Tillman v. Pepsi Bottling Group, Inc.

• Decision Date: 19 March 2008
• Docket Number: Civ. No. 04-1314-SLR.
• Citation: 538 F.Supp.2d 754
• Parties: Marlayna G. TILLMAN, Plaintiff, v. The PEPSI BOTTLING GROUP, INC., and Teamsters Local Union 830, Defendants.
• Court: U.S. District Court — District of Delaware

538 F.Supp.2d 754

Marlayna G. TILLMAN, Plaintiff, v. The PEPSI BOTTLING GROUP, INC., and Teamsters Local Union 830, Defendants.

Civ. No. 04-1314-SLR.

United States District Court, D. Delaware.

March 19, 2008.

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Barbara H. Stratton of Knepper & Stratton, Wilmington, DE J. Stephen Woodside, PC, Norristown, PA (J. Stephen Woodside, of counsel), for Plaintiff.

Clifford B. Hearn, Jr., Odessa, DE, Jenning Sigmond, PC, Philadelphia, PA (Marc L. Gelman, of counsel), for Defendant Teamsters Local Union 830.

Leslie Carol Heilman & William M. Kelleher of Ballard, Spahr, Andrews, & Ingersoll, LLP, Wilmington, DE, Ballard Spahr Andrews & Ingersoll, LLP, Philadelphia, PA (Daniel V. Johns, Lucretia C. Clemons & Aisha M. Barbour, of counsel), for Defendant The Pepsi Bottling Group, Inc.

MEMORANDUM OPINION

SUE L. ROBINSON, District Judge.

I. INTRODUCTION

On September 29, 2004, Marlayna Tillman ("plaintiff'), an African-American female, filed the present action against The Pepsi Bottling Group, Inc. ("Pepsi") and Teamsters Local Union 830 ("the Union") (collectively, "defendants"). The complaint charges defendants with racial discrimination, gender discrimination, retaliation, discriminatory failure to promote, violation of the Fair Labor Standards Act of 1938 ("FLSA"),¹ and violation of the Equal Pay Act of 1963 ("Equal Pay Act").² (D.I. 1 at ¶¶ 72-110) On October 14, 2005, Pepsi filed a counterclaim for fraud and unjust enrichment. (D.I. 25 at 16-28) Plaintiff requests monetary relief, in an amount to be determined at trial.³

After the close of the discovery period, the Union filed a motion for summary judgment. (D.I.105) Pepsi filed two motions for summary judgment — one on plaintiffs claims and another on its own counterclaims. (D.I. 109; D.I. 111) In addition, Pepsi asks for sanctions for plaintiffs alleged bad faith conduct. (D.I.109) These three motions are currently before the court. The court has jurisdiction pursuant to 28 U.S.C. § 1331. For the following reasons, the Union's motion (D.I.105) is granted, Pepsi's motion for summary judgment on plaintiffs claims (D.I.111) is granted in part and denied in part, and Pepsi's motion on its counterclaims for fraud and unjust enrichment (D.I.109) is denied.

II. BACKGROUND

On May 8, 2001, plaintiff was hired as a merchandiser for Pepsi's sales department. (D.I. 113, ex. 3 at 107:22-108:1) The sales department includes multiple sub-departments and positions, some of which are union and others are non-union.⁴ (Id., exs. 5, 6) "Merchandiser" is a non-union position within the sales department, not covered by the CBA.⁵ (Id.) Plaintiff does not dispute that, while working as a merchandiser she was neither a union member nor entitled to union wages or protections. (D.I. 115 at 3) As a merchandiser, plaintiff received an hourly rate of $10.57 and an occasional stipend to reimburse her for mileage incurred while using her personal car for company deliveries. (Id.) Plaintiff received the same rate of pay as other Pepsi merchandisers.⁶ (D.I.113, ex. 7)

A few months after starting work, plaintiff sustained an injury when a wood chip entered her eye. (D.I. 1 at ¶ 13) As a result of this incident, plaintiff missed two days of work. (Id.) Upon returning to work, plaintiffs supervisor, Bruce Wray ("Wray"), told her that she would not be paid for the two missed days. (Id.) Plaintiff reported the incident to Pepsi's human resources department ("HR"), requesting payment for the two missed days. (Id.) In October 2001, Wray told plaintiff that the convenience store department,⁷ a sub-department of sales, was "getting hammered" and that she would be "helping out over there."⁸ (D.I. 107 at A16, 413:1-5) From October 2001 through May 2002, plaintiff assisted the convenience store department by performing new duties in addition to her prior ones. (Id. at A17, 115:16-117:24)

When assisting the convenience store department, plaintiff often engaged in deliveries. (Id. at A6, 115:16-117:24) Plaintiff s duties, usually performed with a permanent member of the convenience store department, included the following: drive to a given store; perform cooler resets; and stock the coolers, vending machines, or appropriate storage area. (Id.) Plaintiffs duties were similar to the duties of a relief driver.⁹ (Id. at A7, 189:18-190:10) The relief driver position is a union position, covered by the CBA, and is paid a significantly higher hourly rate than that of a merchandiser.¹⁰ (D.I. 113, ex. 5 at 28) Despite having similar responsibilities, plaintiff did not perform all of the specified relief driver duties. Plaintiff did not sell products directly to customers, collect sales revenues, or detail transactions in a route book. (Id., ex. 3 at 241:4-14) At this point in time, plaintiff had not applied for a position as a relief driver or obtained a valid "Class-A" Commercial Driver's License ("CDL-A"), a requirement for all relief drivers.¹¹ (D.I. 107 at A7, 190:11-20, A70)

Plaintiff complained to HR multiple times, requesting admission into the Union because of the length of time she assisted the convenience store department and the similarities between her "temporary" duties and the day-to-day duties of a relief driver. (D.I. 1 at ¶¶ 34-35; D.I. 116 at B011 ¶ 12-B012 ¶ 13) Other merchandisers, in addition to plaintiff, temporarily assisted the convenience store department. Three merchandisers — Matt Fields, Mark Maragus, and Dave Zimbala — also aided the convenience store department. (D.I. 113, ex. 30 at 145:14-20, 148:5-149:7) However, Pepsi employment records indicate that plaintiffs assigned duties in the convenience store department, paid at a merchandising rate, lasted for much longer, than the similar duties of these three employees.¹² (D.I. 117 at B108, B112)

While plaintiff assisted the convenience store department, HR told her that she needed to become a union member before formally bidding for an available driver position. (D.I. 116 at B012 ¶ 17) Plaintiff told HR she wanted a transfer to an available warehouse or production position, either of which would allow her to become a union member and begin building seniority for an eventual bid on the driver position. (D.I. 113, exs. 5, 8 at ¶ 11)

On May 28, 2002, plaintiff stopped assisting the convenience store department and returned to full-time merchandising. (Id. at B012 ¶ 15) Shortly thereafter, Pepsi hired three employees, Christopher Eastlack, Leroy Lewis, and Santos Robles, directly into the warehouse. These three individuals filled positions previously requested by plaintiff, despite their lack of previous employment with Pepsi. (Id. at B003 ¶ 18, B012 ¶ 16, B020-B022)

In June 2002, Pepsi granted plaintiff a union warehouse position. (Id., ex. 8 at ¶ 11) Plaintiff immediately complained to HR that she lacked proper union seniority¹³ because Pepsi hired the three additional employees before transferring her to the warehouse, despite her previous requests to join the warehouse workforce.¹⁴ (Id.)

Because Pepsi products are in high demand between Memorial Day and Labor Day, "business needs" did not allow plaintiff to be transferred from her old merchandising position to her new union warehouse position for a few weeks. (Id.) Other Pepsi employees experienced similar treatment. For instance, John Osciak, a Pepsi employee, won a job bid on May 27, 2002 but remained in his prior position until August 6, 2002. (Id.)

On July 21, 2002, plaintiff became a dues-paying union member in accordance with the CBA. (Id., ex. 3 at 411:6-12) Pepsi transferred plaintiff to the warehouse along with two other employees — Stan Coleman and Bill Becker. (Id., ex. 8 ¶ 10) All three transferees received the traditional hourly rate for new union members, $12.68.¹⁵ Based on plaintiffs requests and because all three transfers occurred internally, plant manager Phil Weber allowed all three transferees to be retroactively paid the full union rate of $15.75 as of their transfer date. (Id., ex. 8 at ¶ 12)

After a few weeks in the warehouse, plaintiff complained to HR that she was sexually harassed by other warehouse workers and subjected to frequent sexual innuendos.¹⁶ After she submitted this complaint, plaintiff described "retaliatory behavior towards [her], in the form of excessive scrutiny."¹⁷ (D.I. 1 at ¶ 51) On August 28, 2002, plaintiff filed a charge of discrimination against Pepsi with the Delaware Department of Labor ("DOL"), alleging race and sex discrimination. (D.I. 116 at B024) Plaintiff reported to the DOL that Pepsi had denied her various promotional opportunities, particularly for driver positions, subjected her to disparate treatment with regard to terms and conditions of employment, and held her to a higher standard than her white male coworkers. (Id.) Plaintiff also told the DOL that she was paid lower wages than her white male counterparts, despite performing the same work. (Id.)

On September 18, 2002, Pepsi laid off plaintiff and eighteen other employees. (D.I.113, ex. 12) The CBA provided that the union members should be laid off according to their respective seniority. (Id., ex. 5 at 17) Pepsi recalled plaintiff to work on October 19, 2002, but did not intend to pay her for the four weeks she was without work. (D.I. 115 at B013) Upon plaintiff s recall, she filed a grievance with the Union to obtain back-pay for the previous four weeks. (D.I. 107 at A74) Plaintiff contends that Pepsi failed to properly lay off and recall employees in accordance with seniority. (Id.,) After a grievance hearing on November 20, 2002, Pepsi agreed to pay plaintiff in full for the time she was out of work. (D.I. 113, ex. 3 at 255:10-13)

Plaintiffs warehouse supervisors created a disciplinary file on her after she returned from her time off. (Id., ex. 3 at 255:16-257:24; D.I. 115 at ¶ 29) Plaintiff contends that her...