Phillips v. Tacala, LLC

• Citation: 883 F.Supp.2d 1138
• Decision Date: 10 August 2012
• Docket Number: Civil Action No. CV–10–S–477–NE.
• Parties: Laura L. PHILLIPS, Plaintiff, v. TACALA, LLC, Defendant.
• Court: U.S. District Court — Northern District of Alabama

883 F.Supp.2d 1138

Laura L. PHILLIPS, Plaintiff,

v.TACALA, LLC, Defendant.

Civil Action No. CV–10–S–477–NE.

United States District Court,

N.D. Alabama,

Northeastern Division.

Aug. 10, 2012.

Amy K. Jordan, K. Bryance Metheny, Ronald W. Flowers, Jr., Burr & Forman LLP, Birmingham, AL, for Defendant.

MEMORANDUM OPINION AND ORDER

LYNWOOD SMITH, District Judge.

Plaintiff, Laura L. Phillips, asserts a claim against her former employer, Tacala, LLC, for failure to pay wages and overtime in violation of the Fair Labor Standards Act of 1938, 29 U.S.C. § 201, et seq. (“FLSA”). ¹ The case currently is before the court on defendant's motion for summary judgment ² and defendant's motion to strike plaintiff's declaration.³ Upon consideration of the pleadings, briefs, and evidentiary submissions, the court concludes the motion to strike is due to be granted in part and denied in part, and the motion for summary judgment is due to be granted.

I. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56 provides that a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In other words, summary judgment is proper “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment.” Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir.2000) ( en banc ) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir.1995)). Inferences in favor of the nonmoving party are not unqualified, however. “[A]n inference is not reasonable if it is only a guess or a possibility, for such an inference is not based on the evidence, but is pure conjecture and speculation.” Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir.1983). Moreover,

[t]he mere existence of some factual dispute will not defeat summary judgment unless that factual dispute is material to an issue affecting the outcome of the case. The relevant rules of substantive law dictate the materiality of a disputed fact. A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor.

Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (asking “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law”).

II. MOTION TO STRIKE

Defendant asks the court to strike plaintiff's declaration, which was filed with her opposition to defendant's motion for summary judgment, because it is inconsistent with her prior deposition testimony, and because it contains irrelevant testimony. To the extent the motion to strike is based upon alleged irrelevant testimony in plaintiff's declaration, it will be denied. The court is capable of discerning what testimony is relevant to the issues raised on summary judgment. It is not necessary that irrelevant statements be stricken from the record. The determination of whether portions of plaintiff's declaration should be stricken as inconsistent with prior deposition testimony, however, requires more analysis.

The Eleventh Circuit has held that “a party cannot give ‘clear answers to unambiguous questions' in a deposition and thereafter raise an issue of material fact in a contradictory affidavit that fails to explain the contradiction.” Rollins v. TechSouth, Inc., 833 F.2d 1525, 1530 (11th Cir.1987) (quoting Van T. Junkins and Associates, Inc. v. U.S. Industries, Inc., 736 F.2d 656, 657 (11th Cir.1984)). The Eleventh Circuit has cautioned, however, that this so-called “sham affidavit” rule should be applied “ ‘sparingly because of the harsh effect it may have on a party's case.’ ” Nichols v. Volunteers of America, North Alabama, Inc., 470 Fed.Appx. 757, 761 (11th Cir.2012) (pagination for the Federal Appendix not available on Westlaw) (quoting Latimer v. Roaring Toyz, Inc., 601 F.3d 1224, 1237 (11th Cir.2010)).

[T]he court must be careful to distinguish “between discrepancies which create transparent shams and discrepancies which create an issue of credibility or go to the weight of the evidence.” Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir.1986).

[E]very discrepancy contained in an affidavit does not justify a district court's refusal to give credence to such evidence. In light of the jury's role in resolving questions of credibility, a district court should not reject the content of an affidavit even if it is at odds with statements made in an early deposition.

Id. at 954 (quoting Kennett—Murray Corp. v. Bone, 622 F.2d 887, 894 (5th Cir.1980)) (alteration in original) (citation omitted).

Faulk v. Volunteers of America, 444 Fed.Appx. 316, 318 (11th Cir.2011) (first bracketed alteration supplied, second bracketed alteration in original).

Defendant argues that several statements from plaintiff's declaration are inconsistent with her prior deposition testimony. The court will address each statement, or group of statements, in turn.

A. Testimony About Time Spent as Assistant General Manager

In her February 14, 2012 declaration, plaintiff stated:

While I worked as an [Assistant General Manager (“AGM”) ] in the South Cullman store, I spent the majority of my working time performing the same tasks as those performed by Tacala's employees who were paid by the hour and were eligible to receive overtime compensation; these tasks included, but were not limited to, cooking food, preparingfood orders, operating cash registers, and cleaning the store.⁴

During her deposition, which was taken on May 20, 2011, plaintiff testified that, while she was an AGM, she “typically” served as the Manager–In–Charge (“MIC”) whenever she was in the store.⁵ The MIC was the manager in charge of, or responsible for, the store whenever she was on shift. She would “run the shift,” make sure “everybody [was] in their places,” and was “in control of the money.” ⁶ Plaintiff also answered “Yes, Sir,” to the following questions: (1) “As an AGM, your responsibility was for the performance of the store while you were there, correct?” ⁷; (2) “As an AGM, you were responsible for managing the store during the shifts that you ran?” ⁸; and (3) “And that's a responsibility you had throughout the time you were working as an AGM?” ⁹

Plaintiff's declaration is not entirely inconsistent with her deposition testimony on this point. It is reasonably possible for plaintiff to have been the head managerial employee “in charge” of a shift, and still end up spending more than half of her working hours performing the same tasks as non-managerial employees, such as cooking and serving food.

B. Testimony About Duties Performed

In paragraph 10 of her declaration, plaintiff stated that “[t]he designated MIC would oversee his or her particular shift while also performing the same tasks as Tacala's hourly workers.” ¹⁰ In paragraph 13, she stated:

Even if I was designated to be the MIC for a shift, I frequently had to stop or delay performing duties associated with the MIC to perform non-managerial duties, such as working the drive through window, sweeping floors, and cleaning Tacala's kitchen utensils and equipment so hourly employees could be sent home when their shift ended in order to prevent the accumulation of overtime compensation.¹¹

In paragraph 32, she stated, “As an AGM in the South Cullman store, I never investigated or resolved legal problems, employment issues, operation management issues, or any other matter of significance on behalf of Tacala's management.” ¹²

Defendant asserts that these statements conflict with plaintiff's earlier deposition testimony that, when she was MIC, which was “typically,” she was “responsible for all of the operations of the store,” regardless of what specific tasks she was performing at any given time, and that she was “responsible for ensuring that everything that needed to be done at the store was done and getting employees to do that.” ¹³

Again, the court does not find inherent inconsistencies between plaintiff's declaration and the identified deposition testimony. It is reasonably possible that plaintiff would regularly be required to perform a combination of managerial and non-managerialduties during any given shift. Plaintiff could be “in charge,” or “responsible,” during any given shift, even while she was performing non-managerial tasks.

The court does, however, find inconsistencies between plaintiff's statement that she “never investigated or resolved legal problems, employment issues, operation management issues, or any other matter of significance on behalf of Tacala's management,” and other portions of plaintiff's testimony. As discussed more fully below in the section entitled “Summary of Facts,” plaintiff testified during her deposition that she was in charge of making sure each shift ran smoothly, coaching employees on their performance, disciplining employees for performance or behavioral problems, setting performance goals, and ensuring compliance with corporate policies. Those duties seem to this court to fall under the descriptions of “employment issues” and “operation management issues,” which plaintiff previously stated were not part of her job. Accordingly, the court concludes that paragraph 32 of plaintiff's declaration should be stricken as inconsistent with her prior deposition testimony. ¹⁴

C. Overlapping Schedules of RGM and AGM

In paragraph 11 of her...