Cook v. Nu-Tech Housing Services, Inc.

• Citation: 953 F.2d 1383
• Decision Date: 05 March 1992
• Docket Number: NU-TECH,No. 91-1159,91-1159
• Parties: NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Tuwana F. COOK; Frankie Cook, Plaintiffs-Appellants, v.HOUSING SERVICES, INCORPORATED, a corporation; Greg Van Buskirk; Joseph S. Cozart; William Shumaker; Kathy Cozart; Omar Limited Partnership, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1383

953 F.2d 1383

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Tuwana F. COOK; Frankie Cook, Plaintiffs-Appellants, v. NU-TECH HOUSING SERVICES, INCORPORATED, a corporation; Greg Van Buskirk; Joseph S. Cozart; William Shumaker Kathy Cozart; Omar Limited Partnership, Defendants-Appellees.

No. 91-1159.

United States Court of Appeals, Fourth Circuit.

Argued Dec. 4, 1991.

Decided Feb. 5, 1992.

As Amended March 5, 1992.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Dennis Raymond Knapp, Senior District Judge. (CA-88-480-2)

Argued: Daniel Foster Hedges, Charleston, W.Va., for appellants; Anita Rose Casey, Meyer, Darragh, Buckler, Bebenek & Eck, Charleston, W.Va., for appellees.

On Brief: Craig Levine, Charleston, W.Va., for appellants.

S.D.W.Va.

REVERSED AND REMANDED.

Before DONALD RUSSELL, PHILLIPS and HAMILTON, Circuit Judges.

OPINION

PER CURIAM:

On April 11, 1988, the Cook Appellants filed a complaint alleging wage claims on behalf of Tuwana Cook under the federal Fair Labor Standards Act, 29 U.S.C.A. §§ 203, 206 (West Supp.1991) and under the West Virginia Wage Payment and Collection Act, W.Va.Code §§ 21-5-3, 21-5-4(b) (1989) and further alleging a claim of unlawful eviction of Frankie Cook from a West Virginia apartment complex in violation of the Farmers Home Administration Act, 42 U.S.C.A. § 1480(g) (West Supp.1991). On June 27, 1991, the district court dismissed Appellant Tuwana Cook's federal wage claim, and entered summary judgment in favor of the Nu-Tech Appellees as to the Appellants' other claims. Finding error in the district court's dismissal of Tuwana Cook's wage claim under the Fair Labor Standards Act, and in the district court's grant of summary judgment on both of Tuwana Cook's claims under the West Virginia Wage Payment and Collection Act and on Frankie Cook's claim of wrongful eviction in violation of Farmers Home Administration Act, we reverse and remand for further proceedings.

I.

Appellant Tuwana Cook was employed from December 6, 1986 until February 8, 1988 as resident manager of an apartment complex owned by Appellee Omar Limited Partnership in Omar, West Virginia. Nu-Tech Housing Services, Inc., ("Nu-Tech") is an Ohio Corporation authorized to conduct business in the State of West Virginia, and is the general partner of the Omar Limited Partnership. The Omar apartment complex is a federally-subsidized housing project which participates in Farmers Home Administration Act ("FmHA") housing assistance programs pursuant to 42 U.S.C. §§ 1471-1490.

Appellant Cook's employment at the Omar housing project included the performance of minor maintenance work at the apartment complex facility, but primarily entailed the collection of rent from other residents. Cook was paid at an hourly rate for the maintenance work, and received compensation on a commission basis for collecting rents and/or renting vacant units to new tenants. Tuwana Cook was compensated under this system during the entire time of her employment with Nu-Tech. Cook stated by affidavit that she received her wages from the defendant "only one time a month." (J.A. at 115.) While Cook was aware of the terms of her compensation when she accepted employment with Nu-Tech, she states that she "thought that minimum wage would be included in that [agreement]." (J.A. at 321.) At no time did Appellants fail to pay Cook according to the terms on which she accepted employment at the Omar complex. (J.A. at 36061.)

Susan Tutt, formerly a property manager employed with Nu-Tech at the corporation's Reynoldsburg, Ohio office, stated by affidavit,

From this Ohio office I had the responsibility for overall supervision of the buildings, over hiring and firing, over training resident managers, over supervising the maintenance people, supplying materials, authorizing purchases, and general oversight of all these properties, and specifically management of the Omar Limited Partnership property where Tuwana F. Cook was employed.

... There were a number of communications each week, both in writing and by telephone, from Tuwana F. Cook and the Omar Limited Partnership, in that all the paperwork was handled out of the Reynoldsburg, Ohio office and all the management and individual client files were kept there. All management was accomplished out of the Ohio office. (J.A. at 216.)

On February 4, 1988, Appellant Tuwana Cook notified her supervisor, Sandra Mayerink, that she was terminating her employment as resident manager of the Omar apartment complex. (J.A. at 206-07.) As of February 8, 1988, however, Cook had changed her mind, and expressed a desire to resume her employment with Nu-Tech in a telephone conversation with Nu-Tech manager Greg Buskirk. According to Cook, Van Buskirk told her that she could "keep" the job, but that he was "coming down to discuss the problems that [she] was having" at the Omar complex. (J.A. at 373.) After travelling from Reynoldsburg, Ohio to Omar, West Virginia to assist in the search for and transition to a new apartment complex manager, Buskirk informed Cook in person on February 9, 1991 that she would be unable to continue employment with Nu-Tech because Appellee President and principal of Nu-Tech Joseph Cozart had stated that she " 'cannot have the job.' " (J.A. at 381-82.) Buskirk also traveled from Reynoldsburg to Omar to appear in eviction proceedings against a tenant in the complex. (J.A. at 365, 369.) On February 9, 1988, Tuwana Cook signed an agreement by which she agreed to vacate the unit she occupied at the Omar complex with her mother by the end of that month. (J.A. at 39798.) Cook also purported to sign the agreement to vacate on behalf of her mother, Frankie Cook, in whose name the apartment was rented, since her mother was in fact unable to write due to disabilities incurred as the result of a stroke. (J.A. at 398, 407.) On March 8 or 9, 1988, Tuwana Cook received a final accounting and paycheck for her employment with Nu-Tech.

II.

The minimum wage provisions of the Fair Labor Standards Act ("FLSA") apply to an employee who is "engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce." ¹ 26 U.S.C.A. § 206(a). Citing Mitchell v. C.W. Vollner and Co., wherein the Supreme Court stated, "whether an employee is engaged 'in commerce' within the meaning of the present Act is determined by practical considerations, not by technical conceptions," 349 U.S. 427, 429 (1955), the district court determined that Cook's employment with Nu-Tech was not of such an interstate quality as to be "in commerce." (J.A. at 301-02.) The district court therefore dismissed Tuwana Cook's wage claims under the FLSA for lack of federal question jurisdiction, explaining,

the [c]ourt fails to see how the Act applies either to the defendants or to the plaintiff who has failed to establish that her job activity substantially affected commerce in the traditional sense. The facts of this case show that the apartment complex where plaintiff worked was a local concern and the plaintiff's job activity affected only the local tenants. Plaintiff's activities were not of interstate character or impact.

(J.A. at 301.)

On appeal, Tuwana Cook disputes this determination by the district court. To support her position, Cook points, for example, to the Tutt affidavit noted above and to Buskirk's travel between Ohio office and the West Virginia complex in furtherance of Nu-Tech's business. Cook contends that the principals of Nu-Tech actively managed both her work and the Omar, West Virginia apartment complex from their Reynoldsburg, Ohio office through the use of interstate written communications, telephone conversations and travel, and that this interstate transmission of information and activity sufficed to place her employment "in commerce" for purposes of FLSA. We agree.

Subsequent to the Supreme Court's statement in Mitchell v. C.W. Vollner and Co., 349 U.S. at 429, the Fourth Circuit elaborated upon the practical considerations determining whether an activity is "in commerce" in Schultz v. Falk, 439 F.2d 340 (4th Cir.1971). This court observed,

[A]t least two of defendants' employees at their main office ... have been engaged in handling, preparing, mailing or otherwise working on insurance policies or other materials for transmission across state lines.... It was also stipulated that, as a regular incident of their management of rental property, employees of the buildings managed by defendants repair plumbing, heating and air conditioning units, and that substantial portions of the materials used in these activities moved across state lines.... [A]t each of three of the apartment houses managed by defendants, at least one employee has been regularly engaged in telephone and mail communications with the owners of the buildings across state lines concerning their operation.

Schultz v. Falk, 439 F.2d at 348 (emphasis added). The court in Schultz v. Falk concluded that, where the defendants managed approximately thirty (30) apartment buildings in various Virginia cities from their main office in Newport News, Virginia, and also engaged in the selling of real estate and the interstate selling of insurance, "There can be no doubt that defendants do have employees engaged in commerce" within the meaning of FLSA, 29 U.S.C. § 203. 439 F.2d at 342, 348.

This court is of the opinion that a similar result obtains here. While the Appellee Nu-Tech does not appear to have engaged in the interstate sales of insurance or other goods and services, and while it was not established that Tuwana Cook used materials which had moved in commerce to perform her light maintenance...