The opinion of the court was delivered by: Leon Jordan United States District Judge
This civil action is before the court on the defendant's second motion for summary judgment [doc. 32].*fn1 The plaintiff has responded to the motion [doc. 35], and the defendant has filed a reply brief [doc. 39]. The court finds that oral argument on the motion is not necessary, and the motion is ripe for the court's consideration. For the reasons discussed below, the defendant's motion will be denied.
In his complaint, the plaintiff alleges that he has been the target of retaliation by his employer since his participation in a Fair Labor Standards Act ("FLSA") case filed in 1989. The plaintiff claims that he was wrongfully disciplined in 2004, and in 2005 he was denied an opportunity to test for the position of Chief of the Gatlinburg Fire Department for reasons that were pretext for unlawful discrimination and retaliation in violation of 29 U.S.C. § 215(a)(3). He claims that his participation in the 1989 FLSA case removed him from consideration for Fire Chief. He seeks compensatory and punitive damages.
The plaintiff began working for the Gatlinburg Fire Department in 1977. In 1989, the plaintiff and nine other employees of the Fire Department filed suit against the City of Gatlinburg under the FLSA claiming underpayment of straight time and overtime wages as required by the Act. The lawsuit was resolved by consent decree. Cindy Ogle was the City Manager at the time the lawsuit was filed, and she remains in her position today.
The plaintiff's personnel record shows that he was promoted to Lieutenant in 1993 and to Captain in 1998. In May 2002, a performance improvement plan was issued to the plaintiff, and in March 2004, a Disciplinary Action was issued "on the grounds of severe lack of communication and supervision as well as failure to address problems on the shift" the plaintiff supervised. The plaintiff was suspended without pay for sixty-four hours and placed on six-months probation. The plaintiff did not appeal or otherwise challenge the Disciplinary Action.
In 2005 a job vacancy listing for Fire Chief was posted. Janet Curry, the human resources director for the City, stated in her deposition that she was a member of the review committee who reviewed the applications and selected the candidates for Fire Chief. She stated that initially there were five internal candidates for the position, one of whom was not considered because he was on probation. There were also some external applications. Ms. Curry admitted that none of the four internal candidates met the minimal qualifications of the job; nevertheless two were recommended by the committee to proceed in the selection process in spite of their lack of qualifications. When asked about this, she stated:
Q: Let me ask you this: Were any of the internal candidates allowed to attend that assessment?
Q: If they weren't qualified, why were they allowed to do that?
A: Because none of them were qualified . . . we decided that there were two that were more qualified than the other two.
Two of the external candidates were chosen by the review committee to continue the selection process, also.
Ms. Curry stated that the plaintiff's lack of a college degree was one of the reasons that he was not allowed to proceed; however, three of the four candidates who did continue also did not have college degrees. In fact, the person chosen, an external candidate, does not have a college degree. Ms. Curry admitted that the plaintiff had the most supervisory and training experience of all the candidates. Nevertheless, the review committee determined that the plaintiff would not be recommended for the position based on its review of the plaintiff's personnel file. The letter to the plaintiff states in relevant part:
[A]fter careful review and consideration of your application materials, we have selected other candidates whose qualifications more closely meet our position requirements and needs. Specifically, review of your personnel file reveals disciplinary action that shows a lack of responsible leadership. Additionally, your ...