Montano v. Allen Harim Foods LLC

Filing 34

REPORT AND RECOMMENDATIONS re D.I. 27 MOTION for Summary Judgment filed by Allen Harim Foods LLC. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objection s (no longer 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 8/21/2017. Signed by Judge Christopher J. Burke on 8/4/2017. (dlb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

MARIA MONTANO,
Plaintiff,·

v.
ALLEN HARIM FOODS, LLC,
Defendant.

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Civil Action No. 15-392-LPS-CJB

REPORT AND RECOMMENDATION

Plaintiff Maria Montano ("Plaintiff") filed this action against her former employer,
Defendant Allen Harim Foods, LLC ("Defendant"), alleging violations of the Fair Labor
Standards Act of 1938 ("FLSA"), the Delaware Wage Payment and Collection Act ("WPCA"),
and asserting breach of contract. (D.I. 3) Presently pending before the Court is Defendant's
Motion for Summary Judgment ("Motion"). (D.I. 27) For the reasons set forth below, the Court
recommends that the Motion be GRANTED-IN-PART and DENIED-IN-PART.
I.

BACKGROUND 1

A.

Factual Background

1.

The Parties and the Union

Plaintiff is a resident of the State of Delaware and a former employee of Defendant. (D.I.
3 at iii! 7, 15; D.I. 28, ex. 1 at 29-30; D.I. 31, ex. 1 at iii! 1-2) Defendant is a Delaware
corporation with its principal place of business in Sussex County, Delaware. (D.I. 3 at if 8; D.I. 6
at if 8)
In the citations below, where there were exhibits that do not have page numbers,
or where it otherwise reduced confusion to do so, the Court has utilized the page numbers
generated by the CM/ECF system from the Court's docket.

In February 2009, Plaintiff was hired by Allen Family Foods, Inc.; her work duties
involved processing and boxing poultry and performing related tasks at a Harbeson, Delaware
plant. (D .I. 3 at iii! 12-13; D .I. 31, ex. 1 at iii! 3, 5) In 2011, the former owner, Allen Family
Foods, Inc. went into bankruptcy, but the plant continued operating, and later in the year, the
plant was purchased by Defendant with no interruption in production. (D.I. 28, ex. 2 at 1)
Plaintiff remained employed at the Harbeson processing plant until her termination in October
2014. (D.1.31,ex.1 atififl,4)
During the entirety of her employment, Plaintiff was represented by United Food &
Commercial Workers Local 27 (the "union"). (D.I. 28, ex. 1at30; D.I. 31, ex. 1atif6) .The
Collective Bargaining Agreements ("CBAs") between the union and Defendant that were in
effect during Plaintiff's employment contained provisions regarding rates of pay and hours of
work. (D.I. 28, ex. 3; id., ex. 4) The union's most recent CBA with Defendant became effective
on January 26, 2014. (Id., ex. 4 at AH.00045) 2

2.

Plaintiff's Work and Defendant's Compensation System

During the course of her employment with Defendant, Plaintiff's daily routine was to go
to the locker room, change into work clothes, and walk to her station on the production line.
(D .I. 28, ex. 1 at 3 0-31) Plaintiff was required to wear protective gear including an apron, hard
hat, ear plugs, safety glasses, and gloves. (Id. at 31; D.I. 31, ex. 1 at if 7) Plaintiff spent
approximately five minutes donning and approximately five minutes doffing her protective gear,
respectively, at the beginning and end of each shift. (D .I. 3 at if 1; D .I. 31, ex. 1 at if 8)

2

Defendant has negotiated two CBAs with the union since it began operating the
Harbeson plant. The first became effective September 6, 2011 and the second (most recent)
became effective January 26, 2014. (D.I. 28, ex. 3 at 1, 19; D.I. 28, ex. 4 at AH.00045)
2

Pursuant to Defendant's, longstanding pay practice, Plaintiff was not compensated for
"donning and doffing" her protective gear. (D.I. 28, ex. 2 at 1)3 Instead, Defendant uses a "line
time" system to determine compensation-employees are paid only for time spent processing
chicken on the production line. (Id., ex. 1 at 32; id., ex. 2 at 1) The start of the line time is fixed
each day at 7:54 a.m., when each employee is required to be at their position on the production
line. (Id., ex. 1 at 31; D.I. 31, ex. 1 at

ir 11) The line time ends for an employee each day when

the processing is complete and the last chicken has been removed from the line. (D.I. 28, ex. 1 at
32) The end of the line time varies on a daily basis depending on the time when the line is
empty. (Id.; id., ex. 5 (second column from right))
The shift supervisor records the end of the line time and sends a handwritten data sheet
containing that information to Defendant's Human Resources office ("HR"). (Id., ex. 2 at 1) A
payroll administrator in HR thereafter enters the line time into Kronos time and attendance
software. (Id. at 2) The data is then electronically sent to a payroll program, which generates
paychecks. (Id.)
Plaintiff claims that her paycheck did not reflect the actual amount of hours she worked.
She asserts that her check was short by approximately one to five hours on a weekly basis, not
only because it did not account for donning and doffing time, but also because, inter alia: (1)
sometimes, the end of her line time was recorded when poultry hangers stopped working, even
though the line work was still active; or (2) sometimes, she would be taken off of the line after
her shift ended and be required to process poultry in other areas (or be given other tasks) but

3

The CBA is silent on whether time spent donning and doffing protective gear is
considered compensable time. (D.I. 28, ex. 4 at AH.00049-AH.00052)

3

would not be paid for this work. (D.I. 31, ex. 1 at iii! 15-19, 22-23, 29) On several occasions,
Plaintiff brought the discrepancy over her pay to the attention of a supervisor. (D.I. 28, ex. 1 at
8-9; D.I. 31, ex. 1 at 'if 24) On the first few occasions, her manager would correct the number of
hours and Plaintiff was in fact paid for the additional time she had worked. (D .I. 31, ex. 1 at if
24) On later occasions, however, her manager dismissed Plaintiffs complaints and refused to
adjust her paycheck. (D.I. 28, ex. 1at11; D.I. 31, ex. 1atifif25-26)
In her responses to Defendant's interrogatories, when asked to produce an "itemized
statement" of her claim for unpaid wages, Plaintiff responded that from on or about May 15,
2012 until on or about December 1, 2013, her overtime pay was wrongly reduced by an "average
of 1 hour per week[,]" and that from on or about January 1, 2014 until her termination in October
2014, her overtime was wrongly reduced by an "average of 2.5 hours every week." (D.I. 31, ex.
2 at 6-7)
In her November 2016 deposition, however, when asked about the "one hour perweek"
figure she had provided regarding the May 15, 2012 to December 1, 2013 time period, Plaintiff
initially responded that the "days actually don't matter." (D.I. 28, ex. 1 at 10) She then stated
that in this period, she went unpaid for "less time" than would later be the case; Plaintiff said that
the amount of unpaid overtime in this period "sometimes ... was an hour and 15, sometimes an
hour and 45, but it was always an hour and some minutes." (Id. at 10-11) When asked about the
January 1, 2014 to October 2014 time frame, in which she had stated that she was unpaid for an
average of 2.5 hours per week, Plaintiff responded that "from the time Chris and Mayra started
[to supervise her] we started missing even more time." (Id. at 12) Plaintiff stated that she did
not keep records of the specific dates on which she claims to have worked without full

4

compensation. (Id. at 8-12)
In an affidavit signed in January 2017, Plaintiff asserts that from the beginning of her
employment up through the time in which she began to be supervised by "Chris" and "Mayra,"
her "check would be short by as little as 1 hour, sometimes 1 hour and 15 minutes; sometimes
closer to 2 hours of pay." (D.I. 31, ex. 1 at iii! 22-23; see also id., ex. 2 at 5) In that same
affidavit, Plaintiff asserts that after she began working for "Chris" and "Mayra" in or around
December 2013, "the amounts taken off my check on a weekly basis varied, but could be as low
as 2 Yi hours, to 5 hours." (Id., ex. 1 at iJ 29; see also id., ex. 2 at 5 (noting that Plaintiff began to
work for "Chris" and "M[a]yra" around December 2013))

3.

Defendant's Attendance System

Defendant requires employees to clock in and clock out for attendance purposes. (D.I.
28, ex. 2 at 2) The "clock in" and "clock out" entries are not used to determine pay, but rather to
ascertain whether an employee came to work late, left early, or was absent. (Id.) Defendant's
Attendance and Absenteeism Policy ("attendance policy'') states that an employee will receive
one "occurrence" for an absence and half an "occurrence" for lateness or leaving early. (Id., ex.
6) If an employee exceeds eight occurrences in a calendar year, this will result in termination of
employment. (Id.)
Under the policy, an absence is considered an occurrence unless it is for hospital
admission, bereavement leave, jury duty, military duty, leaves of absence including Family and
Medical Leave Act-approved appointments, work authorization renewals, or a subpoenaed court
appearance. (Id.) The eight-occurrence system, in essence, grants employees eight days each
calendar year that may be utilized for time away from work for reasons such as personal illness,

5

certain employee medical appointments and the like. (Id.) Pursuant to the attendance policy, an
employee is to be given a written warning upon accruing three and six occurrences, respectively.
(Id.)

In addition, Defendant provides its employees with a predetermined number of vacation

days each year based on a seniority scale. (Id., ex. 4 at AH.00055) Because Plaintiff had
completed four years of continuous service by 2014, she was entitled to two weeks paid vacation
for the 2014 calendar year. (Id.)

4.

Plaintiff's Complaints With the Delaware Department of Labor
("DDOL")

In July 2014, according to Plaintiff, conditions at the Harbeson plant had deteriorated,

and so she made a report to the DDOL regarding working conditions at the plant. (Id., ex. 1 at
21; D.I. 31, ex. 1 at iii! 37-41; id., ex. 3 at 25 (Charge of Discrimination filed by Plaintiff with the
DDOL, which is signed on August 21, 2014, and indicates that"Plaintiff initially "presented" her
complaint on July 22, 2014)) This DDOL complaint alleged that Defendant had taken improper
action with regard to Plaintiffs overtime work and overtime pay, that Defendant had
discriminated against Plaintiff due to her race, and that her supervisor had sexually harassed her.
(D.I. 28, ex. 1at21; D.I. 31, ex. 1 at iii! 42-47; id., ex. 3 at 25) Later, on October 2, 2014,
Plaintiff filed a second complaint with the DDOL against Defendant, alleging disability
discrimination and that Defendant had retaliated against her due to the filing of her first
complaint. (D.I. 31, ex. 3 at 34)

5.

Plaintiff's Attendance in 2014 and Events Leading to Plaintiff's Firing

With regard to Plaintiffs attendance during the 2014 calendar year, certain of

6

Defendant's records-more specifically, a document recording a list of Pl~intiff's absences that
was submitted as Exhibit 9 to Defendant's opening brief-indicate the following:
Date

Event

Cumulative
Occurrences

1/06/14

Absent

1

3/04/14

Absent

2

3/20/14

Late

2.5

4/29/14

Absent

3.5

5/02/14

Late

4

5/20/14

Late

4.5

5/30/14

Absent

5.5

7/21/14

Left Early

6

7/25/14

Warning

Warned for
accumulating 6
occurrences.

8/22/14

Left Early

6.5

9/03/14

Absent

7.5
Warned for
accumulating 7 .5
occurrences.

9/12/14

10/02/14

Absent

8.5

10/28/14

Absent

9.5
Terminated.

10/30/14
(D.I. 28, exs. 5, 7-9, 12)4
4

Plaintiffs attendance record submitted as Exhibit 9 has been produced with the
dates out of chronological order. (D.I. 28, exs. 5, 9) The table above lists the dates in
chronological order with the corresponding accumulation of occurrences. Defendant describes
Exhibit 9 as listing absences that "correlate with the time clock entries (or lack thereof)" shown
in Defendant's Exhibit 5 to its opening brief. (D.I. 28 at 5) In at least a few instances, however,
7

As is noted in the table above, on July 25, 2014, Plaintiff received (and signed) a written
warning, which indicated that she had accumulated six occurrences. (Id., ex. 1 at 16; id., ex. 7)
Plaintiffs employment file contains a further written warning dated September 12, 2014 (the
"September 12, 2014 warning"), also referenced in the above table, which indicates that Plaintiff
had accumulated 7.5 occurrences. (Id., ex. 8) The employee signature line on this September 12,
2014 warning reads "refused to sign[,]" but the warning was signed by an HR representative and
a union representative. (Id.) Plaintiff contends that she never received nor was aware of the
September 12, 2014 warning, and thus, that she did not refuse to sign it. (Id., ex. 1 at 16-17; D.I.
31, ex. 1 at iii! 63-65) Plaintiff states that had she known that Defendant had marked her at 7.5
occurrences, she would not have been absent again thereafter. (D .I. 31, ex. 1 at if 66)
On Octobe~ 28, 2014, Plaintiff was absent from work, which, according to Defendant,
resulted in an accumulation of 9.5 occurrences in her employment file. (D.I. 28, ex. 9 at
AH.00131) Plaintiff appeared for work the next day, October 29, 2014, and was thereafter
terminated, effective October 30, 2014. (Id., ex. 12)
Plaintiff asserts, however, that she did not rightly accrue 9.5 occurrences. Instead, she
claims that some of the occurrences on her employment record were previously approved as
·vacation days by a supervisor, but were wrongly later marked as unexcused absences. (Id., ex. 1
at 14-15; D.I. 31, ex. 1 at iii! 52-55)

it is not clear that this is so. For example, on April 29, 2014, Exhibit 9's list shows Plaintiff as
being entirely absent from work, while the clock entries in Exhibit 5 show that she worked for
3.40 hours on that date. (D.I. 28, ex. 5 at 52) On May 2, 2014, Exhibit 9 shows Plaintiff as
being late, while Exhibit 5 shows her as clocking in at 7:39 a.m. and leaving early on that date at
1:30 p.m. (Id. at 53) And on August 22, 2014, Exhibit 9 lists Plaintiff as leaving early, but
Exhibit 5 shows her having worked for 7.90 hours on that date-what appears to be a full day's
work. (Id. at 55)

8

More specifically, Plaintiff contends that she was absent from work on three occasions
due to appointments with the DDOL related to the complaints she filed with that agency. (D.I.
28, ex. 1at14-15; D.I. 31, ex. 1atiMf49, 52) 5 She asserts that after she showed a letter
confirming these appointments to Fred Downs (an HR representative for Defendant), Mr. Downs
stated he would count those appointments as vacation days and not as occurrences. (D.I. 28, ex.
1 at 14-15; see also D .I. 31, ex. 1 at if 52 (Plaintiff stating that she "used [her] own time" as to
these absences "so that I would not be penalized under the absence policy")) However, despite
this alleged assurance, the DDOL appointments were later marked as occurrences. (D.I. 28, ex. 1
at 14-15; D.I. 31, ex. 1atif70)
Plaintiff further contends that her absence from work on September 3, 2014, should not
have resulted in an occurrence. Plaintiff states that she notified her supervisor "Chris" that she
had doctor's appointments on this date. (D.I. 28, ex. 1 at 51; D.I. 31, ex. 1 at if 53) In her
deposition, Plaintiff said that "Chris" gave her permission to be absent for that day without
haying to count the day as an occurrence. (D.I. 28, ex. 1 at 50-51) In her affidavit, however,
Plaintiff states that "Chris" rejected this request, but that it was Mr. Downs who later approved
her absence on that day and agreed to count it as an excused vacation day (and not as an
occurrence). (D.I. 31, ex. 1atifif49, 52-55)

B.

Procedural History

5

Plaintiff identified the occurrence on August 22, 2014 as being linked to one of
the three dates she was away from work because she had an appointment with the DDOL. (D.I.
28, ex. 1at18-19; id., ex. 9 at AH.00130) Plaintiff was not able to identify with specificity
which of the other two occurrences correspond with the remaining two appointments with the
DDOL. (Id., ex. 1at20; D.I. 31, ex. 1at'1'[49) However, one of her occurrences took place on
October 2, 2014, which is the same date Plaintiff apparently filed her second complaint with the
DDOL. (D.I. 31, ex. 3 at 34)
9

On May 15, 2015, Plaintiff filed her Complaint, (D.I. 1), which she later amended, (D.1.
3). On January 29, 2016, Chief Judge Leonard P. Stark referred the case to the Court to resolve
all pretrial matters, up to and including the resolution of case-dispositive motions. (D.1. 8)
On November 30, 2016, Defendant filed the instant Motion. (D.1. 27) Defendant's
Motion was fully briefed as of January 13, 2017. (D.I. 33) A bench trial is scheduled to begin on
December 11, 2017. (D.I. 12 at if 16)

II.

STANDARD OF REVIEW
A grant of summary judgment is appropriate where "the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter oflaw."
Fed. R. Civ. P. 56(a). The moving party bears the burden of demonstrating the absence of a
genuine issue of material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 4 75
U.S. 574, 585 n.10 (1986). If the moving party has demonstrated the absence of a genuine
dispute of material fact, the nonmovant must then "come forward with specific facts showing
that there is a genuine issue for trial." Id. at 587 (internal quotation marks, citation and emphasis
omitted). If the nonmoving party fails to make a sufficient showing on an essential element of its
case with respect to which it has the burden of proof, the moving party is entitled to judgment as
a matter oflaw. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) .. During this process, the
Court will "draw all reasonable inferences in favor of the nonmoving party, and it may not make
credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 150 (2000).
However, in order to defeat a motion for summary judgment, the nonmoving party must
"do more than simply show that there is some metaphysical doubt as to the material facts."
10

Matsushita, 475 U.S. at 586-87; see also Podobnikv. United States Postal Serv., 409 F.3d 584,
594 (3d Cir. 2005) (party opposing summary judgment "must present more than just bare
assertions, conclusory allegations or suspicions to show the existence of a genuine issue")
(internal quotation marks and citation omitted). The "mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact." Anderson v.
Liber'ty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). Facts that could alter
the outcome are "material," and a factual dispute is genuine only where "the evidence is such that
a reasonable jury could return a verdict for the nonmoving party." Id. at 248. "If the evidence is
merely colorable ... or is not significantly probative ... summary judgment may be granted."
Id. at 249-50 (internal citations omitted). A party asserting that a fact cannot be-or,
alternatively, is-genuinely disputed must support the assertion either by citing to "particular
I

parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials"; or by "showing that the
materials cited do not establish the absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(l)(A) &
(B).

III.

DISCUSSION
Plaintiffs Amended Complaint alleges five claims: (1) violation of Plaintiffs rights

under the FLSA for failure to compensate her for overtime worked, specifically relating to failure
to count time spent donning and doffing protective gear as compensable time (the "donning and

11

doffing claim"), pursuant to 29 U.S.C. § 207(a) (Count I); (2) violation of Plaintiffs rights under
the FLSA, for otherwise failing to pay her the required overtime wage for each overtime hour
worked, pursuant to 29 U.S.C. § 207(a) (Count I); (3) violation of Plaintiffs rights under the
FLSA for retaliatory discharge of employment, pursuant to 29 U.S.C. § 215(a)(3) (Count II); (4)
violation of Plaintiff's rights under the WPCA, pursuant to Del. Code Ann. tit. 19, §§ 1101-03,
1107 & 1112 (Count III); and (5) breach of contract (Count IV). (D.I. 3 at i!il 45-63; D.I. 28)
With its Motion, Defendant moves for summary judgment on each claim. (D.I. 28 at 1-2) The
Court will take these issues up in turn.

A.

Plaintiff's Donning and Doffmg Claim (Count I)
1.

Background Regarding the FLSA

Congress enacted the FLSA to provide minimum wage and maximum hour standards for
"employees who in any workweek [are] engaged in commerce or in the production of goods for
commerce, or [are] employed in an enterprise engaged in commerce or in the production of
goods for commerce[.]" 29 U.S.C. § 206(a). The FLSA also provides that certain employees
who in any "workweek" work longer than 40 hours must be paid overtime for that work. 29
U.S.C. § 207(a).
Initially, the FLSA did not define the terms "work" and "workweek," an omission which
left the scope of an employee's "work" to the judiciary' s interpretation. See IBP, Inc. v. Alvarez,
546 U.S. 21, 25-26 (2005). The Supreme Court of the United States later gave those terms a
broad reading, culminating in its holding in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680
(1946) that "the statutory workweek includes all time during which an employee is necessarily
required to be on the employer's premises, on duty or at a prescribed workplace[.]" 328 U.S. at

12

690-91; see also IBP, Inc., 546 U.S. at 25. The Anderson Court also found that "work" included
time employees spent "pursu[ing] certain preliminary activities after arriving at their places of
work, such as putting on aprons and overalls [and] removing shirts[.]" Anderson, 328 U.S. at
692-93.
The year after the decision in Anderson, and in response to a flood of FLSA litigation,
Congress responded by passing the Portal-to-Portal Act of 1947 ("Portal Act"). The Portal Act
stated that the FLSA had been "interpreted judicially in disregard of long-established customs,
practices, and contracts between employers and employees, thereby creating wholly unexpected
liabilities[.]" 29 U.S.C. § 251(a); see also IBP, Inc., 546 U.S. at 26; Sepulveda v. Allen Family

Foods, Inc., 591F.3d209, 217 (4th Cir. 2009). The Portal Act limited the scope of employer
liability for future claims by, inter alia, excluding from compensable time "activities which are
preliminary to or postliminary to" the principal activity or activities that an employee is
employed to perform. 29 U.S.C. § 254(a)(2); see also IBP, Inc., 546 U.S. at 27; Sepulveda, 591
F.3d at217.
Subsequent to the Act's passage, the United States Department of Labor ("Department of
Labor") promulgated a regulation stating that changing clothes would normally be considered to
be preliminary or postliminary activity, but that this activity "may in certain situations be so
directly related to the specific work the employee is employed to perform that it would be
regarded as an integral part of the employee's principal activity." 29 C.F.R. § 790.7(g) & n.49
(internal quotation marks omitted); see also Sandifer v. US. Steel Corp., 134 S.Ct. 870, 875-76
(2014). The Supreme Court later echoed this Department of Labor regulation by holding that
activities such as donning and doffing protective apparel that are "performed either before or
13

after the regular work shift, on or off the production line, are compensable under the [Portal Act]
provisions of the [FLSA] if those activities are an integral and indispensable part of the
[employee's] principal activities[.]" Steiner v. Mitchell, 350 U.S. 247, 256 (1956).
Additionally, in 1949, Congress further amended the FLSA in 29 U.S.C. § 203(0)
("Section 203(0)") to specifically address the act of"changing clothes":
In determining for the purposes of ... this title the hours for which
an employee is employed, there shall be excluded any time spent in
changing clothes or washing at the beginning or end of each
workday, which was excluded from measured working time during
the week involved by the express terms of or by custom or practice
under a bona fide collective-bargaining agreement applicable to the
particular employee.
29 U.S.C. § 203(0) (emphasis added). "Simply put, [this] statute provides that the
compensability of time spent changing clothes ... is a subject appropriately committed to
collective bargaining." Sandifer, 134 S.Ct. at 876; see also Sepulveda, 591 F.3d at 218.
Section 203(o)'s adoption, then, provided for a separate way that changing clothes could
be excluded from the calculation of hours worked pursuant to the FLSA. See Sandifer, 134 S.Ct.
at 876 (noting that "[h]ad the clothes-changing time in this case not been rendered
noncompensable pursuant to [Section] 203(0), it would have been a principal activity [pursuant
to the meaning of the Portal Act]") (internal quotation marks and citation omitted); Turner v.

City ofPhila., 262 F.3d 222, 224 (3d Cir. 2001); see also Steiner, 350 U.S. at 255 (finding that
even if clothes changing and washing is "otherwise [understood to be] a part of the principal
activity [pursuant to the Portal Act,]" Section 203(0) "clear[ly] implicat[es] ... that [it] ... may
be expressly excluded from coverage [for example,] by agreement"); Sepulveda, 591 F.3d at 213.
In other words: (1) even if the donning and doffing of certain clothing could be said to be an

14

integral and indispensable part of an employee's principal work activities, such that it would
ordinarily be included within hours worked under the Portal Act; (2) nevertheless, if pursuant to
the meaning of Section 203(o), that time is rendered noncompensable (e.g., if it was excluded
from measured working time, either expressly or by custom or practice under a CBA), then an
employee need not be paid for that time pursuant to the FLSA. Sandifer, 134 S.Ct. at 876;

Turner, 262 F.3d at 224; see also Sepulveda, 591 F.3d at 213.

2.

Donning and Doffing Under the Operative CBA

In assessing Defendant's Motion as it relates to Plaintiff's donning and doffing claim, the
Court will first assume arguendo that Plaintiff's putting on and taking off her protective gear is
otherwise compensable under the Portal Act. In other words, the Court assumes that these acts
were an "integral and indispensable" part of Plaintiff's principal work activity, and not a
"preliminary or postliminary'' activity excluded from compensation under the Portal Act. It does
so because Defendant's Motion is solely based on the purported applicability of Section 203(o),
which, as Defendant notes, provides it with a "separate and independent" avenue for relief. (D.I.
33 at 2)
As to that Section 203(0) defense, where (as here) a CBA governs the relationship
between an employer and its employees, then employees will be foreclosed from seeking
compensation for donning and doffing ifthe following are true: (1) the donning and doffing
involves "changing clothes" under the meaning of the statute and (2) donning and doffing was
excluded from measured working time by the express terms, or by custom and practice, of a
CBA. Rosano v. Township of Teaneck, 754 F.3d 177, 193 (3d Cir. 2014). The Court will
address both of these factors in tum.
15

First, it is not disputed by the parties that the donning and doffing at issue involves
"changing clothes" pursuant to the FLSA. Defendant asserted as much, (D.I. 28 at 7), and
Plaintiff did not contest the issue, (D.I. 31 at 7-9). Indeed, Plaintiffs express position is that the
time she spent putting on and taking off certain items (her apron, hard hat, glasses, earplugs, and
gloves) does in fact amount to "changing clothes"-but that such time should not be excluded
from compensation. (Id. at 8-9) 6
As to the second inquiry, the Court must determine whether the donning and doffing of
the protective gear in question was excluded from measured working time by the express terms,
or by custom and practice, of a CBA. 7 Here there is no dispute that the express terms of the

6

In Sandifer, the Supreme Court addressed the definitions relevant to the phrase
"changing clothes" in Section 203(0). See 134 S.Ct. at 874. There, the petitioners donned and
doffed twelve different types of protective gear at their workplace, including "a hardhat ... work
gloves ... safety glasses [and] earplugs[.]" Id. at 879. The Sandifer Court explained that the
term "clothes" in the statute denotes "items that are both designed and used to cover the body and
are commonly regarded as articles of dress[,]" id. at 87 6-77 (emphasis omitted), and that time
spent "changing" clothes includes any time spent in altering dress, id. at 879.
As for application of the definition of "clothes" to the facts at issue in that case, the
Sandifer Court concluded that a hard hat and work gloves met the applicable definition, while
glasses and earplugs did not. Id. at 879-80. And it left little doubt that a protective apron (of the
kind used by Plaintiff here) would also qualify as "clothes." Id. Thereafter, it held that if an
employee engages in a period of changing into and out of certain items, some of which are
"clothes" under Section 203(o)'s meaning and some of which are not, the entire period at issue
will be compensable when "the period at issue can, on the whole, be fairly characterized as 'time
spent in changing clothes[.]'" Id. at 881 (emphasis in original, citation omitted); see also
Rosano, 754 F.3d at 194-95.
Here, again, the Court need not further address whether the time periods at issue amount
to time spent "changing clothes," pursuant to the analysis in Sandifer. Plaintiff and Defendant
both agree that they do.
7

At one point in Plaintiffs answering brief, she appears to argue that Section
203(o) only permits employers and employees to exclude donning and doffing protective gear
from compensable time pursuant to a CBA if they expressly, mutually discuss the issue and agree
16

current CBA do not speak to the issue, as nothing in the CBA states that such time is not
compensable (or that it is). (D.I. 28, ex. 4) Defendant asserts, however, that there is a
longstanding practice at Defendant's processing plant of excluding time spent changing clothes
from compensable time. (D.I. 28 at 7) And so, the question is whether Defendant can
demonstrate that there is no genuine issue of material fact as to the existence of a "custom or
practice under a bona fide collective-bargaining agreement" of excluding change time from
compensable hours worked. Turner, 262 F.3d at 225; see also Rosano, 754 F.3d at 193.
The United States Court of Appeals for the Third Circuit has discussed several factors
that have informed the conclusion that donning and doffing time was excluded from measured
working time by custom or practice under a CBA. Rosano, 754 F.3d at 193. Those factors have
included that: (1) the employer had not compensated its employees for change time over a period
of many years; (2) every agreement between the employees and defendant had been silent as to
compensation for change time; (3) the employees had never requested compensation for change
time during any CBA negotiations; and (4) the employees had never filed a grievance or demand
for arbitration based on a lack of compensation for change time. Id. (citing Turner, 262 F .3d at

to do so. (D .I. 31 at 8 ("Section 203(o) ... allows employers and workers to exclude time for
donning and doffing as compensable time by mutual agreement.") (emphasis in original))
However, the United States Court of Appeals for the Third Circuit has held that "acquiescence to ·
not being compensated for changing time can constitute a custom or practice ... for the purposes
of [Section] 203(0)." Turner, 262 F.3d at 225 (internal quotation marks and citation omitted). In
doing so, it rejected the argument that an issue of compensability must be specifically raised in
formal collective bargaining negotiations, and then dropped by the negotiators, in order for it to
be said that the failure to compensate such activity has become a custom or practice. Id. at 226
(noting that the Third Circuit views the phrase "custom or practice under a bona-fide collectivebargaining agreement" in Section 203(o) as "simply restating the well-established principle of
labor law that a particular custom or practice can become an implied term of a labor agreement
through a prolonged period of acquiescence").
17

224-27).
In addition to recognizing these guideposts from the Third Circuit, the Court also notes
the United States Court of Appeals for the Fourth Circuit's decision in Sepulveda. While this
decision is not binding on the Court, its legal analysis is particularly instructive here, as in that
case, the Fourth Circuit was confronting the issue of compensability for donning and doffing
protective gear as it applied to the very same processing plant that is at issue in this matter.
Sepulveda, 591 F.3d at 212. In considering the pay practice of the former owner of the

processing plant (Allen Family Foods, Inc.), the Fourth Circuit found that while the donning and
doffing of protective gear by employees at the Harbeson plant constituted "changing clothes"
within the meaning of Section 203( o), "[t]he company's practice of paying the employees on a
line time basis is longstanding." Id. at 214 (internal quotation marks omitted). The Fourth
Circuit also noted that in 2002, the union (that is, the same union who represents Plaintiff
here-United Food & Commercial Workers Local 27) had proposed that its members should be
paid for 12 minutes of donning and doffing time per day, but that the company and the union did
not ultimately agree to that proposal. Id. at 212. Thus, the "long-standing practice" of paying on
the basis ofline time continued, and existed up until the date of that suit, which was filed in
January 2007. Id. at 212, 214. All of this compelled the Fourth Circuit's conclusion that the
donning and doffing activity in question was not compensable pursuant to Section 203(o). Id. at
214.
Here, the Court concludes that there is no genuine dispute of material fact that Defendant
had a longstanding practice of not compensating its employees for change time under the relevant
CBAs. With regard to the factors that the Third Circuit has utilized in this analysis:
18

(1) Defendant purchased the Harbeson processing plant in 2011 and
continued the same pay practice instituted by the previous owner,
(D.I. 28, ex. 2 at 2), which had, in turn, been in place for many
years. Throughout the time since Defendant purchased the business
from Allen Family Foods, Inc., Defendant (like its predecessor)
never compensated its employees for donning and doffing of
protective gear. (Id., ex. 2 at 1)
(2) Further, Defendant has negotiated two CBAs with the union
since its acquisition of the processing plant, (Id., ex. 3 at 1; id., ex. 4
at AH.00045), and (even with the Sepulveda decision in the
background) both CBAs have been silent as to whether time spent
donning and doffing protective gear is compensable.
(3) There is no evidence in the record to suggest that since
Defendant acquired the business, members of Plaintiffs union have
requested compensation for such time during CBA negotiations.
(4) There is no evidence in the record to suggest that any union
members ever filed a grievance with Defendant, or demanded
arbitration, based on Defendant's failure to compensate for the time.
This record strongly supports Defendant's position, and provides no reason to deviate
from the conclusion of the Sepulveda Court as to a very similar issue. In light of this, summary
judgment is appropriate on this claim.

B.

Plaintiff's Unpaid Overtime/"Time Shaving" Claim (Count I)

Next, the Court addresses Defendant's Motion as it otherwise relates to Plaintiffs claim
for allegedly unpaid overtime work (or "time shaving"), specifically for: (1) time when she
continued to process chicken after poultry hangers had stopped working, but while her line work
was still active; and/or (2) time when she worked in other areas processing poultry after her shift
ended. (D.I. 28, ex. 1at33; D.I. 31, ex. 1at-,r-,r15-18) Defendant's Motion, as it relates to this
claim, focuses on Plaintiffs alleged inability to sufficiently prove the amount and extent of the
uncompensated overtime work she performed.

19

The FLSA mandates that "[ e]very employer subject to any provision of this chapter ...
shall make, keep, and preserve such records of the persons employed by him and of the wages,
hours, and other conditions and practices of employment maintained by him[.]" 29 U.S.C. §
211 (c). The Supreme Court has outlined the burdens placed upon the employer and employee as
to proof of a valid claim for unpaid compensation under the FLSA. See Anderson, 328 U.S. at
686-87. 8 When the employer has kept "proper and accurate records[,]" then the employee can
"easily" discharge her burden of proving that she performed the work for which she was not
properly compensated by "securing the production of those records." Id. at 687. But, when the
employer's records are "inaccurate or inadequate[,]" then an employee can meet her burden if she
"proves that [s]he has in fact performed work for which [s]he was improperly compensated and if
[s]he produces sufficient evidence to show the amount and extent of the work as a matter of just
and reasonable inference." Id. If she does this, then the burden shifts to the employer to come
forward with "evidence of the precise amount of work performed or with evidence to negative
the reasonableness of the inference to be drawn from the employee's evidence." Id. at 687-88.

"If the employer fails to produce such evidence, the court may then award damages to the
employee, even though the result be only approximate." Id. at 688.
In this case, Defendant has produced a printout from its payroll system, generated from its
Kronos time and attendance software, which shows the date of Plaintiff's work, Plaintiff's "clock
in" time, Plaintiff's "clock out" time, and Plaintiff's total amount of line time for each day
Plaintiff worked (with any "overtime" designated by any amount of line time hours exceeding 40

8

While Anderson has been superseded by statute on other grounds, it remains valid
precedent concerning the burden-shifting analysis for proving unpaid time worked.

20

hours per week). (D.I. 28, ex. 2 at 1-2; id., ex. 5 (second column from the right)) Further it is
undisputed that each work day, the start ofline time was fixed at 7:54 a.m. (Id., ex. 1at31; id.,
ex. 2 at 1; D .I. 31, ex. 1 at ,-r 11) Each day, a department supervisor recorded the end of line time
on a handwritten data sheet submitted to Defendant's HR office; the HR office, in tum, used
those data sheets to input the total amount of line time for each employee into the Kronos
software program. (D.I. 28, ex. 2 at 1-2; D.I. 31, ex. 1 at ,-i 15) Defendant has not produced, and
apparently no longer has, the data sheets that were used to input the end ofline time into the
Kronos system. (D.I. 33 at 3)
Plaintiff contends that Defendant's payroll records are "inaccurate or inadequate" under
the meaning of Anderson. She asserts this is so for two reasons.
First, she argues that the records are inadequate because Defendant has not produced the
data sheets that documented the end ofline time for each day. (D.I. 31at2, 11, 12) Yet the
Court cannot find that Defendant's failure to produce these documents, in and of itself,
necessarily means that Defendant has produced "inaccurate or inadequate" records. After all, the
Department of Labor's regulations simply require employers to record, as relevant here: "[h]ours
worked each workday and total hours worked each workweek[.]" 29 C.F.R. § 516.2(a)(7). The
employer is not required to retain the raw, underlying (in this case, handwritten) records that are
utilized to generate the separate recitation of"hours worked"; rather, the regulations permit an
employer to maintain record of hours worked on "data processing memory[.]" 29 C.F.R. §
516.l(a) (also noting that "[n]o particular form of record is prescribed" by the regulations); cf

Bettger v. Crossmark, Inc., Civil Action No. 1:13-CV-2030, 2014 WL 2738536, at *9 (M.D. Pa.
June 17, 2014).

21

Plaintiff's second argument-that Defendant's time records are "inaccurate" under the
meaning of Anderson-is different. Here, Plaintiff's contention is that Defendant's payroll
records are simply wrong-in that the amount of line time recorded thereon is intentionally
under-inclusive, and does not include certain additional time that Plaintiff actually worked. (D.I.
31 at 11-12) This happened because, according to Plaintiff, Defendant was engaging in a
"scheme where [either] supervisors did not record the appropriate end of the line time for
purposes of compensability'' or "where the Human Resources staff [did] not properly enter the
time in the Kronos system." (Id. at 12) As Plaintiff has articulated a clear reason why
Defendant's records are said to be inaccurate-an assertion supported at least by her own
testimony-the Court concludes that the Anderson burden-shifting test associated with
"inadequate or inaccurate" records should apply here. See Perez v. Pinon Mgmt., Inc., Civil
Action No. 12-cv-00653-RM-MEH, 2014 WL 5596261, at *7 (D. Colo. Nov. 4, 2014) (assuming
that a defendant's time and payroll records were inaccurate or inadequate under the meaning of
Anderson, where the court was obligated to take the facts in the light most favorable to the

plaintiff, and where the plaintiff had contested the accuracy of those records); cf DiSantis v.
Morgan Props. Payroll Servs., Inc., Civil Action No. 09-6153, 2010 WL 3606267, at *13 (E.D.

Pa. Sept. 16, 2010) (finding that the plaintiff had not convinced the court that the defendant's
records were inaccurate or inadequate under Anderson, but in a case where the plaintiff had been
unable to specify why the records were incomplete, and where the plaintiff had, in the main,
failed to direct the court to any specific problems with defendant's records).
Thus, in order to meet her initial burden, Plaintiff would need to demonstrate not only
that she "has in fact performed work" for which she was improperly compensated, but also must
22

produce "sufficient evidence to show the amount and extent of the work as a matter of just and
reasonable inference." Anderson, 328 U.S. at 687. Defendant's sole basis for seeking summary
judgment as to this claim is that Plaintiff cannot satisfy the latter requirement-that Plaintiff has
not sufficiently demonstrated the "amount and extent of the work" at issue as a matter of "just
and reasonable inference." This is so, according to Defendant, because Plaintiff has "offered
only vague and unsubstantiated estimates of her alleged unpaid time." (D.I. 28 at 8)
There is no question that Plaintiff cannot recall specific dates/weeks on which she worked
specific amounts of uncredited overtime. In other words, Plaintiff is not now in a position to say,
for example, "During the week of August 18, 2014, I worked 3.25 hours of uncredited overtime,
and I have contemporaneous notes from each of the days during that week that substantiate the
amount of unpaid overtime worked for each day of the week, which together total 3.25 hours."
(D.I. 28, ex. 1 at 8) But unsurprisingly, that kind of precision is not required at this stage. See,
e.g., Rong Chen v. Century Buffet & Rest., Civil Action No. 09-1687 (SRC), 2012 WL 113539,
at *7 (D.N.J. Jan. 12, 2012).
Instead, a plaintiff can make the requisite showing, even relying solely on her own
testimony, id., so long as in articulating the "amount and extent of the work" at issue, she can
"'offer[] credible testimony approximating the number of hours [she] worked without pay[,]"'
DiSantis, 2010 WL 3606267, at *14 (certain emphasis in original) (quoting Kolesnikow v.
Hudson Valley Hosp. Ctr., 622 F. Supp. 2d 98, 119 (S.D.N.Y. May 20, 2009)). On the other
hand, courts have found that if all the plaintiff provides are vague and unsubstantiated estimates
of the amount of time worked, that is insufficient to satisfy this burden of proof. See DiSantis,
2010 WL 3606267, at *13 (finding that the plaintiff had failed to produce sufficient evidence to
23

meet this burden, because she "relies solely on vague, conclusory, and speculative testimony to
support her [FLSA] claim that she often worked more than 40 hours in weeks of her
employment" and where the plaintiff at times could assert only that she "sometimes" or "pretty
much every week" or "almost every week" worked uncompensated hours, and at other times said
she had "no idea" as to how much overtime she worked) (certain emphasis, internal quotation
marks and citations omitted). Put differently, where plaintiffs have provided a sufficiently
reliable metric through which the Court could substantiate and calculate the amount of their
claims for unpaid wages, courts have found that they have met their burden; where they have
been unable to provide such a metric, summary judgment has been granted to the defendant. 9
Plaintiffs interrogatory responses on this question, standing alone, would surely have
sufficed to meet this burden. There, Plaintiff broke out two distinct time frames in which the
amount of her uncredited hours differed, and provided an average number of hours per week of

9

Compare Parkv. Seoul Broad. Sys. Co., No. 05 CV 8956(BSJ)(DFE), 2008 WL
619034, at *3, *7 (S.D.N.Y. Mar. 6, 2008) (finding that plaintiff had met this burden at the
summary judgment stage where, inter alia, he submitted deposition testimony in which he
identified specific dates and times when he had worked unpaid overtime, or provided examples
of specific work events in certain time frames as to which he had completed overtime work, and
where he submitted the supporting declaration of a co-worker), and Rivera v. Ndola Pharm.
Corp., 497 F. Supp. 2d 381, 389-90 (E.D.N.Y. 2007) (finding that plaintiff had met this burden
where she testified that in certain defined time frames she worked a consistent amount of
overtime, where she identified those relevant time frames and overtime amounts with specificity,
and where she also produced the affidavit of a co-worker that provided support for some of her
claims of overtime worked); with Kolesnikow, 622 F. Supp. 2d at 118-19 (finding that plaintiff
had failed to meet this burden on summary judgment, where she could testify only that "two to
four weeks per month, she worked un unspecified amount of time over 40 hours per week[,]" that
she "'sometimes"' worked through her lunch break once a week, and that "she worked an
unspecified amount of time past the end of her shift two or more times per week"), and Simmons
v. Wal-Mart Assocs., Inc., No. 2:04-CV-51, 2005 WL 1684002, at *10 (S.D. Ohio July 19, 2005)
(finding that a plaintiff who "fails to identify a single specific day" on which uncompensated
work was performed, and who relied on the ''bald assertion that from 1999 to 2003 he worked off
the clock over 200 times on unspecified days" could not survive summary judgment).
24

uncredited hours: that from about May 15, 2012 until December 1, 2013, her overtime pay was
reduced by an average of one hour per week, and that from about January 1, 2014 (i.e., when she
began to be supervised by "Chris" and M[a]yra") until her termination in late October 2014, her
overtime p;iy was reduced by an average of 2.5 hours per week. (D .I. 31, ex. 2 at 5-7) Things
got a little murkier during Plaintiffs deposition. For example, when asked about the first of
these two time frames, and whether the stated "average of one hour per week" for that time frame
was accurate, Plaintiff initially responded "[t]he days actually don't matter [because] it happened
all the time." (D.I. 28, ex. 1 at 10) Plaintiff quickly added, though, that in this time frame, some
weeks she had been shorted "an hour and 15 [minutes per week], sometimes an hour and 45, but
it was always an hour and some minutes." (Id. at 11) Then, in her post-deposition affidavit,
Plaintiff provided a little more clarity. She wrote that prior to being supervised by "Chris" and
"Mayra" (i.e., post-December 2013) she was shorted 1-2 hours per week, and after "Chris" and
"Mayra" began to supervise her, she was shorted between 2.5 to 5 hours per week. (D.I. 31, ex. 1
at iii! 22-23, 29)
These submissions admittedly do not provide perfect clarity. But in Anderson, the
Supreme Court did not require this of someone in Plaintiff's shoes. Plaintiff's statements, in the
Court's view, provide at least "sufficient evidence to show the amount and extent of the [unpaid
overtime] work" at issue as a "matter of just and reasonable inference." The statements are, after
all, fairly consistent in their assertion that from at least May 2012 to December 2013, Plaintiff
lost an average ofbetween 1-2 overtime hours per week, and that from January 2014 to her
termination in October 2014, she lost between 2.5 and 5 hours of overtime hours per week. If
Plaintiff can sufficiently demonstrate at trial (through her own testimony, Defendant's payroll

25

records and otherwise) that there are weeks in these respective time frames in which she surely
worked more than 40 hours per week in total, then this testimony could provide the fact finder
with a sufficiently reliable metric to then allocate the number of unpaid overtime hours worked in
that week. Cf Alston v. DIRECTV, Inc., -F. Supp. 3d, 2017 WL 2311588, at *16-17 & n.12
(D.S.C. May 26, 2017) (finding that plaintiffs met the "just and reasonable inference" standard
where their interrogatory answers "set forth the estimated number of workweeks and estimated
number of hours [of unpaid overtime] within each workweek that each of them recollects[,]"
even where this evidence conflicted in some way with portions of Plaintiffs deposition
testimony); Rong Chen, 2012 WL 113539, at *1-2, *7 (finding that plaintiffs met the 'just and
reasonable inference" standard by testifying that they "regularly worked 11 to 12 hours ... six
days per week, totaling a minimum of 68 hours worked weekly" over a nearly five-year period).
Therefore, Plaintiff has met her initial burden under Anderson in this regard. Because
her asserted failure to do so was the only reason cited by Defendant as to why the Motion should
be granted as to this claim, the Court recommends that Defendant's Motion be denied as to the
claim.·

C.

Plaintiff's FLSA Retaliation Claim (Count II)

Plaintiff next contends that she was dismissed from her position in retaliation for, inter

alia, the complaints she filed with the DDOL concerning the conditions of her employment.
(D.I. 3 at ifif 42, 49-51) The FLSA prohibits the discharge of any employee who, inter alia, "has
filed any complaint or instituted or caused, to be instituted any proceeding under or related to this
chapter" against an employer. 29 U.S.C. § 215(a)(3).
In determining whether unlawful retaliation under this provision has occurred, this claim
26

is subject to the burden-shifting analysis articulated in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). See Cononie v. Allegheny Gen. Hosp., 29 F. App'x. 94, 95 (3d Cir. 2002);
Parker v. 4247 FX, Inc., CIVIL ACTION NO. 16-2710, 2017 WL 2002794, at *8 (E.D. Pa. May

12, 2017). Under this analysis, Plaintiff must first establish a prima facie case of retaliation.
Parry v. New Dominion Const., Inc., No. 14cvl 115, 2015 WL 540155, at *6 (W.D. Pa. Feb. 10,

2015). The burden then shifts to Defendant to offer a legitimate and non-retaliatory reason for
Plaintiffs discharge. Id. If Defendant meets that burden, Plaintiff must prove that the articulated
reason for discharge is a pretext for retaliation. Id.
To establish aprimafacie case of retaliation, Plaintiff must show: (1) that she engaged in
an activity protected by the FLSA; (2) that she suffered a materially adverse action that might
dissuade a reasonable worker from making or supporting an FLSA claim; and (3) that a casual
link exists between the protected activity and the discharge. Id.; see also Dougherty v. Ciber,
Inc., No. Civ.A.1:04-CV-1682, 2005 WL 2030473, at *2 (M.D. Pa. July 26, 2005). Here,

Plaintiff has demonstrated that she engaged in a protected activity, considering that it is
undisputed that: (1) in July 2014, prior to her termination, she had, inter alia, reported to the
DDOL allegedly abusive conditions in the workplace (including complaints regarding overtime);
(2) she filed a formal complaint on these grounds with the DDOL in August 2014 (and another
on other, somewhat-related grounds,' in October 2014); and (3) Defendant was aware of these
complaints. See Reilly v. Quick Care Med., P.C., Civil Action No. 14-342 (JBS/AMD), 2014
WL 2571642, at *2-3 (D.N.J. June 9, 2014) (citing cases); see also (D.I. 28, ex. 1 at 21; D.I. 31,
ex. 1 at iii! 37-42; id., ex. 3 at 25, 34). She has also demonstrated that she suffered an adverse
employment action on October 30, 2014 (her firing), which came subsequent to her filing of the
27

DDOL complaints.
As for the requisite causal link, the proximity of Plaintiffs filing of her DDOL
complaints to her termination can certainly be a factor that helps establish such a nexus. Even if
that proximity, on its own, is not enough to satisfy the nexus requirement, see, e.g., Zielinski v.
City of Wildwood, Civil No. 12-7195(JS), 2014 WL 6991388, at *5 (D.N.J. Dec. 10, 2014),

Plaintiff may also rely upon a ''broad array of [other] evidence" to make out this link, Farrell v.
Planters Lifesavers Co., 206 F.3d 271, 284 (3d Cir. 2000). And here, Plaintiffs allegation is that

as a result of filing the DDOL complaints, she needed to take at least portions of three days off in
order to attend appo~ntments with DDOL representatives. (D.I. 28, ex. 1 at 14-15; D.I. 31, ex. 1
at ii 49) There is, in tum, a fact dispute about whether Defendant agreed not to count these three
absences as "occurrences" under Defendant's attendance policy. Plaintiff says Defendant agreed
not to do so; Defendant disagrees, and has counted these absences as occurrences. (D.I. 28, ex. 1
at 14-15, 19; D.I. 31, ex. 1 at ii 52) And but for these three instances being registered as
occurrences under the attendance policy, Plaintiff would not have had the requisite number of
absences to warrant termination pursuant to that policy.
In other words, there is a real nexus here between: ( 1) certain acts Plaintiff took that were

protected activity under the FLSA (leaving work to follow through on her DDOL complaints);
and (2) the very reason Defendant provides for her firing. It is that interrelationship that, in tum,
has led to Plaintiffs assertion that "Defendant engaged in marking some of Plaintiffs absences
as 'occurrences' under the [attendance] policy so as to make it appear as though her termination
was justified when in fact, her termination was retaliatory [in light of] the claims she filed against
the Defendant [with the DDOL]." (D.I. 31at4) These facts, viewed in the light most favorable
28

to the Plaintiff, are sufficient to make out the requisite causal link. Thus, the Court finds Plaintiff
has established a prima facie case of retaliation.
Defendant, next, is required to respond by citing a legitimate, non-retaliatory reason for
Plaintiff's firing. And here, it has-that Plaintiff exceeded eight occurrences under the
attendance policy and was terminated as a result. (D.I. 28 at 9); see also Zielinski, 2014 WL
6991388, at *7 (finding, in an FLSA case, that an employer's assertion that the plaintiff was fired
for violating a company policy regarding excessive lateness amounted to provision of a
legitimate, non-discriminatory explanation).
The burden then shifts back to Plaintiff to show that the proffered legitimate reason is in
fact a pretext for retaliation. See Wildi v. Alle-Kiski Med. Ctr., 659 F. Supp. 2d 640, 668 (W.D.
Pa. 2009) (noting that in order to create a genuine issue of material fact with respect to pretext, a
plaintiff in an FLSA case must point to some evidence from which a fact finder could either "(1)
disbelieve the employer's articulated legitimate reasons; or (2) believe that a discriminatory
reason was more likely than not a motivating or determinative cause of the employer's action")
(quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)). The facts discussed above relating
to the required "casual link" are also surely relevant to the "pretext" inquiry. And there are other
disputes of fact that are relevant as well. Plaintiff contends, for example, that (1) one of
Defendant's employees told her that her September 3, 2014 absence would not count against her
total number of occurrences, and yet Defendant ultimately did register this as an occurrence10 ;

10

As Defendant points out, (D.I. 33 at 5-6), some portion of the record relating to ·
Plaintiffs assertions regarding the September 3, 2014 absence is not helpful to Plaintiff. For
example, Plaintiff claims that she took this leave so that she could attend various doctor's
appointments, (D.I. 31, ex. 1 at if 53), but Defendant's attendance policy states that if an
employee is out of work due to a medical appointment, that is supposed to be treated as an
29

and (2) Defendant falsely indicated that Plaintiff refused to sign the September 12, 2014 warning,
when in fact Plaintiff was never presented with the warning in the first place. 11 To be sure,
Defendant denies Plaintiff's allegations. But at the summary judgment stage, the Court cannot
make credibility determinations. If Plaintiffs allegations here are credited, then they would
further support Plaintiff's claim that Defendant manufactured a reason to justify Plaintiff's
termination, at the same time as (and in direct response to) the pendency of Plaintiff's DDOL
complaints.
Thus, Plaintiff has demonstrated a genuine issue of material fact as to whether she can
prevail on her FLSA retaliation claim. Therefore, the Court recommends that summary judgment
be denied as to this claim.

occurrence, (D.I. 28, ex. 6 at AH.00205). Additionally, in Plaintiff's deposition, she claimed that
her supervisor "Chris" approved this absence (and said it would not count as an occurrence),
while in her affidavit, she says that an HR representative (Mr. Downs) is the one who made this
representation. See infra Section I.A.5. In the Court's view, however, while this all provides
fodder for cross-examination of Plaintiff at trial, it does not serve to eliminate a material factual
dispute. It seems plausible, for example, that an HR representative might have the ability to
override the express terms of the attendance policy in a particular instance. And even if such a
representative did not actually have that power, were (1) that person to have intentionally (and
falsely) led Plaintiff to believe that an absence would not count as an occurrence; and then (2)
Plaintiff absented herself from work as a result, only to learn later that this representation was
false, and was being used against her by Defendant to justify her termination; then (3) it is
plausible that this conduct could be seen as part of an unlawful retaliation scheme.
11

Defendant notes that pursuant to its attendance policy, there was no requirement
for it to have given Plaintiff a warning on September 12, 2014. (D.I. 33 at 6-7) That is because
this warning is said to have been provided at the point where Plaintiff reached 7 .5 occurrences,
while the attendance policy only requires a warning when Plaintiff obtains 3 and 6 occurrences,
respectively. (Id.) But that misses the point. If it is true, as Plaintiff suggests, that Defendant's
employee falsely wrote that Plaintiff had been shown the warning and refused to sign it-when in
fact Plaintiff had never seen the warning-then the falsity of that representation would be another
factor suggesting ill motive on Defendant's part regarding the events leading to Plaintiff's
termination.
30

D.

Plaintiff's WPCA Claim (Count III)

The WPCA allows for a Delaware state cause of action to allow a person to "recover
unpaid wages[.]" 19 Del. C. § 1113(a). The statute defines "wages" to mean "compensation for
labor or services rendered by an employee, whether the amount is fixed or determined on a time,
task, piece, commission or other basis of calculation[.]" 19 Del C. § 1101(a)(5). The parties
agree here that Plaintiff's dispute with Defendant over unpaid time is a dispute about "wages"
under the WPCA-that is, a dispute over compensation for labor or services fixed due to an
"other basis of calculation." (D.I. 28 at 9; D.I. 31 at 14)

In its opening brief, Defendant was clear that it was seeking summary judgment on the
entirety of Plaintiffs WPCA claim in Count III of the operative complaint. (D.I. 28 at 9) It also
indicated its belief that the substance of this WPCA claim amounted to two types of allegations:
(1) that Plaintiff should have been compensated for the same "donning and doffing" time that is
at issue in her FLSA claim in Count I; and (2) that Plaintiff should otherwise have been
compensated for overtime that was inappropriately "shaved"-allegations also at issue in her
FLSA claim in Count I. (Id. at 9) In her answering brief, in tum, Plaintiff appeared to confirm
that any WPCA claim she was pressing via Count III is limited to the aforementioned "donning
and doffing" allegations and "time shaving" allegations. (D.I. 31 at 15) Moreover, Plaintiff
indicated that the substance of her WPCA claim is entirely co-extensive with the arguments she
made as to her FLSA claim in Count I. (Id.) ("Plaintiff posits that donning and doffing time is
compensable under the FLSA, and as such, is also compensable under the [WPCA].
Additionally, any regular and overtime pay that was due to [Plaintiff] (whether as a result ·Of not
counting donning and doffing, or whether [her] employer specifically reduced employees'

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overtime pay in other contexts) is also compensable under the [WPCA]. ") (emphasis added)) In
other words, Plaintiff made no argument that the WPCA's protections were "greater ... than
federal law" in this case. (D.I. 33 at 7)
Here, as noted above, the Court' has recommended that summary judgment be granted as
to the FLSA donning and doffing claim in Count I. Thus, Plaintiffs identical claim under the
WPCA must fall too. Although the Court has not recommended that summary judgment be
granted as to the other aspects of the FLSA overtime shaving claim in Count I, because
Plaintiffs WPCA claim as to overtime shaving is entirely coextensive with her FLSA claim, the
WPCA claim is preempted. See Nimmons v. RBC Ins. Holdings (USA) Inc., Civil Action No.
6:07-cv-2637, 2007 WL 4571179, at *1-2 (D.S.C. Dec. 27, 2007) (dismissing a portion of
plaintiffs claim made pursuant to the South Carolina Wage Payment Act because it was
duplicative of plaintiffs claim for failure to pay overtime wages under the FLSA); see also
Zanders v. Wells Fargo Bank NA., 55 F. Supp. 3d 1163, 1176 (S.D. Iowa 2014); Bowen v.
Darby Dev. Co., Inc., Civil Action No. 2:10-2509-RMG-BM, 2012 WL 2675323, at *16
(D.S.C. April 26, 2012); Martinez-Hernandez v. Butterball, LLC, 578 F. Supp. 2d 816, 819
(E.D.N.C. 2008).
Therefore, the Court recommends that summary judgment be granted as to the entirety of
Plaintiffs WPCA claim in Count III.

E.

Plaintiff's Breach of Contract Claim (Count IV)

Plaintiffs claim in Count N of the operative complaint alleges that Defendant breached
an employment contract with her by failing to pay Plaintiff for all compensable time under the
FLSA. (D.I. 3 at 'if'if 58-63)
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Defendant asserts that there is not and could not be any contract between Plaintiff and
Defendant. (D.I. 28 at 9-10; D.I. 33 at 7) This is because·federal labor law dictates that a
bargaining unit employee is precluded from entering into an individual contract with an
employer, unless the CBA so provides for such a contract. NLRB v. Allis-Chalmers Mfg. Co.,
388 U.S. 175, 180 (1967) (finding "only the union may contract with employee's terms and
conditions of employment"); Angst v. Mack Trucks, Inc., 969 F .2d 1530, 1536 (3d Cir. 1992)
(employer "could bargain only with the union and not with the individual employees"). The
CBA at issue here does not. Thus, the Court does not understand (and Plaintiff has not
explained) 12 how Defendant can have a breachable employment contract with Plaintiff. See

NLRB, 388 U.S. at 180 (national labor law "extinguishes the individual employee's.power to
order his own relations with his employer and creates a power vested in the chosen representative
to act in the interest of all employees").
For these reasons, the Court recommends that summary judgment be granted as to Count

12

At times, Plaintiff appears to argue that to the extent that the union failed to negotiate
a CBA that provided for compensation of donning and doffing time, then such CBA is "null and
void" and "violates public policy [such that it] is not valid or enforceable." (D .I. 31 at 17; see
also id. (citing Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953) for the proposition that a
bargaining representative may bind its :union members but only so long as the representative
demonstrates "'good faith and honesty of purpose in the exercise of its discretion"')) But the
Court does not see how any such failure of the union could have this effect. After all, federal
law-that is, Section 203(o) of the FLSA-expressly permits collective bargaining as to whether
time spent donning and doffing protective gear need be compensated by the employer (and thus,
underscores that such time may, or may not, end up being rightly compensable as a result of such
negotiations). (D.I. 33 at 7); see also Sandifer, 134 S.Ct. at 879 ("The object of [Section] 203(0)
is to permit collective bargaining over the compensability of clothes-changing time and to
promote the predictability achieved through mutually beneficial negotiation."); Sepulveda, 591
F.3d at 219 ("We stress that our decision does not leave these employees without protection. It
simply recognizes that Congress has made a policy choice that, when it comes to time spent
changing clothes and washing, the respective interests involved are best protected through the
collective-bargaining process and the agreements negotiated pursuant thereto.").
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N.
IV.

CONCLUSION
For the reasons set forth above, the Court recommends that Defendant's Motion be

GRANTED-IN-PART and DENIED-IN-PART. More specifically, the Court recommends that
the Motion be DENIED as to the portion of Count I of the Amended Complaint that deals solely
with Plaintiffs overtime shaving allegations, and as to Count II in its entirety. The Court
recommends that the Motion be GRANTED in all other respects.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(l)(B), Fed. R.
Civ. P. 72(b)(l) and D. Del. LR 72.1. The parties may serve and file specific written objections
within fourteen (14) days after being served with a copy of this Report and Recommendation.
Fed. R. Civ. P. 72(b). The failure of a party to object to legal conclusions may result in the loss
of the right to de novo review in the district court. See Sincavage v. Barnhart, 171 F. App'x 924,
925 n.1 (3d Cir. 2006); Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987).

Dated: August 4, 2017
UNITED STATES MAGISTRATE JUDGE

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