United States District Court, S.D. Florida
BLOOM UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court upon Defendant's
Amended Motion for Final Summary Judgment as to Count I, ECF
No. , (the “Motion”). The Court has carefully
reviewed the Motion, the record, all supporting and opposing
filings, the exhibits attached thereto, and is otherwise
fully advised. For the reasons that follow, Defendant's
Motion is granted.
Anibal Antonio Aguilar Fernandez (“Plaintiff” or
“Fernandez”) was an employee of Defendant
Winn-Dixie Stores, Inc. (“Defendant” or
“Winn-Dixie”). As further explained below,
Plaintiff claims that Winn-Dixie terminated him after he
reported several violations of the Fair Labor Standards Act
(“FLSA”) to management and to Defendant's
hotline. Winn-Dixie, on the other hand, contends that it
terminated Plaintiff for theft of store merchandise in
violation of its policies. Plaintiff's Complaint contains
a single count of retaliation in violation of 29 U.S.C.
§ 215(a)(3). See ECF No. . In its Motion,
Defendant argues that Plaintiff cannot prove the prima
facie elements of an FLSA retaliation claim.
See ECF No. . Plaintiff has since filed a
Response in opposition and Defendant has filed a Reply.
See ECF Nos.  and . The Motion is now ripe
is the owner and operator of a regional chain of grocery
stores located in Florida and Georgia. See ECF No.
 at ¶ 1. Defendant's Associate Handbook sets
forth its policies, procedures and benefits for all
employees. Id. at ¶ 2. One such policy
contained within Winn-Dixie's Associate Handbook is its
Open Door policy, which states:
strive to create an environment founded in fairness and
respect where Associates may talk freely with members of the
management staff. Associates are encouraged to bring
questions, suggestions, or complaints to their Supervisor.
While we cannot guarantee that we will always provide you
with the answer that you want, your questions, suggestions,
or complaints will be discussed openly and given fair
consideration. Because we are interested in all of our
Associates' success and happiness with us, our Company
has developed an Open Door Policy to enable Associates to
comfortably address their concerns. We understand that in any
business environment, differences of opinion may occur.
Before these differences become major issues, please follow
our Open Door Policy, which consists of three steps outlined
Step One: Discuss your concerns with your immediate
Supervisor. It is their responsibility to listen to your
concerns and to do their best to resolve them, if possible.
Step Two: If your immediate Supervisor has not answered or
satisfactorily addressed your concerns within a period of
seven days, discuss your concerns with a second level
Step Three (Alternate Step): If for any reason you prefer to
discuss your concerns with a Human Resources Representative,
you may contact your department, facility, or Regional Human
Resources Representative. They will be happy to listen to
your concerns and address them accordingly.
An Associate may also call the Winn-Dixie Involved Associate
Line (“W-DIAL”) at 1-877-919-3425. This is a
confidential reporting system which can be used anonymously
and is accessible via the internet or by phone. Management
will not fire, demote, harass or otherwise
“retaliate” against an individual for utilizing
the Open Door Policy or calling the “W-DIAL” at
Id. at ¶ 3. Defendant's Associate Relations
System records any reports, whether to a manager, human
resources representative or W-DIAL, and forwards such reports
to the corporate headquarters to be addressed and
investigated as necessary. Id. at ¶ 4.
Defendant also has policies in place to ensure its compliance
with the FLSA. Id. at ¶ 5. Such policy
provides: “It is each Associate's responsibility to
properly record all hours worked. By clocking in and out,
Associates are acknowledging that they have properly recorded
their hours. Associates may not perform any work off the
clock. Failure to properly record all hours will result in
disciplinary action, up to and including termination.”
Plaintiff's most recent employment with Defendant in 2013
and 2014, Defendant utilized Workbrain software to record and
manage employee time. Id. at ¶ 6. When employees
clocked in and out during their shift, they would log into
Workbrain at the punch station computer in the front or rear
of the store, which electronically recorded such information.
Id. at ¶ 7. To clock in, employees selected
“Begin Shift” on the computer and typed in their
employee identification number. Id. Similarly, to
clock out, employees selected “End Shift” and
re-entered their employee identification number. Id.
Winn-Dixie, every associate receives a paid fifteen-minute
rest break for each continuous four-hour work period and
hourly associates who work a continuous shift of five hours
or more are allowed an unpaid thirty-minute meal break.
Id. at ¶ 8. Defendant requires that employees
clock in and out for their rest breaks and meal breaks.
Id. The Workbrain system does not allow any
employees to clock in early or late for their scheduled shift
without a manager override. Id. at ¶ 9.
Although employees can clock out of the system without a
manager override, any employee leaving early without manager
approval is subject to termination. Id. at ¶
10. Within the store, the only employees who have access to
Workbrain and permission to make changes to employee time
records are the salaried staff members consisting of the
Store Director, Assistant Store Director, Service Area
Manager or Fresh Manager. Id. at ¶ 11. When
employee time records are changed, such changes are recorded
in Workbrain, revealing the identity of the person who made
the edits, the edits made, and the date and time of the
edits. Id. According to Defendant's policies,
“[i]f an Associate believes their time has not been
properly recorded or has been altered, or that their pay is
not correct, it is the Associate's responsibility to
notify their Manager. If for any reason an Associate does not
wish to discuss the situation with their Manager, they may
contact Human Resources or call the ‘W-DIAL' at
1-877-919-3425.” Id. at ¶ 12.
regard to theft policies, “[i]nternal theft accounts
for a large percentage of inventory shrink in the grocery
industry.” Id. at ¶ 15. Defendant's
internal theft strategy is primarily prevention; however, if
prevention does not work, its Asset Protection Department
becomes actively involved in detecting, investigating, and
resolving any internal theft cases. Id. The Asset
Protection Department is Defendant's authorized
investigative entity and all internal and vendor theft
investigations are coordinated and managed through this
department. Id. Defendant's theft policy
indicates it “has a Zero Tolerance policy for
individuals involved in acts of theft from the Company”
and “[a]ny Associate engaged in theft-related activity
will be terminated and prosecuted if all of the statutory
requirements (elements of theft) are met.” Id.
at ¶ 16.
began working for Winn-Dixie in February of 2007 until May of
2007 at the store in Miami Lakes. See ECF No. 
at ¶ 17. On his first day of work for Winn-Dixie in
2007, Plaintiff participated in a New Hire Orientation and
Training, during which he was informed of Winn-Dixie's
rules, policies and procedures, including its Shrink Policy
Statement, Associate Policy Awareness Confirmation, Wage and
Hour Acknowledgment and Winn-Dixie Involved Associate Line
confirmation. Id. As a result of his training,
Plaintiff was aware that he “must never participate in
any activity that causes a loss to” Winn-Dixie,
including merchandise theft, which would result in
termination. Id. at ¶ 18. Plaintiff also knew
he had a duty to report any violations of rules or policies
that he observed, and that he could make a confidential
report to Winn-Dixie's hotline, W-DIAL. Id. at
ceased working for Winn-Dixie in May of 2007 and then resumed
working for Defendant at the Sebring, Florida store in March
of 2008. Id. at ¶ 20. Once again, he
participated in a New Hire Orientation, which reaffirmed his
awareness of Winn-Dixie's Shrink Policy Statement,
Associate Policy Awareness Confirmation, Wage and Hour
Acknowledgment and Winn-Dixie Involved Associate Line
confirmation. Id. However, he only worked at the
Sebring store for a brief period of time. Id.
Plaintiff again resumed employment with Winn-Dixie on
February 12, 2013 until his termination on October 17, 2014.
Id. at ¶ 22. During this period, ...