’s operations. (Id. at 7-8.)
Plaintiff’s testimony is that she told Henry Reaves that she
felt her demotion was “payback” for raising the employee pay
issues, and that “neither Dwan nor Ted,” other executives at the
Firm, “had to work in the intake department.” (ECF No. 36 at 8.)
Before starting the rotation plan, Plaintiff had spent time
building rapport with employees, recruiting numerous new
employees based on Reaves’ requests, moving furniture, picking
out paint colors, “working with Emily on things that I needed to
know,” attending many meetings, and hiring Plaintiff’s mother to
work as a recruiter at the Firm. (ECF No. 34-1 at 4, 7.)
After Reaves removed Plaintiff from her position as CPO,
Plaintiff’s testimony is that Henry Reaves informed employees
not to talk to Plaintiff about “anything related to HR” now that
she was the intake clerk. (ECF No. 36 at 7.) On or around May
28, 2022, Reaves “instructed Plaintiff to prepare a transition
document outlining all of the current projects and tasks
Plaintiff completed or was working on in her role as CPO.” (ECF
No. 34-1 at 8; ECF No. 36 at 10-11.) Although Reaves sent an
email to the other members of the executive team on May 31, 2022,
that the deadline for the document was June 2, 2022, he never
communicated a deadline for the document to Plaintiff in writing.
(ECF No. 36 at 10-11.)
Plaintiff maintains that, in addition to failing to provide
any written notice of the deadline for the transition document,
Reaves never communicated a deadline verbally. (Id. at 8.)
Plaintiff’s testimony is that Reaves’ only instruction was that
“at some point I need to know what your open matters are.” (Id.)
Henry Reaves’ testimony is that “I didn’t give [Plaintiff]
a specific date. I told her, you know – it was I guess implied
we thought [the deadline] was like immediately, you know.” (ECF
No. 36 at 10.) Neva Reaves’ testimony is that she “believe[s]
[Henry Reaves and Plaintiff] spoke about when she was supposed
to give the transition document.” (Id.)
Plaintiff was directed to report to the intake department
for her rotational program on Saturday, May 28, 2022. (ECF No.
34-1 8.) However, Plaintiff’s grandmother, who lived with
Plaintiff, passed away on May 20, 2022. (ECF No. 36 at 11.)
Plaintiff’s testimony is that she notified Henry Reaves and other
personnel of her circumstances and that they were aware that
Plaintiff was on bereavement leave during this time. (Id. at
12.) Plaintiff’s grandmother’s funeral services were held on
Friday, May 27, 2022. (Id.) Plaintiff returned to work on
Tuesday, May 31, 2022. (Id.) On her return, Plaintiff reported
to the intake department, watched the department’s training
videos, and continued to report to that department until her
termination. (Id. at 12-13.) Defendant disputes that Plaintiff
ever reported to intake. (ECF No 34-1 at 8.)
on June 2, 2022, Plaintiff’s testimony is that Henry Reaves
told Plaintiff and Tina Adams, the Firm’s Senior Manager of
Client Experience, that Plaintiff “would not need to stay in the
intake department for 4 weeks as initially anticipated and that
she would move to the ‘next phase’ on June 3.” (ECF No. 36 at
13; 33-6 at 2-3.)
Later that afternoon, Neva Reaves sent an email to Plaintiff
terminating her employment. (ECF No. 34-4 at 6.) The termination
email alleges that Plaintiff’s failure to timely submit the
transition document was an “act of insubordination.” (ECF No.
34-4 at 6.) The email references a June 2 deadline for completion
of the transition document contained in a May 31 email sent by
Henry Reaves——an email that Defendant admits Plaintiff never
received. (See id.; ECF No. 36 at 10-11.) The termination email
lists this “act of insubordination in addition to other missteps
and unprofessional behavior [as] an indication that it is best
for [the Firm and Plaintiff] to part ways.” (ECF No. 34-4 at 6.)
Plaintiff admits that the transition document was never
completed, but that was only because she was terminated before
she could do so and because she did not know there was a June 2
deadline for the document. (ECF No. 34-1 at 8.) Regardless of
the alleged failure to timely submit the transition document,
Neva Reaves’ testimony is that, if Plaintiff had only reported
to intake, she would still be employed by the Firm. (ECF No. 36
at 13.)
After her termination, Plaintiff and Henry Reaves exchanged
emails. (ECF No. 34-1 at 10.) Plaintiff attempted to challenge
her termination, alleging that Defendant had failed to follow
its own progressive discipline policy. (Id.) Although Plaintiff
admits that the content of some of those emails was
“unprofessional,” she argues the post-termination emails are
irrelevant. (Id.)
Plaintiff alleges that she was fired in retaliation for
reporting what she reasonably believed to be violations of
federal employment law. Specifically, the conversation in which
she raised the issue of pay disparity between the male and female
attorneys and the FLSA classification of Reaves’ assistant.
Plaintiff’s testimony is that she made these reports to Reaves
at least in part on the employees’ behalf, knowing it was adverse
to the Firm’s interest. Defendant argues that Plaintiff was fired
for a legitimate, non-retaliatory reason: poor performance and
insubordination. Plaintiff argues that Defendant’s reason is a
pretext for retaliation.
II. Jurisdiction
Plaintiff has asserted claims arising under federal law,
alleging violations of Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 2000e-3(a), the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. §§ 201, et seq., and the Equal Pay Act
(“EPA”), 29 U.S.C. § 206, which amended the FLSA. (ECF No. 8.)
The Court has federal question jurisdiction over Plaintiff’s
claims pursuant to 28 U.S.C. § 1331.
III. Standard of Review
Summary judgment is granted if there is no genuine issue of
material fact, and the moving party is entitled to judgment as
a matter of law. See Fed. R. Civ. P. 56(c). The movant has the
burden of establishing that there are no genuine issues of
material fact, which may be accomplished by demonstrating that
the nonmoving party lacks evidence to support an essential
element of her case. Peeples v. City of Detroit, 891 F.3d 622,
630 (6th Cir. 2018). A fact not admitted or stipulated may not
be “genuinely disputed” if the opposing party objects that it
cannot be presented or supported “in a form that would be
admissible in evidence.” Fed. R. Civ. P. 56(c).
There is a dispute about a material fact if the evidence is
such that a reasonable jury could return a verdict for the
nonmovant. EEOC v. Ford Motor Co., 782 F.3d 753, 760 (6th Cir.
2015) (en banc). Inferences must be drawn in the light most
favorable to the nonmovant. Bledsoe v. Tenn. Valley Auth. Bd. of
Dirs., 42 F.4th 568, 578 (6th Cir. 2022). The Court “is not
required to speculate on which portion of the record the
nonmoving party relies, nor is it obligated to wade through and
search the entire record for some specific facts that might
support the nonmoving party's claim.” InterRoyal Corp. v.
Sponseller, 889 F.2d 108, 111 (6th Cir. 1989).
Although summary judgment must be used carefully, it “is
‘an integral part of the Federal Rules as a whole, which are
designed to secure the just, speedy, and inexpensive
determination of every action’ rather than a ‘disfavored
procedural shortcut.’” F.D.I.C. v. Jeff Miller Stables, 573 F.3d
289, 294 (6th Cir. 2009) (quoting Celotex Corp. v. Catrett, 477
U.S. 317, 327 (1986)).
IV. Law
A. Title VII Retaliation
Federal law prohibits employers from retaliating against
employees for filing complaints of discrimination under Title
VII. Claims asserting retaliation based on circumstantial
evidence are analyzed under the McDonnell Douglas burden-
shifting framework. See Briggs v. Univ. of Cincinnati, 11 F.4th
498, 514 (6th Cir. 2021); Imwalle v. Reliance Med. Prods., Inc.,
515 F.3d 531, 543–44 (6th Cir. 2008); Adair v. Charter Cnty. of
Wayne, 452 F.3d 482, 489 (6th Cir. 2006).
To establish a prima facie case of retaliation under Title
VII, a plaintiff must establish that: (1) she “engaged in a
protected activity”; (2) her “exercise of such protected activity
was known by the defendant”; (3) the defendant subsequently “took
an action that was ‘materially adverse’ to the plaintiff”; and
(4) “a causal connection existed between the protected activity
and the materially adverse action.” Briggs, 11 F.4th at 514
(quoting Rogers v. Henry Ford Health Sys., 897 F.3d 763, 775
(6th Cir. 2018)).
An employee engages in protected activity when she “has
opposed any practice made an unlawful employment practice” by
Title VII. § 2000e-3(a). In defining Title VII’s “opposition
clause,” the Supreme Court quoted the federal government’s amicus
brief and an EEOC manual: “‘When an employee communicates to her
employer a belief that the employer has engaged in...a form of
employment discrimination, that communication’ virtually always
‘constitutes the employee's opposition to the activity.’”
Crawford v. Metro. Gov't of Nashville & Davidson Cnty., Tenn.,
555 U.S. 271, 276 (2009). Recognizing a broad definition of
opposition, the Supreme Court held that opposition does not
“demand[] active, consistent ‘opposing’ activities to
warrant...protection against retaliation,” although those
activities would also fall under the umbrella of opposition. Id.
at 277 (quoting and overruling the opinion of the lower court).
Protected activity does not require a “complaint be lodged
with absolute formality, clarity, or precision.” Yazdian v.
ConMed Endoscopic Techs., Inc., 793 F.3d 634, 645 (6th Cir. 2015)
(quoting Stevens v. Saint Elizabeth Med. Ctr., Inc., 533 F. App'x
624, 631 (6th Cir. 2013)). However, the opposition must be more
than “merely a ‘vague charge of discrimination.’” Id. (quoting
Booker v. Brown & Williamson Tobacco Co., 879 F.2d 1304, 1313
(6th Cir. 1989)). The employee’s complaint must also “be based
on ‘a reasonable and good faith belief that the opposed practices
were unlawful.’” Id. at 646 (quoting Johnson v. Univ. of
Cincinnati, 215 F.3d 561, 579 (6th Cir. 2000)). The employee
must both subjectively believe the conduct was unlawful, and “‘a
reasonable person in the same factual circumstances with the
same training and experience as the aggrieved employee’ would
believe that the conduct complained of was unlawful.” Id. at 646
(quoting Rhinehimer v. U.S. Bancorp Invs., Inc., 787 F.3d 797,
811 (6th Cir. 2015)).
Because this inquiry is “necessarily fact-dependent” and
depends on “the totality of the circumstances known (or
reasonably albeit mistakenly perceived) by the employee,”
objective reasonableness “should be decided as a matter of law
only when no reasonable person could have believed that the facts
known to the employee amounted to a violation or otherwise
justified the employee’s belief that illegal conduct was
occurring.” Id. at 646-47 (quoting Rhinehimer, 787 F.3d at 811).
When a plaintiff establishes a prima facie case, the burden
shifts to the employer to provide a legitimate, non-retaliatory
reason for the adverse employment action. Briggs, 11 F.4th at
515. Once the employer has provided a legitimate, non-retaliatory
reason, the burden shifts to the plaintiff to show that the
defendant’s reason is “actually a pretext to hide unlawful
retaliation.” Id. (quoting Rogers, 897 F.3d at 777). At summary
judgment, a plaintiff meets this burden when she “produce[s]
evidence sufficient that a reasonable finder of fact could reject
the employer’s proffered reason.” Id. (quoting Rogers, 897 F.3d
at 777).
B. FLSA and EPA Retaliation
The FLSA, as amended by the EPA, prohibits employers from
retaliating against employees for lodging complaints about FLSA
wage classification or gender-based unequal pay for equal work.
The McDonnell Douglas burden shifting analysis also applies to
FLSA and EPA retaliation claims. Adair, 452 F.3d at 489.
To establish a prima facie case of retaliation under the
FLSA, an employee must show that: 1) she engaged in protected
activity under the FLSA; 2) her exercise of that right was known
by her employer; 3) the employer took an adverse action against
the employee after the protected activity occurred; and 4) there
was a causal connection between the protected activity and the
adverse action. Id.
An employee has engaged in protected activity if she “filed
any complaint or instituted or caused to be instituted any
proceeding under or related to” the FLSA. 29 U.S.C. § 215.
Under FLSA retaliation law, there is a legally cognizable
distinction between the performance of job duties and the
assertion of one’s own FLSA rights or the rights of others.
Pettit v. Steppingstone, Ctr. for the Potentially Gifted, 429 F.
App'x 524, 530 (6th Cir. 2011). An employee carrying out human
resources duties acts in the interest of the employer. Id. at
531. The assertion of FLSA rights, on behalf of oneself or
another employee, is adverse to the employer. Id. “In recognition
of this fact, courts generally require that an employee with
these duties somehow step outside the role or otherwise make
clear to the employer that [she] was taking a position adverse
to the employer in order for the employee's activity to be
protected under 29 U.S.C. § 215(a)(3)”. McKinnon v. L-3 Commc'ns
Corp., 814 F. App'x 35, 43 (6th Cir. 2020) (internal quotations
omitted).
Once the plaintiff has satisfied her prima facie case, the
burden shifts to the employer to provide a legitimate, non-
retaliatory reason for the termination. See Adair, 452 F.3d at
482. Once the defendant provides such a reason, the burden shifts
back to the plaintiff to prove by a preponderance of the evidence
that the defendant’s reasons were a pretext for unlawful
retaliation. See id.
V. Analysis
The Court draws all reasonable inferences in the light most
favorable to Plaintiff. See Bledsoe, 42 F.4th at 578.
Defendant repeatedly disputes portions of Plaintiff’s
Statement of Undisputed Material Facts, not by specifically
objecting on the basis of the Federal Rules of Evidence or
contrary record evidence, but by categorizing Plaintiff’s sworn
declaration and deposition testimony as “unsubstantiated, self-
serving assertions” insufficient “to defeat summary judgment,”
citing Mosquera v. MTI Retreading Co., 745 F. App'x 568, 573
(6th Cir. 2018). (See ECF Nos. 35, 36.) The case law Defendant
cites does not support its broad assertion.
The explanatory parentheticals in the cases cited by the
Sixth Circuit in Mosquera make clear the type of assertions that
the court considers unsubstantiated and self-serving:
“statements made on information and belief;” “conclusory
allegations, speculation and unsubstantiated assertions;” and
“‘self-serving’ testimony, when viewed in light of [the same
individual’s] sworn statements to the contrary.” See id. In
Mosquera, the court decided that the plaintiff’s “best guess”
(that he met one non-dispositive factor in a test that determined
whether he met one of the required elements of his claim) did
not raise a genuine issue of material fact when that “best guess”
was unsubstantiated and multiple other pieces of persuasive
evidence contradicted his guess. See id. at 573-74.
Here, the Court’s consideration of Plaintiff’s sworn
declaration and deposition testimony does not rely on a wholly
unsubstantiated “best guess.” See id. The parties disagree about
the exact content and context of actions taken and statements
made by the relevant individuals. Although the asserted
conversations are not substantiated by evidence such as audio
recordings, they are not wholly unsubstantiated by the record,
alleged on information and belief, contradicted by a party’s own
sworn statement, or based on a “best guess.” See id.
A. Title VII Retaliation Claim
Defendant makes two primary arguments in support of summary
judgment: (1) Plaintiff’s claim of protected activity fails at
the reasonable and good faith belief inquiry, and (2) Defendant
had a legitimate, non-retaliatory reason for termination that
Plaintiff cannot establish is pretextual. (ECF No. 33-1 at 3-8.)
Defendant does not appear to contest that Plaintiff could satisfy
the other elements of her prima facie case, should she be found
to have engaged in protected activity. (Id.)
1. Protected Activity
Protected activity under Title VII turns, in this case, on
whether Plaintiff had an objectively reasonable and subjectively
good faith belief that Defendant was violating Title VII by
underpaying a female attorney. See Yazdian, 533 F. App'x at 645-
46.
Defendant argues that Plaintiff did not have a “reasonable
and good faith belief that the opposed practices were unlawful
because she did not even have firsthand knowledge of the
underlying facts nor did she investigate the complaint.” (ECF
No. 33-1 at 6.) That argument is contradicted by the record.
Although Plaintiff did not view a paystub for the employee or
some other physical record, she relied on the statement of the
underpaid employee’s supervisor, Sheena Payne.4 Plaintiff’s
reliance on the statement of the employee’s supervisor, someone
Plaintiff reasonably trusted to know the employee’s salary, is
not unreasonable as a matter of law. See Yazdian, 793 F.3d at
646-47 (objective reasonableness “should be decided as a matter
4 Defendant argues that any conversation between Plaintiff and Payne cannot
be considered by the Court because any of Payne’s statements would be
inadmissible hearsay. As analyzed above, Payne’s statements may be admitted
if offered for a purpose other than the truth of the matter asserted. Fed.
R. Evid. 801. Here, so long as a reasonable jury could find that Plaintiff
reasonably relied on Payne’s statements about the employee’s salary and
circumstances, and reasonably believed Defendant’s practices were unlawful,
it would not matter whether Payne’s assertions about the employee were true.
Employees are protected from retaliation for reports of unlawful conduct,
even if that conduct turns out to be lawful, so long as the employee had a
reasonable and good faith belief that the conduct was unlawful when the
employee made the report. See Johnson, 215 F.3d at 579-80.
of law only when no reasonable person could have believed that
the facts known to the employee amounted to a violation”).
Plaintiff’s conversation with the supervisor could be
reasonably construed as investigative. Plaintiff learned that
the female attorney had more experience than the male candidate,
that she also had to relocate to Memphis, but was being paid
$20,000 less than the new male attorney’s offer. (ECF No. 34-1
at 3-4.) Plaintiff had been a labor and employment attorney for
27 years and believed that Defendant’s practice was unlawful
based on the information Plaintiff received. (See ECF No. 33-1
at 6.) A reasonable jury could find that the depth of Plaintiff’s
experience makes her good faith belief that the law was being
violated more probable, not less. Plaintiff could have performed
a more in-depth investigation, but in these circumstances did
not find it necessary before raising her complaint. Title VII
does not require a lengthy and formal inquiry. Plaintiff’s
complaint need not have been “lodged with absolute formality,
clarity, or precision.” Yazdian, 793 F.3d at 645 (quoting
Stevens, 533 F. App'x at 631).
Defendant cites Plaintiff’s testimony that, “[a]t that time
I didn’t know what the employees were making,” to argue that it
would be “impossible” for her to have reasonably believed there
was unlawful conduct. (ECF No. 33-1 at 6-7.) However, Plaintiff
maintains that the “[a]t that time” in her statement refers to
the time Plaintiff began the investigative conversation with the
supervisor. (See ECF No. 34-1 at 6.) By the end of that
conversation, before Plaintiff asserts she made her complaint
opposing an unlawful practice, Plaintiff had gained knowledge of
the salary discrepancy from the female attorney’s supervisor.
(See id.)
A reasonable jury could find that Plaintiff engaged in
protected activity. The burden shifts to Defendant to proffer a
legitimate, non-retaliatory reason for Plaintiff’s termination.
2. Pretext
Defendant asserts a legitimate, non-retaliatory reason for
Plaintiff’s termination: “her blatant refusal to perform job
duties.” (ECF No. 33-1 at 7.) Specifically, Defendant alleges
that Plaintiff “failed to timely submit the transition document”
and failed to “report to intake after she was instructed,” which
Defendant alleges were acts of “insubordination.” (Id.) Because
Defendant has asserted a legitimate, non-retaliatory reason for
Plaintiff’s termination, the burden rests with Plaintiff to show
that a reasonable jury could find that Defendant’s reason was
pretextual. See Briggs, 11 F.4th at 515.
Plaintiff offers potential evidence that contradicts both
acts of alleged insubordination. (See ECF No. 34 at 13-14.)
Responding to her alleged failure to timely submit the transition
document, Plaintiff produces deposition testimony from which a
reasonable jury could find that Henry Reeves himself admits that
no specific deadline for that document was ever communicated to
Plaintiff.5 (See ECF No. 36 at 10.) Neva Reaves confirmed in her
deposition testimony that the alleged failure to timely submit
the transition document alone was not the ultimate reason for
Plaintiff’s termination. Defendant does not dispute that “Mrs.
Reaves confirmed that if Plaintiff had just reported to intake,
she would still be employed.” (ECF No. 36 at 13.)
These are sufficient facts from which a reasonable jury
could infer Defendant’s first proffered non-retaliatory reason
is pretextual. A reasonable jury, finding the first proffered
reason pretextual, might also reasonably find the totality of
Defendant’s reason was pretextual. Nevertheless, Plaintiff
supports her argument that the second proffered reason is
pretextual with additional facts.
Responding to her alleged failure to report to intake,
Plaintiff testified that she was on bereavement leave on her
initial report date and that she did in fact report to intake on
her return on May 31, 2022. (ECF No. 36 at 11.) Plaintiff
testified that she began by watching the intake training videos
and reported to intake for three days before she was fired. (Id.
5 Henry Reaves testified, referring to the deadline for the transition
memorandum, “I didn’t give a specific date. I told her, you know——it was I
guess implied we thought [the deadline] was like immediately, you know.”
(ECF No. 34-5, PageID 331 at 30:1-5.)
at 12-13.) Although Henry and Neva Reaves’ testimony may
contradict Plaintiff’s, a reasonable jury could credit
Plaintiff’s testimony and find that Defendant’s second alleged
act of insubordination was pretextual.
Ultimately, the parties’ arguments turn on the issue of
credibility. Defendant offers plausible legitimate reasons for
termination. Plaintiff offers plausible evidence that those
reasons are pretextual. Deciding which set of facts is more
credible is a question that can only be resolved by a jury.
Because Defendant has failed to show that no reasonable
jury could find for Plaintiff, Defendant’s Motion for Summary
Judgment on Plaintiff’s Title VII retaliation claim is DENIED.
See EEOC v. Ford Motor Co., 782 F.3d at 760.
B. FLSA and EPA Retaliation Claims
Defendant contends that it is entitled to summary judgment
on Plaintiff’s FLSA and EPA retaliation claims for two reasons:
(1) Plaintiff’s actions while serving as CPO do not qualify as
FLSA or EPA protected activity; and (2) Defendant had a
legitimate, non-retaliatory reason for termination that
Plaintiff cannot establish is pretextual. (ECF No. 33-1 at 10-
14.) Defendant does not appear to contest that Plaintiff could
meet the other elements of the prima facie case, should she be
found to have engaged in protected activity. (Id.)
1. Protected Activity
The standard for protected activity in FLSA and EPA claims
differs from that of Title VII. See Pettit, 429 F. App'x at 530.
At issue here is whether Plaintiff “step[ped] outside [her] role”
as the Firm’s CPO in her conversations with Henry Reaves about
the alleged gender disparity in attorney salaries and the FLSA
classification of Reaves’ assistant. See McKinnon, 814 F. App'x
at 43. That question turns on whether Plaintiff was carrying out
her HR duties in the interest of the Firm, or “taking a position
adverse” to the Firm and asserting the FLSA rights of the female
attorney and Reaves’ assistant, Redmond. See id.; Pettit, 429 F.
App'x at 530.
For purposes of summary judgment, it is undisputed that
Plaintiff, as CPO, was at least partially responsible for
“ensuring that Defendant was in compliance with the laws that
govern employee compensation” and receiving “complaints
regarding wages.” (ECF No. 34-1 at 3.) As an employee with HR
obligations, she is subject to the heightened standard for FLSA
protected activity. See McKinnon, 814 F. App'x at 43.
A reasonable jury might infer both from Plaintiff’s words
and tone, and from Henry Reaves’ reaction, that Plaintiff’s
complaint was outside her role and adverse to the Firm’s
interests. Reaves, acting as CEO, responded to the allegations
of FLSA and EPA violations by questioning Plaintiff’s loyalty to
the Firm and, as Plaintiff argues, removing her from her position
for her assertions. (ECF No. 36 at 6-7.) Plaintiff’s testimony
is that she raised these issues with the “intention...to makes
sure that...whatever [the employee] was entitled to under the
law that she received it.” (ECF No. 36 at 9.)
Defendant’s position, that Plaintiff was expected to make
these notifications as part of her job duties, may reasonably be
seen to be contradicted by Reaves’ response. If Plaintiff’s duty
as CPO were to warn leadership about these issues, why would
Plaintiff’s notification spark an outraged reaction? If
Plaintiff were not “step[ping] outside [her] role” and raising
a complaint adverse to the Firm’s interests, why would Reaves
accuse her of not “looking out for” the Firm? See id. (ECF No.
34-1 at 5.) If Plaintiff were supposed to ensure Defendant was
compliant with the FLSA and EPA, why would Reaves say that it
was not Plaintiff’s job “to tell him what he can’t do” about
employee pay issues? (Id.)
Most probative, however, is the following statement
Plaintiff testifies that Reaves made: “you’re disloyal. You’re
just trying to set me up for a lawsuit. That’s what you do. You
sue people... . You don’t have my best interest at heart.” (ECF
No. 34-2 at 13.) There is sufficient evidence from which a
reasonable jury could find that, when Plaintiff engaged in the
alleged protected activity, Defendant’s CEO believed that
Plaintiff was acting adversely to the interest of the Firm, was
setting the Firm up for a FLSA lawsuit, and was engaging in
activity that was not part of her job. See id. (See id.) If the
jury credits Plaintiff’s testimony, portions of which are
supported by other record evidence, it could reasonably find
that Plaintiff engaged in protected activity although she was
the Firm’s CPO. See id. (See id.)
Defendant cites multiple out-of-circuit cases to support
its argument that Plaintiff did not engage in protected activity
as CPO. Here, unlike Claudio-Gotay v. Becton Dickinson Caribe,
Ltd., 375 F.3d 99, 102-3 (1st Cir. 2004), there is evidence that
Plaintiff was not acting to “avoid potential liability of” her
employer. Here, unlike Lasater v. Texas A&M University Commerce,
495 F. App'x 458, 462 (5th Cir. 2012), Plaintiff was not
referring to potential compliance issues during a routine audit.
Unlike Aflalo v. Cantor Fitzgerald, L.P., 298 F. Supp. 3d 688,
696 (S.D.N.Y. 2018), Plaintiff was not asked by senior-level
employees to conduct investigations specifically into FLSA
employee classification issues. Unlike McKenzie v. Renberg’s
Inc., 94 F.3d 1478, 1487 (10th Cir. 1996), there is evidence
that Plaintiff’s action was adverse to the Firm.
Defendant may contest the veracity of Plaintiff’s
recollection of Reaves’ statements or argue that some other
factor motivated Reaves’ reaction, but the Court is not persuaded
that no reasonable jury could find that Plaintiff stepped outside
her role. If a reasonable jury credits Plaintiff’s recollection
of her conversation with Reaves, the jury could find that
Plaintiff was asserting the FLSA rights of other employees in “a
position adverse to the employer.” McKinnon, 814 F. App'x at 43.
2. Pretext
Because Plaintiff has established a prima facie case, the
burden shifts to Defendant to proffer a legitimate, non-
retaliatory reason for the termination. See Adair, 452 F.3d at
489. As above, Defendant offers Plaintiff’s alleged
insubordination. This shifts the burden to Plaintiff to offer
evidence of pretext. See id. The Parties’ arguments on pretext
for the FLSA and EPA claims are identical to their pretext
arguments on Plaintiff’s Title VII claim. (See ECF Nos. 33-1 at
14; 34 at 13-15.)
The analysis of pretext on the FLSA and EPA claims is the
same as the discussion of pretext on the Title VII claim. See
supra Part III.A.2. As analyzed above, because a reasonable jury
could find that Defendant’s proffered reasons for terminating
Plaintiff are pretextual, Defendant’s Motion for Summary
Judgment on the FLSA and EPA claims must also be DENIED. See
id.; EEOC v. Ford Motor Co., 782 F.3d at 760.
VI. Conclusion
Because a reasonable jury could find in Plaintiff’s favor
on her claims, Defendant’s Motion for Summary Judgment (ECF No.
33) is DENIED.
SO ORDERED this 15th day of April, 2025.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE