Cleland et al v. DOLGENCORP, LLC, No. 5:2014cv00076 - Document 59 (S.D. Ga. 2016)
Court Description: ORDER granting in part and denying in part 35 Motion for Summary Judgment; granting 36 Motion for Summary Judgment; denying 47 Motion to Amend/Correct. Signed by Judge J. Randal Hall on 03/31/2016. (thb)
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Cleland et al v. DOLGENCORP, LLC Doc. 59 IN THE UNITED FOR THE STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA WAYCROSS REBA GAIL CLELAND, TERRY W. CLELAND, and DIVISION * * * Plaintiffs, * * v, * CV 514-076 * DOLGENCORP, LLC, Dollar General, d/b/a * Defendant, ORDER Three motions Plaintiffs' for motion summary Cleland's are currently to amend judgment with claims (doc. 35); (doc. 47); respect and before (2) to the Defendant's Plaintiff Defendant's motion judgment with respect to Terry Cleland's claim the reasons DENIED, below, Plaintiff's (doc. motion motion Reba for to (1) Gail summary 36). amend For is Defendant's motion for summary judgment with respect to Plaintiff GRANTED discussed Court: Reba Gail in part, and Cleland' s claim Defendant's is motion DENIED for in summary part and judgment with respect to Plaintiff Terry Cleland's claim is GRANTED. Dockets.Justia.com I. Factual Background The claims presented in the case all arise out of Plaintiff Reba Gail Cleland's employment ("Dollar General"). with The claims, and distinct events. Below, Defendant however, DOLGENCORP, are based on separate for the sake of clarity, separates the facts surrounding the different claims. presented are the facts taken in the LLC light most the Court The facts favorable to Plaintiffs. 1. The Missing Money and Ms . Cleland' s Termination Ms. Cleland worked as Georgia Dollar General Thomas, and Page. As the store. district part of Ms. an assistant manager at Her direct manager Cleland's for job the Nahunta, supervisor was that location duties, she not Ms. been deposited. Ms. of the day's According to Ms. earnings On February Cleland, she called Ms. and Ms. Thomas informed her to leave at the store and deposit the other. Cleland maintains that she did so. At some point, and Anna Cleland discovered that the February 8 receipts had Thomas about her discovery, one was would deposit Dollar General's daily receipts with a local bank. 9, 2013, Tonya informed February 8. prevention it Dollar General's bank called Dollar General that the bank had not received any money for Anna Page and someone from Dollar General's loss- division visited the store and interviewed Ms. Cleland about the missing money. Ms. Cleland maintained that she took the money to the bank. is not clear as to whether Ms. apparently But the record Cleland ever specified that she had been directed to deposit only a portion of the money. Dollar local General was police. unable interviewed Ms. Cleland, locate from Someone to the and she the money, Nahunta it called Police again maintained After the Department that she had following the deposited the money. Dollar incident, General placed Ms. Cleland on leave and it terminated her employment on March 19. employee found instructed the that discovery. missing employee money not That employee, Cleland alleges accused her that of to July tell however, Dollar stealing in Ms. Tonya Cleland did tell Ms. General the 2013. acted missing Another Thomas about the Cleland. Ms. negligently when money and that it Dollar General's negligence caused her emotional distress. 2. Ms. Ms. Cleland's Cleland's Job Duties position she be a "key-holder." available to the with Dollar General required As such, Ms. Cleland was required to be cashiers and customers while in the This included being available during her lunch break. Ms. Cleland claims that that she had been instructed that store. Indeed, she could not leave during her lunch break when she was the only manager on duty. And she asserts that, anytime she was the only key- holder on duty, she worked during her lunch break. however, did not clock back in during her Ms. Cleland, lunch break because Ms. Thomas had informed her that she was required to take a onehour lunch break. the-clock hours Ms. at Cleland also the end of claims many that days. she worked off- Specifically, she maintains that she would often clock out and then make sure that the bathrooms had been cleaned and the floors mopped. II. Plaintiffs amended their rights; complaint (1) ("FLSA"); a (2) (3) distress; initiated this on action January violation a of violation defamation; and 8, October 2015. (5) of (4) loss the Fair Ms. 6, 2014, (Docs. Cleland's negligent of Dollar General now moves of claims, and Labor 1, and 17.) Plaintiffs Standards Fourth infliction consortium Cleland. these on amended complaint essentially asserts five causes of Plaintiffs' action: Procedural Background for Act Amendment of emotional Plaintiff Terry for summary judgment on each request leave to amend their complaint. III. Summary genuine entitled judgment dispute to as judgment Legal Standard is to as appropriate any a material matter of only fact law." if and "there the Fed. is no movant is R. Civ. P. 56(a). the Facts are "material" if they could affect the outcome of suit under Liberty Lobby, view the party, U.S. in in 587 (1986), substantive U.S. 242, light most Elec. favor." 1437 477 the Matsushita [its] governing Inc., facts 574, 1428, the Indus. 248 law. (1986). favorable Co. Anderson v. v. The Court must to Zenith the non-moving Radio Corp., 475 and must draw "all justifiable inferences U.S. (11th Cir. v. Four Parcels of 1991) (en banc) Real Prop., 941 F.2d (internal punctuation and citations omitted). The Court, moving by motion. How party reference Celotex to carry to this the initial materials Corp. proof at trial. 1115 has v. burden Catrett, depends Fitzpatrick v. (11th Cir. 1993) . on When burden file, 477 on of the U.S. who showing basis 317, bears City of Atlanta, the non-movant has for 323 the the the (1986). burden of 2 F.3d 1112, the burden of proof at trial, the movant may carry the initial burden in one of by two ways — negating an essential element of the non- movant 's case or by showing that there is no evidence to prove a fact necessary to Clark, Inc., Adickes Corp. v. v. 929 S.H. Catrett, the non-movant's case. F.2d 604, Kress 477 & 606-08 Co., U.S. 398 317 See Clark v. Coats (11th Cir. U.S. (1986)). 144 1991) (1970) Before evaluate the non-movant's response in opposition, consider whether the movant has met its & (explaining and the Celotex Court can it must first initial burden of showing that there are no that it is entitled to City of Columbus, curiam). meet genuine issues of material judgment as a matter of 120 F.3d 248, 254 (11th fact law. Cir. and Jones v. 1997) (per A mere conclusory statement that the non-movant cannot the burden at trial is insufficient. Clark, 929 F.2d at 608. If — the and only if — non-movant "demonstrat[ing] that bears its may that precludes the movant avoid there summary initial to burden. the If negating a evidence summary is at method fact, sufficient to initial burden, judgment Id. trial, by the which the movant material its indeed a material judgment." the burden of proof response carries When the a the movant evidence non-movant withstand issue F.3d at material 1116. fact, If the the movant non-movant shows must an respond verdict absence either its with motion at Fitzpatrick, of show tailor carried trial on the material fact sought to be negated." 2 fact affirmatively "must directed of by non-movant non-movant must presents the only evidence that the on a record contains evidence that was "overlooked or ignored" by the movant or "come withstand forward a with directed additional verdict motion alleged evidentiary deficiency." cannot carry repeating its burden conclusory by evidence at trial Id. at 1117. relying on the allegations sufficient contained in based The the non-movant pleadings the on to or by complaint. See Morris Rather, v. Ross, the 663 F.2d non-movant 1032, must 1033-34 respond (11th with Cir. 1981). affidavits or as otherwise provided by Federal Rule of Civil Procedure 56. In this action, the Clerk of the Court gave Plaintiffs notice of the motions for summary judgment and informed them of the summary judgment other materials (Docs. Therefore, v. Wainwright, courts the to as affidavits 825 requirements (11th Cir. 1985) or default. of Griffith (per curiam), discussed more thoroughly below, generally Court See Nemours and Co., motion notice governed by Federal Rule of appropriate. a file and the motion is now ripe for consideration. amend is However, to The time for filing materials in opposition has Additionally, and right and the consequences of the 772 F.2d 822, are satisfied. to the in opposition, 37-38.) expired, rules, freely has Fla. is Evergreen filed Court's scheduling order, 1041 outside Procedure when deny v. (11th Cir. the of necessary. leave E.I. when DuPont 2006). deadline 15, set De And when by the the moving party must demonstrate good IV. Plaintiffs to Foliage cause to amend the scheduling order. 1. Plaintiffs' leave discretion 470 F.3d 1036, amend grant Civil a motion Fed. R. Civ. P. 16. Discussion Motion to Amend wish to amend their 7 complaint to bolster the factual allegations points out, § 34-4-3, that Pursuant Id. have to A as Dollar General not shown good Dollar General argues cause under Federal Rule 16. to Federal issue other things, (b) . and, Georgia's minimum-wage statute. Procedure required it to add a claim for unpaid wages pursuant to O.C.G.A. Plaintiffs Civil contained within a Rule of Civil scheduling order Procedure that must a deadline to amend pleadings. scheduling order may be amended 16, court is include, among R. Civ. P. 16 Fed. only a for good cause. "The good cause standard precludes modification unless the schedule cannot seeking the 1417, 1418 In met extension." (11th Cir. this required be the case, despite Sosa v. to the parties amend Court to eight Plaintiffs have not their of facts With motion that respect admits support to Plaintiffs assert additional facts Airprint issued make all of Sys., the Inc., 14.) party 133 F.3d order that the every this claim arises claim Plaintiffs' additional merely discovery that that support their 8 pleadings deadline. Indeed, Plaintiffs' other to no Plaintiffs filed their after § 34-4-3, that scheduling amendments (Doc. months a shown good cause. the claim under O.C.G.A. of diligence 1998). later than January 9, 2015. motion the with respect to brief in support from raised factual in claims. And this the in same this set case. allegations, case Neither unveiled of these reasons establish good cause. Accordingly, the Court DENIES Plaintiffs' motion to amend.1 2. Dollar General's Motions for Summary Judgment As a Fourth preliminary matter, Amendment claim involved and that her has run. judgment respect Cleland has because defamation of limitations with fails Ms. there is claim fails those no state the statute summary claims. because action the Court GRANTS Accordingly, to conceded that her The Court will now address the remaining claims. a. Ms. Cleland's emotional claim distress for and negligent Mr. infliction Cleland's of loss-of- consortium claim Ms. Cleland negligently when and she seeks essentially it argues accused her damages General argues that Ms. for her of that Dollar stealing emotional General acted the missing money, distress. Dollar Cleland's claim must fail under Georgia law because she has not produced evidence that establishes that she suffered either an impact or a pecuniary loss. Under Georgia law, a plaintiff asserting a negligence claim may generally recover emotional-distress damages only if he she suffered an impact that resulted in a physical injury. 1 or 0B- Dollar General also argues that, even if Plaintiffs were given leave to amend, an amendment adding the alleged claim under O.C.G.A. § 34-4-3 would be futile because that code section only applies in claims against employers not subject to federal minimum-wage laws. Dollar General asserts that it is subject to those federal laws. Because Plaintiffs have not shown good cause under Federal Rule of Civil merits of this argument. Procedure 16, the Court declines to reach the GYN Assocs. 1989), of Albany abrogated on v. Littleton, other grounds, Co., 533 S.E.2d 82 (Ga. 2000). 386 Lee S.E.2d v. 146, (Ga. Farm Mut. State 149 Ins. Specifically, [i]n cases where mere negligence is relied on, before damages for mental pain and suffering are allowable, there must be an actual physical injury to the person, or a pecuniary loss resulting from an injury to the person which is not physical; such an injury to a person's reputation, or the mental pain and suffering must cause a physical injury to the person. Littleton, 386 S.E.2d at 149 (citation omitted). That is, the pecuniary loss must be the result of an injury to the plaintiff. Phillips (Ga. v. Ct. App. pecuniary could did at 2010) loss not not Marquis stem Zion-Morrow, (finding when recover Mt. her that wallet a was an injury to 699 plaintiff stolen emotional-distress from LLC, her and damages S.E.2d who suffered car 61 a vandalized because person) . 58, The the loss Court of Appeals of Georgia has also stated that "a plaintiff may recover damages for emotional distress based upon an injury to property that results in pecuniary loss if injury to the person is also present, Fire. even if that injury is not physical." Ins. Co. v. Lam, 546 S.E.2d 283, Nationwide Mut. 284 (Ga. Ct. she suffered App. 2001) (emphasis in original). Ms. Instead, Cleland she has claims not that alleged she is that entitled to an impact. emotional-distress damages because she suffered a pecuniary loss when she lost her 10 job. Although the law on this issue is fairly muddled,2 it is clear that either a (1) plaintiff an injury pecuniary loss, property that show (physical Phillips, resulted by an injury, Lam, Ms. must 699 at or least nonphysical) S.E.2d at in a pecuniary 61, loss or that (2) suffered caused accompanied Cleland argues that she suffered a pecuniary loss when Ms. Cleland has argued that she recover, not argued that she This argument fails. suffered any injury suffered emotional damages and such damages have not She has only for which she seeks traditionally been considered a separate injury. See Owens v. Gateway Mgmt. 490 App. 1997) S.E.2d 501, plaintiff's type of a an injury to and was arising from Dollar General's alleged negligence. to she 546 S.E.2d 284-85. Dollar General terminated her employment. First, that 502 (Ga. Ct. emotional-distress injury contemplated (concluding damages themselves under the were Co., that the not the pecuniary-loss rule because "[t]o hold otherwise would be to allow bootstrapping of an extreme nature"); but see Oliver v. McDade, (Ga Ct. App. 2014) (finding that a 762 S.E.2d 96, 99 plaintiff who suffered depression that resulted in medical bills as a result of alleged negligence had satisfied the pecuniary-loss rule). Putting aside any confusion as to what constitutes an injury for purposes of the pecuniary-loss rule, Ms. Cleland has 2 2014) see generally, Oliver v. McDade, 762 S.E.2d 96, 102-106 (Ga. Ct. App. (Andrews, J., dissenting). 11 not established that her pecuniary loss resulted from an injury. Ms. Cleland's employment, pecuniary alleged and she loss differently, has can Ms. pecuniary be not arises attempted traced to a from to her explain personal loss how of this injury. Said Cleland has failed to produce any evidence that her pecuniary loss "result[ed] Littleton, loss 386 S.E.2d at from an 149. injury to Ms. Cleland [her] is person." essentially arguing that Dollar General's negligence caused her to lose her job (her pecuniary loss) (whether Even physical assuming prevail her her or she on her caused She has not argued that any injury to emotional distress. and that nonphysical) suffered claim by some the negligence caused the injury, Ms. simply arguing that pecuniary loss. Cleland cannot she suffered both emotional distress and a pecuniary loss. Furthermore, interpretation of Ms. Cleland's claim the pecuniary-loss also rule fails under because she Lam's did not suffer an injury to property when she lost her job because there is no evidence that Shores v. she possessed a property right in her job. Modern Transp. (Ga. Ct. App. 2003) . in a collision. Id. Servs., Inc., 585 S.E.2d 664, 665-66 In Shores, a railroad worker was involved at 664. Although he did not suffer a physical injury as a result of the collision, he suffered post traumatic stress disorder arising led to his inability to work. Id. 12 out of the collision, which The court held that he did not suffer an injury to property as contemplated in Lam because he did not have employee. Id. at injury exists, loss of her a right to 665-66. his job because Here, he was an at-will even assuming that a personal Ms. Cleland cannot base her pecuniary loss on the job because she has not established that she was anything other than an at-will employee. Because Ms. Cleland pecuniary loss General's negligence, summary as judgment Cleland's a has not result her on this an that injury fails issue. loss-of-consortium and she caused the Moreover, claim is based suffered by Dollar Court GRANTS because on the Court GRANTS a Ms. Terry Cleland's summary judgment claim. b. Ms. As for of claim claim for emotional distress, on that established time Cleland's noted above, she worked FLSA claims Ms. off Cleland claims the clock. Ms. that she Cleland is owed wages claims that she is owed for off-the-clock work performed during her lunch break and for work she performed after she clocked out at night. The Court addresses these claims separately below. i. Dollar the alleged because and (2) (1) she Time worked over lunch General hours contends worked that Ms. during her Cleland's lunch claim break based must on fail it did not suffer or permit her to work those hours has not presented 13 evidence to support that she worked while she was off the clock.3 Under the FLSA, a plaintiff must establish that the employer "knew or should have known of the overtime work through actual or constructive Commc'ns, Ala. No. knowledge." 2:14-cv-01493-RDP, March 9, 2016) . Lopez-Easterling v. 2016 WL 892774, at *7 employee's overtime work when i t has believe that employee (citation omitted) (N.D. "An employer is said to have constructive knowledge of its its Charter is working beyond h[er] (internal quotation marks reason to shift." omitted) Id. (emphasis in original). Here, Dollar General argues that it did not know Cleland worked off the clock during her lunch break. its position, worked response, employee's customary Ms. off the clock. Cleland that assistant Cleland testified that (Doc. points Ms. to 35, to 44 General also maintains that Ms. 1 14.). Dollar during that it lunch at In General at 11-14.) had been present during lunch breaks when this work occurred. Dollar 1 states work (See Doc. Page Ex. another essentially managers while remaining clocked out. 3 To support Page avers that she was never aware that Ms. affidavit for Ms. Dollar General has produced the affidavit of Anna Page in which Ms. Cleland that was breaks And Ms. the store (Doc. 35, Ex. 5 at Cleland's claims should be dismissed because she did not plead them with the specificity required by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Because this matter is before the Court on a motion for summary judgment, the Court declines to apply this standard. 14 30.) Notably, Ms. Cleland also testified that she had been told that she was expected to help cashiers while on her break. at 28.) Drawing all reasonable Cleland as the non-moving party, factual dispute with respect inferences in favor (Id. of Ms. she has at very least created a to Dollar General's knowledge of her off-the-clock work. Dollar General next argues that Ms. Cleland has presented sufficient evidence that she worked overtime. Dollar General claims that there performed the off-the-clock work. Citing (11th Cir. must fail number Johnson 2015), Corr. she has Corp. off-the-clock not of Am., presented hours that Ms. 606 she App'x In of every determined plaintiff's claim at 947. failed The because court she "never the 945 exact Jackson, 10 hours Id. Cleland Cleland's claim evidence worked. F. plaintiff claimed she was owed for 7.5 to week. Indeed, The Court disagrees. Dollar General argues that Ms. because of v. no evidence is not of stated the overtime that the with any clarity or precision the number of hours she allegedly worked, the or nature or or anything amount completed, of that else work, that where would assist approximating Jackson's unpaid overtime." Here, however, of the work, Ms. Cleland has least some estimate of how many hours the work was a factfinder in Id. at 951. specified the where the work took place, 15 when exact nature and she has provided at she worked. Ms. Cleland has produced evidence when she was indeed, lunch breaks only key-holder present, she was frequently — always almost customers. her assist cashiers the (See indicating that, Doc. often would only be — 44 required at able to to 10 minutes per day. 4-5.) to And not produced she worked.4 she testified that or she sit down and enjoy her lunch for 5 (Doc. 35, Ex. 5 at 37.) Dollar General relies heavily on has during evidence that the fact that Ms. shows the exact Cleland overtime hours The Court, however, is persuaded that Ms. Cleland has presented sufficient evidence for a reasonable factfinder to approximate the Easterling, 2016 plaintiff during hours who her overtime WL claimed Ms. to lunch hour she about whether the that 892774, worked, she Cleland hours have did *11 worked. (finding frequently not produce sufficiently defendant has at she testified to the that, worked records created violated the See a although off the the dispute Here, nature a clock detailing factual FLSA) . exact Lopez- the the of fact work she performed combined with the evidence that it was essentially customary for Dollar General assistant managers to work through lunch while dispute 4 claims off about the clock, whether is sufficient Dollar General to create violated a the factual FLSA. Ms. Cleland's counsel has provided the Court with a chart that she shows the exact hours Ms. Cleland worked off the clock on certain days. Ms. Cleland's counsel, however, failed to produce any evidence that explains how she prepared the chart. The Court, therefore, declines to view this chart as admissible evidence 16 Accordingly, the Court DENIES summary judgment on this issue. ii. With Time worked after clocking out respect to Ms. clocking out at night, Cleland has failed General was aware produce any evidence issue, Ms. the Court produce this that agrees evidence work she with and that performed Dollar she worked after showing she the General. that has failed work. As Dollar On noted to this above, Page averred in her affidavit that she was unaware that Ms. Cleland ever worked off the clock. to claim that Dollar General similarly argues that Ms. to of Cleland's any record evidence—and the Ms. Court Cleland has not pointed has not located any—that rebuts this assertion with respect to this alleged off-the-clock work. Accordingly, the Court GRANTS issue. 17 summary judgment on this V. For amend the (doc. judgment with is DENIED for 47) is respect discussed DENIED; to judgment above, Plaintiffs' Defendant's Plaintiff Reba in part and GRANTED summary Cleland's reasons Conclusion with in part; respect motion Gail and to motion for to summary Cleland's claims Defendant's motion Plaintiff Terry W. claim is GRANTED. ORDER ENTERED at Augusta, Georgia this ^T/^^day of March, 2016. HONOE^BIE J. KANDAL HALL \ UNITED STATES SOUTHERN 18 DISTRICT JUDGE DISTRICT OF GEORGIA
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