DOL Investigation Leads to FLSA Retaliation Lawsuit Lodged Against Indiana City, Mayor, and Fire Chief

The City of Tipton, Indiana, its mayor and fire chief are facing an FLSA lawsuit filed by a veteran city firefighter. The suit, filed by twenty (plus) year department veteran Chad Frazier, follows a recent Department of Labor (DOL) Wage and Hour Investigation which ultimately found fifteen city firefighters were shorted almost $100,000 in overtime wages. In the suit, Frazier claims the city failed to pay him for all of the hours that he worked and failed to pay his overtime at the proper rate. The lawsuit also alleges the fire chief and mayor retaliated against Frazier in violation of the FLSA’s broad anti-retaliation provisions after the DOL investigation was launched last summer.

According to a DOL press release, a DOL investigation found the City of Tipton failed to pay firefighters overtime for all hours worked over 106 every two-week work period. The FLSA requires fire departments that have adopted a 14-day work period for §207(k) firefighters pay overtime for all hours worked over 106 in that work period. This failure resulted in fifteen firefighters receiving $91,924 in back pay from the city. Click here, for more on the investigation.

However, Frazier’s lawsuit goes beyond seeking the back wages and typical damages associated with unpaid overtime claims. While Frazier makes basic allegations regarding underpaid and unpaid overtime, Frazier’s main allegations are related to the way he was treated by both the fire chief and mayor in response to the DOL investigation. Here are some relevant portions from the complaint:

• In late June 2020 a co-worker approached Frazier and notified him that a Complaint had been filed by the Department of Labor (“DOL”) regarding the non-payment of overtime.
• On or about June 28, 2020, Frazier and a co-worker went to Bitner [Fire Chief] to notify him that a Complaint had been filed with the DOL.
• On or about June 30, 2020, a celebration was planned for Frazier’s twenty-year anniversary. Traditionally, all of the elected officials, including the Mayor, Treasurer and their staff participate in anniversary celebrations. None came to Frazier’s celebration.
• On or about August 3, 2020, Frazier and the same co-worker who accompanied him on June 28, 2020, were called into Bitner’s officer. Bitner stated that The City’s attorney would not allow Bitner to reprimand them for making the report to the DOL. Instead, both employees were presented with a Disciplinary Action Report (“Report”). The Report noted that Frazier was being disciplined for “1) Violation of policy set forth in the City Handbook; 2) Conduct unbecoming an Officer; 3) Immoral Conduct.” As stated by Bitner, all of these “violations” were related to the belief that Frazier had contacted the DOL. The report also stated that this was his first “offense,” but any other “offenses” would be just cause for immediate termination.
• Bitner made clear to Frazier that the Mayor was very angry about the report and was influencing the decision to implement the discipline. Frazier’s co-worker informed Bitner that local police officers made him aware of defamatory statements Bitner made about Frazier and the co-worker. Bitner did not respond to the accusation.
• For the next several weeks Frazier became increasingly aware that his friends, neighbors and co-workers were ostracizing him.
• On or about August 11, 2020, Bitner again called Frazier and his co-worker into Bitner’s office. Bitner asked the two if they wanted their write-up to be reduced to a verbal warning. Both men indicated that they did not think any form of reprimand was appropriate.
• On or about August 27, 2020, Frazier located a document signed by Bitner on his bunk that stated “The labor lawyer for the City of Tipton has advised me that due to a technicality, I should remove the verbal reprimand from your file. As such, it has been removed.”

Plaintiff’s attorneys LOVE FLSA retaliation claims. Claims for FLSA retaliation are relatively easy to prove and likely open the door to a significant amount of additional damages. Damages that are not available for simple wage and hour violations. Additionally, plaintiffs do not have to be successful on their underlying FLSA claim to succeed on a retaliation claim. 

Employers need to carefully consider any action taken against any employee that has voiced a complaint related to the FLSA. Failure to do so could likely result in a bad situation getting much, much worse.

We will be keeping a close eye on this one as it develops.

Here is a copy of Frazier’s complaint.