The U.S. Court of Appeals for the Tenth Circuit sided with a Pueblo man on Thursday who claimed retaliation by his employer after his request to be paid for overtime.

David Betts was a full-time traffic control supervisor for Work Zone Traffic Control, Inc. for eight years. During much of that time, he received overtime pay for work in excess of 40 hours per week. In April 2015, the company reclassified Betts as a salaried employee ineligible for overtime. Betts hired a lawyer and the company reversed its decision.

In May 2016, Betts worked on a job in Colorado Springs during which he claimed to have worked 92 hours in one week, including 52 hours of overtime. Work Zone reviewed Betts’s timesheet and found he was logging hours of driving between his home and the jobsite.

Normally, Work Zone pays 10 cents per mile, unless the employee is hauling materials necessary for the job. In those cases, the worker receives an hourly wage.

While Work Zone paid the amount reported, Betts’s claims of 59 and 75.5 hours of work in subsequent weeks prompted the owner to text Betts, “no more weekend time for paperwork and shop stuff[. M]ake sure and get that done daily when your [sic] working!”

Betts continued to claim in excess of 70 hours of pay for the following work weeks, which included his drive time and the time spent replacing a headlight on his company truck in Pueblo on a Sunday. The owner then fired Betts for insubordination.

Betts claimed this was retaliation for asking to be paid for overtime, and sued under the federal Fair Labor Standards Act. The law makes it illegal “to discharge or in any other manner discriminate against any employee because such employee has filed any complaint.” Work Zone countersued, citing “civil theft, conversion and unjust enrichment” from Betts.

A district court ruled for Work Zone on Betts’s claim, and the company then dropped its lawsuit. The court established that there was some connection between Betts raising the issue of not being paid and his firing, but that Work Zone had a legitimate explanation that Betts had disregarded its policies on drive time and weekend work.

“The district court accepted Work Zone’s contention that it terminated Betts for ‘insubordination,'” wrote Judge Joel M. Carson III for the three-judge appeals panel. “But Work Zone offered no evidence on the nature of Betts’ insubordination.”

The district court, Carson said, determined that Work Zone’s owner told Betts not to perform shop work on weekends and that “[i]t is also undisputed that [Betts] defied Mr. Volk’s instruction by, among other things, performing work at the Pueblo shop on a Sunday four days after receiving the text.”

However, Carson concluded, “This is not an accurate statement of the evidence”.

As the appeals judges saw it, Betts had presented as evidence Work Zone’s company policy directing maintenance to occur on company vehicles “IMMEDIATELY.” When Betts fixed the headlight on a Sunday, that was not the “shop work” the owner forbade him to do.

Betts also showed the district court that he was entitled to the overtime pay while driving because he was hauling equipment, that he had done so for years, and that Work Zone had granted similar pay to others who were not even hauling equipment.

Betts, Carson said, successfully created “a genuine issue of material fact as to whether Work Zone’s reason for terminating him was worthy of belief.” The appeals panel sent the case back to the district court to be heard further.

The case is David Betts v. Work Zone Traffic Control, Inc.