United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE.
Michael Diaz brings this action under Section 15(a)(3) of the
Fair Labor Standards Act (FLSA), 29 U.S.C. § 215(a)(3),
claiming that defendant TTT Foods LLC unlawfully terminated
his employment in retaliation for his complaint that he was
not being paid overtime as required under the FLSA and for
seeking to recover his back wages. TTT Foods seeks summary
judgment on Diaz's claim. Because TTT Foods has
articulated legitimate, non-retaliatory reasons for
Diaz's discharge and Diaz has failed to show these
reasons were pretext for retaliation, I will grant the motion
for summary judgment. TTT Foods' motion to dismiss for
failure to prosecute will be denied as moot.
amended complaint, Diaz claims that during his employment
with TTT Foods, he often worked in excess of forty hours per
week but was paid the equivalent of an hourly wage for only
forty hours. Diaz claims that he complained about TTT
Foods' failure to pay overtime wages - including to the
Department of Labor for recovery of back wages - and was
terminated because of his complaints.
motion for summary judgment, TTT Foods contends that Diaz
never complained to it about unpaid overtime, and any
informal oral complaints that Diaz may have made do not
amount to protected activity under the FLSA. To the extent
Diaz complained to the Department of Labor, TTT Foods
contends that it did not become aware of the complaint until
after Diaz was terminated, thereby negating any causal
connection between the complaint and Diaz's termination.
Regardless, TTT Foods claims that Diaz released his claim of
retaliatory discharge when he settled his dispute over
overtime pay with TTT Foods. Finally, TTT Foods avers that it
terminated Diaz for legitimate, non-retaliatory reasons and
that Diaz cannot show these reasons to be pretext for
judgment must be granted when the pleadings and proffer of
evidence demonstrate that no genuine issue of material fact
exists and that the moving party is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Torgerson v.
City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011)
(en banc). I must view the evidence in the light most
favorable to the nonmoving party and accord him the benefit
of all reasonable inferences. Scott v. Harris, 550
U.S. 372, 379 (2007).
the moving party must demonstrate the absence of an issue for
trial. Celotex, 477 U.S. at 323. Once a motion is
properly made and supported, the nonmoving party may not rest
upon the allegations in his pleadings or in general denials
of the movant's assertions, but must instead come forward
with specific facts showing that there is a genuine issue for
trial. Id. at 324; Torgerson, 643 F.3d at
1042. “Where the record taken as a whole could not lead
a rational trier of fact to find for the nonmoving party,
there is no genuine issue for trial.”
Torgerson, 643 F.3d at 1042 (internal quotation
marks and citations omitted).
nonmoving party fails to properly address an assertion of
fact made by the movant, the Federal Rules of Civil Procedure
permit me to consider the fact undisputed. Fed.R.Civ.P.
56(e)(2). The Local Rules of this Court, however, require it.
Under Local Rule 4.01 (E), moving parties must include a
statement of uncontroverted material facts with their
memorandum, with citations to the record if the fact(s) are
established by the record.
Every memorandum in opposition shall include a statement of
material facts as to which the party contends a genuine issue
exists. Those matters in dispute shall be set forth with
specific references to portions of the record, where
available, upon which the opposing party relies. The opposing
party also shall note for all disputed facts the paragraph
number from movant's listing of facts. All matters
set forth in the statement of the movant shall be deemed
admitted for purposes of summary judgment unless specifically
controverted by the opposing party.
E.D. Mo. L.R 4.01(E) (emphasis added).
Before the Court on the Motion
following recitation of facts set out in TTT Foods'
Statement of Uncontroverted Material Facts (ECF #27-1) are
deemed admitted because Diaz did not specifically controvert
them in response to the motion for summary judgment.
Foods owns and operates the Copia Restaurant & Wine
Garden (Restaurant) and the Copia Wine Shop and Bodega
(Bodega). TTT Foods hired Diaz on or about July 22, 2014,
initially to bus tables for the Restaurant. Diaz then began
working as a cashier in the Bodega. ...