Allen et al v. Walgreen Co. et al

Filing 31

ORDER AND REASONS granting MOTION 29 for Partial Summary Judgment with Respect to Plaintiff Dinger filed by Walgreen Co., Walgreen Louisiana Co.. Signed by Judge Sarah S. Vance on 12/15/15.(jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ALLEN, ET AL.

CIVIL ACTION

VERSUS

NO: 14-2244

WALGREEN CO. and WALGREEN
LOUISIANA CO., INC. d/b/a
WALGREENS

SECTION: R

ORDER AND REASONS
Before the Court is an unopposed motion for partial summary judgment
filed by defendants Walgreen Company and Walgreen Louisiana Company,
Inc.1 For the following reasons, the Court GRANTS the motion.

I.

BACKGROUND
This case involves alleged violations of the overtime provision of the Fair

Labor Standards Act ("FLSA"), 29 U.S.C. § 207. Defendants Walgreen
Company and Walgreen Louisiana Company, Inc. employed plaintiffs as
Executive Assistant Managers at retail stores throughout Louisiana and
allegedly failed to provide adequate compensation.2 To date, 30 of the 32
plaintiffs who filed this lawsuit have settled with defendants and stipulated to

1

R. Doc. 29-1.

2

R. Doc. 1.

the dismissal of their claims.3 Although two plaintiffs remain in this case,
Chris Dinger and Eric Green, defendants' motion for partial summary
judgment is directed against Dinger alone.4
Prior to this lawsuit, Dinger was an opt-in plaintiff in Teramura, et al.
v. Walgreens Co., an FLSA action in the U.S. District Court for the Western
District of Arkansas.5

On March 7, 2013, Judge Jimm Larry Hendren

conditionally certified Teramura as a collective action, defining the collective
action class to include:
[a]ll current and former salaried Executive Assistant Managers
("ESAs") employed by Defendant at any of its Walgreens stores
nationwide anytime within the three years immediately preceding
November 15, 2012, and continuing thereafter through the
expiration of the opt-in period for potential plaintiffs.6
Dinger filed his written consent to join the Teramura lawsuit as an opt-in
plaintiff on May 1, 2013.7 Ultimately, Teramura was decertified as a collective
action. On June 18, 2014, the Teramura court ordered that each opt-in
plaintiff would have a period of 90 days following the issuance of the notice of
3

R. Docs. 24, 26, 28.

4

R. Doc. 29-1.

5

Teramura, et al. v. Walgreen Co., W.D. Ark., Case No. 12-cv-5244 (hereinafter
"Teramura Litigation").
6

Teramura Litigation, R. Doc. 39 at 11.

7

Teramura Litigation, R. Doc. 145 at 7.
2

decertification to file an individual FLSA action without losing the benefit of
having tolled the statute of limitations by filing a written consent form.8
Dinger filed this lawsuit on September 29, 2014.
Although defendants concede that Dinger's filing sufficed to obtain the
benefit of the tolling order in Teramura, they contend that Dinger's FLSA
claims are nonetheless barred by the statute of limitations.9 Defendants
submit the declaration of David C. Thompson, who states that he is employed
as a paralegal at Walgreens and that he has access to "certain data for current
and former employees at Walgreens' stores, including . . . employees' names,
store locations, [and] dates of employment. . . ."10 Thompson further states
that he has reviewed Dinger's personnel data, which reveals that Dinger was
employed at Walgreens from March 16, 2005 until April 6, 2010.11 According
to Thompson, Dinger has not been employed at Walgreens as an Executive
Assistant Manager, or in any other capacity, since April 6, 2010.12 Defendants

8

Teramura Litigation, R. Doc. 284.

9

R. Doc. 29-3.

10

R. Doc. 29-3 at 1-2.

11

Id. at 2.

12

Id.
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argue that because Dinger did not opt into the Teramura action until May 1,
2013, Dinger's claims are barred by the FLSA's statute of limitations.

II.

LEGAL STANDARD
Summary judgment is appropriate when "the pleadings, the discovery

and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(c)(2); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994). When assessing whether a dispute as to any material fact
exists, the Court considers "all of the evidence in the record but refrains from
making credibility determinations or weighing the evidence." Delta & Pine
Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir.
2008). All reasonable inferences are drawn in favor of the nonmoving party,
but "unsupported allegations or affidavits setting forth 'ultimate or conclusory
facts and conclusions of law' are insufficient to either support or defeat a
motion for summary judgment." Galindo v. Precision Am. Corp., 754 F.2d
1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.
If the dispositive issue is one on which the moving party will bear the
burden of proof at trial, the moving party "must come forward with evidence
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which would 'entitle it to a directed verdict if the evidence went
uncontroverted at trial.'" Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257,
1263-64 (5th Cir. 1991). The nonmoving party can then defeat the motion by
either countering with sufficient evidence of its own, or "showing that the
moving party's evidence is so sheer that it may not persuade the reasonable
fact-finder to return a verdict in favor of the moving party." Id. at 1265.
If the dispositive issue is one on which the nonmoving party will bear the
burden of proof at trial, the moving party may satisfy its burden by merely
pointing out that the evidence in the record is insufficient with respect to an
essential element of the nonmoving party's claim. See Celotex, 477 U.S. at 325.
The burden then shifts to the nonmoving party, who must, by submitting or
referring to evidence, set out specific facts showing that a genuine issue exists.
See id. at 324. The nonmovant may not rest upon the pleadings, but must
identify specific facts that establish a genuine issue for trial. See, e.g., id. at
325; Little, 37 F.3d at 1075; Isquith ex rel. Isquith v. Middle South Utils., Inc.,
847 F.2d 186, 198 (5th Cir. 1988), cert. denied, 488 U.S. 926 (1988).

III. DISCUSSION
Under the FLSA, an action must commence within two years after the
cause of action accrues, or within three years if the alleged violation was
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"willful." 29 U.S.C. § 255(a). In a collective action, an action is "commenced"
for purposes of an opt-in plaintiff on the date the opt-in plaintiff files a written
consent to join the litigation. 29 U.S.C. § 256(b); Lima v. Int'l Catastrophe
Sols., Inc., 493 F. Supp. 2d 793, 803 (E.D. La. 2007); Quintanilla v. A & R
Demolition Inc., No. CIV.A. H-04-1965, 2006 WL 1663739, at *3 (S.D. Tex.
June 13, 2006).
Prior to this lawsuit, Dinger was an opt-in plaintiff in another FLSA
lawsuit, Teramura, et al. v. Walgreens Co., which was conditionally certified
collective action in March 2013. There, Dinger alleged that he had been
employed as an Executive Assistant Manager at a Walgreens retail store and
that defendants had failed to pay him overtime pay in accordance with the
FLSA's mandate. After the Teramura action was decertified, Dinger filed this
lawsuit, in which he presses identical FLSA claims for unpaid overtime. Thus,
the latest possible commencement date for Dinger's cause of action is May 1,
2013, the day that Dinger filed his written consent form in Teramura.
Defendants contend that Dinger's FLSA claim is undisputably barred by
the statute of limitations. In support, defendants provide a declaration from
a Walgreens paralegal who states that he has access to Walgreens employees'
names, store locations, and dates of employment and that he is personally
familiar with Dinger's personnel records. The declarant states that Dinger's
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employment with Walgreens ended on April 6, 2010 and that Dinger has not
been employed by Walgreens in any capacity since that date.
Dinger has filed no response to this motion, and he has therefore
provided no evidence that might raise a genuine issue of material fact about
the accuracy of the declarant's statements. Accordingly, the uncontested facts
indicate that Dinger ceased his employment with Walgreens on April 6, 2010,
which is over three years before the day Dinger filed his written consent form
in the Teramura litigation. Thus, regardless of whether the two-year or threeyear statute of limitations applies, Dinger's FLSA claims are time-barred
because Dinger commenced this action more than three years after his
employment ended, the last possible date that a cause of action could have
accrued under the FLSA. See Diedra Gettridge v. Civil Ctr. Site Dev. Co., No.
CIV. A. 01-2434, 2002 WL 126574, at *2 (E.D. La. Jan. 29, 2002) (holding that
FLSA suit was time barred because plaintiff filed suit more than two years
after she was terminated from employment). Defendants are therefore
entitled to judgment as a matter of law.

IV.

CONCLUSION

7

For the foregoing reasons, the Court GRANTS defendants' motion for
partial summary judgment. Plaintiff Chris Dinger's claims against defendants
under the FLSA are DISMISSED WITH PREJUDICE.

15th
New Orleans, Louisiana, this ___ day of December, 2015.

_______________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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