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Montano v. Allen Harim Foods, LLC

United States District Court, D. Delaware

August 4, 2017




         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 ¶¶ 7, 15; D.I. 28, ex. 1 at 29-30; D.I. 31, ex. 1 at ¶¶ 1-2) Defendant is a Delaware corporation with its principal place of business in Sussex County, Delaware. (D.I. 3 at ¶ 8; D.I. 6 at ¶8)

         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 ¶¶ 12-13; D.I. 31, ex. 1 at ¶¶ 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.I. 31, ex. lat ¶¶ 1, 4)

         During the entirety of her employment, Plaintiff was represented by United Food & Commercial Workers Local 27 (the "union"). (D.I. 28, ex. 1 at 30; D.I. 31, ex. 1 at ¶ 6) The Collective Bargaining Agreements ("CBAs") between the union and Defendant that were in effect during Plaintiffs 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. Plaintiffs Work and Defendant's Compensation System

         During the course of her employment with Defendant, Plaintiffs 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 30-31) 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 ¶ 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 ¶ 1; D.I. 31, ex. 1 at ¶ 8)

         Pursuant to Defendant's longstanding pay practice, Plaintiff was not compensated for "donning and doffing" her protective gear. (D.I. 28, ex. 2 at l)[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¶'ll) 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 would not be paid for this work. (D.I. 31, ex. 1 at ¶¶ 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 ¶ 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 ¶ 24) On later occasions, however, her manager dismissed Plaintiffs complaints and refused to adjust her paycheck. (D.I. 28, ex. 1 at 11; D.I. 31, ex. 1 at ¶¶ 25-26)

         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 per week" 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 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 ¶¶ 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 Vi hours, to 5 hours." (Id., ex. 1 at ¶ 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, 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. Plaintiffs 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 ¶¶ 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. 1 at 21; D.I. 31, ex. 1 at ¶¶ 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 Plaintiffs Firing

         With regard to Plaintiffs attendance during the 2014 calendar year, certain of Defendant's records-more specifically, a document recording a list of Plaintiff s absences that was submitted as Exhibit 9 to Defendant's opening brief-indicate the following:



Cumulative Occurrences
























Left Early



Warned for accumulating 6 occurrences.


Left Early






Warned for accumulating 7 .5 occurrences.









(D.I. 28, exs. 5, 7-9, 12)[4]

         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 ¶¶ 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 ¶ 66)

         On October 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 ¶¶ 52-55)

         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. 1 at 14-15; D.I. 31, ex. 1 at ¶¶ 49, 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 ¶ 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. 1 at ¶ 70)

         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 ¶ 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. 1 at ¶¶ 49, 52-55)

         B. Procedural History

         On May 15, 2015, Plaintiff filed her Complaint, (D.I. 1), which she later amended, (D.I. 3). On January 29, 2016, Chief Judge Leonard P. Stark referred the case to the Court to resolve all pretrial matters, up to ...

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