United States District Court, N.D. Iowa, Eastern Division
R. READE, JUDGE
INTRODUCTION ....................................... 2
RELEVANT PROCEDURAL HISTORY ........................ 2
SUBJECT MATTER JURISDICTION ......................... 3
SUMMARY JUDGMENT STANDARD ......................... 4
RELEVANT FACTUAL BACKGROUND ....................... 5
Parties .......................................... 5
and the Amtrak Team ............................ 6
Zhou's Employment ................................. 8
Request for pay increase ......................... 9
Overtime ................................... 10
February 12, 2016 through Zhou's removal from IBM .....
ANALYSIS .......................................... 16
Failure to hire ...............................23
Zhou's assignments and workload ..................25
Application for pay raise ........................30
Underclaiming of hours .........................33
Actual or constructive knowledge ...................36
and reasonable inference .....................43
CONCLUSION ....................................... 53
matters before the court are Defendant International Business
Machines Corporation's (“IBM”) Motion for
Summary Judgment (“IBM Motion”) (docket no. 102)
and Plaintiff Shaunpen Zhou's “Resistance to
Defendant IBM's Motion for Summary Judgment”
(“Resistance”) (docket no. 121), in which Zhou
requests partial summary judgment.
RELEVANT PROCEDURAL HISTORY
April 8, 2016, Zhou filed an Amended Complaint (docket no.
The Amended Complaint sets forth eleven claims: (1) Count I
alleges that IBM violated the “Age Discrimination in
Employment Act of 1967” (“ADEA”), 29 U.S.C.
§ 623, by failing to hire and promote Zhou; (2) Count II
alleges that IBM and Artech Information Systems, LLC
(“Artech”) violated the ADEA by treating Zhou
differently than his younger coworkers; (3) Count III alleges
that IBM violated the ADEA by deliberately under-rating and
underpaying Zhou; (4) Count IV alleges that IBM and Artech
violated the ADEA by prohibiting Zhou from claiming overtime
for hours worked; (5) Count V asserts that IBM and Artech
violated the “Fair Labor Standards Act”
(“FLSA”), 29 U.S.C. § 2, by prohibiting Zhou
from claiming overtime for hours worked; (6) Count VI asserts
that IBM violated the ADEA by retaliating against him after
he filed the instant action; (7) Count VII asserts that IBM
violated the “Iowa Civil Rights Act”
(“ICRA”), Iowa Code § 216.6, by failing to
hire and promote Zhou; (8) Count VIII asserts that IBM and
Artech violated the ICRA by treating Zhou differently than
his younger coworkers; (9) Count IX asserts that IBM violated
the ICRA by deliberately under-rating and underpaying Zhou;
(10) Count X asserts that IBM and Artech violated the ICRA by
prohibiting Zhou from claiming overtime for hours worked; and
(11) Count XI asserts that IBM violated the ICRA by
retaliating against him after he filed the instant action. On
May 13, 2016, IBM filed an Amended Answer (docket no. 68),
generally denying liability and setting forth affirmative
December 15, 2016, Artech moved for summary judgment. See
generally Artech Motion for Summary Judgment (docket no.
99). On December 16, 2016, IBM filed the IBM Motion. On
January 23, 2017, at Zhou's request, the court dismissed
Artech from the instant action. See Jan. 23, 2017
Order (docket no. 122). On that same date, Zhou filed the
Resistance, requesting summary judgment in his favor on
Counts III, VI, IX and XI of the Amended Complaint. On
January 26, 2017, IBM filed a Reply (“Reply”)
(docket no.124). No party requests oral argument, and the
court finds that oral argument is unnecessary. The Motions
are fully submitted and ready for decision.
SUBJECT MATTER JURISDICTION
court has original jurisdiction over the ADEA and FLSA claims
because they arise under the United States Code. See
28 U.S.C. § 1331 (“The district courts shall have
original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United
States.”). The court has supplemental jurisdiction over
the ICRA claims because they are so related to the claims
within the court's original jurisdiction that they form
part of the same case or controversy. See 28 U.S.C.
§ 1367(a) (“[T]he district courts shall have
supplemental jurisdiction over all other claims that are so
related to claims in the action within such original
jurisdiction that they form part of the same case or
controversy . . . .”). In other words, “the
federal-law claims and state-law claims in the case
‘derive from a common nucleus of operative fact'
and are ‘such that [a plaintiff] would ordinarily be
expected to try them all in one judicial
proceeding.'” Kan. Pub. Emps. Ret. Sys. v.
Reimer & Koger Assocs., Inc., 77 F.3d 1063, 1067
(8th Cir. 1996) (quoting Carnegie-Mellon Univ. v.
Cohill, 484 U.S. 343, 349 (1988)) (alteration in
original) (quotation marks omitted).
SUMMARY JUDGMENT STANDARD
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). “Summary judgment is proper
‘if the pleadings, the discovery and disclosure
materials on file, and any affidavits show'” an
absence of a genuine dispute as to a material fact.
Torgerson v. City of Rochester, 643 F.3d 1031, 1042
(8th Cir. 2011) (en banc) (quoting Fed.R.Civ.P. 56(c)(2)).
“A dispute is genuine if the evidence is such that it
could cause a reasonable jury to return a verdict for either
party; a fact is material if its resolution affects the
outcome of the case.” Amini v. City of
Minneapolis, 643 F.3d 1068, 1074 (8th Cir. 2011) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
252 (1986)). “The movant ‘bears the initial
responsibility of informing the district court of the basis
for its motion, ' and must identify ‘those portions
of [the record] . . . which it believes demonstrate the
absence of a genuine issue of material fact.'”
Torgerson, 643 F.3d at 1042 (alterations in
original) (quoting Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)). Once the movant has done so,
“the nonmovant must respond by submitting evidentiary
materials that set out ‘specific facts showing that
there is a genuine issue for trial.'” Id.
(quoting Celotex Corp., 477 U.S. at 324).
motion for summary judgment, the court must view the facts
“in the light most favorable to the nonmoving party . .
. .” Id. (quoting Ricci v. DeStefano,
557 U.S. 557, 586 (2009)). “Where the record taken as a
whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial, ”
and summary judgment is appropriate. Ricci, 557 U.S.
at 586 (quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986)). “The
nonmovant ‘must do more than simply show that there is
some metaphysical doubt as to the material facts' . . .
.” Torgerson, 643 F.3d at 1042 (quoting
Matsushita, 475 U.S. at 586). Instead, “[t]o
survive a motion for summary judgment, the nonmoving party
must substantiate his allegations with sufficient probative
evidence [that] would permit a finding in [his] favor based
on more than mere speculation, conjecture, or fantasy.”
Barber v. C1 Truck Driver Training, LLC, 656 F.3d
782, 801 (8th Cir. 2011) (second and third alterations in
original) (internal quotation marks omitted) (quoting
Putman v. Unity Health Sys., 348 F.3d 732, 733-34
(8th Cir. 2003)). Mere “self-serving allegations and
denials are insufficient to create a genuine issue of
material fact.” Anuforo v. Comm'r of Internal
Revenue, 614 F.3d 799, 807 (8th Cir. 2010).
RELEVANT FACTUAL BACKGROUND
the evidence in the light most favorable to the nonmoving
party and affording him all reasonable inferences, the
uncontested material facts are as follows.
an individual who resided in the State of Iowa at the time
the instant action was initiated. Amended Complaint ¶ 12.
Zhou was jointly employed by IBM and Artech until his
termination. See Id . ¶¶ 13-14. IBM is a
corporation headquartered in Armok, New York. Id.
¶ 13. IBM operates a “Client Innovations
Center” in Dubuque, Iowa. “IBM's Statement of
Undisputed Material Facts in Support of its Motion for
Summary Judgment” (“IBM Statement of
Facts”) (docket no. 102-1) ¶ 1.
IBM and the Amtrak Team
IBM's various teams working from the Dubuque location is
the Amtrak team. Id. ¶ 6. The Amtrak team is
responsible for providing a variety of technical services for
the passenger railroad service Amtrak, including
“operating system software maintenance, operating
system software trouble shooting and repair” as well as
“ad-hoc end user and other miscellaneous
questions.” See Id . ¶ 15. Systems
administrators on the Amtrak team are tasked with server
“patching, ” or “the installation of
changes or upgrades to the server environment, including
security and service-related changes.” Id.
¶ 16. Because the server must be taken offline to
complete a patching assignment, so-called “change
windows, ” a period of time “during which the
change or patch could be applied, ” are generally
scheduled over nights and weekends. Id. ¶¶
16, 17. During the period relevant to his action, Zhou was a
systems administrator on the Amtrak team, working at the
Dubuque location. Id. ¶¶ 5, 6.
is one of several temporary staffing firms with whom IBM
contracts, and the Amtrak team includes several members
placed by Artech. See Id . ¶¶ 2, 4. Zhou
was placed at IBM on the Amtrak team by Artech. Id.
¶¶ 5, 6. IBM would pay Artech for the use of
temporary employee's services and, in turn, Artech would
pay such employees' wages. Artech employed a Service
Delivery Manager at the Dubuque facility, Sarah Lynch, to
whom Zhou reported. Id.¶ 11.
technicians fall into one of several levels, which
corresponds to the complexity of their job duties and their
pay. “Rhythm” is the lowest technical level,
“Blues” follows, and “Jazz”
represents the highest level. See IBM Statement of
Facts ¶¶ 19, 20; see also IBM Supplemental
Appendix (docket no. 124-2) at 36-41. In early 2014, IBM
received unfavorable feedback from Amtrak regarding the
team's communication skills. See IBM Statement
of Facts ¶ 36. In response, the IBM team leader assigned
to Amtrak proposed the creation of new positions,
“Subject Matter Experts” (“SME”).
Id. Three such positions were posted in 2014, and
were communicated to the Amtrak team on May 20, 2014. Id.
¶¶ 36, 38. According to IBM management, the
ideal candidate for the SME position was “someone who
could remain calm and professional when the customer was
yelling, explain technical concepts so that people of varying
levels of technical knowledge could understand, and could
think and speak on their feet in stressful situations.”
Id. ¶ 37. Two of these SME positions were
eventually filled by Mikhail Matveyev, who had previously
been a temporary employee like Zhou, and Brendan Lloyd.
Id. ¶¶ 39-41.
administrators generally reported to team leads, including
the UNIX and Intel Team Lead, to whom Zhou reported. During
the relevant time period, the UNIX and Intel team leads were:
Robert Howe from Zhou's hiring until the Fall of 2013;
Heather Majerus from Fall of 2013 through April of 2015; and
David Fawcett from April of 2015 through Zhou's removal
from his IBM placement. See Id . ¶ 12; see
also IBM Appendix I at 55, 67. In turn, team leads reported
to a First Line Manager. See IBM Statement of Facts
¶ 12. During Zhou's time with IBM, there were three
First Line Managers: William Thompson from February of 2013
through February of 2014; Heather Chumbley from February 2014
through August of 2014; and Jeff Segerstrom from August of
2014 through February 22, 2016. Id. ¶ 11.
relevant times, IBM maintained an official overtime policy
that reads as follows: “All hours in excess of [forty]
hours worked, exclusive of the employee meal breaks, during
an employee's regular payroll workweek will be considered
as weekly overtime hours. . . . Time and one-half (1.5x base
hourly rate) will be paid for hours worked over [forty] for
the week.” IBM Appendix II at 147-48. Zhou was aware of
IBM's overtime policy and consulted IBM's overtime
policy during his placement at IBM. See IBM
Statement of Facts ¶¶ 61, 62. Similarly, Artech
maintains an overtime policy that reads as follows:
“The law says that you cannot waive overtime
compensation. When you are authorized to work overtime-over
[forty] hours per week-you will be paid time-and-a-half for
work after forty hours.” IBM Appendix II at 156. As
with IBM's policy, Zhou was aware of and read
Artech's overtime policy. See IBM Statement of
Facts ¶¶ 64, 65.
IBM managers receive training on the law surrounding
overtime. In particular, managers are trained that the right
to overtime is governed by state and federal law; overtime
cannot be waived; even if an employee works overtime without
permission, the employee is normally paid for such hours; and
“if an employee's task takes him or her over
scheduled hours, he or she should still record that time, and
IBM will pay that employee for the time worked, even if prior
authorization was not received.” See IBM
Appendix I at 123-128, 153-158. IBM has an online tool for
reporting overtime hours, which permanent employees and
temporary employees like Zhou are directed to use.
See IBM Statement of Facts ¶ 67.
November 26, 2012, Zhou and Artech entered into an employment
agreement. Id. ¶ 3; see also IBM
Appendix II at 124-132. The employment agreement with Artech
set Zhou's regular compensation at $40.00 per hour and
overtime compensation at $60.00 per hour. See IBM
Appendix II at 130. In approximately March of 2013, Artech
placed Zhou with IBM as a temporary employee at its Dubuque
location. IBM Statement of Facts ¶ 5. Zhou was placed as
a UNIX Systems Administrator with the Amtrak Team.
Id. ¶ 6. Zhou was placed at IBM as the lowest
level technician, equivalent to the “Rhythm”
level for an IBM permanent employee. Id. ¶ 19.
At IBM, Zhou primarily reported to the UNIX and Intel Team
Lead. See Id . ¶ 12. He would receive
assignments that had to be completed within certain change
windows, but it was up to employees to finish the assignments
within the forty regular hours allotted for the week, or
request overtime to complete such assignments. See,
e.g., IBM Appendix II at 89.
Zhou was one of the most technically skilled systems
administrators on the team and was regularly assigned the
most technically challenging assignments. See Zhou
Affidavit (docket no. 121-3) ¶ 9. He was praised on
several occasions for his technical prowess. See
Zhou Statement of Facts (docket no. 121-2) ¶¶
10-16. Shortly after joining the Amtrak team, Zhou uncovered
a faulty practice in the way that IBM was patching
Amtrak's servers. See Zhou Affidavit ¶ 11.
For this reason, IBM assigned him the task of patching the
Amtrak servers, resulting in heavy workloads and extreme
hours to complete his assignments. See, e.g.,
id ¶¶ 20, 24, 25.
Request for pay increase
about February 24, 2014, Zhou contacted Lynch to formally
request reclassification to a higher skill level and a pay
increase. See IBM Statement of Facts ¶ 47.
Zhou's request would increase Zhou's hourly cost to
IBM by $8.76 for regular time and $14.16 for overtime.
Id. ¶¶ 48-49. Such additional cost to IBM
would then be reflected in Zhou's wages from Artech.
Lynch passed Zhou's request on to Chumbley. Id.
April 9, 2014, Chumbley emailed Kim Mattox, Chumbley's
Senior Manager and Service Integration Leader, and stated:
Are you interested in bringing this forward to raise
Shaunpen's rate in an effort to retain him? I can't
afford to lose him now, but with his communication problems
(coming across as argumentative with the customer on the
line, with his team lead and me). I have been keeping him on
patching with help from Brian on the ecab calls to keep him
from communicating with Amtrak as much as possible.
Appendix II at 21; see also IBM Statement of Facts
¶ 50. Ultimately, on June 12, 2014, Chumbley replied to
Lynch and another Artech representative and stated:
While Shaunpen does have some useful skills, my team leads
and I continue to have trouble getting Shaunpen to take
direction without significant argument. He frequently is
argumentative when our client asks him to do things as well.
For these reasons, I would not support an increase in rate
Appendix II at 27. Accordingly, Zhou was denied a pay