Montano v. Allen Harim Foods LLC

Filing 45

MEMORANDUM ORDER re 34 REPORT AND RECOMMENDATION is ADOPTED; 27 MOTION for Summary Judgment filed by Allen Harim Foods LLC is GRANTED in part and DENIED in part. Signed by Judge Leonard P. Stark on 9/20/17. (ntl)

Case 1:15-cv-00392-LPS-CJB Document 45 Filed 09/20/17 Page 1 of 6 PageID #: 604

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MARIA MONTANO,
Plaintiff,

v.

C.A. No. 15-392-LPS-CJB

ALLEN HARIM FOODS, LCC,
Defendant.

MEMORANDUM ORDER
WHEREAS, Magistrate Judge Burke issued a 34-page Report and Recommendation (the
"Report") (D.I. 34), dated August 4, 2017, recommending that the Court (i) deny Defendant
Allen Harim Foods, LLC's ("Defendant") motion for summary judgment (D.I. 27) as to (1) the
"time shaving" portion of Count I of Plaintiff Maria Montano's ("Plaintiff' or "Montano")
Amended Complaint (D.I. 3) and as to (2) Count II in its entirety, and (ii) grant Defendant's
motion in all other respects;
WHEREAS, on September 5, 2017, Defendant objected to the Report ("Defendant's
Objections") (D.I. 39);
WHEREAS, on September 5, 2017, Plaintiff also objected to the Report ("Plaintiffs
Objections") (D.I. 40);
WHEREAS, on September 13, 2017, Defendant responded to Plaintiffs Objections
("Defendant's Response") (D.I. 42);
WHEREAS, on September 19, 2017, Plaintiff responded to Defendant's Objections
("Plaintiffs Response") (D.I. 44);

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WHEREAS, the Court has considered the parties' objections and responses de novo, see

Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011); 28 U.S.C. § 636(b)(l); Fed. R. Civ. P.
72(b)(3);
NOW THEREFORE, IT IS HEREBY ORDERED that:
1.

Defendant's Objections (D.I. 39) are OVERRULED, Plaintiffs Objections (D.I.

40) are OVERRULED, Judge Burke's Report (D.I. 34) is ADOPTED, and Defendant's Motion
for Summary Judgment (D.I. 27) is GRANTED IN PART and DENIED IN PART. Specifically,
Defendant's motion is DENIED as to the "time shaving" portions of Count I, and as to Count II
in its entirety. Defendant's motion is GRANTED as to the "donning and doffing" portion of
Count I and as to Counts III and IV in their entirety.
2.

Montano objects to the Report's recommendation that the Court grant summary

judgment as to the "donning and doffing" portion of Count I. (D.I. 40 at 1) Montano contends
that the Report erred "by holding that the activity involved fits within the 'changing clothes'
exception under the meaning of [29 U.S. C.] § 203 (o); and that activity was excluded from
measured work time under the CBA." 1 (D.I. 40 at 1) However, as the Report correctly stated,
the Supreme Court has explained "that the term 'clothes' [for purposes of§ 203(0)] denotes
'items that are both designed and used to cover the body and are commonly regarded as articles
of dress."' (D.I. 34at16 n.6 (quoting Sandiferv. U.S. Steel Corp., 134 S. Ct. 870, 876-77

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As part of this objection, Montano contends that the Report fails to address the "walking
time" portion of Count I - specifically, "the approximately three minutes between when she
worked on the last piece of chicken on the line and when she clocked out at the end of each shift"
- which Plaintiff contends is a "natural off-shoot" of her "donning and doffing" claim. (D .I. 40
at 6) The Report addresses these contested "approximately three minutes" periods as part of the
"time shaving" portion of Plaintiffs Count I, an issue the Report resolved in Plaintiffs favor.
(D.I. 34 at 19)
.
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(2014))) As the Report correctly stated, Montano' s hardhat, work gloves, and apron clearly
qualify as "clothes" under Sandifer, while her glasses and earplugs do not. (D.I. 34 at 16 n.6; see

also Sandifer, 134 S. Ct. 870, 879-80} Montana's entire period of changing into the work gearthat is, into three larger items of clothing and two smaller additional items - can, on the whole,
be classified as time changing clothes, and is therefore comes within the exception and is not
compensable. See also Sepulveda v. Allen Family Foods, Inc., 591F.3d209 (4th Cir. 2009)
(rejecting claims identical to those pressed by Montano here, at same plant, with same pay
practices, and same collective bargaining agreement ("CBA")). As this is the extent of Plaintiffs
objection with respect to the Report's analysis of the "donning and doffing claim," summary
judgment will be granted as to the "doffing and donning" portion of Count I.
3.

Montano also objects to the Report's recommendation that the Court grant

summary judgment as to Count III, which alleges violations of the Delaware Wage Payment and
Collection Act ("WPCA"). (D.I. 40 at 7) The fact that Plaintiffs state-law claims "run
concurrently with her FLSA claim" (D.I. 34 at 32} does not automatically mean those claims are
preempted. See Knepper v. Rite Aid Corp., 675 F.3d 249, 262 (3d Cir. 2012) (stating "Congress
explicitly contemplated dual enforcement of the FLSA," and stressing "traditional presumption
against preemption" in context of "regulating employee's wages"). As Plaintiff correctly asserts,
states are free to provide greater protection to employees than does the FLSA, and, in fact, the
WPCA does not contain a counterpart to§ 203(0). See 19 Del. C. § 1101 et seq. Thus, a
successful 203(0) defense would not necessarily preempt Plaintiffs state-law claims. See In re

Cargill Meat Solutions Wage & Hour Litig., 632 F. Supp. 2d 368, 394 (M.D. Pa. Apr. 10, 2008)
(finding plaintiffs' state-law based "donning and doffing" claims not preempted by FLSA).

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However, Plaintiffs state-law claims all arise out of her employment with Defendant
under a CBA. "Section 301 of the Labor Management Relations Act ('LMRA') 'encompasses
not only state-law claims that are directly based on a [CBA] but also those that are substantially
dependent upon analysis of the terms of the agreement."' Tillman v. Pepsi Bottling Grp., Inc.,
2005 WL 2127820, at *7 (D. Del. Aug. 30, 2005) (quoting Wheller v. Graco Trucking Corp., 985
F.2d 108, 113 (3d. Cir. 1993)); accord Hughes v. United Parcel Serv., Inc., 639 Fed. App'x 99,
103 (3d Cir. 2016). As Plaintiffs WPCA claim is "inextricably intertwined" with the terms of,
or custom and practices under, the CBA with Defendant, it is preempted by the LMRA. 2 Smiley

v. Daimler Chrysler, 589 F. Supp. 2d 471, 489 (D. Del. Dec. 11, 2008); see In re Cargill, 632 F.

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Supp. 2d at 396 ("A determination of the state law claims for this period would be 'substantially
dependent upon an analysis of the terms,' practices, and customs of the 2007 CBA and would be '
preempted by federal law." (quoting Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220 (1985)));

see also Tillman, 2005 WL 2127820, at *7 ("To determine whether the collective bargaining
agreement was violated ... and whether plaintiff is entitled to overtime, the court will have to
interpret the [CBA]. [Because of that,] plaintiffs state wage claims are preempted by the
LMRA."). Accordingly, Plaintiffs objection as to Count III is overruled, and summary judgment
will be entered on all of Plaintiffs state-law claims.
4.

Defendant objects to the Report's recommendation that the Court deny summary

judgment as to Montano' s "time shaving" allegations in Count I, arguing that the Report applied
the incorrect legal standard to evaluate Plaintiffs claim. (D.I. 39 at 1) The Anderson burden-

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Plaintiff only objects to the Report's recommendation of dismissal as to Count III. The
Court notes that Count IV, though not objected to, is preempted for the same reason.

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shifting framework, as outlined in the Report, governs unpaid compensation claims under the
FLSA. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87 (1946). The Court
agrees with the Report that the "inadequate or inaccurate" records test should apply here based on
Plaintiffs assertions concerning how time was entered - or mis-entered - by Defendant into the
Kronos system. (See D.I. 31 at 11-12) The Court also agrees that, viewing all facts in the light
most favorable to Plaintiff, Plaintiffs allegations rise above the level of "vague and
unsubstantiated estimates" and are sufficient to survive summary judgment. (D.I. 34 at 23 (citing

DiSantis v. Morgan Props. Payroll Servs., Inc., 2010 WL 3606267, at *13 (E.D. Pa. Sept. 16,
2010))) Plaintiffs allegations, although not entirely consistent, identify a specific number of
hours per week that Plaintiff was not credited as having worked, for two distinct time frames.
There is a sufficient record for the Court to make a 'just and reasonable inference" as to the
amount of time worked. Anderson, 328 U.S. at 687; see also Alston v. DIRECTV, Inc., 2017 WL
2311588, at n6 (D.S.C. May 26, 2017) (denying motion for summary judgment, stating
"estimations" in a sworn statement are generally "sufficient to meet [this] initial burden," even if
contradicted by other evidence, and refusing to make credibility determinations at summary
judgment stage). Therefore, the Court will deny summary judgment as to the "time shaving"
portion of Count I. 3
5.

Defendant also objects to the Report's recommendation that the Court deny

summary judgment as to Count II, which alleges retaliatory discharge of employment in violation ,
of the FLSA. (D .I. 3 9 at 5-7) The McDonnell Douglas framework applies to claims of unlawful

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In reaching this conclusion, the Court has considered Defendant's Attachment 1 and 2.
(See D.I. 39 at 6 n.1)
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retaliation under the FLSA. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
Defendant takes issue with the Report's finding of multiple disputes of material fact bearing on
Plaintiffs ability to prevail on her FLSA retaliation claim. Defendant spends more than four
pages of briefing attempting to explain away or dismiss each dispute as "immaterial." (See D.l.
39 at 4-8) The Court is not persuaded. Instead, the Court agrees with the Report's survey of the
various disputed facts pertaining to Plaintiffs retaliatory discharge claim and, in view of those
disputes, summary judgment will be denied as to Count II.

HONORABLE LEONARD P. STARK
UNITED STATES DISTRICT JUDGE

September 20, 2017
Wilmington, Delaware

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