Kulish v. Rite Aid Corp.

• Decision Date: 13 December 2012
• Docket Number: Civil Action No. ELH-11-3178
• Parties: THOMAS B. KULISH, On behalf of himself and on behalf of all other similarly situated employees, Plaintiffs, v. RITE AID CORPORATION and ECKERD CORPORATION, d/b/a RITE AID, et al., Defendants.
• Court: U.S. District Court — District of Maryland

THOMAS B. KULISH, On behalf of himself

and on behalf of all other similarly situated employees, Plaintiffs,

v.RITE AID CORPORATION and ECKERD CORPORATION, d/b/a RITE AID, et al., Defendants.

Civil Action No. ELH-11-3178

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

Date: December 13, 2012

MEMORANDUM OPINION

Thomas B. Kulish, Olufemi Kolawole, and Christiana Dike, plaintiffs, on behalf of themselves and all other similarly situated employees, filed suit against defendants Rite Aid Corporation and Eckerd Corporation, d/b/a Rite Aid, and Rite Aid of Maryland, Inc. (collectively "Rite Aid"), alleging violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207, et seq., and the Maryland Wage and Hour Law ("MWHL"), Md. Code, Lab. & Empl. § 3-401, et seq. (2008 Repl. Vol. & 2012 Supp.).¹ Plaintiffs complain that defendants failed to compensate them and other pharmacists for overtime, as required by federal and Maryland law.²

As discussed, infra, the FLSA generally requires employers to pay overtime to non-exempt employees who work in excess of forty hours per week, at a rate of at least time and a half. 29 U.S.C. § 207(a)(1). Certain employees, however, are exempt from the overtime requirement. See 29 U.S.C. § 213(a)(1). This case presents the question of whether pharmacists who are salaried professionals, and thus "exempt" under 29 U.S.C. § 213(a)(1), lose their exempt status because the employer permits unpaid leave, but requires it to be taken only in increments of full days.³

Rite Aid has moved for summary judgment ("Motion" or "MSJ") (ECF 39), contending that plaintiffs are salaried professionals, and Rite Aid made no improper deductions from plaintiffs' salaries so as to disqualify them from "exempt" status under the FLSA. In plaintiffs' Response in Opposition to the Motion ("Opposition" or "Opp.") (ECF 42), they argue that Rite Aid's unpaid leave policy precluded designation of its pharmacists as exempt. Plaintiffs also raise several issues related to discovery. See id. at 6-8. The Motion is ripe for decision,⁴ and no hearing is necessary to resolve the dispute. See Local Rule 105.6. For the reasons that follow, I will grant the Motion.

Discovery Disputes

Before addressing the merits, I will consider plaintiffs' contentions that Rite Aid improperly withheld material during discovery, and then improperly relied upon that information in support of the Motion. See Opp. at 6-8. In my view, plaintiffs' contentions as to discovery issues are without merit.⁵

Plaintiffs complain that Rite Aid only provided pay records dating from November 2008, despite plaintiffs' request for records dating from September 15, 2008. See id. (citing Rite Aid's Answers to Interrogatories, Opp. Exh. G (ECF 42-9)). They argue that Rite Aid ignored the applicable three-year statute of limitations under Maryland law. Id. (citing Md. Code, Cts. & Jud. Proc. § 5-101).

Although the Complaint was filed in September 2011, Rite Aid's discovery disclosures conformed to its interpretation of the three-year statute of limitations. Rite Aid's responses indicate that, because the individual plaintiffs each filed a consent to be named as a plaintiff in this suit in November of 2011, Rite Aid limited its disclosures to November of 2008, based on a three-year limitations period. See Opp. Exh. G, at Interrogatory No. 3 ("Defendant objects to this interrogatory insofar as it is overbroad in temporal scope. Plaintiff Kulish filed his consent to become a party plaintiff on November 4, 2011, Plaintiff Kolawole filed his consent on November 16, 2011, and Plaintiff Dike filed her consent on November 22, 2011; therefore, given that the maximum length of any possible applicable statute of limitations is three years,Defendants will provide responsive information pertaining to each Plaintiff from each of those dates through their respective termination dates.") (emphasis added); id. ¶ 8 ("The relevant time period for Plaintiff Kulish, based on the date of the filing of his consent to become a party plaintiff, is November 1, 2008 until his employment was terminated. The relevant time period for Plaintiffs Dike and Kolawole, based on the dates of the filing of their consents to become a party plaintiff, is November 15, 2008 until the dates their employment was terminated.").

Plaintiffs do not offer any argument as to why Rite Aid's calculation was erroneous. In any event, they do not dispute Rite Aid's assertion that "Plaintiffs never indicated . . . that they believed that Defendants' discovery responses were inadequate and Plaintiffs did not seek relief from this Court either during the discovery period or before filing their Response." Reply at 13.

As the Local Rules make clear, a motion to compel is the appropriate vehicle for resolving certain discovery disputes, including those at issue here. See Local Rule 104.8. Plaintiffs never filed a motion to compel, however. Nor have they alleged that they satisfied the meet and confer requirement in Local Rule 104.8(b). Under the circumstances, the discovery dispute is untimely. See Blind Indus. & Servs. of Md. v. Route 40 Paintball Park, Civ. No. WMN-11-3562, 2012 WL 4470273, at *1-2 (D. Md. Sep. 26, 2012) (finding motion to compel untimely where it would require reopening of discovery); see also Packman v. Chicago Tribune Co., 267 F.3d 628, 647 (7th Cir. 2001) (holding that the district court did not abuse its discretion in denying plaintiff's motion to compel as untimely where plaintiff knew of insufficient discovery responses before the discovery deadline but failed to file its motion to compel until after the close of discovery and after defendants had filed their summary judgment motion).

Plaintiffs also contend that Rite Aid did not include certain "paystubs" reflecting the deductions referenced in its Memo, and contained in Rite Aid's Exhibit U to the Motion. See Opp. at 7. But, Rite Aid maintains that Exhibit U contains only its payroll data for plaintiff Dike, not the paystubs themselves. See Reply at 12-13; Rite Aid Surreply at 4-6. And, Rite Aid has explained that the caption at the top of each page of Exhibit U, which reads "Kulish v. Rite Aid," was added by the analyst who produced the payroll data; contrary to plaintiffs' suggestion, this does not indicate that the information was fabricated for purposes of this litigation. See Rite Aid Surreply at 4-6.

Moreover, it appears that, at least as early as May 15, 2012, the date of the deposition of Jocelyn Konrad, plaintiffs were in possession of the contents of this exhibit. During the Konrad deposition, contents of this exhibit were, in fact, explored by plaintiffs, thereby allowing ample time to raise any concerns as to the material prior to the briefing of the Motion. See Reply at 13; Rite Aid Surreply at 4-6.

In sum, plaintiffs' arguments as to alleged discovery violations are without merit.

Factual Background

Rite Aid, a national retail drugstore chain, operates thousands of pharmacy locations around the country, including locations in Maryland.⁶ Rite Aid employs two kinds of pharmacists: those it compensates based on an annual salary figure, and those it employs on anas-needed basis, to whom it pays an hourly wage. See Deposition of Jocelyn Konrad ("Konrad Depo."), Def. MSJ Exh. E, at 15:6-10 (ECF 39-7). Generally, Rite Aid staffs each pharmacy location in Maryland with two salaried pharmacists, designated and treated by Rite Aid as "exempt" under the FLSA in written notifications, pay stubs, and other documents: a "Pharmacy Manager" and a "Staff Pharmacist."

Kulish, Kolawole, and Dike have all been employed as pharmacists at Rite Aid locations in Maryland. Most recently, Kulish and Kolawole each worked as a "Pharmacy Manager," and Dike worked as a "Staff Pharmacist." Deposition of Kulish ("Kulish Depo."), Pl. Opp. Exh. A, at 15:14-16 (ECF 42-3); Deposition of Kolawole ("Kolawole Depo."), Pl. Opp. Exh. B, at 12:8-9 (ECF 42-4); Deposition of Dike ("Dike Depo."), Pl. Opp. Exh. C, at 36:21-37:1 (ECF 42-5). At the time their employment was terminated,⁷ each plaintiff had been employed by Rite Aid for over ten years, with Kulish having spent approximately 39 years in Rite Aid's employ. Pl. Opp. Exh. F (ECF 42-8).

The pharmacies at which plaintiffs worked were open for 154 hours every two-week "pay period," from 9 a.m. to 9 p.m. on weekdays, from 9 a.m. to 6 p.m. on Saturdays, and from 10 a.m. to 6 p.m. on Sundays. Kulish Depo., Def. MSJ Exh. A, at 16:4-6 (ECF 39-3); Dike Depo., Def. MSJ Exh. B, at 41:7-42:4 (ECF 39-4); Kolawole Depo., Def. MSJ Exh. C, at 13:10-14:4 (ECF 39-5). Rite Aid scheduled its pharmacists to work a base of 77 hours during each two-week pay period. Kulish Depo. at 66:15-67:4; Dike Depo. at 92:12-20. On any given day, however, Rite Aid assigned only one pharmacist to work a full shift (i.e., from open until close) at each pharmacy location. Kulish Depo. at 16:16-17:4, 65:17-67:22; Dike Depo. at 42:14-19,44:11-15; Kolawole Depo. at 14:5-16, 69:16-70:8. Consequently, plaintiffs and their pharmacist colleagues would split all of the full-day shifts throughout the pay period, so that each pharmacist assigned to the store regularly worked 77 hours every two weeks. Kulish Depo. at 16:16-17:4, 65:17-67:22; Dike Depo. at 42:14-19, 44:11-15; Kolawole Depo. at 14:5-16, 69:16-70:8; Declaration of Jocelyn Konrad ("Konrad Decl."), Def. MSJ Exh. F, ¶ 6 (ECF 39-8). In addition, plaintiffs' responsibilities occasionally required them to work outside of their normal shift hours, to take inventory, to provide customer assistance, to participate in conference calls with supervisors or management, to attend performance reviews, and to conduct public outreach. See Kulish Depo. at 40:2-6, 50:2-3, 54:9-22, 60:2-10; Dike Depo. at 42:6-13; Kolawole Depo. at 59:12-60:5; Rite Aid Job Description, Def. MSJ Exh. D (ECF 39-6); Konrad Depo. at 46:11-47:22, 166:7-23.

Rite Aid offers its salaried pharmacists a "guaranteed" annual salary,...