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Brock v. Richardson

filed: February 18, 1987.

WILLIAM E. BROCK, SECRETARY OF LABOR, UNITED STATES DEPARTMENT OF LABOR, APPELLANT-CROSS-APPELLEE
v.
HOMER ALAN RICHARDSON, D/B/A RICHARDSON CONSTRUCTION, APPELLEE-CROSS-APPELLANT



On Appeal from the United States District Court for the Western District of Pennsylvania. D.C. Civil. No. 82-0099.

Author: Sloviter

Before: SLOVITER and STAPLETON, Circuit Judges, and GREEN, District Judge.*fn*

SLOVITER, Circuit Judge.

The district court found that Homer Alan Richardson, d/b/a Richardson Construction, discharged his employee George F. Banyas in violation of section 15(a)(3) of the Fair Labor Standards Act (FLSA), 29 U.S.C. ยง 215(a)(3), because he believed Banyas had filed a complaint with the Wage and Hour Division of the United States Department of Labor. Richardson appeals, arguing that the district court erred in failing to find the discharge was for good cause and in holding that a discharge of an employee for mere suspicion of engaging in protected activities is covered by the statute.

The district court ordered the employee to pay Banyas $14,000 in back wages, but did not award either pre-judgment or post-judgment interest. The Secretary of Labor appeals from the denial of the interest awards.

I.

Richardson, together with his wife Virginia, operates a construction company in Tarentum, Pennsylvania, which employs from three to six skilled and unskilled employees. Banyas was hired by Richardson in 1977 as a laborer. He was discharged on October 6, 1980. According to Richardson, he discharged Banyas for good cause because of his careless work habits, poor performance, and belligerent attitude. Richardson points to evidence that he had previously discharged Banyas on September 6, 1980 because Banyas caused damage to equipment, and rehired him a few days later only after discussions with the union. He points to other instances of alleged inadequate work, particularly the instance on October 2, 1980 when Banyas and another employee incorrectly cut beams on a construction project. It is undisputed that Banyas and the other employee returned to fix that job.

The Secretary, however, introduced evidence presenting the discharge in a different light. In early September 1980, Donovan Durbin, a compliance officer with the Wage and Hour Division of the Department of Labor, contacted Richardson regarding an investigation of the firm for overtime violations, apparently in response to an employee complaint dated January 2, 1978. This complaint was not filed by Banyas. As part of this investigation, Durbin interviewed Banyas on September 24, 1980. Banyas told Durbin that he had worked overtime hours for which he had not been compensated, and signed a written statement to that effect. On October 3, Durbin met with the Richardsons to review employment records and to discuss possible violations, including Banyas' claims. Banyas' claims were denied by the Richardsons. As noted above, Banyas was fired three days after the meeting. The overtime wage investigation was closed in November 1980, after the Richardsons paid the claims.

Banyas filed a formal complaint of discriminatory discharge with the Wage and Hour Division, which was assigned for investigation to Donald Swanson. in the course of Swanson's investigation, Virginia Richardson told him on the telephone that Banyas had caused trouble for them before with the government. She stated on another occasion that the reason Banyas had been fired was because he was a troublemaker, had caused them problems with the government and the union, and had ruined equipment and not done jobs properly. Shortly thereafter she told John Linkosky, Assistant Area Director of the Wage and Hour Division, Pittsburgh Area Office, that one of the reasons Banyas had been discharged was because she believed he had filed a complaint with the Wage and Hour Division. Also, contemporaneously with Banyas' firing, Richardson told Banyas' father, who also worked for the Richardson firm, that the firing occurred because Banyas had reported Richardson to the government. In fact, Richardson testified that he believed Banyas "had caused the Wage Hour investigation to take place in the first place," App. at 81, and that at the time he let Banyas go, he believed Banyas had lie to Durbin about his overtime.

There was evidence in the record from which the trier of fact could have found for either party on the factual issue of the reason for Banyas' termination. At the conclusion of the testimony, the district court stated:

I have taken into consideration the testimony I have heard here. Of course, as a finder of fact I have to determine questions of credibility.

I find as a fact that the defendant discharged Mr. Banyas on October 6, 1980, because he believed that Mr. Banyas had filed a complaint against him with the Wage and Hour Administration.

App. at 17. Although Richardson contests the finding of causation, we conclude that it is ...


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