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Cindy Pierce v. Dolgencorp

February 3, 2011


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 Cindy Pierce's claims under the Fair Labor Standards Act, 29 U.S.C. § 213(a)(1). (Doc. 65).*fn1 The motion has been fully briefed and is ripe for disposition.*fn2


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.*fn3 Defendant Dolgencorp, Inc. ("Dolgencorp") hired Plaintiff Cindy Pierce ("Pierce") in December of 1998 to work as a cashier at its store in Westfield, Pennsylvania. (Pierce Dep. at 14, 16 (Doc. 81-7)). Dollar General stores are small retail outlets selling mainly consumable items. (Id. at 17). Pierce was promoted to Third-Key Clerk (a clerk entrusted with a key) and then, in February of 2001, promoted again to Assistant Store Manager ("ASM"). (Id. at 21, 23 - 24). On May 26, 2001 Pierce was promoted to Store Manager after interviewing with the District Manager. (Id. at 26; Personnel Action Form (Doc. 65-3 at 5)). Pierce spent one week in another store to receive training on the Store Manager position. (Pierce Dep. at 52 -53). Pierce continued as Store Manger at the Westfield Dollar General Store until June or July of 2003. (Id. at 112). As Store Manager, Pierce was the only salaried employee and the only employee classified as exempt. (Id. at 83).

As Store Manager, Pierce had at least one ASM, and one lay clerk. (Pierce Dep. at 56 - 57). Pierce managed a labor budget of over 200 hours per week. (Id.) In June of 2001, when Pierce started as a Store Manager, she earned $355.77 per week. (Id. at 44). In April of 2002, Pierce earned $423.08 per week. (Id. at 44 - 45). Pierce understood that her salary was meant to compensate her for as many hours as she worked. (Id. at 45). Pierce typically worked fifty to sixty hours per week, but perhaps as much as sixty-five hours per week. (Id. at 27, 29). Pierce was eligible for a bonus equal to 15% of her store's net profit. (Id. at 45 - 47). In 2002, Pierce received bonuses of $7,150.25 and $1,072.53 which she shared with her ASM and clerks. (Id.; Payroll Records (Doc. 65-7 at 9)). Pierce was the highest paid employee in her store. (Pierce Dep. at 83). Her ASM earned $6.20 per hour. (Id. at 48).

Pierce's supervisor was District Manager John Stewart. (Pierce Dep. at 49). Stewart would visit Pierce's store in Westfield once every four or five months for two to three hours. (Id. at 50 - 51). Stewart would change the layout of the store based on new corporate "planograms." (Id. at 50).

Stewart did not have an office at the store-- only Pierce had an office. (Id. at 52). In addition to Stewart's visits, he would sometimes conduct district-wide teleconferences about once per year. (Id. at 51).

As a Store Manager, Pierce performed the following managerial duties:

* Pierce interviewed and hired fourteen employees without District Manager approval (Pierce Dep. at 33 - 37, 83);

* Pierce trained employees (id. at 63 - 64, 67, 92);

* Pierce disseminated and enforced corporate policies (id. at 38, 40 -41, 43);

* Pierce evaluated employee performance, including disciplining employees, firing employees, and promoting employees (id. at 31 -32, 36, 41, 79 - 81, 116 - 117);

* Pierce ensured store security (id. at 61, 67, 107);

* Pierce ensured a safe working environment (id. at 105 - 106);

* Pierce controlled store expenses (id. at 87 - 88, 93 - 94);

* Pierce monitored sales, damages, employees and hours (id. at 29 -31);

* Pierce directed her employees' work assignments (id. at 94 - 95, 132 - 133);

* Pierce schedule her employees' hours (id. at 67 - 68, 90 - 91, 94 -95).

ASMs did not perform these managerial sorts of functions. (Id. at 24 - 25,

70). Pierce also performed the job functions listed in the Store Manager Job Description. (Pierce Dep. at 64; Store Manager Job Description (Doc. 69-2)). Pierce always supervised her employees. (Pierce Dep. at 67). As Store Manager, Pierce had a Standard Operating Procedure ("SOP") Manual to which she would refer every couple of months. (Id. at 61 - 62).

The SOP Manual laid out how all tasks and job functions were to be performed. (Id.)

Pierce prevented theft by monitoring the cash register, handling store returns, inventorying deliveries, training employees on shoplifting, checking the trash, and handling all bank deposits and logs. (Pierce Dep. at 67, 88, 95 - 96, 101, 100, 102). Pierce handled all store paperwork. (Id. at 66, 102). Pierce spent 25 - 30% of each day doing paperwork and 50% of her time overall.*fn4 (Id. at 123, 128). It took Pierce five or six hours to make a work schedule. (Id. at 94). Pierce had some discretion to mark-down prices but at the end of her employment those decisions required approval at a higher level. (Id. at 98). Pierce required approval of her District Manager to take a day off of work. (Id. at 104). Pierce requested a security alarm for years, but her requests were not granted until the store was burglarized. (Id. at 106 - 107). Pierce spent one to two hours per day walking the aisles making sure items were displayed correctly. (Id. at 86). Pierce differentiated her store from local competition by focusing on cleaning, stocking shelves, and friendly customer service. (Id. at 59).

Pierce received all store mail and was responsible for storing employee enve opes. (Pierce Dep. at 101 - 103). Pierce was also responsible for taking recalled items off the shelves. (Id. at 103). Pierce handled customer complaints if another employee could not resolve it. (Id. at 68). Pierce called the repairman if something at the store needed to be fixed. (Id. at 93).

Pierce was the leader of her store and was the employee most in charge. (Pierce Dep. at 27). Pierce's main responsibility was to ensure that her store was profitable. (Id.) According to Pierce, if she did not perform her managerial duties then sales would drop. (Id. at 68). Pierce considered keeping sales high as her highest priority and stated that the best way to keep sales high was to stock the shelves and have good employees. (Id. at 68 - 69). Pierce's Dollar General Store had annual sales of $1,474,712 in February of 2002. (Id. at 57 - 58).

Pierce would stock shelves everyday for four or five hours. (Pierce Dep. at 66). While stocking, however, Pierce could simultaneously train and supervise other employees. (Id. at 66 - 67). Pierce and her ASM would make merchandise orders, which took an entire day. (Id. at 65 - 66, 86 - 87). On "truck days", when a large truckload of merchandise was delivered, Pierce would dedicate 75% of her time to unloading and inventorying the delivery. (Id. at 132). The store would sometimes receive two trucks per week. (Id. at 56). It would normally take two days to have the delivery items unloaded and stocked on the shelves. (Id. at 90). She would try to have all of her employees working on those days. (Id. at 123). Pierce would try to engage employees in one-on-one training on these days because she could not schedule enough labor hours to hold a dedicated training meeting. (Id. at 121).

Merchandise would be laid out in the store according to a planogram-- a diagram from the corporate headquarters specifying where each item should be placed in the store-- but she had a small amount of flex space to sell items at her discretion. (Pierce Dep. at 84 - 85). Pierce did not feel she had discretion to set up the store as she would have liked. (Id. at 130).

Pierce spent "a lot" of time both unloading and stocking deliveries. (Id. at 123). Pierce spent "a lot" of time doing non-managerial work. (Id. at 122). Pierce swept the floors five or six hours per week. (Id.) Pierce had a manager's office but did not spend much time in it. (Id. at 129). At one point, Pierce characterizes her work as being 50% paperwork and the rest as manual labor. (Id. at 123).

On more than one occasion Pierce requested additional labor hours for her budget. (Pierce Dep. at 121, 131). These requests were denied. (Id.) Pierce received excellent reviews in the area of "payroll control." (Id. at 73). Pierce attributed these positive reviews to personally working more hours. (Id.) Pierce resigned in June or July of 2003 because of stress. (Id. at 112).

On March 9, 2004, Pierce 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. (Pierce Dep. at 117 - 118; Consent to Become Party Plaintiff in Brown v. Dolgencorp, Inc., No. 02-C-673-W (Doc. 65-5)). On November ...

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