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Jenkins v. Sara Lee Corp.

March 17, 2008


The opinion of the court was delivered by: J. Ronnie Greer United States District Judge


Plaintiff Maggie Jenkins' Fair Labor Standards Act ("FLSA") complaint*fn1 is before the Court on Defendant Sara Lee Corporation's ("Sara Lee") Motion for Summary Judgment, [Doc. 13].


Plaintiff Jenkins began her employment with Sara Lee on October 24, 2002, as a bakery store clerk, and she was hired to provide vacation relief to other employees of Sara Lee's various northeast Tennessee locations, particularly in the Tri-Cities area. Plaintiff Jenkins was covered by the Collective Bargaining Agreement ("CBA") between Sara Lee and the Bakery, Confectionery, Tobacco Workers' & Grain Millers' International Union Local No. 25. Her immediate supervisor was Bakery Store Supervisor Jerry McFall.

In November 2002, Plaintiff Jenkins asked the Kingsport, Tennessee, store manager, Sandra Childress, how Sara Lee "got away with" not paying her and other employees overtime compensation. Ms. Childress had no answer, and in January 2003, after Plaintiff Jenkins completed her initial 90-day "probationary period," she asked Mr. McFall why she was not being paid for her overtime hours. Mr. McFall informed Plaintiff Jenkins that Sara Lee did not pay overtime, told her not to get the union involved, instructed her to record only 40 hours on her weekly time sheet,*fn2 even if she worked more than 40 hours, and told her that Sara Lee would have to close stores if she and other employees reported overtime hours.*fn3

Therefore, Plaintiff Jenkins only recorded that she worked 40 hours on her weekly time sheets, and her time sheets reflect only 40 hours of work. Regarding the time sheets, the employees recorded their daily times and verified and signed the cards at the end of each workweek. Each time sheet included the statement, "REMEMBER" your pay is figured from this card, so be sure it is correct." After signing the sheet, the employees then gave the sheets to Mr. McFall, who sent the sheets to the payroll office.*fn4 Plaintiff Jenkins alleged that at times Mr. McFall "physically altered" the time sheets, and on one occasion, he destroyed Plaintiff Hovatter's sheet because it reflected hours over her allotted 29 hours, as a part-time employee.

Plaintiff Jenkins' overtime hours increased in October 2003 when seven employees were reduced from full-time to part-time status. In Plaintiff Jenkins' affidavit*fn5 , she explained her daily routine, which, according to her, was over eight hours. She would arrive at a store at 9:00 a. m. and complete various tasks until she closed her register when the store closed at 5:30 or 6:00 p.m. Mr. McFall instructed the employees to close the registers right before or by closing time, so the corporate office would not see the overtime hours they were working on the register print out sheet. After closing the register, Plaintiff Jenkins compiled the daily register report, the outgoing bills for the day, and the electronic transfer information. Plaintiff Jenkins had to drive to a local business to exchange the cash from the register for a money order, return to the store, and complete the financial data summary. She had to restock shelves for the store's opening the next morning. Plaintiff Jenkins stated that the "normal closing operations" took one to two hours. She then had to drive to Sara Lee's Johnson City Commissary to deliver the money order and financial information because another employee would take that information every evening to the Knoxville, Tennessee office.*fn6 Plaintiff Jenkins stated that the Bristol, Virginia and Bristol, Tennessee stores were many miles away from the Commissary, which added significantly more time to her workday.

Plaintiff Jenkins again complained to Mr. McFall concerning her overtime hours, and he told her that if she continued to complain, he would have to reduce the part-time employees' hours again, causing them to lose their medical insurance.

In May 2004, Sara Lee implemented the completion of a Daily Deposit and Register Reading Report. The employee recorded the daily financial information onto the report, and in box number 37, the employee recorded the number of hours he or she worked that day.*fn7 Plaintiff Jenkins attached 10 reports showing over eight hours listed in box number 37.*fn8

At the October 5, 2004 union meeting, Plaintiff Jenkins complained about not being paid for her overtime hours. She stated that she would seek outside help if the union failed to act on her behalf. The union never filed a complaint.

On November 6, 2004, Mr. McFall was terminated from his employment upon the elimination of his Bakery Store Supervisor position. Upon his termination, Janet Ellzy became Plaintiff Jenkins' immediate supervisor. Also after Mr. McFall's termination, according to Plaintiff Jenkins, she assumed many of Mr. McFall's former duties and began to work even more overtime hours.

Also in November 2004, Plaintiff Jenkins complained to Ms. Ellzy about not being paid for her overtime hours and informed her how Mr. McFall did not allow employees to record their overtime hours on their time sheets. Ms. Ellzy informed Plaintiff Jenkins in December 2004 to keep her overtime hours to a minimum because overtime compensation was not in Sara Lee's budget. She also offered Plaintiff Jenkins an extra week of vacation time. Plaintiff Jenkins testified at her deposition that once Ms. Ellzy became her supervisor, she started receiving overtime pay "[o]n a regular basis."

In February 2005, Thomas Wolfe became Plaintiff Jenkins' supervisor for a short period of time. Plaintiff Jenkins complained to him about not receiving overtime pay, and he never addressed the complaints. Plaintiff Jenkins also called Sara Lee's resource toll free telephone number to complain about unpaid overtime compensation. She also complained to the Human Resource Managers Jason Childs and Julie Blakenship in April 2005 and July 2005. In addition, Plaintiff Jenkins continued to complain to Ms. Ellzy, who eventually replied, that if she did not like the situation, she should seek other employment. Plaintiff Jenkins' employment with Sara Lee ended in August 2005.

Plaintiff Jenkins did not keep a personal log or diary listing the weeks she worked in excess of 40 hours. She stated in her affidavit that she is basing her claims for unpaid overtime on "the hours reflected on the various reports and on [her] memory of the time it routinely took [her] to 'close out' a store, do the paperwork, and then deliver the reports to the Johnson City depot each weekday night." More specifically, she claims that in January 2003, she was not paid for 30 hours of overtime at a rate of $13.25 per hour. The remainder of the specific claims have been stricken from the record. ...

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