               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 15a0422n.06

                                      Case No. 14-6132
                                                                                  FILED
                         UNITED STATES COURT OF APPEALS                      Jun 08, 2015
                              FOR THE SIXTH CIRCUIT                      DEBORAH S. HUNT, Clerk


ROBBIE PICKETT EVANS and GEORGE R.                 )
BOOTH,                                             )
                                                   )
       Plaintiffs-Appellants,                      )        ON APPEAL FROM THE
                                                   )        UNITED STATES DISTRICT
v.                                                 )        COURT FOR THE EASTERN
                                                   )        DISTRICT OF TENNESSEE
PROFESSIONAL TRANSPORTATION, INC.,                 )
                                                   )
       Defendant-Appellee.                         )
                                                   )                            OPINION


BEFORE:       COLE, Chief Judge; MERRITT and BATCHELDER, Circuit Judges.

       COLE, Chief Judge. Plaintiffs-Appellants Robbie Evans and George Booth appeal the

district court’s grant of summary judgment on their claim brought under the Fair Labor

Standards Act (“FLSA”), 29 U.S.C. § 215(a)(3). Evans and Booth allege that Professional

Transportation, Inc. (“PTI”), terminated them in retaliation for joining a lawsuit against the

company. The district court concluded that Evans and Booth failed to establish a prima facie

case of retaliation because they were unable to show that the supervisor who terminated them

had knowledge of their engagement in a protected activity under the FLSA. For the reasons

discussed below, we AFFIRM the district court’s grant of summary judgment.
Case No. 14-6132
Evans v. Prof’l Transp., Inc.

                                       I. BACKGROUND

       PTI is in the business of transporting railroad crews. Evans began working as a driver at

PTI’s Chattanooga branch in 2007. She was promoted to assistant manager in 2008 and became

the branch manager of the Chattanooga office in 2009. As manager, Evans’s duties included

general oversight of the branch, including staffing and employee training.

       Booth began working as a driver for PTI in Chattanooga in 2009, and later that year was

promoted to be the assistant manager of the branch. Booth’s duties included managerial tasks,

employee training, and some driving.

       PTI’s branch offices, including Chattanooga, are staffed by drivers who are scheduled to

pick up railroad crews in company vans and transport them between locations. If no regular

drivers were available, branch managers sometimes would drive the vans themselves or hire

taxicabs. PTI rates the performance of each office based on several factors, including the

percentage of trips that are on time (“on time performance” or “OTP”), the frequency of taxicab

use, and the adequacy of staffing. Despite some issues with driver retention and turnover, under

Evans and Booth’s management, the Chattanooga branch was generally considered one of the

better performing branches in its division.

       In 2009, a group of employees filed a lawsuit against PTI seeking overtime

compensation. In that case, Miller v. Professional Transportation, Inc., 3:09-cv-111 (S.D. Ind.),

a settlement agreement was reached in the summer of 2011 and resulted in an overhaul of the

system by which the company scheduled and tracked overtime hours for its employees.

Consequently, the Miller litigation was widely known to PTI’s management. Evans and Booth

testified that, during the course of the litigation, they had conversations with Kenneth Lanzon, a

PTI regional manager, in which Lanzon suggested that PTI planned to “set up” the Miller


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Evans v. Prof’l Transp., Inc.

plaintiffs for termination because PTI’s President, Ronald Romain, “would not allow anybody to

sue him and receive money and continue to work for his company.” (Evans Dep., R. 24-3,

PageID 391.)

         In August 2011, a second group of employees filed another lawsuit, Matthews, et al. v.

Professional Transportation, Inc. & Ronald Romain, 3:11-cv-97 (S.D. Ind.), seeking overtime

compensation against PTI and its President. Evans and Booth opted into the Matthews litigation

on March 1, 2012. They did not inform their supervisors that they had opted in, nor did they

know whether their supervisors were aware of the Matthews litigation.

         In February 2012, Evans attended a day-long workshop with several other branch

managers. At that time, several branches, including the Chattanooga office, were still using taxis

to transport crew members despite the fact that PTI’s management had informed Evans by email

in October 2011 that taxicabs were no longer to be used in her branch, or in several others.

While Evans was not aware of any performance deficiencies in her office, several days after the

February meeting she was told to develop a plan to improve her branch’s OTP and eliminate cab

usage.

         In March 2012, Evans began experiencing difficulties maintaining the Chattanooga

branch’s performance. In addition to the heightened emphasis on eliminating taxicab usage,

Evans and Booth were prohibited from driving vans and told to “focus 100% of their efforts on

recruiting, hiring and training . . . to get the schedule 100% full.” (Email from Michael Morin,

March 14, 2012, R. 24-21, PageID 686.) Also, maintenance on the Chattanooga branch’s vans

was subject to increased delays.

         Evans had also been encountering significant and ongoing disciplinary problems with

two employees, Marc McKibben and Jayanna Dotson. At the February 2012 meeting, PTI’s


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Evans v. Prof’l Transp., Inc.

Human Resources Director, Steven Greulich, and Senior Director of Operations, Danny Barr,

instructed Evans not to take any disciplinary action against either McKibben or Dotson, but

instead to direct such matters to Greulich. McKibben’s deficiencies continued, culminating in a

verbal confrontation with Evans in March 2012 after Evans purportedly made several

unsuccessful attempts to contact Greulich about McKibben. McKibben reported the incident to

Greulich.   Evans then emailed Romain and Steven McClellan, PTI’s Vice President of

Operations, informing them that she intended to discipline McKibben further, despite Greulich

and Barr’s instructions that such discipline was Greulich’s responsibility, not Evans’s. Evans

also verbally disciplined Dotson in March 2012.      Later that month, Michael Morin, PTI’s

Director of Operations, visited the Chattanooga branch and Evans told him about Dotson’s

discipline and the confrontation with McKibben.

       Meanwhile, Morin had begun hiring management-level employees from outside the

company in late 2011 and covertly sending them to branch offices to interview and train as

drivers. In February 2012, Morin hired Robert McElroy as an “undercover manager” and

assigned him to apply for a driver position at the Chattanooga branch. McElroy began training

on March 20, 2012, reporting by email that Evans had done a “good job” on his first day.

       Booth trained McElroy to drive routes in company vans. McElroy testified that, during

the training, Booth drove aggressively, used offensive language, and instructed McElroy and

another trainee how to falsify trip vouchers and circumvent PTI’s policy against speeding.

Booth also advised McElroy and the other trainee that smoking while on duty was against

company policy but that if they did smoke, they should do so away from crews and with the van

windows down.




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Evans v. Prof’l Transp., Inc.

       Morin sent an email to McClellan, Barr and Greulich on Friday, March 30, 2012,

recommending that Evans and Booth be terminated.          His email mentioned the outstanding

staffing and OTP issues at the Chattanooga branch, but focused primarily on Evans’s actions

against McKibben and Dotson and Booth’s conduct as reported by McElroy. Morin wrote that

he had decided to terminate Evans for her “willful failure to follow specific, easy to understand

instructions” and Booth “for performance, effective today, 3/30/12.” (Email from Michael

Morin, March 30, 2012, R. 24-30, PageID 707–08.) McClellan replied on the same day that he

would “forward to Ron [Romain] with additional comments related to all of your, [Greulich],

and [Barr’s] proactive activities to address this issue.” (Id. at 707.) Evans and Booth were

terminated the following Monday, on April 2, 2012.

       Evans and Booth filed this lawsuit in June 2012 in the United States District Court for the

Eastern District of Tennessee, alleging that PTI violated the FLSA by retaliating against them for

engaging in protected activity. Specifically, they contend that they were terminated because they

joined the Matthews litigation. PTI moved for summary judgment, arguing that the plaintiffs

could not make out a prima facie case of retaliation because Morin, the individual who decided

to terminate their employment, did not know of the Matthews lawsuit. PTI further argued that

even if the plaintiffs could make a prima facie case, PTI had a legitimate, non-retaliatory reason

for firing both plaintiffs. The district court granted summary judgment to PTI, finding that the

plaintiffs did not make out a prima facie case of retaliation because Morin, the person who

terminated them, did not have knowledge of Evans or Booth’s involvement in the Matthews

litigation. Accordingly, the district court did not reach the issue of whether PTI’s reasons for

terminating the plaintiffs were pretextual. They now appeal.




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Evans v. Prof’l Transp., Inc.

                                         II. ANALYSIS

          “We review a district court’s grant of summary judgment de novo.” Guyan Int’l, Inc. v.

Prof’l Benefits Adm’rs, Inc., 689 F.3d 793, 797 (6th Cir. 2012). Summary judgment is proper if

there are no genuine disputes of material fact and the moving party is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(a). In determining whether PTI was entitled to summary

judgment, we view the evidence in the light most favorable to the non-moving parties and draw

all reasonable inferences in their favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986).

          The anti-retaliation provision of the FLSA makes it unlawful for an employer “to

discharge or in any other manner discriminate against any employee because such employee has

filed any compliant or instituted or caused to be instituted any proceeding under or related to” the

FLSA. 29 U.S.C. § 215(a)(3). A plaintiff may prove unlawful retaliation either with direct

evidence of such retaliation or with circumstantial evidence establishing a prima facie case under

the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See

Taylor v. Geithner, 703 F.3d 328, 336 (6th Cir. 2013). The plaintiffs offer no direct evidence of

retaliation, so they must establish a prima facie case in reliance on circumstantial evidence. “To

establish a prima facie case of retaliation, an employee must prove that (1) he or she engaged in a

protected activity under the FLSA; (2) his or her exercise of this right was known by the

employer; (3) thereafter, the employer took an employment action adverse to her; and (4) there

was a causal connection between the protected activity and the adverse employment action.”

Adair v. Charter Cnty. of Wayne, 452 F.3d 482, 489 (6th Cir. 2006). If the plaintiffs succeed in

making out the elements of a prima facie case of retaliation, the burden of production shifts to

PTI to articulate a legitimate, non-retaliatory reason for the terminations. Dixon v. Gonzales, 481


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F.3d 324, 333 (6th Cir. 2007). If PTI satisfies its burden of production, the burden shifts back to

the plaintiffs to show that the reason was a pretext for retaliation. Id. “Although the burden of

production shifts between the parties, the plaintiff[s] bear[] the burden of persuasion throughout

the process.” Id.

       On appeal, the only contested issue is whether the plaintiffs satisfied the second element

of the prima facie case, that PTI knew of their protected activity. Circumstantial evidence can

support a reasonable inference of the decisionmaker’s knowledge if the evidence is comprised of

“specific facts” and not merely “conspiratorial theories,” “flights of fancy, speculations, hunches,

intuitions, or rumors.” Mulhall v. Ashcroft, 287 F.3d 543, 552 (6th Cir. 2002) (quoting Visser v.

Packer Eng’g Assocs., Inc., 924 F.2d 655, 659 (7th Cir. 1991)). We have inferred knowledge of

protected activity in situations where the decisionmaker “took an action with respect to the

plaintiff, other than the challenged adverse action, from which it could be inferred that the

[decisionmaker] was aware of the plaintiff’s” protected activity. Id. at 552–53.

       The district court concluded that the plaintiffs did not meet this burden, and we agree.

Contrary to their contention, plaintiffs cannot establish the second element of the prima facie

case of retaliation merely by showing that PTI had “general corporate knowledge” of their

participation in Matthews.      They must show that Morin, the decisionmaker, knew of their

involvement in the Matthews litigation. See Frazier v. USF Holland, Inc., 250 F. App’x 142,

148 (6th Cir. 2007) (“The decisionmaker’s knowledge of the protected activity is an essential

element of the prima facie case of unlawful retaliation.”) (citing Mulhall, 287 F.3d at 551).

       The plaintiffs assert that Morin must have known about their participation in Matthews

because he only involved himself in employee discipline when an employee had taken legal

action against PTI. This argument fails for two reasons. First, Morin initiated undercover


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manager investigations into several other branches in 2011, each of which resulted in

terminations of employees, none of whom were involved in overtime or pay-related lawsuits

against PTI. Second, Morin had already begun investigating the Chattanooga branch in February

2012, when he assigned McElroy to be an undercover manager, well before the plaintiffs joined

the Matthews litigation on March 1, 2012. Thus, Morin’s decision to send McElroy to the

Chattanooga branch could not be related to the plaintiffs’ subsequent decision to join a lawsuit

against PTI. The plaintiffs also suggest that Morin’s use of an undercover manager investigation

was itself suspicious because he told McElroy to make his reports by phone, rather than in

writing. But this suggestion is belied by the fact that the previous undercover managers had also

reported to Morin by phone. There is no evidence that Morin’s involvement in the plaintiffs’

terminations or his use of McElroy as an undercover manager suggest that he knew of their

participation in Matthews.

       The plaintiffs also contend that Morin must have known about their participation in

Matthews because he banned them, but no other managers from any other branch, from driving

vans. Because driving vans had caused the plaintiffs to accrue significant overtime in the past,

and Matthews was a lawsuit for overtime compensation, they infer that Morin banned them from

driving in response to their complaints in Matthews.          In other cases, we have found

circumstantial evidence sufficient to infer employer knowledge where such knowledge was the

only explanation for an employer’s action. See Allen v. Michigan Dep’t of Corr., 165 F.3d 405,

413 (6th Cir. 1999); see also Mulhall, 287 F.3d at 552–53. But here, the prohibition on driving

was a response to scheduling concerns at the Chattanooga branch originating before the

plaintiffs’ protected activity. PTI’s management emphasized that Evans needed to hire more

personnel for the Chattanooga branch at least as early as February 2012. That problem persisted


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Evans v. Prof’l Transp., Inc.

into March, when the plaintiffs were told to stop driving vans so that they could “focus 100% of

their efforts on recruiting, hiring and training . . . in order to get the schedule 100% full.” (Email

from Michael Morin, March 14, 2012, R. 24-21, PageID 686.) Therefore, Morin’s ban on the

plaintiffs’ driving does not suggest that he knew they had joined Matthews because the ban arose

from concerns that pre-dated their protected activity.

       The plaintiffs next suggest that they can establish the employer’s knowledge prong of

their prima facie case by showing that there was a scheme by “Morin and other high-level

managers” to set them up for termination. As evidence of this alleged plot, the plaintiffs first

point to an allegedly hostile attitude in PTI’s management towards those who joined suits against

the company, but any purported attitudes are irrelevant to whether the managers actually had

knowledge of protected activity. The plaintiffs also point to the difficulties they encountered in

March 2012 that negatively impacted the Chattanooga branch’s performance, suggesting that

these difficulties were intentional acts of sabotage. At the outset, the allegation that PTI’s

management would undermine its own branch’s performance and profitability as part of a

scheme to fire the plaintiffs is precisely the sort of conspiracy theory that rarely supports an

inference of knowledge of protected activity. See Mulhall, 287 F.3d at 552. The specific

examples that the plaintiffs characterize as sabotage are the ban on driving vans themselves, the

prohibition on the use of taxis in the Chattanooga branch, and maintenance delays. While each

of these examples may have had some negative impact on the Chattanooga branch’s OTP, none

of them suggest the existence of a plot to set the plaintiffs up for termination. As we have noted,

Morin’s van-driving prohibition arose from performance concerns that originated before the

plaintiffs joined Matthews. Likewise, PTI’s management instructed Evans to stop using taxicabs

in her branch at least as early as October 2011, months before she joined Matthews. Finally, as


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Evans v. Prof’l Transp., Inc.

to the maintenance delays in March 2012, there is no evidence that anyone involved in the

decision to terminate the plaintiffs had any control over maintenance problems, let alone caused

these delays. Thus, there is no evidence to support the inference that there was a scheme to set

up the plaintiffs for termination, much less that such a scheme might have been predicated on

Morin’s knowledge that they had joined Matthews.

       The plaintiffs also contend that they can establish the second prong of their prima facie

case of retaliation by showing that Greulich knew about their protected activity. Even though

Morin made the ultimate decision to terminate them, the plaintiffs assert that Greulich regularly

interacted with Morin regarding employee discipline in March 2012, and so it is reasonable to

infer that he would have told Morin about the plaintiffs’ participation in Matthews. See Mulhall,

287 F.3d at 553. But the plaintiffs have failed to provide any evidence that Greulich actually

knew about their protected activity, so they cannot make out a prima facie case by relying on the

theory that he might have told Morin about it. They first assert that Greulich likely knew of their

participation in the Matthews litigation because human resources directors are generally aware of

lawsuits against their companies. Such a general assertion is insufficient to support the specific

inference that Greulich knew of the particular protected activity here. See Scott v. Eastman

Chem. Co., 275 F. App’x 466, 482 (6th Cir. 2008) (holding that a plaintiff must make a specific

showing that the particular individuals responsible for the adverse employment decision “likely

had knowledge of [the] protected activity”).       Second, the plaintiffs suggest that Greulich

intentionally refused to respond to Evans’s calls related to McKibben’s insubordination in an

effort to force Evans herself to discipline McKibben, which would provide a basis for Evans’s

termination. Again, without evidence to suggest that Greulich deliberately delayed his responses




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Evans v. Prof’l Transp., Inc.

to Evans about McKibben, such an unsupported conspiracy theory cannot create an inference

that Greulich knew of the plaintiffs’ participation in the Matthews litigation.

       The plaintiffs next allege that Romain must have known about their participation in

Matthews because he was a named defendant in that suit. But even if Romain did know that they

were involved in Matthews, this would not establish the plaintiffs’ prima facie case because the

record reveals that Romain did not make the decision to terminate them. The plaintiffs point to

McClellan’s March 30, 2012 email in which he said that he would forward the termination

recommendation to Romain. To be sure, “knowledge of a plaintiff’s protected activity can be

inferred from evidence of the prior interaction of individuals with such knowledge and those

taking the adverse employment action.” Mulhall, 287 F.3d at 553 (emphasis added). But the

March 30 email chain merely shows that McClellan informed Romain about the termination

decision that Morin had already made. Therefore there is no evidence that Romain was involved

in the decision to fire the plaintiffs; accordingly, they cannot establish the second element of

their prima facie case even if Romain knew that they participated in Matthews.

       Finally, the plaintiffs point out that they were terminated a mere thirty-two days after

they joined the Matthews litigation. “Temporal proximity, when coupled with other facts, may

be sufficient in certain cases to establish the causal-connection prong” of a prima facie case of

retaliation, but we have generally declined to consider temporal proximity to establish the

employer’s-knowledge prong. Id. at 551. The plaintiffs, however, urge us to consider temporal

proximity here, arguing that it can support both the employer’s-knowledge and causal-

connection prongs of the prima facie case. But the plaintiffs have produced no other evidence

that Morin had knowledge of their participation in Matthews, so even if temporal proximity can




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sometimes serve as circumstantial evidence of an employer’s knowledge, here the temporal

proximity is not sufficient to establish this prong of the prima facie case.

       Because the plaintiffs have not established a prima facie case of retaliation, we need not

determine whether PTI has proffered a non-retaliatory reason for the plaintiffs’ terminations, nor

whether any such reason is pretextual. See Grubb v. YSK Corp., 401 F. App’x 104, 112 (6th Cir.

2010) (holding that it is generally inappropriate to consider an employer’s proffered reasons for

terminating an employee before the employee has made out a prima facie case).

                                        III. CONCLUSION

       For the foregoing reasons, we AFFIRM the judgment of the district court.




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