Salina Kansas Prevails on FLSA Retaliation Claim made by Former Fire Captain

Posted by: Bill Maccarone March 31, 2023

A federal judge has dismissed a former Salina, Kansas fire captain’s allegations of FLSA retaliation following his 2022 lawsuit against the city and the former fire chief. The lawsuit, which contains allegations of both state and federal law violations was initially filed in state court in early 2022. The city removed the action to federal court in April 2022, due to the FLSA claims. Following U.S. District Court Judge Julie Robinson’s decision, the lawsuit will now move back to state court to address the captain’s remaining state law claims of retaliatory discharge and defamation.

This story begins in September 2019 when former Salina Fire Department captain Tim Lapage brought allegations of theft and fraud within the fire department to city officials. Specifically, LaPage claimed the fire department’s battalion chiefs (BCs) had a practice of substituting administrative leave in lieu of vacation leave. According to LaPage, the BCs would then sell back their unused vacation time to the city at the end of the year. This resulted in the city spending taxpayer’s money for overtime to fill-in for the BCs while on administrative leave and spending more money when the BCs cashed out their unused vacation leave at the end of the year.

LaPage initially brought these claims to city human resource officials in 2019, however according to the lawsuit, city officials did little to address the allegations at that time. However, LaPage believed that high ranking fire department personnel were informed that he was reporting their activities to city officials and were “out to get him.” LaPage was even threatened with discipline for accessing time card data found in the fire department’s time tracking software and providing that information to city officials. Eventually, Captain LaPage brought his concerns to both the local media and the City Commission. LaPage retired in June 2021, and filed the lawsuit on March 15, 2022.

The FLSA contains broad anti-retaliation provisions that can be found at 29 USC §215:

It shall be unlawful… 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 this chapter…

Unfortunately for LaPage, the court found the ant-discrimination / retaliation provisions inapplicable because he did not allege any violation of the FLSA. While his allegations were related to fraudulent overtime payments made to certain high-ranking fire officers, the allegations did not contain a violation of the FLSA. Quoting from the decision:

Here, LePage fails to demonstrate a genuine issue of material fact about whether he engaged in protected activity under this objective standard.
In terms of content, it is uncontroverted that LePage never explicitly invoked the FLSA when he complained about the BCs’ alleged time card fraud.
And while this fact standing alone is not fatal to his claim, the substance of his complaint did not involve conduct that is regulated by the FLSA.
The FLSA “sets forth employment rules concerning minimum wages, maximum hours, and overtime pay.”
LePage did not complain about violations of the federal minimum wage or maximum hour laws.
Nor did he request overtime wages for himself or others.
Instead, LePage complained that the BCs were reporting in the SFD’s software tracking system that they were on duty when in fact they were on vacation or administrative leave.
Vacation pay is not covered by the FLSA.
Additionally, the context of LePage’s complaint focused on what he repeatedly described as “theft”—he complained that the BCs were “stealing” from the City by reporting themselves on duty when they were in fact on vacation or administrative leave.
LePage reported to HR when the BCs were off duty, so that HR could then check and see whether their time had been properly classified.
The thrust of LePage’s complaints were that the BCs’ “time fraud” practices essentially stole money from the City.
While it is true that a plaintiff need not establish an actual violation of the FLSA in order to demonstrate protected activity, the Court agrees with the City that the content and context of the complaints lodged by LePage would not lead a reasonable employer to understand he was asserting rights protected by the FLSA.
LePage suggests that his complaints were protected activity under the FLSA because the BCs’ misuse of vacation time required captains to work too much overtime.
But the FLSA does not regulate such activity, and LePage offers no evidence that a reasonable employer would understand that he was complaining of an FLSA violation.
LePage’s contemporaneous notes and emails make clear that he was alleging what he believed was theft and manipulation by his superiors of certain leave and reporting policies.
His complaint that the BCs’ misconduct caused captains to use more overtime than should have been necessary does not relate to the FLSA, which only requires overtime pay when a nonexempt employee works more than forty hours per week.
At best, LePage’s allegations have a tangential relationship with overtime pay and there is no evidence that a reasonable employer would understand that his complaint fell within the FLSA’s ambit.
An allegation that certain employees work too much overtime, without more, is simply not addressed by the statute.
In sum, LePage’s complaints did not allege a violation of or relate to the FLSA, and they were not sufficiently clear in terms of content or context to put the City on notice that he was alleging a violation of the FLSA.
Moreover, LePage did not assert rights on behalf of himself or others.
Therefore, LePage cannot demonstrate a prima facie case of a violation of the FLSA’s antiretaliation provision and summary judgment is granted in the City’s favor on this claim.

While LaPage’s FLSA claims have been dismissed his lawsuit will continue in state court in the coming months. Here is more on LaPage’s allegations of time card fraud from KWCH Channel 12.