Lima v. MH & WH, LLC

• Citation: 372 F.Supp.3d 317
• Decision Date: 08 March 2019
• Docket Number: No. 5:14-CV-896-FL,5:14-CV-896-FL
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Maday LIMA, Plaintiff, v. MH & WH, LLC; Halle Building Group; Wendy A. Howington; and Michael J. Howington, Defendants.

372 F.Supp.3d 317

Maday LIMA, Plaintiff,

v.MH & WH, LLC; Halle Building Group; Wendy A. Howington; and Michael J. Howington, Defendants.

No. 5:14-CV-896-FL

United States District Court, E.D. North Carolina, Western Division.

Signed March 8, 2019

ORDER

LOUISE W. FLANAGAN, United States District Judge.

This matter is before the court on motions for partial summary judgment by plaintiff and defendants MH & WH, LLC ("MH & WH") and Halle Building Group ("HBG"). (DE 129, 133, 140). Also before the court are the motions for summary judgment by defendants Michael J. Howington ("Michael Howington") and Wendy A. Howington ("Wendy Howington") (DE 137, 142).¹ These motions have been briefed fully. In this posture, the issues raised are ripe for ruling. For the following reasons, the motions are granted in part and denied in part.

BACKGROUND

This action arises out of alleged wage and hour violations and improper conduct by a supervisor while plaintiff was working at HBG construction projects in and around Apex, North Carolina. On December 22, 2014, plaintiff filed pro se an application to proceed in forma pauperis and a proposed complaint with exhibits, asserting claims against HBG and MH & WH, as alleged joint employers, together with alleged employees thereof, defendant Wendy Howington and former defendant Terry Stanley ("Stanley"). Plaintiff also asserted claims against former defendant A. Humphries ("Humphries"), a police sergeant.²

The court upon frivolity review construed the complaint to assert viable claims under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"); the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq.; the North Carolina Wage and Hour Act ("NCWHA"), N.C. Gen. Stat. § 95-25.1 et seq.; assault; and battery. On recommendation of a magistrate judge, in order entered August 12, 2015, the court allowed plaintiff to proceed on Title VII claims against MH & WH and HBG; FLSA and NCWHA claims against MH & WH, HBG, and Wendy Howington; and assault and battery claims against Stanley, MH & WH, and HBG. Defendant Humphries was dismissed from the action.

After a period of time for service, defendants HBG, MH & WH, and Wendy A Howington, answered the complaint on March 9, 2016. Former defendant Stanley filed a motion to dismiss for insufficient service. Upon magistrate judge recommendation, on February 9, 2017, the court dismissed without prejudice claims against Stanley for lack of personal jurisdiction and insufficient service of process.

Case management order entered March 16, 2017, initially provided for discovery to be completed by June 30, 2017. On May 23, 2017, the court amended the case management order to clarify that the case is not automatically selected for mediation, and the court struck notice filed by defendants of mediator choice.

On May 31, 2017, counsel entered an appearance for plaintiff, and plaintiff's filings have since that time been made through counsel. Upon plaintiff's motion to amend case management order, on July 14, 2017, the court extended the discovery deadline to November 30, 2017, and allowed plaintiff until September 1, 2017, to file a motion to amend pleadings. Plaintiff timely moved to amend her pleadings, and the court granted in part and denied in part the motion to amend on November 3, 2017. Plaintiff's first amended complaint, filed November 9, 2017, contains the following claims against defendants HBG, MH & WH, Wendy Howington, and newly-added defendant Michael Howington:

1) FLSA claim for failure to pay proper overtime wages, in violation of 29 U.S.C. § 207, against all defendants (Count One).

2) NCWHA claim for failure to pay all owned, earned, and promised wages, in violation of N.C. Gen. Stat. § 95-25.6, against all defendants (Count Two).

3) Title VII claim for sex discrimination, hostile work environment, constructive discharge, and retaliation, against defendants MH & WH and HBG (Count Three).

4) Assault, battery, and intentional infliction of emotional distress ("IIED") claims based upon vicarious liability against defendants MH & WH and HBG for actions of former defendant Stanley (Counts Four, Five, and Six).

5) Negligent supervision against defendants MH & WH and HBG (Count Seven).

As relief for FLSA and NCWHA violations, plaintiff seeks unpaid wages, liquidated damages, attorney's fees, and interest. For additional violations, plaintiff seeks back pay, front pay, past pecuniary losses, compensatory damages, consequential damages, punitive damages, attorney's fees and interest. Plaintiff demands a jury trial.

The instant motions for summary judgment and partial summary judgment all were filed on March 23, 2018. In its motion for partial summary judgment, defendant HBG seeks dismissal of plaintiff's NCWHA, assault, battery, and IIED claims; as well as claims for damages comprising actual medical damages, lost wages, and pain and suffering.³ Defendant HBG relies upon a statement of material facts and memorandum of law, as well as the following materials: 1) depositions of defendants HBG, MH & WH, and Michael Howington; former defendant Stanley; and plaintiff; 2) declaration of Eric Rifkin ("Rifkin"), acting assistant vice president of HBG; 3) a "Vendor Ledger" produced by HBG; 4) plaintiff's paystubs; 5) an "Employee Contact List" for defendant MH & WH; 6) Equal Employment Opportunity Commission ("EEOC") documents pertaining to plaintiff; and 7) plaintiff's first supplemental initial disclosures.

In its motion for partial summary judgment, defendant MH & WH adopts and incorporates by reference the arguments raised by defendant HBG in support of dismissal of plaintiff's NCWHA, assault, battery, and IIED claims; as well as claims for damages comprising actual medical damages, lost wages, and pain and suffering. Defendant MH & WH also moves for summary judgment on plaintiff's FLSA claim on the ground that it did not have sufficient volume of business to meet a statutory threshold of liability. Defendant MH & WH relies upon its answer to plaintiff's second set of interrogatories. Defendant MH & WH also adopts and incorporates by reference the statement of facts of defendant Wendy Howington.

In her motion for summary judgment, defendant Wendy Howington seeks dismissal of the FLSA and NCWHA claims asserted against her, on the basis that she is not an employer for purposes of such claims. Defendant Wendy Howington relies upon a statement of material facts, depositions of HBG, MH & WH, Michael Howington, Wendy Howington, and plaintiff, as well as a declaration of Wendy Howington and plaintiff's paystubs.

In his motion for summary judgment, defendant Michael Howington seeks dismissal of the FLSA and NCWHA claims asserted against him, on the basis that they are time barred. Defendant Michael Howington relies upon a statement of material facts and depositions of plaintiff and MH & WH.

In her motion for partial summary judgment, plaintiff seeks a determination as a matter of law that defendants MH & WH and HBG jointly employed plaintiff for purposes of each of plaintiff's claims. Plaintiff relies upon a statement of material facts and depositions of MH & WH, HBG, Michael Howington, and Terry Stanley, as well as 1) daily timesheets sample, 2) photos of HBG attire, and 3) a HBG holiday card. In opposition to defendants' motions, plaintiff relies upon opposing statements of material facts and the same depositions relied upon in those motions.

In joint opposition to plaintiff's motion for partial summary judgment, filed April 13, 2018, defendants HBG and MH & WH rely upon an opposing statement of material facts. They also rely upon 1) the depositions relied upon in their motions, 2) declaration of Michael Howington, 3) second declaration of Rifkin, 4) plaintiff's Rule 30(b)(6) deposition notice for MH & WH, 5) plaintiff's time sheets and pay stubs, and 6) a HBG gift card.

Plaintiff replied in support of her motion for summary judgment, and defendant HBG replied in support of its motion, on April 26, 2018. No other defendants filed replies in support of their motions.

STATEMENT OF FACTS

As pertinent to the instant motions, the undisputed facts and other facts viewed in the light most favorable to plaintiff may be summarized as follows.⁴

A. Defendants' business activities

Defendant MH & WH provides construction labor. (Pl's Stmt. (DE 145) ¶ 2).⁵

Defendant HBG is a general contractor for residential homes and apartment complexes. (Id. ¶ 4).

At times relevant to the instant case, in 2012-2013, Michael Howington and Wendy Howington were owners and members of MH & WH. (Id. ¶ 3; see W. Howington Dep. at 7, 19).⁶ Defendant MH & WH supplied labor to HBG for construction projects. (Pl's Stmt. (DE 145) ¶ 5). They maintained the same business address. (Def. HBG Stmt. (DE 150) ¶¶ 2, 4). Defendant Michael Howington was responsible for management of HBG's construction, and he had an ownership interest in HBG. (Pl's Stmt. ¶¶ 8, 9). He formed HBG in 2006 with non-party Warren Halle.⁷ (MH & WH Dep. (30(b)(6) by M. Howington) pp. 27-28). His management responsibilities for HBG included design, site work, and "construction management," including visiting construction sites to check on the quality of work performed by subcontractors, including MH & WH. (Id. pp. 37-39; Pl's Stmt. (DE 145) ¶¶ 10, 11). If there was "something that wasn't going on correctly" at a job site, he would tell the "respective supervisors" on the job site what they needed to do to change it or fix it. (MH & WH Dep. p. 39). HBG held out to the public that defendant Michael Howington was acting in the capacity of a vice president for HBG. (Id. at 62-63).

An employee of MH & WH who worked on HBG job sites, Moises Hernandez ("Hernandez"), acted as a manager to laborers on HBG job sites. (Id. p. 69). Former defendant Terry Stanley was an employee of HBG in the position of a "superintendent" on HBG job sites, who supervised twelve MH & WH laborers on HBG job sites and "told the...