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Lima v. MH & WH, LLC

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

March 8, 2019

MAD AY LIMA, Plaintiff,



         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.


         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 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.[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 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 (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 plaintiffs 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) 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 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 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 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 plaintiffs 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 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.

         In 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.

         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.


         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, 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 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 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) ¶¶ 17-18).

         Defendant 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).

         B. Plaintiff s employment

         In or 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).

         Plaintiff 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).

         In 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).

         Starting 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.).

         Plaintiff 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.).

         According 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).

         One 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).

         According to plaintiff, Terry Stanley also threw tools and items to the ground near plaintiff when directing her to work. For example:

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).

         According 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).

         On 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).

         Defendant 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).

         Additional facts pertaining to issues raised by the instant motions will be discussed in the analysis herein.


         A. Standard of Review

         Summary 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 omitted).

         Only 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 motion.").

         Nevertheless, "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.

         B. Analysis

         1. Claims Not Covered by ...

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