Butler v. PP&G, Inc.

• Decision Date: 07 November 2013
• Docket Number: Civil Action No. WMN-13-430
• Court: U.S. District Court — District of Maryland
• Parties: UNIQUE S. BUTLER v. PP&G, INC.

UNIQUE S. BUTLER v. PP&G, INC.

Civil Action No. WMN-13-430

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

DATED: November 7, 2013

MEMORANDUM

Pending before the Court is Plaintiff Unique S. Butler's Second Motion for Partial Summary Judgment. ECF No. 21. The motion is fully briefed and is ripe for review. For the reasons stated herein, the court determines that no hearing is necessary, Local Rule 105.6, and the motion will be granted in part and denied in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant PP&G, Inc. is the owner and operator of Norma Jean's Nite Club, a night club located in Baltimore that features semi-nude female dancers. Plaintiff Unique S. Butler worked at various times as an exotic dancer at Norma Jean's until August 2012, when she alleges that she was terminated.

Defendant has always classified the dancers who perform at Norma Jean's as independent contractors. Defendant asserts that the dancers are permitted to elect, in writing, to become either an employee or independent contractor. To date, no dancer,including Plaintiff, has elected to be classified as an employee.

There is no dispute that, during her time as an exotic dancer at Norma Jean's, Plaintiff did not receive compensation in the form of hourly wages. Rather, the only compensation Plaintiff received for her work as an exotic dancer was from customer tips. Defendant contends that dancers were permitted to keep the entirety of their tips, save a non-mandatory, $45 cleaning or maintenance fee that they could pay to the club per shift. Following her separation from Norma Jean's, Plaintiff filed the present lawsuit against PP&G, Inc., arguing that, because she was misclassified by Defendant as an independent contractor rather than an employee, Defendant illegally failed to pay her wages. She claims that, as an employee, she is entitled to back pay under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. ("FLSA"), and the Maryland Wage Payment and Collection Law, Md. Code Ann., Lab. & Empl. §§ 3-501 et seq. ("MWPCL"). Defendant argues that Plaintiff elected to be an independent contractor, and thus was not entitled to wages under the FLSA and MWPCL.

Plaintiff previously filed a motion for partial summary judgment, asking the Court to find, as a matter of law, that: "(1) Plaintiff was an employee under FLSA; (2) Defendant is liable to Plaintiff under FLSA; (3) Plaintiff is entitled toliquidated damages pursuant to § 216(b) of FLSA; and (4) Defendant violated MWPCL and thus, Plaintiff is entitled to treble damages under MWPCL." ECF No. 17 at 2. Noting the dearth of a factual record, the Court denied the first motion for summary judgment on August 6, 2013. See id. Shortly thereafter, Plaintiff filed the present second motion for partial summary judgment, asking again for this Court to determine, as a matter of law, the same four issues. As it appears to the Court, the only difference between the first motion for partial summary judgment and the pending, second motion for partial summary judgment is Plaintiff's inclusion of and reliance on deposition testimony.

II. LEGAL STANDARD

The purpose of summary judgment is to dismiss claims and defenses that lack evidentiary support. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Accordingly, the Court will grant a motion for summary judgment if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56. In ruling on a motion for summary judgment, all facts and inferences will be drawn in the light most favorable to the non-moving party. Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 958 (4th Cir. 1996). A motion for summary judgment will be denied when there is a "dispute about a material fact [that] is 'genuine,'that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

III. ANALYSIS

A. Plaintiff was an Employee Under the FLSA

As the Court previously noted with respect to Plaintiff's First Motion for Partial Summary Judgment, for a plaintiff to recover wages under the FLSA and MWPCL, the Court must find that there was an employment relationship between the plaintiff and the defendant. An employee under the FLSA is "any individual employed by an employer," and to employ is "to suffer or permit to work." 29 U.S.C. §§ 203(e)(1), (g). The FLSA has been construed liberally to ensure that it "applie[s] even to those who would decline its protections" because "employers might be able to use superior bargaining power to coerce employees to . . . waive their protections under the Act." Tony & Susan Alamo Found, v. Sec. of Labor, 471 U.S. 290, 296, 302 (1985). Under the MWPCL, an employer is "any person who employs an individual in the State." Md. Code Ann., Lab. & Empl. § 3-501(b).

In order to determine whether an individual is an employee, courts must look to the "economic reality" of the relationship by analyzing the following six factors:

(1) The degree of control that the putative employer has over the manner in which the work is performed;(2) The worker's opportunities for profit or loss dependent on his managerial skill;

(3) The worker's investment in equipment or material, or his employment of other workers;

(4) The degree of skill required for the work;

(5) The performance of the working relationship; and

(6) The degree to which the services rendered are an integral part of the putative employer's business.

Schultz v. Capital Int'l Sec., Inc., 466 F.3d 298, 305 (4th Cir. 2006); see also United States v. Silk, 331 U.S. 704 (1947). "No single factor is dispositive." Schultz, 466 F.3d at 305. Further, "[c]ourts have also stressed that the label that the parties give to their relationship is not controlling." Heath v. Perdue Farms, Inc., 87 F. Supp. 2d 454, 457 (D. Md. 2000). The ultimate question for the Court's consideration is whether the dancers were, "as a matter of economic reality, dependent on the business they served, or, conversely, whether they were in business for themselves." Schultz, 466 F.3d at 305.

1. Degree of Control

In determining whether the degree of control indicates the existence of an employer-employee relationship, courts generally consider "the degree of control that an alleged employer has in comparison to the control exerted by the worker." Id. (emphasis omitted). "Where putative employers provide specific direction for how workers, particularly low-skilled workers, are toperform their jobs, courts have weighed the control factor in favor of employee status." Montoya v. S.C.C.P. Painting Contractors, Inc., 589 F. Supp. 2d 569, 578 (D. Md. 2008). The Court must resolve whether Plaintiff's "freedom to work where she wants and for whomever she wants reflects economic independence, or whether those freedoms merely mask the economic reality of dependence." Reich v. Priba Corp., 890 F. Supp. 586, 592 (N.D. Tex. 1995).

Courts considering the status of exotic dancers under the FLSA generally look not only to the guidelines set by the club regarding the entertainers' performances and behavior, but also to the club's control over the atmosphere and clientele. For example, in Reich v. Circle C. Investments, Inc., 998 F.2d 324 (5th Cir. 1993), the court determined that the club exerted significant control where the defendant set weekly work schedules, fined the dancers for absences and tardiness, set price levels for table dances and couch dances, set standards for costumes, and managed song selection, among other things. Id. at 327. Similarly, in Morse v. Mer Corp., the defendant exercised control by publishing "Entertainer Guidelines" that set minimum shift lengths, minimum charges, and behavioral prohibitions. No. 1:08-cv-1389-WTL-JMS, 2010 WL 2346334, at *3 (S.D. Ind. June 4, 2010). Additionally, although the court in Priba Corp. noted that the defendant exercised control over theentertainers by setting show times and establishing behavioral guidelines, it emphasized that "the real touchstone" of the control factor was the "reality of the employment relationship." 890 F. Supp. at 592. Thus, the Priba court focused on the dancers' dependence on the club for earnings, and the club's control over advertising and atmosphere. Id.

Here, unlike in many of the cases involving exotic dancers, see, e.g., Hart v. Rick's Cabaret Int'l, Inc., __ F. Supp. 2d ___, 2013 WL 4822199, at *6 (S.D.N.Y. 2013) (club exerted control where it had written behavioral guidelines, imposed fines, and imposed a dress code); Thompson v. Linda And A., Inc., 779 F. Supp. 2d 139, 148 (D.D.C. 2011) (significant control exercised where dancers were required to "sign in," follow a schedule, were permitted to dance only for set durations, and the defendant enforced certain behavioral rules); Harrell v. Diamond A Entertainment, Inc., 992 F. Supp. 1343, 1349-50 (M.D. Fla. 1997) (economic dependence found where the club set fees, had a "stage rotation," controlled customer volume and atmosphere, and required dancers to abide by written rules and regulations), Defendant does not appear to manage the day-to-day aspects of the dancers' performance. Defendant does not create work schedules for the dancers, but rather permits them to work at other clubs and to "come and go as they please." Walter Alexander Robinson, III Dep. 45:15-21, 79:1-4, Aug. 9,2013. Defendant did not mandate that Plaintiff dress or dance a certain way, did not limit the amount of lap dances she could perform, and did not limit the number of beverages a customer could purchase for her. Unique S. Butler Dep. 40:1-10, Aug. 9, 2013. The only behavioral guidelines that Defendant required Plaintiff to follow were those set by the Maryland State Liquor Board and the adult entertainment laws. Robinson Dep. 51:1-14.

Defendant asserts that the only fee imposed on the Plaintiff was a non-mandatory $45 cleaning or maintenance fee. Id. at 71:10-14. Although Def...