A skycap who was fired because his employer said he solicited tips in violation of company policy could bring a retaliation claim asserting that he was actually terminated for his involvement in a Fair Labor Standards Act action against the company, the 1st U.S. Circuit Court of Appeals has decided.

At some point before the plaintiff employee’s termination, the defendant employer’s chief executive officer allegedly yelled at managers to “get rid of” him, complaining that the FLSA litigation was costing the company money.

The employer argued that the plaintiff produced no evidence that the CEO had a role in the decision to terminate him or that those who made the decision were aware of the CEO’s views. Thus, the employer maintained, no reasonable jury could link the CEO’s alleged retaliatory animus to the firing.

But the 1st Circuit disagreed, reversing a U.S. District Court judge’s summary judgment for the employer.

“Here … the retaliatory animus resided at the apex of the organizational hierarchy,” Judge William J. Kayatta Jr. wrote for the court. “A rational juror could conclude that such strongly held and repeatedly voiced wishes of the king, so to speak, likely became well known to those courtiers who might rid him of a bothersome underling.”

The 14-page decision is Travers v. Flight Services & Systems, Inc.

Stepping back?

Plaintiff’s counsel Brant Casavant said the 1st Circuit over the past few years has been “raising the bar” with regard to what is required for a retaliation claim to survive summary judgment or a motion to dismiss.

However, Travers represents a step in the right direction for employees, said Casavant, a lawyer at Lichten & Liss-Riordan in Boston.

“The 1st Circuit took this case as an opportunity to remind both plaintiffs’ and defense attorneys that a judge can only grant summary judgment if there are no disputes of fact. Here, there were plenty of disputes of fact about what the company’s motives were for terminating [the employee],” he said.

That is good news for employees because the 1st Circuit is clarifying that retaliation cases will not be subjected to a higher evidentiary standard or require a greater showing of causation or motive than any other case, Casavant added.

Boston attorney Jeffrey M. Rosin, who along with colleague Christopher M. Pardo represented the employer, said the lower court got it right when it determined that the plaintiff was fired for soliciting a tip, not for a retaliatory reason.

“It may be true … that [the plaintiff] presented evidence of a retaliatory motive, but he failed to come up with evidence that he did not solicit a tip. The record was clear that [he] and numerous others who solicited tips were terminated for that reason pursuant to a consistently applied company policy,” said Rosin, a partner at Constangy, Brooks & Smith.

“We believe the 1st Circuit should have recognized, based on the ‘but-for’ standard, that summary judgment was proper,” Rosin said, referencing the rule in many retaliation cases that an employee must show that retaliation was the employer’s sole motivation for a negative employment action and not a mere motivating factor.

Robert S. Mantell, a labor-side employment attorney at Rodgers, Powers & Schwartz in Boston, said the ruling is a good lesson for plaintiffs’ lawyers that, in cases in which a manager or other person with authority expresses direct discriminatory animus, they should take care to determine the scope of that authority in order to set up a presumption that subordinates within the authority will have been influenced by the manager’s animus.

Additionally, Mantell pointed out that the court found the employer’s policy against solicitation of tips to be ambiguous and that application of the policy depended on “judgment and discretion.”

“Courts are sometimes open to finding an inference of pretext where extreme punishments are applied to violations of vague policies, which are subjected to discretionary interpretation and application,” Mantell said.

Denise I. Murphy of Rubin & Rudman in Boston, who represents employers, called the case a “cautionary tale” for small and mid-size companies.

“The court made the observation that the CEO’s attitude permeated the atmosphere of the company so that subordinates wanted to do whatever necessary to please him,” she said. “In smaller companies where business operations are much more intimate, I can understand why there might be a question about how his attitude would affect the actions of his subordinates. He certainly seemed — based on these facts — vocal enough about wanting to terminate the plaintiff, and that’s going to happen in a small or mid-sized company where there’s a very personal and real cost to them in a suit like the [one] the plaintiff had been involved in.”

But that might not be the case in a large company, where CEOs typically are far removed from day-to-day operations in management and where human resources personnel are not usually closely aligned or in communication with the CEO, Murphy said.

Alleged retaliation

Plaintiff Joseph Travers started working as a skycap for defendant Flight Services & Systems, Inc., in 2004.

In April 2008, the plaintiff and 10 other employees filed suit against JetBlue Airways, alleging the airline violated the FLSA by failing to pay minimum wage. Travers and his co-plaintiffs amended the complaint a year later to include Flight Services as a defendant.

During the litigation, Travers apparently acted as the leader among the plaintiffs, recruiting others to join the suit, coordinating with counsel, and serving as first named plaintiff on the complaint.

According to Travers’ former supervisor, Robert Nichols, Flight Services CEO Robert Weitzel repeatedly yelled at him to “get rid of” Travers and “talk [him] into dropping the lawsuit.” The CEO also apparently complained about how much money the suit was costing the company.

Nichols, in turn, allegedly told Travers to “be careful” because “the company would be coming after” him. Nichols was terminated in April 2010 for an undisclosed reason.

As of September 2010, the FLSA litigation was still proceeding. On Sept. 3, the defendant received a complaint from a JetBlue passenger that Travers had solicited a tip. According to the Flight Services employee handbook, solicitation of tips was grounds for termination.

The passenger claimed that Travers informed her a tip was “required just as you would tip in a restaurant” and that he got angry when she tipped him $1. Travers, however, claimed he merely informed her of the $2 JetBlue bag fee and that a tip was optional, saying, “I apologize if you don’t like the service.”

Three weeks later, a Flight Services general manager fired Travers following approval by the director of human resources. The only stated reason for the termination was tip solicitation.

Travers filed a retaliation suit against Flight Services in U.S. District Court in January 2011. Judge George A. O’Toole Jr. granted summary judgment to the defendant.

Dispute over facts

The 1st Circuit rejected the defendant’s argument that because the plaintiff produced no evidence showing that the CEO had a role in the decision to terminate him, no reasonable jury could find a causal connection between his discriminatory animus and the firing.

“A CEO sets the tone and mission for his subordinates, many of whom presumably consider it an important part of their jobs to figure out and deliver what the CEO wants,” Kayatta said. “This CEO, we must assume, bristled so fiercely that he expressly and repeatedly demanded that Travers be fired. … On such a record, it is neither irrational nor unfair to infer — if a jury is so inclined — that knowledge of Weitzel’s directive spread to other managers, themselves likely reluctant to frustrate the CEO’s objective.”

The defendant also failed to convince the court that because Travers committed an offense that would have resulted in his termination anyway, he could not meet the applicable “but for” causation standard.

“[T]he question is not whether a reasonable jury could find that Flight Services would have fired Travers even in the absence of retaliatory intent,” Kayatta said. “Rather, the question pertinent to our review of summary judgment is whether no reasonable jury could find otherwise.”

Based on the evidence presented, the judge said, it was plausible that Travers’ conduct, “while perhaps edging beyond what was expressly permitted, did not indisputably cross into what was clearly prohibited.”

In addition, the record did not show that the defendant terminated every employee accused of tip solicitation, he said.

Accordingly, the 1st Circuit reversed O’Toole’s summary judgment for the defendant, with Kayatta noting that “there remains a genuine dispute as to whether the people who decided to fire Travers acted with awareness of the CEO’s desire to retaliate, and if so, whether Travers would have been fired anyway for reasons other than pursuit of his rights under FLSA.”