United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
Reidinger United States District Judge
MATTER comes before the Court on Defendant's
Motion for Partial Summary Judgment [Doc. 46],
Defendant's Motion to Dismiss [Doc. 49], and the
parties' supplemental briefing pursuant to the
Court's October 9, 2018 sua sponte Order [Doc.
62] on the issue of “whether the Defendant is ‘an
enterprise engaged in commerce' within the meaning of
§ 203(s) of the FLSA.” [Docs. 63, 64].
12, 2017, the Plaintiff filed this action pro se,
alleging failure to pay minimum wage and overtime in
violation of the Fair Labor Standards Act
(“FLSA”), 29 U.S.C. §§ 206 and 207, and
the North Carolina Wage and Hour Act (“NCWHA”),
N.C. Gen. Stat. §§ 95-25.3 and 95-25.4;
record-keeping violations under 29 U.S.C. § 211(c) and
N.C. Gen. Stat. § 95-25.13; misclassification of
employees under 29 C.F.R. Part 541; retaliation and wrongful
termination in violation of 29 U.S.C. §§ 215 and
218c and the North Carolina Retaliatory Employment
Discrimination Act (“REDA”), N.C. Gen. Stat.
§ 95-241; claims under 42 U.S.C. §§ 1983 and
1985; and claims for “duress, undue influence, and
illegal contracts” and intentional infliction of
emotional distress. [Doc. 1]. The Plaintiff sought and was
granted leave to proceed in forma pauperis in this
action. [Docs. 2, 7]. On the same day as filing the
Complaint, the Plaintiff also filed a 59-page
“Plaintiff's Affidavit in Support of Complaint,
” together with 171 pages of exhibits thereto [Doc. 3],
and a Motion for Injunctive Relief under 29 U.S.C. § 217
[Doc. 4]. The Court denied this motion for the reasons stated
in its Order thereon. [Doc. 23].
7, 2018, the Defendant filed a motion to dismiss all of
Plaintiff's claims under Rule 12(b)(6) of the Federal
Rules of Civil Procedure and a partial motion for summary
judgment under Rule 56 of the Federal Rules of Civil
Procedure, seeking dismissal of the Plaintiff's FLSA,
NCWHA, and REDA claims. [Docs. 46, 49].
matters before the Court have been fully briefed and are ripe
STANDARD OF REVIEW
Motion to Dismiss
reviewing a motion to dismiss filed pursuant to Rule
12(b)(6), the Court is guided by the Supreme Court's
instructions in Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 127 S.Ct. 1955 (2007), and Ashcraft v.
Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009). As the
Fourth Circuit has noted, “those decisions require that
complaints in civil actions be alleged with greater
specificity than previously was required.” Walters
v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012).
order to survive a motion to dismiss pursuant to Rule
12(b)(6), “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim for relief
that is plausible on its face.” Iqbal, 556
U.S. at 678, 129 S.Ct. at 1949 (2009) (quoting
Twombly, 550 U.S. at 570, 127 S.Ct. 1955). To be
“plausible on its face, ” a plaintiff must
demonstrate more than “a sheer possibility that a
defendant has acted unlawfully.” Iqbal, 556
U.S. at 678, 129 S.Ct. at 1949.
reviewing the complaint, the Court must accept the
truthfulness of all factual allegations but is not required
to assume the truth of “bare legal conclusions.”
Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir.
2011). “The mere recital of elements of a cause of
action, supported only by conclusory statements, is not
sufficient to survive a motion made pursuant to Rule
12(b)(6).” Walters, 684 F.3d at 439.
survive a Rule 12(b)(6) motion, “a complaint must state
a ‘plausible claim for relief.'” Id.
(quoting Iqbal, 556 U.S. at 678, 129 S.Ct. at
1949).Determining whether a complaint states a plausible
claim for relief is “a context-specific task, ”
Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.
2009), which requires the Court to assess whether the factual
allegations of the complaint are sufficient “to raise a
right to relief above the speculative level, ”
Twombly, 550 U.S. at 555, 127 S.Ct. 1955. As the
Fourth Circuit has explained:
To satisfy this standard, a plaintiff need not forecast
evidence sufficient to prove the elements of the claim.
However, the complaint must allege sufficient facts to
establish those elements. Thus, while a plaintiff does not
need to demonstrate in a complaint that the right to relief
is probable, the complaint must advance the plaintiff's
claim across the line from conceivable to plausible.
Walters, 684 F.3d at 439 (citations and internal
quotation marks omitted).
judgment is proper “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c). “As the Supreme Court has observed,
this standard provides that the mere existence of
some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no
genuine issue of material fact.'”
Bouchat v. Baltimore Ravens Football Club, Inc., 346
F.3d 514, 519 (4th Cir. 2003) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct.
2505 (1986)) (emphasis in original)).
genuine issue of fact exists if a reasonable jury considering
the evidence could return a verdict for the nonmoving party.
Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994),
cert. denied, 513 U.S. 814, 115 S.Ct. 68 (1994).
“Regardless of whether he may ultimately be responsible
for proof and persuasion, the party seeking summary judgment
bears an initial burden of demonstrating the absence of a
genuine issue of material fact.” Bouchat, 346
F.3d at 522. If this showing is made, the burden then shifts
to the non-moving party who must convince the Court that a
triable issue does exist. Id.
A party opposing a properly supported motion for summary
judgment may not rest upon the mere allegations or denials of
his pleadings, but rather must set forth specific facts
showing that there is a genuine issue for trial. Furthermore,
neither unsupported speculation, nor evidence that is merely
colorable or not significantly probative, will suffice to
defeat a motion for summary judgment; rather, if the adverse
party fails to bring forth facts showing that reasonable
minds could differ on a material point, then, regardless of
any proof or evidentiary requirements imposed by the
substantive law, summary judgment, if appropriate, shall be
Id. (internal citations and quotation marks
omitted). Nonetheless, in considering the facts for the
purposes of a summary judgment motion, the Court will view
the pleadings and material presented in the light most
favorable to the nonmoving party. Matsushita Elec.
Industrial Co. v. Zenith Radio Corp., 475 U.S.
574, 587-88, 106 S.Ct. 1348 (1986).
Plaintiff formerly resided at the Veterans Restoration
Quarters (“VRQ”), a homeless shelter for veterans
owned and operated by Defendant. [Doc. 1 at ¶ 17].
Defendant is a non-profit organization that is supported by
284 churches throughout Western North Carolina and provides
services to individuals in need, including veterans. [Doc. 47
at ¶¶ 3-4]. Plaintiff arrived at the VRQ on
September 2, 2015. [Doc. 1 at ¶ 38]. As a condition of
residing at the VRQ, the Plaintiff was required to work a
number of “service hours” necessary to the daily
operation of the facility. [Id. at ¶ 23]. The
Plaintiff began performing his service hours on or about
September 4, 2015. [Id. at ¶ 42].
Plaintiff's service hours were completed primarily in his
capacity as a Duty Driver and as the Front Desk Manager of
the VRQ. [Doc. 47 at ¶¶ 14, 18; see Doc. 1
at ¶ 50]. The parties dispute how many service hours the
Plaintiff performed and for how long he performed them.
[See Docs. 1 at ¶¶ 55, 61; 3 at ¶ 39;
47 at ¶ 18, 23-25].
addition, the Plaintiff was employed for pay on a part-time
basis by Defendant as a Front Desk Manager beginning on or
about September 8, 2015. [Doc. 1 at ¶¶ 69-70].
Plaintiff's employment for pay as a Front Desk Manager
was through Defendant's “1, 000-hour program,
” which is designed to help transition
homeless veterans to meaningful employment in the community
by providing them with job skills and the opportunity to earn
money. [Docs. 47 at ¶¶ 15, 17; 55-7 at 6]. The 1,
000-hour program allows a veteran to be paid for up to 1, 000
hours of work for the VRQ. [Docs. 47 at ¶ 16; 55-7 at
19]. Many residents do not finish the 1, 000-hour program
because they find full-time employment with employers outside
the VRQ. [Doc. 47 at ¶ 16]. The Plaintiff completed his
1, 000 work hours on or about June 1, 2016. [Docs. 1 at
¶¶ 118-119; 47 at ¶ 17]. At that time,
Plaintiff was discharged from his employment as the VRQ's
Front Desk Manager. [Doc. 1 at ¶ 119].
Plaintiff now alleges that he is entitled to unpaid wages and
overtime compensation as a result of work performed both as
“service hours” and in his capacity as a
part-time employee as a Front Desk Manager. [Doc. 1 at
¶¶ 61, 67, 96, 100]. Beginning on or about November
11, 2015, only two months after beginning his service hours
and paid work at the VRQ, the Plaintiff began making
complaints regarding his alleged unpaid wages. [Doc. 1 at
¶ 103]. On November 11, 2015, the Plaintiff complained
to the staff at the VRQ. [Id.]. On November 12,
2015, the Plaintiff went to the U.S. Department of Labor
office in Asheville, North Carolina, to lodge his complaints.
Plaintiff also went to Defendant's primary office, also
in Asheville, and met with various managers and directors of
Defendant “to discuss unpaid wages and Service
Hours.” [Doc. 1 at ¶¶ 104-5]. On January 1,
2016, Plaintiff began sending a 17-page statement that he had
prepared entitled “ABCCM Wage Hour and Service Hour
Representations” (the “Statement”) to
various government agencies, civil rights groups, U.S.
Senators, and local attorneys. These groups included the U.S.
Department of Veterans Affairs, the U.S. Department of Labor,
the N.C. Department of Labor, the N.C. Justice Center, the
Elizabeth Dole Foundation, and the Southern Poverty Law
Center. The Statement related to Plaintiff's claims for
unpaid wages and service hours, and the Plaintiff attached
many documents in support of his claims. [Docs. 1-12; 1-14].
On February 1, 2016, Plaintiff sent an e-mail to U.S. Senator
Thom Tillis attaching the Statement and the supporting
documents seeking Senator Tillis' help in compelling
“the prevailing Departments to assume their
responsibility of advocacy for myself and the resident
veterans at the Veterans Restoration Quarters.” [Doc.
about April 18, 2016, Randy Gamble, the VRQ Front Desk
Supervisor, advised Plaintiff that he was nearing completion
of his 1, 000 work hours and that he would soon be removed
from the payroll. [Doc. 1 at ¶¶ 114]. In response,
Plaintiff showed Defendant documentation that his total paid
work hours were, in reality, around 727. Plaintiff continued
his employment. [Id. at ¶ 115]. Then, on or
about April 28, 2016, Defendant told Plaintiff that he had
completed his 1, 000 work hours. [Id. at ¶
116]. In response, Plaintiff showed Defendant documentation
reflecting that he had worked only 799 total paid hours.
Plaintiff again continued his employment. [Id. at
¶ 117]. On June 1, 2016, after Plaintiff had completed
1, 007 paid work hours [Doc. 47 at ¶ 13], Defendant
advised Plaintiff that he had completed the 1, 000-hour
program and that he would no longer be employed as a Front
Desk Manager. [Id. at ¶¶ 118-119].
September 2, 2017, due to the two-year limit on a
resident's participation in the program, Plaintiff became
ineligible to continue living in the VRQ. [Doc. 47 at ¶
26]. At the end of Plaintiff's eligibility for the
program, Defendant assisted Plaintiff in qualifying for