United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN UNITED STATES DISTRICT JUDGE
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). 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
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 j oint 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.
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.
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.
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
31, 2017, counsel entered an appearance for plaintiff, and
plaintiffs filings have since that time been made through
counsel. Upon plaintiffs 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. Plaintiffs 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
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).
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.
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
plaintiffs NCWHA, assault, battery, and IIED claims; as well
as claims for damages comprising actual medical damages, lost
wages, and pain and suffering. 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) plaintiffs
paystubs; 5) an "Employee Contact List" for
defendant MH & WH; 6) Equal Employment Opportunity
Commission ("EEOC") documents pertaining to
plaintiff; and 7) plaintiffs first supplemental initial
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 plaintiffs FLSA claim on the ground that
it did not have sufficient volume of business to meet a
statutory threshhold of liability. Defendant MH & WH
relies upon its answer to plaintiffs second set of
interrogatories. DefendantMH & WH also adopts and
incorporates by reference the statement of facts of defendant
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 plaintiffs paystubs.
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.
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
plaintiffs 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.
joint opposition to plaintiffs 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.
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
pertinent to the instant motions, the undisputed facts and
other facts viewed in the light most favorable to plaintiff
may be summarized as follows.
Defendants' business activities
MH&WH provides construction labor. (Pl's Stmt. (DE
145) ¶ 2). Defendant HBG is a general contractor for
residential homes and apartment complexes. (Id.
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).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. (MH & WH Dep. (30(b)(6) by M.
Howington) pp. 27-28). His management responsibilities for
HBG included design, sitework, 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
j ob 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
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 HBGjob sites, who
supervised twelve MH & WH laborers on HBGjob sites and
"told the laborers what to do." (Pl's Stmt. (DE
145) ¶ 15; M. Howington Dep. p. 72; HBG Stmt. (DE 131)
Wendy Howington's work for MH & WH included payroll
duties; handling insurance and workers compensation;
maintaining personnel files for employees of MH & WH; and
filling out forms when former employees filed for
unemployment. (W. Howington Dep. pp. 11-12, 14-15, 20). MH
& WH did not have any other designated employees who
performed human resources functions. (Id. at 15).
Defendant Wendy Howington also hired employees to work at a
gas station owned by MH & WH, and she supervised those
employees. (Id. at 17). Defendant Michael Howington
hired non-gas station employees of MH & WH, and he had
authority to discipline and fire them. (Id. at
17-18). Defendant Michael Howington, in conjunction with
defendant Wendy Howington made a determination whether to
classify an employee as exempt or nonexempt for purposes of
qualification for overtime pay. (Id. at 118).
Plaintiff s employment
about the summer of 2012, while plaintiff was working for a
construction contractor at an apartment complex building site
in Apex, North Carolina, defendant Michael Howington asked
plaintiff if she wanted to work for him. (P1' s Dep. pp.
31 -33). Warren Halle also that same date asked plaintiff if
she wanted to work for his company. (Id.). She
responded yes, to both. (Id.). She started working
at that job site and others, under the direction and
supervision of different individuals, including: 1) Mark
Gramling ("Gramling"), who was a project manager
for defendant HBG; 2) Wesley Stanley, who was a supervisor
who worked for defendant HBG; 3) Bill Torgeson, who was a
supervisor for new home construction for defendant HBG; 4)
Rick Cattano, who was a supervisor for new home construction
for defendant HBG; 5) Hernandez, who as noted previously was
a MH & WH employee working on projects for defendant HBG;
and Martin Arias, who was a supervisor who worked on projects
for defendant HBG. (Id. at 40; MH & WH Dep.
(30(b)(6) by M. Howington) pp. 69, 75, 77, 83, 85). All of
these supervisors were able to instruct plaintiff to modify
her work and had the ability to terminate plaintiff. (MH
& WH Dep. (30(b)(6) by M. Howington) p. 85).
filled out daily timesheets captioned "HALLE BUILDING
GROUP DAILY TIME SHEET," which recorded her hours and
description of work. (E.g., DE 136-2). Plaintiff
received a holiday bonus from Warren Halle and Martha Halle,
owners of defendant HBG, in an envelope with her name typed
on the front of it. (E.g. DE 136-4; see HBGDep.
(30(b)(6) by Eric Rifkin) pp. 41-43). It was common for
defendant HBG to provide a holiday bonus to workers doing
work for defendant HBG on its projects. (Id. at 43).
Plaintiff received work clothing marked "Halle
Companies." (E.g., DE 136-3). Gramling led
weekly safety meetings for workers at HBG work sites,
including plaintiff. (MH & WH Dep. (30(b)(6) by M.
Howington) pp. 111-113). Defendant HBG provided to all
workers at HBG work sites, including plaintiff, equipment,
such as hard hats, gloves, working tools, materials, brooms,
shovels, cleaning supplies, and eye protection, as needed for
the work. (Id. at 114-116).
February, 2013, Bill Torgeson and Martin Arias directed
plaintiff to work at an apartment complex job site in Holly
Springs, and to look for former defendant Stanley and someone
named "Mark" who would be her supervisors.
(Pl's Dep., p. 44). When plaintiff arrived at the Holly
Springs job site, Stanley directed her to work on exteriors
and set mulch, even though Bill Torgeson and Martin Arias had
told her prior to transfer she was going to be "the
sheetrock and paint supervisor." (Id. p. 45).
On her second day at the Holly Springs job site, Stanley
called plaintiff over to a portion of the job site and, along
with Warren Halle and Michael Howington, accused her of
"something having been done wrong that [she] had nothing
to do with." (Id. p. 47). They said "I
worked for them, and I was in charge as a supervisor for the
paint and sheetrock[, ] and if I could not do my job, to let
them know and they would hire somebody else."
(Id. p. 48).
about that time, Stanley engaged in a number of practices
offensive to plaintiff while supervising and directing
plaintiffs work. According to plaintiff:
[He] grabbed the top of his zipper and then rubbed his part
in front of everybody and said in front of everybody that
what I needed was that. I needed that to be able to work
there. That there only men worked and that women were
useless, and that we were only useful for cleaning and having
children. And the people around us, I didn't see faces. I
just knew they were there. I heard the laughter and the
giggling. And people, some of them came up to me and said,
"Well, if - you know, they would touch theirs, touch
their - their area and say if I needed it, they'd loan it
to me, that they'd loan me theirs such that I could work
there. That was the first time he did it. I've got that
well recorded because it was so humiliating and made - made
me a laughing stock.
(Id. p. 78). Immediately prior to this incident,
plaintiff was sealing wood framing for inspection, and
Stanley had directed plaintiff to "get up on a ladder
and seal it properly." (Id. p. 80). They
disagreed about whether it had been sealed properly, and
"he said, 'No, it's not fine,' and he
touched his part. He cackled, and he went all red when he
touched his part." (Id.). They were in a
building working at the time this happened, engaged in
sealing the frame. (Id.).
reported this incident to defendant Michael Howington, two
days later, when she saw him at the MH & WH gas station
job site, where she was doing maintenance work. (Id.
at 81). She told him that she "sensed aggression, that
[she] felt harassed, that what [Stanley] had done to [her]
when he had touched his part. . . . And [she] showed him what
he had - how he had done it." (Id. at 82).
Michael Howington responded "Okay, I'll check. Thank
you, Maday." (Id.).
to plaintiff, Stanley made "constant" offensive
comments about gender and gestures of a sexual nature.
(Id. at 73). On various occasions he said
"Look, this is why women shouldn't work here. Women
can't work here because they can't do the job."
(Id.). "He'd say this to [plaintiff] when
he touched his [private] part." (Id.). He
touched his private area in front of her "[o]n repeated
occasions, including once where "he grabbed his part and
he said to [plaintiff] 'Touch, touch, it's good for
you. Do you need this?" (Id. at 83). "When
others couldn't do their job, he blamed [plaintiff],
[and] he said 'Women are only useful for having children
and doing cleaning." (Id. at 73).
time, when plaintiff used a portable toilet at the
construction site, Stanley started banging on the door, and
said "I need you right now. What are you doing in
there?" and "There shouldn't be bathrooms for
women here. These bathrooms are for men, just for men."
(Id.). When she got out of the bathroom, he told her
to get to work on in prepping for a plumbing and electrical
inspection. Plaintiff said "This is the work of the
plumbers," and he responded "Well, this is why
you're here. This is what the women are for, to do that
which we can't do. And that's how we work."
(Id. p. 74).
to plaintiff, Terry Stanley also threw tools and items to the
ground near plaintiff when directing her to work. For
He called me on the phone and said, "I need you."
And I was in the bathroom. I told him "I'm in the
bathroom." And he said, "You come right now."
I mean, I couldn't even go to the bathroom. It was my
break. I didn't eat that day. I showed up and he said,
"We have to turn this over for inspection." And I
said, "Look, I've got my food in my hand. Let me go
leave it in the truck." And he threw the ladder to the
floor. And he said, "No, you work now." I said to
him, "I haven't even eaten. And he said,
"That's not my problem." He said, "Get to
work," and he threw my ladder to the floor. Two
electricians were there. One of the carpenters there said to
me, "Don't let them treat you like that."
(Id. p. 62). At another time:
It was time to get off, to get off work. And he looked to me.
He says, "Overtime." And I said, "I
can't." I didn't argue with him. It was
obligatory. So he said, "Well, if you can't, then
tomorrow don't come back in." So we stayed. He said
inspection tomorrow, so we stayed. We were on the lower
level. When my coworker was carry - was carrying the ladder
as we walk - as - with me. • And then he grabs the
ladder and throws it to the - throws it down. And says,
"Look, carry it yourself." I had my tool bucket.
And as I was putting my tool bucket down he says, "Hurry
up, get to work."
(Id. pp. 65-66). At another instance when they were
working on repairs for an inspection, plaintiff asked him
what he wanted her to do, Terry Stanley grabbed a hammer from
a set of tools, threw it to the floor in front of plaintiff,
looked at plaintiff and "holler[ed],
'Think.'" (Id. at 68). On another
occasion in discussing a job needing to be done, he threw a
hammer on the floor in front of plaintiff. (Id. at
69). According to plaintiff,
it wasn't just hammers. It wasn't just tools. . . .
it washrooms, buckets, containers. It was always some kind of
aggression. He would look at me and say, "He[y] get
it." I mean, I'd look at him and he enjoyed it. I
can honestly tell he enjoyed it. He laughed. He'd make
other people laugh. He enjoyed that. And even when other
people weren't around, he would still do it.
(Id. at 72).
to plaintiff, by April 2013, plaintiff tried regularly to
avoid direct contact with Terry Stanley while working. One
day around that time, according to plaintiff,
[Hernandez] was with me that day. And I - I just remember
when the other workers said, "Look, look, here comes
Terry, here comes Terry." And so I hid. I hid behind a
column. And [Hernandez] was with me. And I urinated. I
started to cry and I started to shake. And [Hernandez] says
to me, he says, "Calm down." That's when I said
to him, "I don't know what's happening to me.
This has never happened to me." I said, "I need a
change. I just can't bear it. I just can't bear being
like this anymore." That was when [Hernandez] was with
me and Terry [Stanley] was coming, and that's when I
urinated on myself. [Hernandez] saw and he said, on that day
he says, "Look, tomorrow, we're going to move you.
You'll be with the carpenters." And he - and I said
to them, I said, "Look, go ahead and demote me.
That's fine. I just can't be here anymore. ...
I'd quit if I could, but I can't. I need the money. .
(Id. p. 86). Hernandez arranged a transfer to a
different work site for plaintiff, and for a period of about
two weeks, up to the day before plaintiff s last day at work,
plaintiff worked exclusively with carpenters and she did not
have any complaints. (Id. at 87). Plaintiff switched
then from having her time and overtime recorded by Stanley,
and time sheets signed by Stanley, to having Hernandez
"take care of recording everything having to do
with" her work time. (Id. at 88).
plaintiffs last day present on the job site, according to
Plaintiff, Stanley engaged in offensive and injurious
behavior towards her while she was carrying out work
functions. Plaintiff was working with a co-worker sealing a
roof on one portion of the job site about 1:45 in the
afternoon, when she got a call from Hernandez, who said that
"Terry Stanley wanted to talk to [plaintiff] and that he
was very angry," and wanted her to come over to another
area of the job site. (Id. at 90). Plaintiff started
to shake and was agitated, but her co-worker, Arturo, offered
to come with her and to "take care of everything."
(Id. at 90-91). Plaintiff describes the encounter
that ensued with Stanley as follows:
It had been two weeks since I had worked there. He says to
me, "This is your fault." I said to him, "I
didn't work here today. Victor was here." And he
says, "No, you're the one that's
responsible." He never called Victor, and he had been -
he had been the one who had been working there all day. There
was no reason for him to get on me for that work. He says,
"Look, this - this is all trash work. This - this
isn't good for anything. This is all trash." He
says, "Tomorrow there is an inspection. You're not
going to move away from this until you're done with
this." Arturo had a - a gun with a gas cylinder in it.
We both had our sealers. They were new cylinders. We had just
loaded them. Arturo had the ladder and he said,
"Don't worry about it. I'll get up there."
He said, "I'll seal it." Terry Stanley said,
"No, not Arturo. You." And I said to him, "But
he's already sealing. Arturo's working." He said
to me, "No."
That's when he got upset, when I said Arturo is already
up there sealing. That's when he got upset. And I had the
sealer here in this hand, the sealer with the cylinder. I had
my bucket here with cylinders and such, the blue bucket.
He got upset when I told him that Arturo was sealing. And
when he said, "No, you," that's when he - he
got - when he - when he grabbed the sealer out of my hand. He
removed the cylinder from the sealer, and he threw it in my
face. Just by - by use of reflexes, I was able to
protect myself. I reacted quickly. I wasn't expecting
that. But for fear, I mean, he had a facial expression, an
expression on his face. He's white. He was red and purple
at the same time. His mouth was shaking. And he was spittling
out of his mouth. When he threw the cylinder at me, I felt as
though he was going to kill me. I raised my hand, and it hit
me here in this area (gestures).
(Id. at 91-93) (emphasis added). Plaintiff drove
herself home, left her truck running, got inside, had a
"terrible headache," and felt chills, and pain.
(Id. at 94-95). She tried to get up and she
"couldn't feel" her body, lost movement in half
of her body, and she fell down, hitting herself.
(Id. at 95).
Michael Howington called plaintiff the next day to ask what
happened, suggesting that he heard that she cried, and he
directed Hernandez also to call plaintiff. Plaintiff talked
to Hernandez several times. Hernandez came to see plaintiff
several days later and said "Mike says he can't help
you anymore and that you can't count on him."
(Id. at 110). Plaintiff was incapable of returning
to work. (Id. at 95).
facts pertaining to issues raised by the instant motions will
be discussed in the analysis herein.
Standard of Review
judgment is appropriate where "the movant shows that
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(a). The party seeking summary judgment
"bears the initial responsibility of informing the
district court of the basis for its motion, and identifying
those portions of [the record] which it believes demonstrate
the absence of a genuine issue of material fact."
Celotex Corp. v. Catrett 477 U.S. 317, 323 (1986).
Once the moving party has met its burden, the non-moving
party must then "come forward with specific facts
showing that there is a genuine issue for trial."
Matsushita Elec. Indus. Co.. Ltd. v. Zenith Radio
Corp.. 475 U.S. 574, 586-87 (1986) (internal quotation
disputes between the parties over facts that might affect the
outcome of the case properly preclude entry of summary
judgment. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986) (holding that a factual dispute is
"material" only if it might affect the outcome of
the suit and "genuine" only if there is sufficient
evidence for a reasonable jury to return a verdict for the
non-moving party). "[A]t the summary judgment stage the
[court's] function is not [itself] to weigh the evidence
and determine the truth of the matter but to determine
whether there is a genuine issue for trial."
Id. at 249. In determining whether there is a
genuine issue for trial, "evidence of the non-movant is
to be believed, and all justifiable inferences are to be
drawn in [non-movanf s] favor." Id. at 25 5;
see United States v. Diebold, Inc., 369 U.S. 654,
655 (1962) ("On summary judgment the inferences to be
drawn from the underlying facts contained in [affidavits,
attached exhibits, and depositions] must be viewed in the
light most favorable to the party opposing the
"permissible inferences must still be within the range
of reasonable probability, . . . and it is the duty of the
court to withdraw the case from the [factfinder] when the
necessary inference is so tenuous that it rests merely upon
speculation and conjecture." Lovelace v.
Sherwin-Williams Co.. 681 F.2d 230, 241 (4th Cir. 1982)
(quotations omitted). Thus, judgment as a matter of law is
warranted where "the verdict in favor of the non-moving
party would necessarily be based on speculation and
conjecture." Myrick v. Prime Ins. Syndicate,
Inc., 395 F.3d 485, 489 (4th Cir. 2005). By contrast,
when "the evidence as a whole is susceptible of more
than one reasonable inference, a [triable] issue is
created," and judgment as a matter of law should be
denied. Id., at 489-90.
Claims Not Covered by ...