Brock v. Positive Changes Hypnosis, LLC

• Decision Date: 26 June 2008
• Docket Number: No. 06-2772-JPM/tmp.,06-2772-JPM/tmp.
• Citation: 589 F.Supp.2d 974
• Parties: Diane BROCK, Plaintiff, v. POSITIVE CHANGES HYPNOSIS, LLC, Dorus Alderman, and Kathy Alderman, Defendants.
• Court: U.S. District Court — Western District of Tennessee

589 F.Supp.2d 974

Diane BROCK, Plaintiff, v. POSITIVE CHANGES HYPNOSIS, LLC, Dorus Alderman, and Kathy Alderman, Defendants.

No. 06-2772-JPM/tmp.

United States District Court, W.D. Tennessee, Western Division.

June 26, 2008.

Order Denying Relief from Decision November 17, 2008.

COPYRIGHT MATERIAL OMITTED

Charmiane G. Claxton, Robin H. Rasmussen, Apperson Crump & Maxwell, PLC, Memphis, TN, for Plaintiff.

James R. Mulroy, II, Oscar John Norris, III, Jackson Lewis LLP, Memphis, TN, for Defendants.

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT & DISMISSAL

JON PHIPPS McCALLA, District Judge.

Before the Court is Defendants' Motion for Summary Judgment, filed November 6, 2007. (Doc. 58.) In addition to responding in opposition (Doc. 103, filed Feb. 29, 2008), Plaintiff also filed a Motion in Limine (Doc. 64), and a Motion to Strike (Doc. 100), to exclude certain exhibits and allegations from Defendants' Motion for Summary Judgment. Defendants responded to these motions and filed a Motion in Limine of their own urging the Court to exclude the expert testimony of Plaintiffs physician. (Doc. 105, filed Mar. 19, 2008.) The Court held a hearing on the evidentiary matters on April 8, 2008. For the following reasons, the Court GRANTS Plaintiffs Motion in Limine, DENIES AS MOOT Plaintiffs Motion to Strike and Defendants' Motion to Depose, GRANTS Defendants' Motion in Limine, GRANTS Defendants' Motion for Summary Judgment, and DISMISSES this case with prejudice.

I. Background

This case arises from Plaintiff Diane Brock's employment with Dorus and Kathy Alderman at Positive Changes Hypnosis, LLC ("PCH"). Plaintiff began working for PCH as a Hypnosis Sales Consultant in March of 2003. (Compl.¶ 11.) PCH compensated Plaintiff on a commission basis, paying her 10% of the cost of every hypnosis service "program" she sold to clients. (Brock Dep. (Doc. 58-4), Vol. 1, at 84.) This arrangement generated Plaintiff roughly $100,000.00 per year. (Brock Dep. Vol. 1 at 91.) Plaintiffs compensation did not change when she worked more than forty hours in a week. (Compl. ¶ 24.)

In early 2006, another PCH employee filed a complaint with the United States Department of Labor ("DOL"), who subsequently conducted an investigation into PCH's labor and compensation practices. (Compl. ¶ 29.) The DOL determined that Plaintiff should have been classified as a non-exempt hourly employee entitled to hourly overtime wages. PCH's failure to pay Plaintiff for her overtime wages violated 29 U.S.C. § 207(a)(1). The DOL determined that PCH owed Plaintiff $4946.56 in unpaid overtime. (Compl. ¶ 32.) It was Defendants' understanding that, to comply with the DOL's classification, PCH should pay Plaintiff an hourly wage plus a lower commission or ensure that Plaintiff did not work overtime. (Kathy Alderman Decl. ¶ 20, Doc. 58-3; Brock Dep. Vol. 1, at 182, 292.)

Plaintiff's Complaint alleges that, following this DOL determination, PCH threatened Plaintiff with decreased compensation if she collected her unpaid overtime. On April 7, 2006, Plaintiff signed a false statement that she had received her unpaid overtime. (Brock Dep. Vol. 1, at 190-92; Kathy Alderman Decl. ¶ 22.) Plaintiff allegedly acquiesced to this arrangement because, if she did not, PCH would change her 10% commission to an hourly wage and 6% commission package. (Brock Dep. Vol. 1, at 124, 191; Kathy Alderman Decl. ¶ 22.)

In May of 2006, Plaintiff managed PCH's office while the Aldermans vacationed. (Brock Dep. Vol. 1, at 154; Kathy Alderman Decl. ¶ 23.) During their absence the DOL wrote the Aldermans requiring further proof of payment of the unpaid overtime. (Brock Dep. Vol. 1, at 155.) Plaintiff circulated the DOL letter throughout the office. (Brock Dep. Vol. 1, at 156, 187.) Upon their return on June 5, 2006, the Aldermans met with Plaintiff and other staff members to discuss the DOL's requirements as well as a co-worker's report that Plaintiff referred to Kathy Alderman as a "money-grubbing bitch"; that Plaintiff "shirked" her responsibilities as manager in their absence; that Plaintiff had exceeded her deal-making authority in negotiations; and that Plaintiff had taken an impermissibly long lunch break. (Brock Dep. Vol. 1, at 173-80.)

On June 8, 2006, Kathy Alderman issued a check to Plaintiff for the unpaid overtime less applicable taxes ($3226.15) in an effort to satisfy the DOL's request for confirmation of payment. On June 9, 2006, PCH gave Plaintiff this overtime check along with her check for that pay period. Plaintiff agreed to return the overtime payment in order to maintain her 10% commission deal. (Kathy Alderman Apr. 9, 2008, Decl. ¶ 5; Doc. 129-3.) On June 14, 2006, after Plaintiff cashed the overtime check and returned the check amount, Dorus Alderman asked that Plaintiff also pay PCH the $1720.42 withheld from the overtime payment in taxes. (Brock Dep. Vol. 1, at 125; Vol. 2, at 44.) When Plaintiff refused to do so and instead asked that she receive her overtime payment again, Dorus Alderman denied any knowledge of the matter and asked Plaintiff if she was "on drugs." (Brock Dep. Vol. 1, at 126.)

Plaintiff alleges that after this disagreement, Defendants began discriminating against her. (Compl.¶ 48.) Plaintiff alleges that by July 25, 2006, Defendants' hostility and the adverse affect it had on her relationship with her clients forced her to resign from her position with PCH. (Compl. ¶ 52.) Plaintiff began looking for other employment in mid-July of 2006, and accepted a sales position with "LA Weight Loss" when she left PCH. (Brock Dep. Vol. 1, at 31.) As had been the practice at PCH in at least one other employee's case, Plaintiff's final pay check was based on a 6% commission. (Brock Dep. Vol. 1, at 234; Kathy Alderman Decl. ¶¶ 7-10.)

Another PCH employee, Keith Haynie, also left PCH in the wake of the DOL determinations. Unlike Plaintiff, Keith Haynie did not leave voluntarily but was fired and escorted out of PCH by Bartlett, Tennessee, police officers. (Haynie Dep. 14-16; Brock Dep. Vol. 1, at 318-20.) On July 29, 2008, after her husband was fired, Kathie Haynie met with Dorus Alderman. (Haynie Dep. 16.) At that meeting Dorus Alderman suggested that the behavior that lead to Keith Haynie's firing was the result of an inappropriate romantic connection to Plaintiff. (Id. at 36-41.)

On September 9, 2006, Plaintiff received $3226.15 from PCH and executed a DOL receipt releasing all claims against PCH under § 16(b) of the Fair Labor Standards Act. (Brock Dep. Ex. 8 (Doc. 58-4) at 44.) In October of 2007, PCH ceased its business operations. (Kathy Alderman Decl. ¶ 3.)

On November 14, 2006, Plaintiff filed the instant action, seeking relief for retaliation for protected activity in violation of 29 U.S.C. § 215(a)(3); failure to pay commissions in violation of Tenn.Code Ann. § 47-50-114, et seq. ("Commission Statute"); slander and defamation in violation of Tenn.Code Ann. § 29-24-101, et seq. and Tennessee common law; and intentional infliction of emotional distress. The Court dismissed Plaintiff's Commission Statute claim in its Order Granting Defendants' Motion for Partial Judgment on the Pleadings.

II. Analysis

A. Evidentiary Matters

1. Farrington Declaration

Plaintiff seeks to exclude the declaration of Brian Farrington because it is irrelevant and, therefore, inadmissible pursuant to Federal Rule of Evidence 402. Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed.R.Evid. 401. "All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by [the Federal Rules of Evidence], or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible." Fed.R.Evid. 402.

When determining whether expert testimony is relevant, the Court applies the standards of Rule 401 to establish "whether proffered expert testimony is relevant, i.e., whether it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Amorgianos v. Nat'l. R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir.2002) (citations omitted); see also Beck v. Haik, 377 F.3d 624, 637 (6th Cir.2004)(holding that expert testimony must meet the general evidentiary relevance requirements as well as the specific expert testimony requirements of Rule 702). Whether to exclude expert opinion under Rules 401 or 402 is left to the sound discretion of the trial court. Beck, 377 F.3d at 636 (citing United States v. Cline, 362 F.3d 343, 348 (6th Cir.2004)).

Farrington's opinion that the DOL investigation should have concluded that Plaintiff was exempt from overtime under 29 U.S.C. § 207(i) does not have any tendency to show that the alleged violations of the FLSA were more or less probable. Defendants did not challenge the DOL's findings regarding Plaintiff's unpaid overtime and agreed to comply with all the DOL's recommendations. Farrington's opinions may be relevant to an appeal of those findings and recommendations, but Defendants have not brought such an appeal. Defendants argue that the Farrington Declaration supports their position that a "non-coerced mutually agreed upon repayment of money to an employer" does not violate the FLSA. (Defs.' Resp. (Doc. 79) at 1.) However, Plaintiff has not alleged that the agreement to return her overtime payment violated the FLSA. Rather, Plaintiff claims that her decision to abide by the DOL's recommendations and not the side agreement was a protected activity under the FLSA and, therefore, an impermissible ground for adverse employment action. The Farrington Declaration has no relevance to the evaluation of this argument. Accordingly, the Court GRANTS Plaintiffs Motion in...