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Phillips v. Flowers Foods, Inc.

United States District Court, N.D. Oklahoma

May 9, 2018

BENJAMIN T. PHILLIPS, KENNETH T. MARKHAM, and LYNN N. PARKER, Plaintiffs,
v.
FLOWERS FOODS, INC. and FLOWERS BAKING CO. OF DENTON, LLC, Defendants.

          OPINION AND ORDER

          TERENCE KERN United States District Judge

         Before the Court are Defendants' Partial Motion to Dismiss (“Original MTD”) (Doc. 25) and Defendants' Partial Motion to Dismiss Plaintiffs' Corrected Second Amended Complaint (“Second MTD”) (Doc. 43). Both motions seek dismissal of certain claims pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”).[1]

         I. Factual Allegations and Background

         A. Factual Allegations

          Plaintiffs' Second Amended Complaint (“SAC, ” Doc. 41) sets forth the following allegations, which the Court presumes to be true for the purpose of the pending motions to dismiss.

         1. General Allegations

         Plaintiffs Benjamin T. Phillips (“Phillips”), Kenneth T. Markham (“Markham”), and Lynn N. Parker (“Parker”) performed delivery and merchandising services to local retailers of bakery and snack food products manufactured or sold by Defendant Flowers Foods, Inc. (“Flowers Foods”). Plaintiffs' services for Defendants were based in a distribution center operated by Defendant Flowers Baking Company of Denton (“FBC Denton”). Plaintiffs entered into distributor agreements with FBC Denton, under which Plaintiffs delivered fresh-baked goods to retail and grocery stores, fast-food restaurants, and other customers.[2] Plaintiffs also stocked products on store shelves and assembled promotional displays designed and provided by FBC Denton. Under the distributor agreements, FBC Denton could terminate the agreements for failure of performance by Plaintiffs. However, unless such failure of performance involved a threat to public or private health or safety, or a violation of law, FBC Denton was required to give Plaintiffs written notice and to provide ten business days to cure any failure of performance.

         Plaintiffs regularly worked more than forty hours per week and did not receive overtime pay. Plaintiffs contend they were wrongly classified as independent contractors, rather than employees.[3]

         2. Termination of Markham's and Phillips' Services

         On April 13, 2016, Defendants terminated Phillips' distribution agreement. On April 19, 2016, Defendants terminated Markham's distribution agreement. Defendants did not give either Phillips or Markham a ten-day remedy to cure their alleged failure of performance pursuant to the agreements.

         3. W-2 Allegations (Phillips and Markham)

         Plaintiffs received weekly pay statements and a yearly W-2 Wage and Tax Statement from FBC Denton. FBC Denton required Plaintiffs to report their business expenses to a Texas accounting firm, Gollob Morgan Peddy. The accounting firm provided Plaintiffs with quarterly financial statements summarizing their income for the reporting period. As of March 31, 2016, the general ledger prepared by Gollob Morgan Peddy showed Phillips' year-to-date income as $24, 970.00 and Markham's year-to-date income as $20, 159.89. Because Phillips' and Markham's distributor agreements with Defendants were terminated in April 2016, they worked for Defendants only for approximately four months during 2016. However, their 2016 W-2 statements from FBC Denton listed Phillips' 2016 wages as $78, 200.38 and Markham's 2016 wages as $91, 142.18, thus substantially overstating their income for the year.

         4. Allegations Specific to Parker

         Parker started working for Defendants through a temporary agency in December 2012. She reported to Brandon Humphries (“Humphries”), the supervisor of a warehouse in Sapulpa, Oklahoma. In early 2014, Parker was working alone in the distributor office of the warehouse when Humphries approached her, pulled down his pants to display his genitals, and told Parker to “suck it.” (SAC ...


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