Sigida et al v. Munroe Foods 2 Llc et al

REPLY BRIEF re MOTION for Summary Judgment

N.D. Ga.December 16, 2016

1 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ) ANNA N. SIGIDA and ) DALE M. IRVING, ) ) Civil Action File No.: Plaintiffs, ) 1:16-CV-01473-RWS ) v. ) ) ) MUNROE FOODS 2 LLC d/b/a ) ATLANTA BREAD COMPANY, ) and BAKE ONE, INC., ) ) Defendants. ) __________________________________ ) REPLY BRIEF IN FURTHER SUPPORT OF DEFENDANT BAKE ONE INC.’S MOTION FOR SUMMARY JUDGMENT NOW COMES Defendant Bake One, Inc. (“Bake One”), showing this Court as follows: I. INTRODUCTION Without any basis in fact, Plaintiff Anna Sigida (“Sigida”) continues to argue in her Response to Bake One’s Motion for Summary Judgment that Bake One was her joint employer along with Munroe Foods 2, LLC (“Munroe Foods”). Sigida is wrong. The undisputed record evidence establishes that Bake One and Case 1:16-cv-01473-RWS Document 38 Filed 12/16/16 Page 1 of 9 2 Munroe Foods are separate entities and not joint employers. Bake One is entitled to summary judgment on Plaintiffs’ claims. II. ARGUMENT AND CITATION OF AUTHORITIES Just as in Sigida I, Case No. 1:14-CV-3968-RWS, the parties agree on the law. Sigida concedes that she must demonstrate an employment relationship with Bake One in order to state an FLSA claim against that entity. Sigida also agrees that the “economic realities” test is the applicable standard to determine whether two entities operate as a joint employer, and that the Eleventh Circuit considers several factors in determining whether a joint employment relationship exists. (Doc. 36 at 3-4); Layton v. DHL Exp. (USA), Inc., 686 F.3d 1172, 1175 (11th Cir. 2012) (citing 29 C.F.R. § 791.2(b)); Crossley v. Armstrong Homes, Inc., No. 5:14- CV-636-OC-30PRL, 2015 WL 2238347, at *2 (M.D. Fla. May 12, 2015) (citing Layton, 686 F.3d at 1176). While Sigida tries to dispute the facts establishing that Bake One was not her joint employer, these efforts must fail. First, Plaintiffs baldly assert that after Bake One merged with Atlanta Bread Commissary, Inc. in 2001, Bake One “performed a number of services for the Atlanta Bread Company Restaurants” nationwide for “all of the Munroe Foods entities.” [Doc. 36 at 2]. In coming up with a list of services they claim Bake One provided for Munroe Foods, Plaintiffs largely rely Case 1:16-cv-01473-RWS Document 38 Filed 12/16/16 Page 2 of 9 3 on emails sent to the ABC Snellville email inbox from 2012-2015, with email signatures that reference both “Bake One” and “Atlanta Bread.” [Doc. 36 at 2-3]. [See generally emails attached to Docs. 36-1, 36-2 and 36-3]. Plaintiffs also point to the “Bake One” icon on the drug test consent form provided to Sigida when Munroe Foods hired her as Assistant Manager in 2012; the fact that Sigida’s non- compete agreement benefits Atlanta Bread International, Inc., Atlanta Bread Company franchises and Bake One; the “Bake One” icon on her payroll authorization form; and the fact that her benefits enrollment form was titled “2015 EE Benefit Enrollment Statement ABC/Bake One – Salary and Skilled Maintenance.” [Doc. 36 at 2-3; 4-5]; [Doc. 36-3 at 17-20; 82-86]. None of these documents demonstrate that Bake One and Munroe Foods were the “same”, nor that Bake One had any operational control over Munroe Foods. As explained in Sigida I, Case No. 1:14-CV-3968-RWS, Bake One and Munroe Foods share the same ultimate parent. (Bake One SMF ¶ 21).1 Bake One’s parent corporation provided some shared services to its subsidiaries, including Bake One and Munroe Foods, such as human resources, payroll and accounting functions. (Bake One SMF ¶ 21). Several individuals had email signatures with 1 Citations to Bake One’s Statement of Facts are to the Statement of Facts offered in support of Bake One’s Motion for Summary Judgment, as well as Bake One’s Additional Statement of Facts filed in conjunction with this Reply. Case 1:16-cv-01473-RWS Document 38 Filed 12/16/16 Page 3 of 9 4 logos for Atlanta Bread and Bake One. Some of these individuals were also copied on emails exchanging information about Munroe Foods and ABC Snellville. These emails are not evidence that Bake One had operational control over Munroe Foods. In fact, Bake One has provided uncontradicted testimony that these individuals, at all relevant times, were not Bake One employees. (Bake One Additional SOF #1). The fact that Sigida signed forms with Bake One icons when she was hired is also immaterial. Contrary to Plaintiffs’ allegations, neither Sigida nor any other Munroe Foods employee was ever hired or fired by Bake One.2 Furthermore, Sigida did not email reports to “Bake One.”3 Bake One had nothing to do with Munroe Foods’ policies or procedures, employee payroll or payroll provider, employee benefits, budget, facility, equipment or any other aspect of Munroe Foods’ business. (Bake One SMF ¶ 8-20). Bake One did not superve Sigida, and had no input into any aspect of Sigida’s employment. (Bake One SMF ¶ 11). Moreover, Bake One’s and Munroe Foods’ businesses were entirely distinct. Bake One’s business is to produce and sell baked goods to entities such as grocery store chains, 2 Plaintiffs cite Blaine Armstrong, Robert Cross and Anthony Davis as being involved in Sigida’s hiring and termination, but none of these individuals were ever Bake One employees. (Bake One Additional SOF #1). 3 As set forth above, the individuals who received Munroe Foods reports – whose email signatures include logos for Atlanta Bread and Bake One – were not Bake One employees. (Bake One Additional SOF #1). Case 1:16-cv-01473-RWS Document 38 Filed 12/16/16 Page 4 of 9 5 food service companies, and convenience stores throughout North America and abroad. Munroe Foods employees operated failing Atlanta Bread Company stores. (Bake One SMF ¶ 2-6; 17-19).4 Contrary to Sigida’s unsupported allegations, Bake One exercises no operational control over Munroe Foods and has no control over Munroe Foods’ employees including setting or changing their pay rates, hiring or firing them, or supervising them in any capacity. (Bake One SMF ¶ 9 - 13).5 Sigida cannot create a material issue of fact with unsupported speculation. Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (holding that “unsupported speculation . . . does not meet a party’s burden of producing some defense to a summary judgment motion. Speculation does not create a genuine issue of fact; instead, it creates a false issue, the demolition of which is a primary goal of summary judgment.”); Solliday v. Federal Officers, 413 F. App’x 206, 207 (11th Cir. 2011) (“Conclusory, uncorroborated allegations in an affidavit will not 4 Plaintiffs allege that “Bake One employees would begin the preparation of products which would be finalized by employees of Munroe Foods.” [Doc. 34 at p. 4-5]. Even if true, this fact is immaterial. Bake One sold bakery products to Munroe Foods, just like any other customer. [Doc. 32-5 at ¶ 5]. What Munroe Foods did with the product after it was delivered does not change the customer- vendor relationship between Munroe Foods and Bake One. Plaintiffs do not deny that Atlanta Bread stores nationally constituted only five percent of Bake One’s business. [Doc. 34 at p. 4]. 5 Sigida admits that her paychecks were issued by Munroe Foods. [Doc. 34 at 4]. Case 1:16-cv-01473-RWS Document 38 Filed 12/16/16 Page 5 of 9 6 create an issue of fact for trial sufficient to defeat a well supported summary judgment motion.”); Harris v. Gourley, No. 1:10-CV-99 WLS, 2013 WL 1294444, at *8 (M.D. Ga. Mar. 27, 2013) (“Plaintiff cannot create a genuine issue of fact by offering testimony that he has not shown himself qualified to give.”); Howard v. Oregon Television, Inc., 276 F. App’x 940, 941 (11th Cir. 2008) (“Speculation does not create a genuine issue of fact.”). The clear “economic reality” is that Munroe Foods alone was Sigida’s employer. Antenor v. D & S Farms, 88 F.3d 925, 929 (11th Cir. 1996); see also Martinez-Mendoza v. Champion Int'l Corp., 340 F.3d 1200, 1214 (11th Cir. 2003) (no joint employment relationship); Gonzalez-Sanchez v. Int'l Paper Co., 346 F.3d 1017, 1020 (11th Cir. 2003) (upholding the district court’s decision on summary judgment that there was no joint employment relationship). Even if an issue of fact existed as to whether Bake One was Sigida’s employer (and it does not), Bake One is also entitled to summary judgment as to all of Plaintiffs’ claims on the grounds set forth in Munroe Foods 2 LLC’s Brief in Support of Motion for Summary Judgment and Munroe Foods 2 LLC’s Reply Brief in Support of Motion for Summary Judgment. Bake One incorporates by reference the facts, argument, and legal authority asserted therein. Case 1:16-cv-01473-RWS Document 38 Filed 12/16/16 Page 6 of 9 7 III. CONCLUSION For the reasons set forth herein and in its initial Brief, Bake One respectfully requests that this Court grant its motion for summary judgment. This 16th day of December, 2016. s/ Michelle W. Johnson Michelle W. Johnson Georgia Bar No. 759611 E-mail: michelle.johnson@nelsonmullins.com Jessica R. Watson Georgia Bar No. 760076 E-mail: jessica.watson@nelsonmullins.com Attorneys for Bake One, Inc. NELSON MULLINS RILEY & SCARBOROUGH LLP 201 17th Street/ 17th Floor Atlanta, GA 30363 (404) 322-6000 (phone) (404) 322-6050 (fax) Case 1:16-cv-01473-RWS Document 38 Filed 12/16/16 Page 7 of 9 8 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ANNA N. SIGIDA, DALE M. IRVING, Plaintiffs, v. MUNROE FOODS 2 LLC d/b/a ATLANTA BREAD COMPANY, and BAKE ONE, INC. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION FILE NO. 1:16-CV-01473 CERTIFICATE OF SERVICE I hereby certify that I have this day served the within and foregoing REPLY BRIEF IN FURTHER SUPPORT OF BAKE ONE, INC’S MOTION FOR SUMMARY JUDGMENT by depositing a copy of same in the United States Mail in a properly addressed envelope with sufficient postage affixed thereto to ensure delivery to the following: Anna N. Sigida Dale M. Irving 939 Creek Cove Way Loganville, GA 30052 Case 1:16-cv-01473-RWS Document 38 Filed 12/16/16 Page 8 of 9 9 This 16th day of December, 2016. s/ Michelle W. Johnson Michelle W. Johnson Georgia Bar No. 759611 E-mail: michelle.johnson@nelsonmullins.com NELSON MULLINS RILEY & SCARBOROUGH LLP 201 17th Street/ 17th Floor Atlanta, GA 30363 (404) 322-6000 (phone) (404) 322-6050 (fax) Case 1:16-cv-01473-RWS Document 38 Filed 12/16/16 Page 9 of 9 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION ) ANNA N. SIGIDA and ) DALE M. IRVING, ) ) Civil Action File No.: Plaintiffs, ) NO. 1:16-CV-01473-RWS ) v. ) ) ) MUNROE FOODS 2 LLC d/b/a ) ATLANTA BREAD COMPANY, ) MUNROE FOODS HOLDINGS, LLC ) and BAKE ONE, INC., ) ) Defendants. ) ___________________________________ BAKE ONE, INC’S ADDITIONAL STATEMENT OF MATERIAL FACTS TO WHICH THERE IS NO GENUINE ISSUE TO BE TRIED NOW COMES Defendant Bake One, Inc. (“Bake One”) and files its Additional Statement of Material Facts to Which There Is No Genuine Issue to be Tried, showing the Court as follows: Case 1:16-cv-01473-RWS Document 38-1 Filed 12/16/16 Page 1 of 4 2 1. During all relevant time periods, Blaine Armstrong, Julie Burns, Betsy Brubaker, Robert Cross, Alexandra Couvaras, Peter Golaszewski, Beth Joyner, Anthony Davis, Cristina Lamos, Frank Gonzalez, and Heather Johnson were not employees of Bake One, Inc. (Linkon Decl. ¶ 3); (Supplemental Linkon Decl. ¶ 3); Respectfully submitted this 16th day of December, 2016. /s/ Michelle W. Johnson Michelle W. Johnson Georgia Bar No. 759611 michelle.johnson@nelsonmullins.com Jessica Rutledge Watson Georgia Bar No. 760076 jessica.watson@nelsonmullins.com Attorneys for Defendant Bake One, Inc. NELSON MULLINS RILEY & SCARBOROUGH LLP Atlantic Station / 201 17th Street, NW / Suite 1700 Atlanta, GA 30363 (404) 322-6000 (phone) (404) 322-6050 (fax) Case 1:16-cv-01473-RWS Document 38-1 Filed 12/16/16 Page 2 of 4 3 CERTIFICATION OF COMPLIANCE AS TO FONT SIZE The undersigned counsel certifies that the foregoing pleading has been prepared with 14 point Times New Roman font, which is one of the fonts and point selections approved by the Court in LR 5.1C, NDGa. s/ Michelle W. Johnson Michelle W. Johnson Georgia Bar No. 759611 Case 1:16-cv-01473-RWS Document 38-1 Filed 12/16/16 Page 3 of 4 4 CERTIFICATE OF SERVICE I hereby certify that on December 16, 2016, I electronically filed the foregoing Bake One, Inc’s Additional Statement of Material Facts to Which There Is No Genuine Issue to be Tried by depositing a copy of same in the United States Mail in a properly addressed envelope with sufficient postage affixed thereto to ensure delivery to the following: Anna N. Sigida Dale M. Irving 939 Creek Cove Way Loganville, GA 30052 This 16th day of December, 2016. s/ Michelle W. Johnson Michelle W. Johnson Georgia Bar No. 759611 E-mail: michelle.johnson@nelsonmullins.com NELSON MULLINS RILEY & SCARBOROUGH LLP 201 17th Street/ 17th Floor Atlanta, GA 30363 (404) 322-6000 (phone) (404) 322-6050 (fax) Case 1:16-cv-01473-RWS Document 38-1 Filed 12/16/16 Page 4 of 4 EXHIBIT A Case 1:16-cv-01473-RWS Document 38-2 Filed 12/16/16 Page 1 of 3 Case 1:16-cv-01473-RWS Document 38-2 Filed 12/16/16 Page 2 of 3 Case 1:16-cv-01473-RWS Document 38-2 Filed 12/16/16 Page 3 of 3