                                                                                FILED
                                                                    United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                         Tenth Circuit

                           FOR THE TENTH CIRCUIT                         February 6, 2020
                       _________________________________
                                                                       Christopher M. Wolpert
                                                                           Clerk of Court
 DAVID BETTS,

       Plaintiff Counterclaim Defendant -
       Appellant,

 v.                                                         No. 18-1199
                                               (D.C. No. 1:16-CV-01890-CMA-MJW)
 WORK ZONE TRAFFIC CONTROL,                                  (D. Colo.)
 INC., a Colorado corporation,

       Defendant Counterclaimant -
       Appellee.
                      _________________________________

                           ORDER AND JUDGMENT *
                       _________________________________

Before HARTZ, MATHESON, and CARSON, Circuit Judges.
                  _________________________________

      David Betts, proceeding pro se, 1 appeals the district court’s grant of summary

judgment to his former employer, Work Zone Traffic Control, Inc., in his suit for




      *
         After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       1
         Although Betts is proceeding pro se in this appeal, he was represented by
counsel below. So we construe his appellate filings liberally, but do not afford the
same liberal construction to counsel’s filings in the underlying case. See Celli v.
Shoell, 40 F.3d 324, 327 (10th Cir. 1994).
retaliation in violation of the Fair Labor Standards Act (FLSA), 29 U.S.C.

§ 215(a)(3). Exercising jurisdiction under 28 U.S.C. § 1291, we reverse.

                                     I. Background

      Work Zone employed Betts as a full-time Traffic Control Supervisor for more

than eight years. His job duties included loading signage and equipment on to

company trucks, driving to job sites, and unloading and placing equipment at job

sites according to written traffic control plans. For most of those years, Betts worked

as a nonexempt employee under the FLSA and received time-and-one-half for hours

worked over 40 hours in a single work week.

      In April 2015, Work Zone reclassified Betts as a salaried employee, which

meant he received no overtime pay. Betts objected to this classification. When

Work Zone refused to pay him overtime, he hired an attorney who, in September

2015, sent Work Zone a demand letter. In December 2015, the parties reached a

settlement under which Work Zone reclassified Betts as a nonexempt hourly

employee and paid him overtime amounts he claimed.

      In May and June 2016, Work Zone assigned Betts to the Marksheffel Road job

site in Colorado Springs, Colorado. During the week of May 22-28, 2016, the

company assigned him to work a double shift, for which he claimed 92 hours of pay,

including 52 hours of overtime. This prompted Work Zone to review Betts’

timesheet and the GPS for the company truck he was driving and determine Betts was

claiming hourly pay for drive time between his home in Pueblo, Colorado and the



                                           2
Marksheffel Road job site. Work Zone paid Betts in full for the week ending

May 28, 2016.

        According to Work Zone’s Drive Time Policy and its official rules for

claiming mileage, employees do not receive hourly pay for the drive from their

homes to job sites. Instead, Work Zone pays them 10 cents per mile. But the

company pays employees hourly for drive time at the beginning of a project when

they haul equipment to set up a new job and at the end of a project when they pick up

a completed job. Work Zone also pays by the hour when workers return to an

existing job site if they are hauling additional equipment—more than a few cones or

a sign—needed for the project.

        During the week of May 29-June 4, 2016, Betts claimed 59 hours of pay,

including 19 hours of overtime. Work Zone did not pay Betts for 15 hours of

overtime. On June 10, 2016, Betts called Work Zone owner, John Volk, to complain

about the 15 hours missing from his paycheck.

        During the week of June 5-11, 2016, Betts claimed 75.5 hours of pay,

including 35.5 hours of overtime. On June 15, 2016, Volk sent Betts the following

text:

        Hey Betts, no more weekend time for paperwork and shop stuff make sure
        and get that done daily when your working! Also make sure if you are
        scheduled to work Sat you check with [Work Zone Managers] Mike and
        David as to whom is available and who had the least amount of hours will
        work.

        Then on the message Boards make sure if you have several to move
        around you get assistance working overtime for 7 hrs to move message
        boards at night buy yourself is not acceptable. If it was down for 5 weeks

                                            3
      we should be getting it done during normal working hours. That time like
      discussed is not billable time to our customers so it comes out of Wz
      pocket which in turn cost us to much money. Please try and maintain
      better time management and make sure we are keeping the hours down as
      much as possible.

      Thanks
      Jv

R. Vol. 3 at 528-29.

      Betts claimed 72.25 hours of pay per week for each of the next two weeks—

June 12-18, 2016 and June 19-25, 2016—which included drive time between his

home and job site and replacing a headlight on his company truck at the shop on a

Sunday.

      The morning of June 29, 2016, Betts said the following in a text to Bob

Andrews, a Work Zone safety manager:

      I hate to tell you Bob. But life short I’m getting ready to go round two
      with JV he arbitrary three weeks ago took 15 hours off my weeks time
      sheet I can’t find where this 15 hrs are extra He’s going to have to prove
      it. I hope he’s wright. Pray for me.

      Thanks.

R. Vol. 4 at 193. That same afternoon, Work Zone terminated Betts’ employment.

The “Explanation of Violation” on the Employee Termination Form given to Betts

contains a single word: “Insubordination.” R. Vol. 3 at 536. Work Zone eventually

paid Betts for all the disputed hours he claimed for the week ending June 4, 2016.

      Betts sued under the FLSA alleging that Work Zone terminated his

employment in retaliation for complaining that Work Zone failed to pay him for all

the hours he worked during the week ending June 4, 2016. He also claimed the

                                          4
company fired him because he hired a lawyer and demanded payment for unpaid

overtime in September 2015. Work Zone counterclaimed for civil theft, conversion,

and unjust enrichment, based on Betts’ claiming drive time between his home and job

site.

        The district court granted summary judgment to Work Zone on Betts’ FLSA

claim. Betts sought to appeal this summary judgment ruling in 2017, but we

dismissed the appeal for lack of jurisdiction because Work Zone’s counterclaims

remained pending. See Betts v. Work Zone Traffic Control, Inc., No. 17-1463

(10th Cir. Mar. 7, 2018).

        Work Zone dismissed its counterclaims without prejudice, and Betts filed this

appeal. But a dismissal without prejudice of the remaining claims in a multi-claim

action does not render a judgment final. Heimann v. Snead, 133 F.3d 767, 769

(10th Cir. 1998). After we notified Betts of the still existing jurisdictional defect,

Betts moved the district court to enter final judgment pursuant to Federal Rule of

Civil Procedure 54(b). The district court certified its summary judgment ruling under

Rule 54(b), which gave us jurisdiction under 28 U.S.C. § 1291 to review the district

court’s grant of summary judgment to Work Zone on Betts’ FLSA claim. See Lewis

v. B.F. Goodrich Co., 850 F.2d 641, 645 (10th Cir. 1988).

                                      II. Discussion

        We review the district court’s grant of summary judgment de novo, applying

the same legal standard as the district court. Pacheco v. Whiting Farms, Inc.,

365 F.3d 1199, 1201 (10th Cir. 2004). Summary judgment is appropriate if the

                                            5
moving party shows “there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We

construe the record and all reasonable inferences from it, in a light most favorable to

the party opposing summary judgment. See Conner v. Schnuck Markets, Inc.,

121 F.3d 1390, 1392 n.2 (10th Cir. 1997).

      Under the FLSA, it is unlawful for any person “to discharge or in any other

manner discriminate against any employee because such employee has filed any

complaint or instituted or caused to be instituted any proceeding under or related to

[the FLSA].” 29 U.S.C. § 215(a)(3). When a plaintiff cannot provide direct evidence

of retaliation, we apply the burden-shifting framework set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). Conner, 121 F.3d at 1394. Under this

framework,

      a plaintiff must first establish a prima facia case of retaliation. The burden
      then shifts to the employer to offer a legitimate [nonretaliatory] reason
      for the plaintiff’s termination. Once the employer offers such a reason,
      the burden then shifts back to the plaintiff to show that there is a genuine
      dispute of material fact as to whether the employer’s proffered reason for
      the challenged action is pretextual.

Id. (internal citation and quotation marks omitted).

      To establish a prima facie claim for retaliation under the FLSA, a plaintiff

must show (1) he engaged in activity protected by the FLSA; (2) he suffered adverse

action by the employer subsequent to or contemporaneous with that activity; and

(3) a causal connection exists between the employee’s activity and the employer’s

adverse action. Id.


                                            6
      The district court concluded that Betts established a prima facie claim for

retaliation. First, the court found Betts engaged in protected activity when he called

Volk on June 10 to complain about the 15 hours missing from his June 4 paycheck. 2

Second, the court noted the parties did not dispute that Betts suffered an adverse

employment action when Work Zone terminated him on June 29. Finally, the court

concluded that the temporal proximity between Betts’ June 10 complaint and June 29

termination sufficiently established a causal connection between Betts’ protected

activity and his termination. Thus, the burden shifted to Work Zone to offer a

legitimate, nonretaliatory reason for the termination.

      The district court concluded that Work Zone proffered a legitimate,

nonretaliatory reason for terminating Betts—“insubordination because [Betts]

disregarded company drive time policies and defied Mr. Volk’s June 15 text

instructing [Betts] not to perform overtime shop work during weekends.” R. Vol. 4

at 369. The court then determined that Betts failed to provide sufficient evidence

from which a rational jury could conclude Work Zone’s stated reason was pretextual.

We discuss each of these determinations in turn. 3



      2
         The court also suggested that Betts’ text expressing his intent to “go round
two” with Volk could also constitute protected activity under the FLSA.
       3
         We do not review the district court’s determination that Betts established a
prima facie case because Work Zone has not argued, as an alternative basis for
affirming the summary judgment in its favor, that the district court erred in this
determination, and we will not craft arguments for a party. See Perry v. Woodward,
199 F.3d 1126, 1141 n.13 (10th Cir. 1999) (declining to consider whether there was
an alternative basis to affirm where the appellee failed to develop an argument for
affirming on an alternative basis).
                                           7
   A. Work Zone’s Proffered Reason for Terminating Betts.

      The Supreme Court has described the defendant’s burden under the McDonnell

Douglas framework as follows:

             The burden that shifts to the defendant, therefore, is to rebut the
      presumption of [retaliation] by producing evidence that the plaintiff was
      [terminated] . . . for a legitimate, non[retaliatory] reason. The defendant
      need not persuade the court that it was actually motivated by the proffered
      reasons. It is sufficient if the defendant’s evidence raises a genuine issue
      of fact as to whether it [retaliated] against the plaintiff. To accomplish
      this, the defendant must clearly set forth, through the introduction of
      admissible evidence, the reasons for the plaintiff’s [termination]. The
      explanation provided must be legally sufficient to justify a judgment for
      the defendant. If the defendant carries this burden of production, the
      presumption raised by the prima facie case is rebutted, and the factual
      inquiry proceeds to a new level of specificity. Placing this burden of
      production on the defendant thus serves simultaneously to meet the
      plaintiff’s prima facie case by presenting a legitimate reason for the
      action and to frame the factual issue with sufficient clarity so that the
      plaintiff will have a full and fair opportunity to demonstrate pretext. The
      sufficiency of the defendant’s evidence should be evaluated by the extent
      to which it fulfills these functions.

Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-56 (1981) (emphasis

added and internal citation and footnotes omitted) (modified to reflect the retaliation

terminology applicable to this suit).

      The district court accepted Work Zone’s contention that it terminated Betts for

“insubordination because [Betts] disregarded company drive time policies and defied

Mr. Volk’s June 15 text instructing [Betts] not to perform overtime shop work during

weekends.” R. Vol. 4 at 369 (emphasis added). But Work Zone offered no evidence




                                           8
on the nature of Betts’ insubordination. 4 For example, Work Zone did not offer an

affidavit or deposition testimony from John Volk, or anyone else involved in the

decision to terminate Betts, identifying how Betts was insubordinate. Work Zone

articulated the nature of Betts’ insubordination in its answer to Betts’ complaint and

its motion for summary judgment. But, “[a]n articulation not admitted into evidence

will not suffice. . . . [T]he defendant cannot meet its burden merely through an

answer to the complaint or by argument of counsel.” Burdine, 450 U.S. at 255 n.9.

The only evidence cited by the district court was the Employee Termination Form

containing only the single word “insubordination.” See R. Vol. 4 at 369 (citing

Doc. No. 16, Work Zone’s Answer, Doc. No. 48-4, which does not exist, and

Doc. No. 48-3, the Employee Termination Form).

      Insubordination can serve as a legitimate nonretaliatory reason for discharge to

rebut a prima facie case. See Brown v. Parker-Hannifin Corp., 746 F.2d 1407, 1411

(10th Cir. 1984). Even so, the generic term “insubordination,” without evidence

identifying the act of insubordination, is inadequate to satisfy Work Zone’s burden.

See Whatley v. Skaggs Cos., 707 F.2d 1129, 1135 n.4 (10th Cir. 1983) (noting that

Burdine requires the defendant’s evidence regarding its reason for the plaintiff’s

dismissal to be reasonably specific); accord, e.g., DePaula v. Easter Seals



      4
        Work Zone’s reliance on Betts’ deposition testimony is misplaced. At his
deposition, Betts repeatedly denied Work Zone told him it was terminating him for
violating the Drive Time Policy, and he repeatedly stated that Work Zone did not
explain his termination beyond giving him the Employee Termination Form
containing the word “insubordination.”
                                           9
El Mirador, 859 F.3d 957, 972-73 (10th Cir. 2017) (noting the termination letter

recounted performance issues); Bird v. W. Valley City, 832 F.3d 1188, 1201

(10th Cir. 2016) (considering decisionmaker’s deposition testimony about plaintiff’s

insubordination); Brown, 746 F.2d at 1411 n.5 (considering affidavit evidence about

the plaintiff’s insubordination).

      To support its articulated reason for the discharge, Work Zone must rely on an

inference: because Volk sent Betts a text two weeks earlier directing him to practice

better time management and not to perform shop work on weekends,

“insubordination” must refer to defiance of that directive. But we do not draw

inferences in favor of the moving party on summary judgment. Betts sent Work Zone

safety manager Bob Andrews a text the morning Work Zone terminated him, saying

he was getting ready to “go round two with JV” in a second FLSA complaint for

unpaid overtime. One could also infer that “insubordination” referred to Betts’ threat

to “go round two” with Volk by challenging the refusal to pay overtime. 5

      The defendant’s burden under the McDonnell Douglas framework at summary

judgment is “exceedingly light.” DePaula, 859 F.3d at 970 (internal quotation marks

omitted). It need not persuade the court that its articulated reason for the termination

is true. Id. But it must produce admissible evidence of the articulated reason



      5
        Work Zone argued to the district court that Betts offered no evidence that
John Volk knew Betts sent the text to Andrews. We mention Betts’ text to highlight
the problem with Work Zone’s inference: the word “insubordination,” alone, does not
necessarily reflect a nonretaliatory reason. And Work Zone, not Betts, had the
burden of producing evidence at this stage of the McDonnell Douglas analysis.
                                           10
sufficient to raise a genuine issue of material fact as to whether it retaliated against

the plaintiff. Id. As the moving party, Work Zone cannot rely on inferences to meet

its burden. Because Betts presented a prima facie case sufficient to survive summary

judgment, and Work Zone did not produce sufficient evidence to rebut Betts’ prima

facie case and shift the burden back to Betts, the district court should have denied

Work Zone’s motion for summary judgment at this point.

   B. Betts’ Evidence of Pretext.

       Even assuming Work Zone produced sufficient evidence of a legitimate

nonretaliatory reason to shift the burden to Betts, we conclude Betts produced

sufficient evidence of pretext to survive summary judgment.

       A plaintiff can withstand a motion for summary judgment by demonstrating “a

genuine dispute of material fact as to whether the employer’s proffered reason for the

challenged action is pretextual—i.e. unworthy of belief.” Randle v. City of Aurora,

69 F.3d 441, 451 (10th Cir. 1995). A plaintiff can make this showing with a variety

of evidence, including evidence: (1) “that the defendant’s stated reason for the

adverse employment action was false,” (2) “that the defendant acted contrary to a

written company policy prescribing the action to be taken by the defendant under the

circumstances,” or (3) “that the defendant acted contrary to an unwritten policy or

contrary to company practice when making the adverse employment decision.”

Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1230 (10th Cir. 2000). “A

plaintiff who wishes to show that the company acted contrary to an unwritten policy

or to company practice often does so by providing evidence that he was treated

                                            11
differently from other similarly-situated employees who violated work rules of

comparable seriousness.” Id.

      In response to Work Zone’s motion for summary judgment, Betts argued that

Work Zone’s reason for terminating him (1) was false because he had not defied

Volk’s directive not to perform shop work on weekends and he had not violated

Work Zone’s Drive Time Policy and (2) contradicted Work Zone’s established drive

time practices and Work Zone had not terminated other employees who claimed drive

time like Betts.

      The district court determined that Betts failed to respond adequately to Work

Zone’s stated reason for his termination indicating, “it is undisputed that Mr. Volk

sent [Betts] a text on June 15 instructing [him] not to perform shop work during

weekends,” R. Vol. 4 at 369, and “[i]t is also undisputed that [Betts] defied

Mr. Volk’s instruction by, among other things, performing work at the Pueblo shop

on a Sunday four days after receiving the text,” id. at 370. 6 This is not an accurate

statement of the evidence before the district court.

      1. Volk’s Directive Not to Perform Shop Work on Weekends

      Betts offered evidence that he did not defy Volk’s directive not to perform

shop work on weekends. The only specific instance of shop work on a weekend

identified by either Work Zone or the district court was one hour on Sunday, June 19,

2016. Betts testified at his deposition that he went to the shop in Pueblo on Sunday,


      6
          The district court did not specifically address Work Zone’s Drive Time
Policy.
                                           12
June 19, 2016, to change a headlight on his company truck. He testified this was not

shop work; it was vehicle maintenance. He offered Work Zone’s policy on the use of

its trucks, which provides, “All scheduled maintenance and repairs shall be

performed as soon as possible. Any failures, concerns, questions or problems with

the truck or any of the truck’s equipment should be reported to the employee’s

superior IMMEDIATELY.” R. Vol. 4 at 194 (emphasis in original). Betts testified

that he told his general manager, David Ranney, about the headlight, and Ranney told

him to get it fixed. Betts’ timesheet for June 19, 2016, reflects that Betts went to the

Pueblo shop to “replace [a] head lite.” R. Vol. 3 at 504. Betts offered sufficient

evidence to create a genuine issue of material fact regarding whether Work Zone’s

claim that it terminated him for performing shop work on a weekend was pretextual.

      2. Work Zone’s Drive Time Policy

      As noted, Work Zone’s Drive Time Policy allows employees to claim an

hourly rate for drive time when they are hauling equipment to set up a job site and

after picking up a site. In addition, its mileage rules allow employees to claim an

hourly rate (rather than mileage) for drive time when they are hauling additional

equipment needed for a job “and it’s more than a few cones or a sign.” Id. at 458.

Betts testified at his deposition that he charged hourly for his drive to and from the

Marksheffel Road job site when he was hauling equipment needed for the job and it

was more than a few signs and cones. He also testified that, sometimes, he would

haul cones and signs from the Marksheffel Road job site, south to his home in Pueblo

so he could set them back up the next morning on his way north. He testified that the

                                           13
crew set up cones and signs starting at the southern end of the project, and this was

more efficient than driving to the Marksheffel Road equipment yard at the end of the

day, unloading the cones and signs, driving home to Pueblo, then driving back to the

equipment yard the next morning to pick up the necessary equipment before heading

to the southern end of the project again to set up. Betts understood this to comply

with Work Zone’s Drive Time Policy.

      In considering whether the employer’s proffered reason is pretextual, “we

examine the facts as they appear to the person making the decision; we do not look to

the plaintiff’s subjective evaluation of the situation.” EEOC v. C.R. England, Inc.,

644 F.3d 1028, 1044 (10th Cir. 2011) (emphasis and citations and internal quotation

marks omitted). Thus, Betts’ subjective view about whether his timekeeping violated

Work Zone’s policy does not demonstrate a genuine dispute regarding pretext. That

said, Betts also offered evidence that his timekeeping followed Work Zone’s

established practices for claiming drive time. For example, Betts offered evidence

that he had been claiming drive time the same way for years, including the months in

2015 that were the subject of his September 2015 FLSA complaint, for which Work

Zone eventually paid all the overtime he claimed. He offered evidence that Work

Zone paid other Traffic Control Supervisors drive time who claimed it on their

timesheets, even when their timesheets did not reflect that they were hauling

equipment. Finally, Betts argued that the fact that Work Zone imposed different

drive time rules on him after he complained about the 15 hours deducted from his



                                          14
June 4 paycheck is evidence that he was treated differently than other Traffic Control

Supervisors after he complained.

      Betts’ evidence creates a genuine issue of material fact as to whether Work

Zone’s reason for terminating him was worthy of belief. The district court erred in

concluding that he had not offered sufficient evidence of pretext.

                                     III. Conclusion

      For these reasons, we REVERSE the district court’s order granting summary

judgment to Work Zone on Betts’ FLSA claim, and REMAND this matter to the

district court for further proceedings consistent with this decision.


                                            Entered for the Court


                                            Joel M. Carson III
                                            Circuit Judge




                                           15
