The opinion of the court was delivered by: (Judge Munley)
Before the court for disposition is Defendant Dolgencorp, Inc.'s motion for summary judgment on Plaintiff Johnna Plaunt's claims under the Fair Labor Standards Act, 29 U.S.C. § 213(a)(1), and motion to strike plaintiff's evidence. (Docs. 51, 100).*fn1 The motions have been fully briefed and are ripe for disposition.
This case is one of several actions brought by Dollar General Store Managers alleging that Defendant Dolgencorp, Inc. owes them overtime-pay under the Fair Labor Standards Act.*fn2 Plaintiff Johnna Plaunt ("Plaunt") was hired by Defendant Dolgencorp, Inc. ("Dolgencorp") as an Assistant Store Manager ("ASM") at its store in Middletown, Pennsylvania in September of 2000. (Plaunt Dep. at 26 - 27 (Doc. 81-4)). In June of 2001 Plaunt was promoted to Store Manager and she worked in that capacity until she resigned in February of 2002. (Id. at 32 - 33). Plaunt worked again for Dolgencorp in February of 2003 as a clerk at a store in York, Pennsylvania. (Id. at 33). She then transferred to a Dolgencorp store in Harrisburg, Pennsylvania as an ASM. (Id. at 35). In June of 2003 she returned to the Middletown store and worked there as a Store Manager until April of 2004 when she resigned again. (Id. at 35 - 36).
When Plaunt worked as an ASM in Middletown, she was directed by the Store Manager Kerin Lukens. (Plaunt Dep. at 30). As an ASM, Plaunt did not interview applicants, hire applicants, terminate employees, review employee performance, or counsel employees. (Id. at 30 - 31).
As a Store Manager, Plaunt directed her ASM and store employees in what to do, however she denies having supervised them. (Plaunt Dep. at 168; Pl.'s Response to Def.'s Undisputed Facts ¶ 2 (Doc. 84)). As a Store Manager, Plaunt was paid $425.00 per week on a salary basis which was supposed to compensate her for up to forty-five hours of work. (Plaunt Dep. at 32, 56, 199; Ex. B, Store Report (Doc. 59)). She later was paid $475.00 per week. (Ex. B, Store Report (Doc. 59)). On average, she worked fifty hours per week as a Store Manager. (Id. at 202). Plaunt believed she was eligible for overtime. (Id. at 56). Plaunt was the only employee in the store classified as exempt from overtime requirements. (Id. at 199). Dollar General stores were eligible to receive bonuses based on the store's profitability, with higher portions thereof being paid to Store Managers than to other employees, although Plaunt never earned such a bonus. (Id. at 55 - 59, 191). Plaunt's ASMs earned $6.50 or $8.25 per hour. (Def. Statement Undisputed Facts ¶ 6 (Doc. 52)).
As a Store Manager, Plaunt reported to a District Manager. First, Plaunt reported to District Manager Vanessa Blum who visited the store about twice a month and stay all day, although some visits were much shorter. (Plaunt Dep. at 65 - 67). Blum met with Plaunt for about an hour and then, occasionally, directed Plaunt to stock shelves, sweep the floor, or run the cash register. (Id. at 67). Blum also communicated with Plaunt directly by phone once a week and also by leaving district-wide weekly voicemails. (Id. at 71 - 72).
After Blum, Plaunt's District Manager was Dawn Fiscel, who visited once a month for one half-hour. (Plaunt Dep. at 69). District Manager David Olson also visited once or twice a month, usually for one half-hour but sometimes for longer. (Id. at 70). It is not clear whether Fiscel and Olson managed concurrently or separately. Fiscel and Olson would communicate with Plaunt directly by phone once a week and also by district-wide weekly voicemails as Blum had done. (Id. at 71 - 72).
When Plaunt worked as a Store Manager, she performed the following duties, in accordance with her job description:
* she recruited, interviewed and recommended qualified employees for hire (Plaunt Dep. at 129, 155);
* she trained, evaluated, and counseled employees (id. at 123, 129, 141 - 42, 156, 202 - 03);
* she recommended store employees for pay raises and promotions and her recommendations were followed (id. at 126, 129, 156);
* she communicated expectations regarding performance, conduct and safety to employees (id. at 157);
* she ensured appropriate staffing and effective opening and closing (id. at 157 - 58);
* she evaluated operating statements to identify business trends, cost-control opportunities, and potential theft (id. at 158);
* she ordered inventory to ensure the store was properly stocked (id. at 158 - 59);
* she facilitated efficient staging, stocking, and storage of merchandise (id. at 159 - 60);
* she ensured proper merchandise presentation (id. at 160);
* she maintained accurate inventory levels by controlling damage, markdowns, scanning, and paperwork (id. at 161);
* she maintained financial integrity through cash accountability and key control (id. at 161 - 62);
* she provided customer service leadership (id. at 162 - 63);
* she kept a clean, organized, and safe store (id. at 163 - 64);
* she followed and enforced corporate policies and legal requirements contained in the Standard Operating Procedures Manual, Employee Handbook, and company communications (id. at 42 - 46, 128, 164 -165);
* she completed all paperwork (id. at 165).
Plaunt admits that her District Manager did not interfere with her performance of any of these Store Manager job functions. (Id. at 155 - 65). Similarly, Plaunt indicates that her ASM only performed the Store Manager job functions described above at Plaunt's direction and discretion. (Id.)
In addition, Plaunt was responsible for store security (Plaunt Dep. at 180 - 182); ensured employee safety (id. at 157, 179 - 181); implemented a payroll budget (id. at 195 -196); directed store employees (id. at 96, 109, 168 - 170, 184 - 186, 200); scheduled employees' work (id. at 155, 157, 167, 183 - 184); and recommended employees for termination and her recommendations were followed (id. at 144 - 145, 147 - 151, 199). Plaunt was responsible for hearing employee complaints and for resolving employee conflicts. (Id. at 45, 49, 138 - 139, 168). Plaunt delegated tasks to employees and made daily work lists for them to complete. (Id. at 52, 54, 121 - 122). In sum, Plaunt was largely in charge of the store and responsible for its profitability. (Id. at 119, 166 - 67). In Plaunt's opinion the store could not operate without her. (Id. at 201).
Not all of Plaunt's job functions involved "managerial duties," however, and her job description contemplated manual labor. (Doc. 84 ¶ 9; Store Manager Job Description (Doc. 69-2)). In fact, the majority of Plaunt's actual time in the store was spent stocking shelves and assisting customers, though Plaunt continued to monitor the store's operation while performing these tasks. (Id. at 172, 200, 202, 204). The job descriptions of the Store Manager and the ASM positions have many "managerial duties" in common and these two sorts of employees were evaluated using the same form. (Doc. 84 ¶ 5 ; ASM Job Description (Doc. 89-47); Combined Performance Review (Doc. 89-43)). Further, if Plaunt did not perform her manual labor tasks such as stocking shelves and cleaning, the store would not have run as profitably. (Plaunt Dep. at 200, 173).
Plaunt was required to place products in the store based on Dolgencorp's "planogram." (Plaunt Dep. at 93, 106). The planogram dictated 80% of each store's merchandise layout. (Id. at 106 - 107, 169). Plaunt used the remaining 20% to sell overstocked items. (Id. at 107). Plaunt's authority to order merchandise was similarly circumscribed-- she made orders according to Dolgencorp's formula. (Id. at 175). Some of the merchandise was sent by Dolgencorp's corporate headquarters regardless of whether Plaunt ordered it or not. (Id. at 101).
Though Plaunt made recommendations on employee termination and compensation, she required District Manager approval. (Plaunt Dep. at 130, 150). Similarly, Plaunt could not mark down prices without approval. (Id. at 198). Plaunt did not interact with her store's landlord, but communicated facility problems to Dolgencorp's headquarters. (Id. at 112). Once or twice a year Plaunt would be sent to other store locations to perform manual labor. (Id. at 114).
On April 28, 2004 Plaunt had an argument with her District Manager, David Olsen, about the fact that her store did not have an ASM and that she was working too many hours. (Plaunt Dep. at 36 - 38). Plaunt walked out after this argument and no longer worked for Dolgencorp. (Id.)
On March 18, 2004, Plaunt consented to become a party plaintiff in Brown v. Dolgencorp, Inc., No. 02-C-673-W, an FLSA action against Dolgencorp seeking overtime pay in the United States District Court for the Northern District of Alabama. (Id. at 11 - 12; Consent to Become Party Plaintiff in Brown v. Dolgencorp, Inc., No. 02-C-673-W (Doc. 51-5)). On November 3, 2006 Plaunt's case was consolidated for discovery purposes under CV-06-CO-1538-W. (Doc. 1).
On December 22, 2008, Plaunt's case, along with twenty-two others, was transferred to this district from the United States District Court for the Northern District of Alabama by that court's order dated December 17, 2008. (Doc. 7). The case was initially assigned to the Honorable Thomas I. Vanaskie. (Id.) On February 24, 2009, the twenty-three cases were consolidated for pretrial purposes. (Doc. 30). By order of the court on October 21, 2009, discovery was due April 30, 2010. (Doc. 41). On May 17, 2010, Dolgencorp filed a motion to sever the twenty-three cases for individual trials. (Doc. 48). On May 21, 2010, Dolgencorp filed the instant motion for summary judgment. (Doc. 51). By an agreed order dated May 27, 2010, the court stayed twenty-one of the twenty-three consolidated cases pending (1) its decision on the motions for summary judgment on the claims of Plaintiff Cindy Pierce and the plaintiff in this case and (2) the Judicial Panel on Multidistrict Litigation's ruling on a motion to transfer the cases to another district. (Doc. 75; see also May 10, 2010 Letter from MDL Panel (Doc. 64)). On June 30, 2010 this case was reassigned from Judge Vanaskie to the undersigned.
On July 15, 2010, Dolgencorp filed a motion to strike evidence submitted by the plaintiff in opposition to the motion for summary judgment. (Doc. 100). On August 12, 2010, the Panel on Multidistrict Litigation denied the plaintiffs' motion to transfer the cases to the Northern District of Alabama for inclusion in MDL No. 1635. (Doc. 106). On September 16, 2010 the court consolidated two additional cases into No. 3:09cv079 for discovery purposes-- Shuback-Garrison v. Dolgencorp, ...