Roley v. Nat'l Prof'l Exch., Inc.

• Decision Date: 22 July 2020
• Docket Number: Civil Action No. TDC-18-0152
• Citation: 474 F.Supp.3d 708
• Parties: Ross ROLEY, Plaintiff, v. NATIONAL PROFESSIONAL EXCHANGE, INC. and Sharon Bell, Defendants.
• Court: U.S. District Court — District of Maryland

474 F.Supp.3d 708

Ross ROLEY, Plaintiff,

v.NATIONAL PROFESSIONAL EXCHANGE, INC. and Sharon Bell, Defendants.

Civil Action No. TDC-18-0152

United States District Court, D. Maryland.

Signed July 22, 2020

Brian Joseph Markovitz, Matthew E. Kreiser, Joseph Greenwald and Laake PA, Greenbelt, MD, for Plaintiff.

Craig F. Ballew, Rafiq R. Gharbi, Ferguson Schetelich and Ballew PA, Baltimore, MD, for Defendants.

MEMORANDUM OPINION

THEODORE D. CHUANG, United States District Judge

Plaintiff Ross Roley has filed this action against his former employer, Defendant National Professional Exchange, Inc. ("NPX"), and its former managing director, Defendant Sharon Bell, alleging that their failure to pay him all of his salary and travel expense reimbursements constituted a breach of contract and a violation of either the Maryland Wage Protection and Collection Law ("MWPCL"), Md. Code Ann., Lab. & Empl. §§ 3-501 to 3-509 (LexisNexis 2016), or Hawaii's analogous statute, Haw. Rev. Stat. §§ 388-2, 388-6 (2019). Pending before the Court are Roley's Motion for Summary Judgment and Defendants’ Cross Motion for Partial Summary Judgment. The Motions are fully briefed. Having reviewed the filings, the Court finds that no hearing is necessary. See D. Md. Local R. 105.6. For the reasons set forth below, Roley's Motion will be GRANTED IN PART and DENIED IN PART, and Defendants’ Motion will be GRANTED IN PART and DENIED IN PART.

BACKGROUND

I. Employment History

In 2011, Roley, a retired Colonel of the United States Air Force, began looking for a position with an organization that would allow him to work for the United States military at the United States Indo-Pacific Command ("PACOM") pursuant to the Intergovernmental Personnel Act of 1970 ("IPA"), 5 U.S.C. §§ 3371 – 3376 (2018), which authorizes temporary employee assignments from state and local governments and certain non-governmental organizations to the federal government, and vice versa. Id. § 3372(a), (b). According to Roley, on the recommendation of a PACOM official, Roley reached out to Bell, NPX's Managing Director, to discuss being hired by NPX in order to be assigned to PACOM. According to Bell, PACOM contacted her directly to request that NPX hire Roley.

NPX is a not-for-profit corporation organized pursuant to section 501(c)(6) of the Internal Revenue Code, I.R.C. § 501(c)(6) (2018), that was, during the relevant period here, incorporated in Nevada and registered to do business in Maryland, along with several other states. From its inception in 2006, NPX had an office in Maryland. As of 2011, the office was in Hollywood, Maryland, and since 2012 or 2013, NPX has operated out of an office attached to Bell's home in Mechanicsville, Maryland. Bell was both the Managing Director of NPX and a member of its Board of Directors. NPX provided personnel services to government agencies by employing individuals with uncommon skill sets and then assigning them to work at agencies that needed those skill sets but that could not hire the individuals through normal procedures. According to Bell, a government entity would typically find an individual whose services it needed and then request that NPX hire the individual. NPX would oblige and then assign that individual to the government entity.

On December 1, 2011, Roley was hired as an employee of NPX. According to Bell, she and the other member of NPX's Board of Directors, Marvin Fairclough, jointly made the decision to hire Roley. For the next year, Roley worked as an NPX contractor in Honolulu, Hawaii.

In November 2012, Roley, NPX, and PACOM entered into an IPA Assignment Agreement ("the 2012 Agreement") pursuant to which Roley would be temporarily assigned to work at PACOM in Hawaii. The 2012 Agreement, which ran from December 1, 2012 to November 30, 2014, listed PACOM and NPX as the parties to the agreement and Roley as the "Participating Employee." Joint Record ("J.R.") 90, ECF No. 41. It provided that Roley would be assigned to PACOM's Joint Innovation and Experimentation Division as the Director of the PACOM Energy Office, and that his direct supervisor would be Colonel Keith Felter, the Chief of that Division. It also provided that Roley's salary was $176,440 per year, that PACOM was "responsible for funding Mr. Roley's salary and related costs," but that NPX would "continue to administer the payment of Mr. Roley's salary and [would] continue to withhold contributions to taxes and benefits and bill the government for such costs." J.R. 92. Although the 2012 Agreement noted that NPX's "Fiscal Obligations" were "None," it also stated that NPX was to provide "401K, short and long term disability insurance, social security benefits, personal time off [of] 160 hours, federal holidays, health/dental/vision insurance with employee contribution, [and] supplemental insurance." J.R. 92. PACOM was responsible for paying travel expenses when it assigned Roley to work away from his primary duty station, but NPX was responsible for travel expenses incurred by Roley at its request. In order for Roley to be paid, he was required to turn in a biweekly timesheet to his PACOM supervisor for approval and then, upon approval, send it to Bell to process it for payment. NPX paid Roley every two weeks.

Each year from 2011 to 2016, NPX issued Roley an Internal Revenue Service ("IRS") Form W-2. NPX also maintained a personnel file on Roley, including his IRS Form W-4 and Hawaii tax withholding worksheet, withheld taxes from Roley's paychecks, and paid payroll taxes on his behalf.

NPX, PACOM, and Roley renewed Roley's IPA Agreement for two additional one-year stints. The first ran from December 1, 2014 to November 30, 2015 ("the 2014 Agreement"); the second ran from December 1, 2015 to November 30, 2016 ("the 2015 Agreement"). These IPA Agreements were largely identical to the 2012 Agreement, with some minor changes. Roley's pay was increased to $178,204 per year in the 2014 Agreement and then to $179,986 in the 2015 Agreement. The name, but not the title, of Roley's immediate supervisor changed.

During his time with NPX and PACOM, Roley traveled to Maryland seven times, each time to attend a multi-day conference related to his work, and he received reimbursement for his travel expenses from NPX. Bell, however, has asserted that she had no knowledge that Roley ever performed any work in Maryland relating to his duties. J.R. 69.

In September 2016, Roley discovered that NPX had failed to pay him all of his salary and to adequately reimburse him for work-related travel expenses. On November 30, 2016, at the conclusion of the 2015 Agreement, Roley left NPX. After leaving the company, Roley contacted Bell regarding the money he was owed because she was in charge of payroll and travel reimbursements at NPX. Bell investigated Roley's complaint and discovered that he was "correct" that NPX "owed him money." J.R. 58. NPX attributes the underpayment to an accounting error by NPX that originated in December 2012 and persisted during the rest of Roley's tenure at NPX. The parties initially agreed that NPX owed Roley $69,564.82. NPX paid Roley $13,000 of that amount, but it asserts that it cannot pay the rest. Although it asked PACOM for the authority to submit corrected invoices for the underpayment, PACOM rebuffed that request. During discovery, NPX and Bell acknowledged that NPX now owes Roley $56,564.82 in unpaid salary and $13,349.31 in unpaid travel expenses.

II. Bell

Bell received a salary for her work as Managing Director but did not have an ownership interest in NPX. As Managing Director, she "oversaw the office staff" and "the day-to-day operations" of NPX, and she "worked with [the] Department of Defense in coordinating IPA agreements." J.R. 18. She supervised two employees in Maryland, including the employee assigned to administer NPX's payroll.

In order to hire employees for NPX, Bell needed approval from NPX's Board of Directors. According to Bell, PACOM was responsible for assigning, directing, and evaluating Roley's work, as well as providing him with the equipment and office space he needed to perform it. PACOM set Roley's work schedule and approved his leave, but any leave was taken out of a leave bank controlled by NPX. Bell asserts that PACOM, rather than NPX or Bell, had the authority to suspend, demote, or fire Roley. The IPA Agreements, however, provided that both PACOM and NPX had the authority to terminate Roley's assignment at any time.

According to Bell, since 2018, NPX has been "in the process of closing down" and now conducts "no business." J.R. 24.

III. Procedural History

On January 17, 2018, Roley filed suit against NPX and Bell in this Court. Although the Complaint included four separate counts, at core it raises just two claims. The first claim, asserted solely against NPX, alleges that NPX's failure to pay Roley his full wages and reimburse his travel expenses breached its contract with Roley under either Maryland or Hawaii law. The second claim, brought against both NPX and Bell, asserts that this failure violated either the MWPCL or, if that law is not applicable, Hawaii's analogous wage protection statute. As relief for the contract claim, Roley seeks payment of the money owed to him by NPX. As relief for the statutory claim, Roley seeks the unpaid wages, multiplied as required by the respective statutes; civil penalties; and attorney's fees.

After Defendants filed an Answer to the Complaint on April 4, 2018, this Court ordered discovery to begin. The Court then stayed discovery for several months to allow the parties to discuss settlement. After these discussions proved fruitless, the parties completed discovery and filed the pending Motions.

DISCUSSION

In his Motion, Roley seeks summary judgment on both his breach of contract and statutory claims. On the breach of contract claim, he argues that under either Maryland or Hawaii law, NPX owed him a contractual duty to pay him all of his wages and reimburse all of his travel expenses, and that NPX has...