Fugate et al v. Dolgencorp LLC et al
Filing
83
OPINION AND ORDER granting 57 MOTION for Summary Judgment as to Plaintiff Charlene Wind filed by Dolgencorp LLC, Dollar General Corporation, denying as moot 73 RULE 56 MOTION to Strike 65 Appendix,,, (Motion to Strike Declarations Atta ched to Plaintiffs' Response in Opposition to Summary Judgment) filed by Dolgencorp LLC, Dollar General Corporation and 78 RULE 56 MOTION to Strike 72 Reply to Response to Motion declaration of Alison Ulmer filed by Virginia Fugate, granting 60 MOTION for Summary Judgment as to Plaintiff Virginia Fugate filed by Dolgencorp LLC, Dollar General Corporation. Case is dismissed ***Civil Case Terminated. Signed by Judge Rudy Lozano on 10/23/2012. (kds)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
VIRGINIA FUGATE,
and CHARLENE WIND,
)
)
)
)
)
)
)
)
)
)
)
)
Plaintiffs,
vs.
DOLGENCORP, LLC,
and DOLLAR GENERAL
CORPORATION,
Defendants.
NO. 3:10-CV-344
OPINION AND ORDER
This matter is before the Court on: (1) Defendants’ Motion for
Summary Judgment as to Plaintiff Charlie Wind (DE# 57), filed on
May 15, 2012; (2) Defendants’ Motion for Summary Judgment as to
Plaintiff Virginia Fugate (DE# 60), also filed on May 15, 2012; (3)
Defendants’ Motion to Strike Declarations Attached to Plaintiffs’
Response in Opposition to Summary Judgment (DE# 73), filed on June
29, 2012; and (4) Motion to Strike the Declaration of Alison Ulmer
(DE# 78), filed by Plaintiff, Virginia Fugate, on July 13, 2012.
For the reasons set forth below, Defendants’ motions for summary
judgment (DE## 57, 60) are GRANTED.
73, 78) are DENIED as moot.
Both motions to strike (DE##
Accordingly, this case is dismissed.
-1-
BACKGROUND
Plaintiffs, Virginia Fugate and Charlene Wind, filed suit
against their former employer, Defendants, Dolgencorp, LLC and
Dollar General Corp. (collectively “Dollar General”), alleging they
were discriminated against based on their age, in violation of the
Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 201, et
seq.
Plaintiffs then filed an amended complaint, including a new
claim on behalf of Virginia Fugate, alleging Defendants failed to
comply with the overtime pay provisions of the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. § 621 et seq., by misclassifying her as
exempt.
Defendants
have
now
filed
separate
motions
for
summary
judgment as to Virginia Fugate and Charlene Wind. Defendants argue
that Plaintiffs’ claims are barred for failing to file timely EEOC
charges of discrimination and also because Plaintiffs’ claims fail
on their merits. Defendants further argue that Fugate’s FLSA claim
is untimely and without merit.
The parties have also filed
motions to strike evidence relied on during the summary judgment
briefing.
DISCUSSION
Summary Judgment Standard
The standards that generally govern summary judgment motions
are familiar. Pursuant to Rule 56(c) of the Federal Rules of Civil
-2-
Procedure, summary judgment is proper only if it is demonstrated
that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
See
Nebraska v. Wyoming, 507 U.S. 584, 590 (1993); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986).
In other words, the record
must reveal that no reasonable jury could find for the nonmovant.
Karazanos v. Navistar Int'l Transp. Corp., 948 F.2d 332, 335 (7th
Cir. 1991); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986).
In deciding a motion for summary judgment, a court
must view all facts in the light most favorable to the nonmovant.
Anderson, 477 U.S. at 255; Nucor Corp. v. Aceros Y Maquilas De
Occidente, 28 F.3d 572, 583 (7th Cir. 1994).
The burden is upon the movant to identify those portions of
"the
pleadings,
depositions,
answers
to
interrogatories,
and
admissions on file, together with the affidavits," if any, that the
movant believes demonstrate an absence of a genuine issue of
material fact.
Celotex, 477 U.S. at 323.
Once the movant has met
this burden, the nonmovant may not rest upon mere allegations but
"must set forth specific facts showing that there is a genuine
issue for trial."
Fed. R. Civ. P. 56(e); Becker v. Tenenbaum-Hill
Assocs., Inc., 914 F.2d 107, 110 (7th Cir. 1990); Schroeder v.
Lufthansa German Airlines, 875 F.2d 613, 620 (7th Cir. 1989).
"Whether
a
fact
is
material
depends
on
the
substantive
law
underlying a particular claim and 'only disputes over facts that
-3-
might affect the outcome of the suit under governing law will
properly preclude the entry of summary judgment.'"
Walter v.
Fiorenzo, 840 F.2d 427, 434 (7th Cir. 1988) (citing Anderson, 477
U.S. at 248).
"[A] party who bears the burden of proof on a particular issue
may not rest on its pleading, but must affirmatively demonstrate,
by specific factual allegations, that there is a genuine issue of
material fact which requires trial." Beard v. Whitley County REMC,
840 F.2d 405, 410 (7th Cir. 1988) (emphasis in original); see also
Hickey v. A.E. Staley Mfg., 995 F.2d 1385, 1391 (7th Cir. 1993).
Therefore, if a party fails to establish the existence of an
essential element on which the party bears the burden of proof at
trial, summary judgment will be appropriate.
Fugate and Wind’s Employment at Dollar General
Dollar General is a retailer of basic consumable goods.
Dollar General stores operate under the supervision of a Store
Manager, who is the highest level of supervisory personnel, and
only exempt, salaried employee of the store.
26).
(Hubbs dep. pp. 24-
The stores are usually staffed with an Assistant Store
Manager,
a
Associates.
Lead
Sales
Associate,
(Hubbs dep. pp. 24-26).
District Manager.
and
multiple
store
Sales
Store Managers report to a
(Hubbs dep. pp. 24-26; Def. Response to Pl.
Request for Admission No. 22).
Dolgencorp, LLC, is a wholly owned
-4-
subsidiary of Dollar General.
In 2001, Fugate began working, as what she describes as a
“stocker,” at Dollar General’s store in New Carlisle, Indiana.
(Fugate dep. pp. 9, 15-16).
In 2003, Fugate became a clerk who
could run the cash register, and was then promoted to Lead Sales
Associate.
(Fugate dep. p. 20).
In 2004, when Fugate was 45 or 46
years old, she was promoted to Store Manager of the New Carlisle
store.
(Fugate dep. pp. 9, 24-25).
time was Tara Hullinger.
The District Manager at this
In 2005, Charlene Wind was hired to work
at Dollar General’s store in New Carlisle, Indiana as an hourly
sales associate.
(Wind dep. pp. 11, 14-15).
When she was hired,
she reported to the store manager, Virginia Fugate.
(Wind dep.
16).
In 2006, the store was realigned to a new district and Maude
Neely became Fugate’s District Manager.
41; Neely dep. pp. 17, 25, 53).
(Fugate dep. pp. 32-33,
Fugate later recommended Wind for
the position of Assistant Store Manager and Neely agreed with
Fugate’s recommendation.
239).
(Fugate dep. pp 107-108; Neely dep. p.
In November 2007, Wind was promoted to the position of
Assistant Store Manager.
62 years old.
(Wind dep. p. 33).
At the time, Wind was
(Wind dep. pp 5, 33).
On November 25, 2008, Fugate resigned her employment, telling
Neely that she could not take “the way [Neely] kept on me and kept
on me” concerning her need to maintain store standards.
-5-
(Fugate
dep. pp. 91-101).
Later that day, Wind received a telephone call
from Fugate’s husband informing her that Fugate had just resigned
her employment with Dollar General.
home and went to the store.
(Wind dep. p. 55).
(Wind dep. p. 55).
Wind left
When Wind arrived,
Neely informed her that Amanda Gunther was going to be the new
Store Manager.
In response, Wind stated “Okay, fine.
that, then here’s my keys.”
You want
(Wind dep. pp. 62, 66).
According to Wind, while employed at Dollar General, she was
being treated differently because of her age.
(Wind dep. p. 76).
Also, Fugate knew to go to the EEOC for workplace discrimination
claims because of a notice posted at her former Dollar General
store during her employment.
(Fugate dep. p. 193).
About one month before filing the charge of discrimination
with the EEOC, Wind’s husband suggested she do so.
75-76).
(Wind dep. pp.
And, prior to the expiration of 180 days after her
employment ended with Dollar General, Wind and Fugate “talked about
the pros and cons of filing a charge.” (Wind decl. ¶ 41).
For her
part, around May 20 or 21, 2009, Fugate spoke with someone from the
South Bend Human Rights Commission (“SBHRC”) about the alleged
discrimination she suffered at Dollar General, but Fugate was
“hesitant to file any kind of charge” at that time.
¶ 107).
(Fugate decl.
It was not until after Fugate later spoke with Wind did
she call and make an appointment to meet with someone from the
SBHRC.
(Fugate decl. ¶ 108; Wind decl. ¶ 41).
-6-
The appointment was
scheduled for May 28, 2009.
On May 28, 2009, Wind and Fugate went to the EEOC for the
first time, completed an intake questionnaire, and signed a Charge
of Discrimination.
(Wind dep. pp. 74-75, Ex. 3; Fugate dep. pp.
192-193, 196-97, Exs. 41, 44).
Plaintiffs’ ADEA claims are barred by
their failure to file timely EEOC charges
Both parties recognize that, in Indiana, EEOC charges must be
filed within 180 days of the alleged age discrimination.
EEOC v.
North Gibson Sch. Corp., 266 F.3d 607, 617 (7th Cir. 2001). Fugate
and Wind admit that they filed their charge of discrimination two
days after the 180 limit expired.
Nonetheless, they argue two
reasons why their claims are not time barred.
First, they assert
Defendants waived the right to challenge the timeliness of the
filing of the EEOC charge by not raising that affirmative defense
in the amended answer.
And, further, Plaintiffs argue that their
filing should be deemed timely based on equitable tolling.
Dollar General did not waive
its right to challenge the timeliness
of Plaintiffs’ EEOC charge of discrimination.
Plaintiffs argue that Defendants waived their right to assert
that the EEOC charges were not timely filed because Defendants
failed to plead an affirmative defense based on the statute of
limitations in the Amended Answer. It is true that filing a timely
-7-
charge of discrimination with the EEOC is subject to waiver. Zipes
v. Transworld Airlines, Inc., 455 U.S. 385, 393 (1982). And, it is
also true that typically a limitations defense must be raised as an
affirmative defense in the pleadings or it may be deemed waived.
John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133
(2008).
In fact, Federal Rule of Civil Procedure 8(c) requires
that a defendant, in his responsive pleading, raise all affirmative
defenses that will defeat the allegations in the complaint. So, it
must be determined if Defendants did, in fact, waive their right to
challenge the timeliness of Plaintiffs’ EEOC charge.
As Plaintiffs point out, nowhere in Defendants’ amended answer
is the timeliness of the EEOC charge raised.
the end of the story.
However, that is not
The Fifteenth Affirmative Defense contained
in the original answer, provided:
To the extent Plaintiffs’ claims encompass allegations
beyond
the
scope
of
Plaintiffs’
Charges
of
Discrimination, Plaintiffs’ claims are barred in whole or
in part by the relevant statute of limitations and/or
failure to exhaust administrative remedies or otherwise
comply
with
the
statutory
and
administrative
prerequisites for all claims they are asserting in this
complaint.
(DE# 13).
In written discovery, Defendants were asked about this affirmative
defense, and they provided:
Plaintiffs failed to file a Charge of Discrimination with
the EEOC within 180 days following any incident of age
discrimination they allege. In particular, Plaintiffs’
employment ended on November 25, 2008, but they did not
go to the EEOC until May 28, 2009.
-8-
(Ans. to Int. No. 12).
Subsequently, Plaintiffs filed an amended complaint in order
to add Fugate’s FLSA claim.
In their answer to the amended
complaint, Defendants omitted the previously mentioned affirmative
defense.
Upon realizing this omission, Defendant’s counsel wrote
to Plaintiff’s counsel:
Jay,
In reviewing our answer to plaintiff’s amended complaint,
we noticed that certain affirmative defenses which
appeared in our original answer inadvertently were
omitted.
(Obviously we intend to carry over all the
original defenses and add any additional defenses newly
made relevant and necessary by your client’s FLSA
amendment) . . . Because the court, having allowed
Plaintiff’s late-filed amended complaint, will certainly
grant a reciprocal request by Defendant essentially to
fix an inadvertent, clerical omission, we are hopeful you
will not require the parties and court to expend the time
and expense of a formal amendment process.
Please
advise. Thanks.
(Ex. 2).
In response, Plaintiffs’ counsel agreed, stating, “Yes, we will
consent
to
the
defenses.”
addition
(Ex.
2).
of
the
However,
previously
filed
Plaintiffs’
affirmative
counsel
has
now
apparently had a change of heart.
The purpose of requiring a defendant to raise an affirmative
defense in his responsive pleading is to “avoid surprise and undue
prejudice
to
the
plaintiff
opportunity to respond.
967 (7th Cir. 1997).
by
providing
her
notice”
and
an
Venters v. City of Delphi, 123 F.3d 956,
As such, parties have been able to add
-9-
affirmative defenses after the pleading stage when the plaintiff is
not prejudiced by the late notice.
Williams v. Lampe, 399 F.3d
867, 871 (7th Cir. 2005).
There is no question that Plaintiffs were aware of Defendants’
affirmative defense of failure to file a timely EEOC charge. It was
raised in the original answer and its inadvertent omission from the
amended answer was discussed amongst counsel.
The only reason
Dollar General did not seek to amend its amended answer in order to
include the inadvertently omitted affirmative defense was that
Plaintiffs’ counsel assured Dollar General that such an amendment
was unnecessary.
Plaintiffs have not made any showing that they
were prejudiced by the affirmative defense not being included in
the amended answer.
In fact, the undisputed evidence shows that
Plaintiffs were aware that Defendants intended to assert that
affirmative defense from the onset of this litigation.
Therefore,
the Court will allow Defendants to assert the affirmative defense
and will consider the defense on its merits.
Plaintiffs are not entitled to equitable tolling
It is undisputed that Plaintiffs filed untimely charges of
discrimination with the EEOC. Nevertheless, they ask this Court to
apply
the
doctrine
untimeliness.
of
equitable
tolling
to
excuse
their
Plaintiffs assert they should be afforded equitable
tolling because:
-10-
In this case, Fugate and Wind were laypersons doing their
best to protect their statutory rights. In fact, they
did contact the South Bend Human Rights Commission for
that purpose prior to the expiration of the 180-day
period. They were not aware of the specific deadline,
although generally aware that claims can expire. Through
no fault of theirs, the SBHRC scheduled their appointment
for the following week-just two days after the time limit
expired. They filed their Charge of Discrimination that
day.
(DE# 63, p. 5).
“In discrimination cases equitable tolling extends filing
deadlines in only three circumstances: when a plaintiff exercising
due diligence cannot within the statutory period obtain information
necessary to realize that she has a claim . . .; when a plaintiff
makes a good-faith error such as timely filing in the wrong court
. . .; or when the defendant prevents a plaintiff from filing
within the statutory period[.]” Porter v. New Age Services Corp.,
463 Fed. Appx. 582 (7th Cir. 2012)(citing Jones v. Res-Care, Inc.,
613 F.3d 665, 670 (7th Cir. 2010); Hentosh v. Herman M. Finch Univ.
of Health Sci./The Chicago Med. Sch., 167 F.3d 1170, 1175 (7th Cir.
1999); Threadgill v. Moore U.S.A., Inc., 269 F.3d 848, 850 (7th
Cir. 2001); Irwin v. Department of Veterans Affairs, 498 U.S. 89,
96 (1990)).
The doctrine of equitable tolling does not apply in this case.
Rather than attempting to explain how the facts of this case fit
into any of the three recognized categories of equitable tolling,
Plaintiffs focus merely on the fact that they were laypersons and
the EEOC scheduled an appointment with them two days after the time
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limit expired. This is not enough to trigger the equitable tolling
doctrine.
Neither
Plaintiff
has
argued
that
she
could
determine facts upon which her claim was based.
not
timely
This is not
surprising as they both admitted they believed they were being
treated
General.
differently
because
of
age
while
employed
(Fugate dep. p. 203; Wind dep. p. 76).
at
Dollar
Moreover, there
are no designated facts to support that either Plaintiff exercised
due diligence in pursuing her rights.
Both Plaintiffs knew that
they needed to file a charge of discrimination.
to do it in a timely manner.
They just failed
Finally, Plaintiffs do not assert
that the SBHRC in anyway lulled or misled them into believing that
they had more than 180 days to actually file their charges of
discrimination.
Moreover, there is nothing in the record to
support the notion that making an appointment with the SBHRC was a
prerequisite to filing a charge of discrimination.
Ultimately, it was Plaintiffs’ own indecisiveness that led to
their filing untimely charges of discrimination.
Based upon the
facts of this case, equitable tolling is not available to deem the
charges
of
untimely
discrimination
charges
of
timely.
discrimination,
dismissed.
-12-
Because
their
Plaintiffs
ADEA
claims
filed
are
Fugate’s FLSA claim is untimely because she has failed
to present evidence that Dollar General acted willfully
Dollar General classifies all store managers as exempt from
the
FLSA
on
a
company-wide
basis
rather
than
individualized decision for each store manager.
making
an
This came as a
result of an individualized study of its store managers that began
in 1995.
Prior to 1995, all store managers at Dollar General were
hourly, non-exempt employees.
(Rice Dep. p. 70).
In 1995, Dollar
General began the process of asking each store manager about their
job duties and time spent doing various activities, asking store
managers to certify their own understanding that management was
their primary duty and, where it appeared a particular store
manager did not view management as his primary duty, providing
additional training to emphasize the manner in which he was
expected to carry out the responsibilities as a store manager.
(Rice dep. pp. 69-76, 82-87, 97-128).
In 1996, Dollar General began converting store managers to
exempt status, on a manager by manager basis.
Before any manager
was converted, he or she had to complete an “Exemption Certificate”
in which the manager certified that “I spend more than 50% of my
time each week in ‘management/supervisory’ functions.” Rice Ex. 7
(Ex. 43) at DEF003566.
In February 1996, Dollar General issued a
statement to its District Managers stating “we feel most of our
store managers can meet the requirements allowing them to be
-13-
converted to salaried exempt status.”
(Ex. 43) at DEF003583.
1995 Survey, Rice Exhibit 7
Those store managers that did not qualify
to be converted to salaried exempt were given additional training
and asked to complete another survey, similar to the first.
If
they still could not certify that they spent more than 50% of their
time on management, they were not converted to exempt; they
remained hourly. (Rice dep. pp. 125-127). Dollar General had some
store managers who were hourly until 2002 or 2003.
127).
(Rice dep. p.
Since 2002 or 2003 Dollar General has categorized all store
managers as salaried exempt and has not since revisited its
decision.
Fugate argues that Dollar General misclassified her under the
“executive exemption” of the Fair Labor Standards Act (“FLSA”), 29
U.S.C. section 201 et seq.
The FLSA specifically exempts certain
employees from its requirement that employees be paid overtime,
including “any employee employed in a bona fide executive . . .
capacity.”
29 U.S.C. § 213(a).
An employee qualifies for this
exemption if: (1) she is paid a salary of $455 or more per week;
(2) her job’s “primary duty” is management; (3) her job includes
the customary and regular direction of the work of two or more
other employees; and (4) she has the authority to hire or fire
other employees or her suggestions and recommendations as to the
hiring, firing, advancement, promotion or any other change of
status of other employees are given particular weight.
-14-
29 C.F.R.
§ 541.100 (2005).
For purposes of this section, the Court assumes Fugate was
erroneously classified under the “executive exemption.”
is
whether
Fugate
timely
filed
her
action
under
At issue
the
FLSA.
Ordinarily, FLSA claims must be commenced within two years after
the cause of action accrued.
29 U.S.C. § 255(a).
However, the
statute of limitations is extended to three years if the cause of
action arises out of a willful violation of the FLSA.
255(a).
29 U.S.C. §
It is undisputed that Fugate filed her FLSA claim more
than two years, but less than three years, after alleged cause of
action accrued.
Thus, Fugate must show that Defendants willfully
violated the FLSA.
McDonald v. Village of Palestine, No. 08 C
5435, 2012 WL 2590492, *3 (N.D. Ill. June 29, 2012)(noting that the
burden of proof to establish a willful violation lies with the FLSA
plaintiff).
A violation is deemed willful under the FLSA if the “employer
either knew or showed reckless disregard” for whether its conduct
was prohibited by the FLSA.
McLaughlin v. Richland Shoe Co., 486
U.S. 128, 133 (1988); EEOC v. Madison Cmty. Unit Sen. Dist., 818
F.2d 577, 585 (7th Cir. 1987). “[A]n employer’s mere negligence or
a good faith - but incorrect - belief that they were in compliance
with the FLSA, are not sufficient to rise to the level of a willful
violation.”
Difilipino v. Barclays Capital, Inc., 552 F.Supp.2d
417, 425 (S.D.N.Y. 2008).
Whether a violation of the FLSA is
-15-
willful is a question of fact.
Pignataro v. Port Authority of New
York and New Jersey, 593 F.3d 265, 273 (3d Cir. 2010).
However, a
plaintiff is required to present sufficient evidence that her
employer
willfully
violated
FLSA’s
overtime
requirements;
otherwise, summary judgment is appropriate. Id.(affirming district
court’s summary judgment finding that employer’s violation of the
FLSA was not willful).
Fugate contends that Dollar General willfully violated the
FLSA
by
“intentionally
ke[eping]
its
head
in
the
sand
and
ignor[ing] all evidence that Virginia should have been classified
as a non-exempt employee.”
(DE# 63, p. 24).
In support of this
contention, Fugate pursues two separate arguments.
Fugate first
argues that Dollar General willfully violated the FLSA by not
classifying store managers on an individualized basis.
Second,
Fugate asserts that Dollar general had constructive knowledge that
Fugate worked long hours and spend most of her time doing manual
labor.
To start, Fugate believes Dollar General knew or should have
known
that
required.
an
individualized
inquiry
for
store
managers
was
Fugate complains that Dollar General has never done an
FLSA compliance audit to review whether the exempt classification
continues to apply to all of the store managers.
Fugate also
points out that many store managers have brought suit alleging FLSA
violations in the past few years, which should have made Dollar
-16-
General aware of the contentious nature of their classifying store
managers as salaried exempt.
Despite Fugate’s dislike of Dollar General’s classification of
store managers, there is no evidence that Dollar General knew or
recklessly disregarded the FLSA in classifying her (or any other
managers) as exempt.
Indeed, Dollar General decided to convert
store managers to salaried exempt only after engaging in a lengthy,
individualized process.
Dollar General’s failure to reassess its
classification cannot be seen as willful noncompliance with the
FLSA. While there have been lawsuits against Dollar General based
on its classification of store managers, not a single case has been
cited to the Court showing that Dollar General was ever found to
have misclassified a store manager, either willfully or otherwise.1
The mere filing of lawsuits cannot be deemed sufficient to put
Dollar General on notice that its policy is violative of the FLSA.
There has been no other relevant evidence presented that would put
Dollar General on notice of a need to revisit its classification of
store managers.2
If Dollar General ultimately turned out to be
incorrect on its reliance of the 1995 study, and was found to have
misclassified Fugate, that misclassification would be a result of
1
At most, some courts have found that a material fact existed for a
jury to decide.
2
Although Fugate has mentioned and attempted to rely on a 2004 Dollar
General Survey, the Court has already determined that the survey is not
relevant regarding her FLSA claim. The court’s conclusion wasn’t surprising
since, even after being given the opportunity, Fugate failed to articulate how
the survey was relevant to her FLSA claim. (DE# 54, p. 3).
-17-
negligence, at most.
Second, Fugate argues that Dollar General had “constructive
knowledge” that Fugate worked very long hours and spent much of her
time doing manual labor. However, this argument is based on little
more than Maude Neely telling Fugate that she should not work so
many hours at the store and to spend more time in the office and
less time on the floor because that was “what managers do.”
These
scant facts are insufficient to give Dollar General constructive
knowledge that Fugate should not be classified as salaried exempt.
Not surprisingly, Fugate fails to cite to any legal authority that
would support her argument. In fact, Fugate has not developed this
argument in any meaningful way other than by merely raising it.
Ultimately, as the plaintiff, Fugate bears the burden to show
that
a
triable
issue
exists
with
regards
to
Dollar
General
willfully misclassifying her as “executive exempt.” Fugate has not
met that burden.
Therefore, she can only recover for FLSA claims
that commenced within two years after the cause of action accrued.
Because she filed her claims after two years, her FLSA claims are
time-barred.
-18-
CONCLUSION
For the reasons set forth below, Defendants’ motions for
summary judgment (DE## 57, 60) are GRANTED. Both motions to strike
(DE## 73, 78) are DENIED as moot.
Accordingly, this case is
dismissed.
DATED:
October 23, 2012
/s/RUDY LOZANO, Judge
United States District Court
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