Ballard v. The Dover Wipes Company, et al.

Filing 61

REPORT AND RECOMMENDATIONS re 45 MOTION for Summary Judgment filed by The Dover Wipes Company. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longe r than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 5/21/2015. Signed by Judge Mary Pat Thynge on 5/4/15. (kjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

DAENA BALLARD,
Plaintiff,

v.

C.A. No. 13-714-RGA-MPT

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THE DOVER WIPES COMPANY

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Defendant.

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REPORT AND RECOMMENDATION

I.

Introduction

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In this action alleging violations of the Fair Labor Standards Act ("FLSA") brought
by plaintiff, Daena Ballard ("plaintiff'), against The Dover Wipes Company ("defendant"
or "Dover Wipes"), who moves for summary judgment pursuant to FED. R. C1v. P. 56(a).
For the reasons stated below, the motion should be granted.

II.

Background

Plaintiff is a Delaware resident and a former employee of defendant, an Ohio
corporation that produces and packages baby wipes and other consumer paper
products at a facility in Dover, Delaware. 1
Following her graduation from Rutgers University with a Masters of Science in
Industrial and Systems Engineering, plaintiff began working on June 13, 2005, as a
Process Engineer for The Procter & Gamble Company ("P&G"), the parent corporation
of defendant, in Stamford, CT. 2 From June 2005 to November 2009, plaintiff was

1

2

D.I. 19 at 2; D.I. 46 at 2.
D.I. 19 at 3; D.I. 46 at 1-2.

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employed in various management positions at the Stamford plant. 3 Her responsibilities
included managing between 6 to 32 employees, developing master plans for multiple
product lines, and preparing for the global quality audit. 4 In February 2009, plaintiff was
hired for the position of Specialty Operations Department Manager at defendant's plant
in Delaware. 5 That employment began on November 1, 2009. 6
While employed by defendant, her responsibilities included: overseeing a team
of 81 contract employees; managing and supervising the plant's Finished Product
Handling Team consisting of three full-time employees; creating a master plan,
identifying training needs for employees, controlling overtime, developing job postings
to seek new employees, and interviewing candidates for open positions in her
department; reviewing direct reports regarding performance and determining whether
goals would be met; investigating performance issues and identifying deficiencies of
direct reports; imposing corrective action and making recommendations to Human
Resources regarding consequences for deficient performance; and managing over 50%
of the total plant volume. 7
Beginning in December 2009, product orders increased. Plaintiff informed
management about her concerns on inadequate staffing to execute high performance
production. 8 In January 2010, plaintiff was assigned to lead the startup of a $1 million
project; none of her previous responsibilities were re-assigned or de-prioritized because

3
4

5
6
7

8

D.I. 46 at 2.
Id.
Id.
Id.
Id. at 2-3.
D.I. 19 at 4.

2

of her new position. 9 Although plaintiff was able to facilitate the startup of this new
project, she was required to be on call twenty-four hours per day, seven days per
week. 10 In May 2011, plaintiff advised management that she needed to be reassigned
due to increased stress and anxiety. 11 In September 2011, plaintiff began a one-month
approved disability leave. 12 Upon her return to work, plaintiff notified management that
since her two year commitment was almost done, she wanted another assignment. 13
Management advised it would not support plaintiff's request. 14 In February 2012,
plaintiff was issued a Performance Improvement Plan, warning she risked a grade of
"not meeting expectations" for her upcoming annual performance review in June. 15 In
March 2012, plaintiff informed management that she was pregnant, and on May 2,
2012, she began approved disability leave due to complications with the pregnancy. 16
When plaintiff returned to work on June 5, 2012, she was immediately reissued a
Performance Improvement Plan and notified that her position was reassigned to
another manager. 17 On August 6, 2012, management informed plaintiff that she was
"no longer a fit" for employment and she was terminated the following day. 18

Ill.

Procedural History
Plaintiff filed a charge of discrimination with the Delaware Department of Labor
9

Id.
Id. at 4-5.
11
Id. at 5.
12 Id.
13
Id. at 5-6.
14
D.I. 19 at 6.
15 Id.
16 Id.
17 Id.
18
Id. at 7.
10

3

and the Equal Employment Opportunity Commission ("EEOC") on October 15, 2012. 19
On January 24, 2013, plaintiff received a right to sue letter from the EEOC. 20
On April 24, 2013, plaintiff initially sued Procter & Gamble Distributing LLC
alleging claims of gender, racial, national origin, and pregnancy discrimination,
violations of the Family Medical Leave Act, and violations of FSLA for failure to pay for
overtime and all hours worked. 21 On May 21, 2013, plaintiff amended her complaint,
substituting Dover Wipes and the Proctor & Gamble Company ("P&G") as defendants. 22
On August 28, 2013, the parties dismissed P&G with prejudice, and on October 28,
2014, dismissed all counts with prejudice, except the FLSA claims. 23 On October 30,
2014, Dover Wipes moved for judgment in its favor on the FLSA claims. 24

IV.

Standard of Review

Summary judgment is appropriate if the "movant shows that there is no genuine
issue as to any material fact and the movant is entitled to a judgment as a matter of
law."25 Following discovery, FED R. C1v. P. 56(a) mandates judgment against the party
who "fails to make a sufficient showing to establish the existence of an element
essential to that party's case, and on which that party will bear the burden of proof at
trial." 26 When a party fails to make such a showing, "there can be no 'genuine issue as

Id.
D. I. 19 at 7.
21 D.I. 1.
22
D.I. 8. Plaintiff moved to amend her complaint on June 13, 2013, which was
granted on July 3, 2014. See D.I. 13, 18.
23
See D.I. 22, 44.
24
D.I. 45.
25
FED. R. C1v. P. 56(a).
26
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
19
20

4

to any material fact' since a complete failure of proof concerning an essential element
of the nonmoving party's case necessarily renders all other facts immaterial." 27 A
dispute of material fact exists where "the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." 28
The moving party bears the initial burden of identifying portions of the record
which demonstrate the absence of a genuine issue of material fact. 29 A party may
move for summary judgment with or without supporting affidavits. 30 Therefore, "the
burden on the moving party may be discharged by 'showing' - that is, pointing out to the
district court - that there is an absence of evidence supporting the nonmoving party's
case." 31
If the moving party demonstrates an absence of material fact, the non moving
party must then show "that the fact cannot be or is genuinely disputed" through
appropriate evidence. 32 If the nonmoving party bears the burden of proof at trial, it
"must go beyond the pleadings in order to survive a motion for summary judgment." 33
That party "may not rest upon the mere allegations or denials of [its] pleadings, but
must set forth specific facts showing that there is a genuine issue for trial." 34 At the
summary judgment stage, the court is not to "weigh the evidence and determine the

27

Id. at 323.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
29
Celotex, 477 U.S. at 323.
3o Id.
31
Id. at 325.
28

32

FED. R. CIV. P. 56(c).

33

Yeager's Fuel, Inc. v. Pennsylvania Power & Light Co., 22 F.3d 1260, 1273 (3d

Cir. 1994).
34

Anderson, 477 U.S. at 248.

5

truth of the matter, but to determine whether there is a genuine issue for trial." 35 The
threshold inquiry therefore is "determining whether there is a need for trial - whether, in
other words, there are genuine factual issues that properly can be resolved only by a
finder of fact because they may reasonably be resolved in favor of either party." 36

V.

Discussion
Under the FLSA, "no employer shall employ any of his employees ... for a

workweek of longer than forty hours unless such employee receives compensation ...
at a rate not less than one and one-half times the regular rate at which [she] is
employed." 37 An action for unpaid wages and unpaid overtime under the FLSA must be
filed within two years after the cause of action accrued, except where the matter arose
out of a willful violation, then a three year limitations period applies. 38
Certain employees, however, are exempted from the FLSA, including those who
are "employed in a bona fide executive, administrative, or professional capacity." 39 An
executive employee, under the FLSA, includes one who is:
(1) Compensated on a salary basis at a rate of not less than
$455 per week ... exclusive of board, lodging or other
facilities;
(2) Whose primary duty is management of the enterprise in
which the employee is employed or of a customarily
recognized department or subdivision thereof;
(3) Who customarily and regularly directs the work of two or
more other employees; and

35

Id.
Id.
37
29
38
Id.
39
Id.
36

at 249.
at 250.
U.S.C. § 207(a)(1 ).
§ 255(a).
§ 213(a)(1 ).

6

(4) Who has the authority to hire or fire other employees or
whose suggestions and recommendations as to the hiring,
firing, advancement, promotion or any other change of
status of other employees are given particular weight. 40
An administrative employee means any employee who is:
(1) Compensated on a salary or fee basis at a rate of not
less than $455 per week ... exclusive of board, lodging or
other facilities;
(2) Whose primary duty is the performance of office or nonmanual work directly related to the management or general
business operations of the employer or the employer's
customers; and
(3) Whose primary duty includes the exercise of discretion
and independent judgment with respect to matters of
significance. 41
Furthermore, under the combination exemption of the FLSA, "an employee whose
primary duty involves a combination of exempt administrative and exempt executive
work may qualify. In other words, work that is exempt under one section of this part will
not defeat the exemption under any other section." 42
Another exemption under the FLSA is for a highly compensated employee "with
total annual compensation of at least $100,000 ... if the employee customarily and
regularly performs any one or more of the exempt duties or responsibilities of an
executive, administrative or professional employee."43 The rationale is:
A high level of compensation is a strong indicator of an
employee's exempt status, thus eliminating the need for a
detailed analysis of the employee's job duties. Thus, a

40

29 C.F .R. § 541.1 OO(a).
/d. § 541.200(a).
42
Id.§ 541.708.
43
Id. § 541.601 (a).
41

7

highly compensated employee will qualify for exemption if
the employee customarily and regularly performs any one or
more of the exempt duties or responsibilities of an executive,
administrative or professional employee .... An employee
may qualify as a highly compensated executive employee,
for example, if the employee customarily and regularly
directs the work of two or more other employees, even
though the employee does not meet all the other
requirements for the executive exemption under § 541 .100. 44
The employer bears the burden of proving an employee satisfies any exemption. 45

1.

Executive Exemption

Dover Wipes argues plaintiff's FLSA claim fails because all four elements of the
executive exemption are met. 46 Plaintiff disputes that the fourth element has been
satisfied and that Dover Wipes has demonstrated that she had the authority to hire or
fire employees. 47 Plaintiff asserts that she could not remove an employee from her
department, citing that she was overruled by her direct supervisor when she tried to fire
Robert Brennan ("Brennan"). 48 Dover Wipes contends that this single incident is not
determinative of the weight attributed by management to her recommendations
because plaintiff recommended that Brennan be placed at a discipline level just below
termination in the company's corrective action process, which human resources
reviewed and approved. 49 Dover Wipes further points out that according to plaintiff's

44

Id.§ 541.601(c).
See Sander v. Light Action, Inc., 525 F. App'x 147, 150 (3d Cir. 2013); see
a/so Coming Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974) ("[T]he application
of an exemption under the Fair Labor Standards Act is a matter of affirmative defense
on which the employer has the burden of proof.").
46
D.I. 46 at 12; D.I. 54 at 8.
47
D.I. 53 at 8.
48
Id. at 9.
49
D.I. 54 at 9.
45

8

testimony, she interviewed prospective employees and recommended whether they be
hired. 50
As stated above, the fourth element of the executive exemption requires an
employee have authority to hire or fire other employees, or that particular weight is
given to her suggestions regarding hiring, firing, promotion, advancement, or other
changes of employment status. 51 '"[O]ther change of status' means any 'tangible
employment action' ... such as 'reassignment with significantly different
responsibilities."' 52 Tangible employment action is defined as '"constitut[ing] a
significant change in employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing a
significant change in benefits.'" 53 In determining whether an employee's
recommendations are given "particular weight," the court considers whether making
such recommendations is part of the employee's job description or duties, whether the
recommendations "are made or requested frequently, and whether they are frequently
relied upon." 54 The recommendations must concern employees whom the executive
"customarily and regularly directs.'' The executive's recommendations may still "have
particular weight even if a higher level management's recommendation has more
importance and even if the [executive] does not have the authority to make the ultimate

50

D.I. 46 at 15.
See Jn re Enterprise Rent-a-Car Wage & Hour Employ't Practices Litig., C.A.
No. 07-1687, 2012 WL 4356762, at *15 (W.D. Pa. Sept. 24, 2012) (citing 29 C.F.R.
§ 541.100(a)(4)).
52
Jd. (quoting Fed. Reg. 22, 122, 131 (Apr. 23, 2004)).
53
Jd. (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)).
54 Id.
51

9

decision as to the employee's change in status." 55
A tangible employment action occurred when Brennan was placed on the third
level of Dover Wipes's corrective action process, which meant any further violations
would result in his termination, and prevented him from receiving a pay level increase
for a minimum of twelve to eighteen months. 56 Such disciplinary action constitutes a
tangible employment action because it resulted in a significant change in benefits.
Plaintiff and another supervisor recommended that Brennan be removed as a B-Team
technician. 57 Dover Wipes, instead, placed Brennan on probationary status. Its
decision, however, does not mean Dover Wipes did not afford particular weight to
plaintiff's recommendation. In fact, plaintiff's report by detailing Brennan's negligence
resulted in the employment action. Further, plaintiff's supervisors, Ryan Brower
("Brower") and Julie Hansen ("Hansen") confirmed that they valued her suggestions
regarding promotion, assignment, discipline, and discharge for the employees that she
supervised

58

This evidence is satisfies the fourth element of the executive exemption.

Although plaintiff now claims that "she had no opportunity to hire employees," 59
she clearly was authorized to hire employees. According to her deposition, in
December 2010 to early 2011 time frame, plaintiff was authorized to hire for three open
positions of Customization Operations Tech. 60
Q. Was there - so this was one opening for this position in

55
56
57
58
59
60

Davis v. Mountaire Farms, Inc., 453 F.3d 554, 558 (3d Cir. 2006).
See D.I. 48, Ex. 1 plaintiff's deposition at Ex. 9.
Id.
See D.I. 49at1f 15; D.I. 50at1f 13.
D.I. 53 at 9 (emphasis added).
D.I. 48, Ex. 1 plaintiff's deposition at 88-89.

10

December?
A. Yes.
Q. Was this filled?

A. Nope.
Q. Why?

A. Nobody applied.

Q. So then, the position that we saw that Pat Wagner
ended up taking, which was about three months later, that's
the same position; is that what you are telling us?
A. Yes.

Q. Except now there was two positions that you had been
given authority to hire for?
A. Yes.
Q. Or to assign for?

A. Yes.

Q. You had actually asked for three, right?
A. Yes.
Q. And, eventually, you were given three? Eventually, you

had more than three techs, correct?
A. Yes. 61

Plaintiff's testimony further satisfies the fourth element. Therefore, the executive
exemption applies.

2.

61

Administrative Exemption

Id.
11

Dover Wipes also contends plaintiff's FLSA claim fails because all three
elements of the administrative exemption are met. 62 In particular, Dover Wipes asserts
the second element, that plaintiff's primary duty was the performance of non-manual
work directly related to the management and operation of business, is undisputed. 63
Dover Wipes notes, as manager of the Specialty Operations Department, which
produced 60% of the plant's total volume, plaintiff was responsible for a key department
of the business operations. 64 Dover Wipes relies on the affidavits of plaintiff's
supervisors, Brower and Hansen, who confirmed that 95% of plaintiff's duties were
confined to managerial, non-manual work. 65 Furthermore, plaintiff's own resume
includes only exempt responsibilities, similar to the job descriptions contained in Brower
and Hansen's affidavits. 66
Plaintiff argues the second element is not satisfied because whether her primary
duty consisted of non-manual work, is disputed. 67 According to plaintiff's deposition
testimony, because of staffing shortages, she was needed to perform manual labor,
such as operating and fixing the machinery, on the production floor for long periods of
time. 68 Plaintiff claims her testimony is in direct conflict with Brower's statements, and
since Brower did not work at Dover Wipes until June 1, 2011, he could not know what
her actual duties were during her first year-and-a-half of employment. 69 Plaintiff argues

62
63
64
65

66
67

68
69

D.I. 46 at 9; D.I. 54 at 6-7.
Id.
D.I. 46 at 9.
D.I. 54 at 7; see also D.I. 49at~13; D.I. 50at~12.
D.I. 54 at 7.
D.I. 53 at 10.
Id; see D.I. 48, Ex. 1 plaintiff's deposition at 230-32.
D.I. 53 at 10.
12

Hansen's affidavit is inadequate because "there is no indication [] whether she
personally observed [plaintiff's] work and, if so, how much time [plaintiff] spent on the
production floor." 70 As a result, plaintiff maintains since the second element is not met,
the exemption is not applicable. 71
The administrative exemption, as set forth in§ 541.200(a)(2), states the
employee's "primary duty" must be "the performance of office or non-manual work
directly related to the management or general business operations of the employer or
the employer's customers." 72 Generally, a "primary duty involves over 50% of the
employee's work time ... yet, flexibility is appropriate when applying this rule." 73 To be
"directly related to the management or general business operations" of the employer
means the "type of work performed by the employee" is "directly related to assisting
with the running and servicing of the business, as distinguished, for example, from
working on a manufacturing production line .... "74 Such work "includes, but is not
limited to, work in functional areas such as ... quality control; ... research; safety and
health; personnel management; ... and similar activities." 75 Furthermore, "an
employee's primary duty must include the exercise of discretion and independent

Id.
Id. at 11.
72
29. C.F.R. § 541.200(a)(2).
73
O'Bryant v. City of Reading, 197 F. App'x 134, 137 (citing Lott v. Howard
Wilson Chrysler-Plymouth, 203 F.3d 326, 331 (5th Cir. 2000)).
74
-29. C.F.R. § 541.201(a); see also Swartz v. Windstream Commc'ns, Inc., 429
F. App'x 102, 104-05 (3d Cir. 2011) (quoting 29 U.S.C. § 541.201(a)) ("An employee's
primary duties are directly related to his employer's management or general business
operations when the employee 'perform[s] work directly related to assisting with the
running or servicing of the business.'").
75
29 U.S.C. § 541.201(b).
70
71

13

judgment with respect to matters of significance." 76 In its analysis, the court considers
the following:
whether the employee has authority to formulate, affect,
interpret, or implement management policies or operating
practices; whether the employee carries out major
assignments in conducting the operations of the business;
whether the employee performs work that affects business
operations to a substantial degree, even if the employee's
assignments are related to operation of a particular segment
of the business ... ; whether the employee is involved in
planning long- or short-term business objectives; whether
the employee investigates and resolves matters of
significance on behalf of management .... 77
Here, plaintiff's resume describes only exempt, non-manual work during her time
at the Dover plant, which required application of her discretion and independent
judgment:
Led and coached team of 10 P&G employees and 81
Contractors who produce 60% of Plant volume;
Collaborated with Site Engineering to deliver Automation
project which increased production by 20%;
Created and implemented productivity plan including Run to
Target methodology to increase process reliability from 60%
to 82% ... ;
Utilized Organizational Performance Models to determine
skills, culture and reward system needed to deliver
Department Master Plan;
Led Start Up Team that executed Vendor Acceptance
testing, Installation, Operation and Process
Qualifications ... ;
Coached direct reports on Autonomous Maintenance and

76
77

29 C.F.R. § 541.202(a).
Id. § 541.202(b ).
14

Preventative Maintenance ... ;
Facilitated Unified Problem Solving workshops to find and
eliminate root cause of chronic equipment failure ... ;
Coached direct reports on Global Startup Management and
assigned them to several department capital projects as part
of qualification process;
Worked with Contractor leadership on building capability of
production crew via creation of skill matrices, qualification
cards and quarterly training workshops;
Implemented Standardized work across all 3 shifts to
achieve consistent productivity results;
Trained and qualified Contractor Leadership and P&G techs
on TOM to help mitigate off quality product and rework;
Collaborated with vendors to deliver material cost savings of
$1OOk/year. 78
Hansen's affidavit is also relevant. As Plant Manager at the Dover facility from 2008
until 2012, Hansen stated that plaintiff "devoted approximately 95% of her energies" 79 to
performing exempt, non-manual work, and she was not "responsible for performing
physical or manual labor." 80 Hansen "expected Ms. Ballard to frequently walk through
her Department to observe production processes and provide leadership ... ," but "she
was not expected to perform physical labor as part of her normal duties." 81
Furthermore, "to the extent Ms. Ballard performed physical labor or maintained
machines it was insignificant ... and only came up in the course of showing one of the

78
79
80
81

D.I. 48, Ex. 1 plaintiff's deposition at Ex. 1.
D. I. 50 at ~ 12.
Id. at~ 13.
Id. at~ 14.

15

employees she managed how to perform their job(s) .... "82 Hansen confirmed "Dover
Wipes did not pay Ms. Ballard her high salary ... to personally produce product or to
personally maintain machines through her own physically efforts. Instead she was paid
... to manage the operations in her Department and to use her expertise to make
decisions aimed at improving efficiency." 83
Dover Wipes, as the moving party, has demonstrated the absence of material
fact that plaintiff's primary duty consisted of non-manual work. Plaintiff has failed to
show this fact "cannot be or is genuinely disputed." 84 Plaintiff's argument that Hansen's
declaration is unreliable, is unconvincing and refuted by her representations in her
resume, and therefore insufficient to demonstrate a genuine issue of material fact.
Since Dover Wipes has established the second element, the administration exemption
applies.

3.

Highly-Compensated Employee Exemption

Dover Wipes maintains the highly-compensated employee exemption applies for
plaintiff's employment from December 1, 2011 until her termination date on August 7,
2012, because she earned an annual salary over $100,000. 85 Plaintiff does not
address nor refute this argument. In light of the prior findings above and since plaintiff's
annual salary during that period was $100,010.00, the exemption applies. 86

VI.

Order and Recommendation Disposition

82

83

Id.
Id.

84

FED. R. CIV. P. 56(c).

85

D.I. 46 at 18; see D.I. 48, Ex. 1 plaintiff's deposition at Ex. 1.
See D.I. 48, Ex. 1 plaintiff's deposition at Ex. 1.

86

16

Consistent with the findings contained herein,
IT IS RECOMMENDED that Dover Wipes' motion for summary judgment under
FED. R. CIV. P. 56(a) (D.I. 45) be granted.
Pursuant to 28 U.S.C. § 636(b)(1 )(A) and (8), FED. R. C1v. P. 72(a), and
D. DEL. LR 72.1, any objections to the Report and Recommendation shall be filed within
fourteen (14) days limited to ten (10) pages after being served with the same. Any
response shall be limited to ten (10) pages.
The parties are directed to the Court's Standing Order in Non-Pro Se Matters for
Objections Filed under FED. R. C1v. P. 72 dated October 9, 2013, a copy of which is
found on the Court's website (www.ded.uscourts.gov.)
Date: May 4, 2015

Isl Mary Pat Thynge
UNITED STATES MAGISTRATE JUDGE

17