United States District Court, W.D. Kentucky, Owensboro Division
BRITTANY ROGERS, on Behalf of Herself and All Others Similarly Situated PLAINTIFF
THE WEBSTAURANT STORE, INC., and TRICIA WILKERSON DEFENDANTS
MEMORANDUM OPINION AND ORDER
H. McKinley Jr., District Judge
matter is before the Court on Plaintiff's Motion to Alter
or Amend. [DN 16]. Fully briefed, this matter is ripe for
decision. For the following reasons, the Motion is
Brittany Rogers filed a civil action, on behalf of herself
and others similarly situated, against Defendants, The
Webstaurant Store, Inc. (“Webstaurant”) and
Tricia Wilkerson, alleging that Webstaurant and Wilkerson
retaliated against her for exercising her rights under the
Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§ 215(a)(3). [DN 1 ¶¶ 14, 29-31]. Rogers
claimed that because of her questioning Webstaurant's pay
practices and her requesting compensation for hours worked in
excess of forty hours per week, Wilkerson terminated her
employment. [Id. at ¶¶ 29-30]. Webstaurant
and Wilkerson moved to dismiss Rogers' Complaint under
Fed.R.Civ.P. 12(b)(6) for failure to state a claim.
Specifically, the Motion to Dismiss argued that Rogers'
Complaint lacked “any allegation that she engaged an
overt activity protected under 29 U.S.C. § 215(a)(3) . .
. .” [DN 7-1 at 2].
August 6, 2018, the Court issued a Memorandum Opinion and
Order granting the Motion to Dismiss. [DN 14]. Therein, the
Court stated the rule of law concerning retaliatory
termination-"[u]nder the FLSA, it is unlawful to
‘discharge or . . . discriminate against any employee
because such employee has filed a complaint or instituted or
caused to be instituted any proceeding under or related to
this chapter[.]' 29 U.S.C. § 215(a)(3).”
[Id. at 4]. In granting the Motion, the Court
concluded that “Rogers fail[ed] to allege that she ever
complained about not receiving overtime pay.”
[Id. at 7].
now moves this Court to alter or amend the Memorandum Opinion
and Order and Judgment granting the Motion to Dismiss. [DN
16]. She asserts that
while the Court addressed and accepted Defendant's
argument made in the Motion that a hypothetical reasonable
employer would not have interpreted Plaintiff's actions
described in the Complaint as ‘complaints' under 29
U.S.C. § 216(a)(3) . . ., the Court did not address a
separate argument in Plaintiff's response to the
Motion-that grievances were ‘complaints' because,
regardless of what a reasonable employer would do, Defendant
subjectively interpreted them as such.
[Id. at 1]. Rogers proceeds to detail how it is not
dispositive whether her actions constitute a
“complaint” under the FLSA, because Webstaurant
and Wilkerson subjectively understood her actions to
constitute the requisite activity. Thereafter, Rogers filed a
Supplement to Motion to Alter or Amend. [DN 17]. Therein, she
attaches documents which she asserts further prove her
entitlement to relief, including a document produced by
Webstaurant relating to Rogers' hours, a payroll register
produced by Webstaurant, and a transcript from a hearing
concerning a separate action Rogers has filed against
Webstaurant. [DN 17-1, 17-2]. Webstaurant and Wilkerson
responded arguing that Rogers' Motion is a gratuitous
effort on her behalf to “restate and reargue issues
addressed in her Response to Motion to Dismiss.” [DN 18
at 2]. Rogers, in her Reply, stated that her rehashing of her
prior argument was necessary to show the Court that it had
committed a clear error of law, entitling her to relief on
her Motion to Alter or Amend. [DN 19 at 2-3].
Standard of Review
Civ. P. 59(e) permits a court to “alter or amend”
its prior judgment for one of four reasons: “(1) a
clear error of law; (2) newly discovered evidence; (3) an
intervening change in controlling law; or (4) a need to
prevent manifest injustice.” Schlaud v.
Snyder, 785 F.3d 1119, 1124 (6th Cir. 2015) (citations
omitted). However, Rule 59(e) is a limited rule, whose
purpose is “to allow the [Court] to correct its own
errors” that are timely presented. Howard v. United
States, 533 F.3d 472, 475 (6th Cir. 2008) (citations
omitted). It is not intended to be used to
“‘relitigate issues previously considered' or
to ‘submit evidence which in the exercise of reasonable
diligence, could have been submitted before.'”
United States v. Abernathy, 2009 WL 55011, at *1
(E.D. Mich. Jan. 7, 2009) (citation omitted); see also
Elec. Ins. Co. v. Freudenberg-Nok, Gen. P'ship, 487
F.Supp.2d 894, 902 (W.D. Ky. 2007) (“Such motions are
not an opportunity for the losing party to offer additional
arguments in support of its position.”). Motions to
alter or amend judgments under Rule 59(e) “are
extraordinary and sparingly granted.” Marshall v.
Johnson, 2007 WL 1175046, at *2 (W.D. Ky. Apr. 19.
the above standard to this motion, the Court denies
Rogers' Motion to Alter or Amend. Neither the law nor the
facts as set forth by Rogers have changed since the Court
previously ruled on this matter. Moreover, Rogers relies on
caselaw which she takes out of context to support her
position. Specifically, Rogers cites to Brabson v. Sears,
Roebuck & Co. as support for her Motion. 2016 WL
5947469 (E.D. Tenn. Oct. 13, 2016). However, this case is
distinguishable as it concerns the assertion of FLSA rights
by a manager at the summary judgment stage. Id. at
1. In Brabson, the court found that the Plaintiff
was engaged in protected activity because she “actively
assist[ed] other employees in asserting FLSA rights”
pursuant to the “manager-rule” and the Defendant
was aware of that assistance. Id. at 8-9. By
comparison, this Court found that Rogers did not engage in
protected activity because she never filed a complaint and
Webstaurant and Wilkerson were not aware of Rogers engaging
with any such protected activity. [DN 14 at 5-7].
Rogers avers that the Court misinterprets the analysis of the
court in Pelham v. Unipres, U.S.A., Inc. 2015 WL
4425544 (M.D. Tenn. July 17, 2015). She claims that the case
supports her position that “a court should not only
evaluate the content of th[e employee's] activity, but
also assess the employer's subjective understanding of
the meaning and import of that activity.” [DN 16 at 5].
While true, the facts of Pelham are clearly
distinguishable from the facts surrounding Rogers'
termination and thus render the case unhelpful to Rogers'
position. In Pelham, the Plaintiff “complained
to [his employer] ‘every day' for two weeks that he
had ‘still not gotten paid' his federally-mandated
minimum wage.” Pelham, 2015 WL 4425544 at 5.
That court found the Plaintiff's actions and the
employer's acknowledgment of those actions to be
sufficient to find the assertion of rights protected by the
FLSA. Id. However, Rogers did not similarly engage
with her employer regarding her FLSA rights. Instead,
Rogers' actions and words can be understood as an
expression of frustration with having to work on her
Performance Improvement Plan outside of work. As caselaw
clearly holds, “a complaint must be adversarial in
nature, and ‘expressions of concern or discomfort or
frustration' are insufficient.” Brabson v.
Sears, Roebuck & Co., 2016 WL 5947469, at 8 (E.D.
Tenn. Oct. 13, 2016) (quoting Robinson v. Wal-Mart
Stores, Inc., 341 F.Supp.2d 759, 763 (W.D. Mich. 2004)).
true at the motion to dismiss stage, Rogers fails to point to
authority in support of her argument that she was engaged in
a “protected activity” as required by the FLSA.
See Kasten v. Saint-Gobain Performance Plastics
Corp., 563 U.S. 1, 20 (2011) (Scalia, J., dissenting)
(detailing the four types of protected activities in which an
employee may engage under the FLSA). Instead, Rogers attempts
to contort the facts to show that Webstaurant and Wilkerson
perceived Rogers as having filed a complaint. The Court is
not persuaded. As previously stated, a motion to alter or
amend is not to be used to “relitigate issues
previously considered” and Rogers does just that.
United States v. Abernathy, 2009 WL 55011, at *1
(E.D. Mich. Jan. 7, 2009) (citation ...