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Butler v. Pp&G, Inc.

United States District Court, Fourth Circuit

November 7, 2013



WILLIAM M. NICKERSON, Senior District Judge.

Pending before the Court is Plaintiff Unique S. Butler's Second Motion for Partial Summary Judgment. ECF No. 21. The motion is fully briefed and is ripe for review. For the reasons stated herein, the court determines that no hearing is necessary, Local Rule 105.6, and the motion will be granted in part and denied in part.


Defendant PP&G, Inc. is the owner and operator of Norma Jean's Nite Club, a night club located in Baltimore that features semi-nude female dancers. Plaintiff Unique S. Butler worked at various times as an exotic dancer at Norma Jean's until August 2012, when she alleges that she was terminated.

Defendant has always classified the dancers who perform at Norma Jean's as independent contractors. Defendant asserts that the dancers are permitted to elect, in writing, to become either an employee or independent contractor. To date, no dancer, including Plaintiff, has elected to be classified as an employee.

There is no dispute that, during her time as an exotic dancer at Norma Jean's, Plaintiff did not receive compensation in the form of hourly wages. Rather, the only compensation Plaintiff received for her work as an exotic dancer was from customer tips. Defendant contends that dancers were permitted to keep the entirety of their tips, save a non-mandatory, $45 cleaning or maintenance fee that they could pay to the club per shift. Following her separation from Norma Jean's, Plaintiff filed the present lawsuit against PP&G, Inc., arguing that, because she was misclassified by Defendant as an independent contractor rather than an employee, Defendant illegally failed to pay her wages. She claims that, as an employee, she is entitled to back pay under the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. ("FLSA"), and the Maryland Wage Payment and Collection Law, Md. Code Ann., Lab. & Empl. §§ 3-501 et seq. ("MWPCL"). Defendant argues that Plaintiff elected to be an independent contractor, and thus was not entitled to wages under the FLSA and MWPCL.

Plaintiff previously filed a motion for partial summary judgment, asking the Court to find, as a matter of law, that: "(1) Plaintiff was an employee under FLSA; (2) Defendant is liable to Plaintiff under FLSA; (3) Plaintiff is entitled to liquidated damages pursuant to § 216(b) of FLSA; and (4) Defendant violated MWPCL and thus, Plaintiff is entitled to treble damages under MWPCL." ECF No. 17 at 2. Noting the dearth of a factual record, the Court denied the first motion for summary judgment on August 6, 2013. See id. Shortly thereafter, Plaintiff filed the present second motion for partial summary judgment, asking again for this Court to determine, as a matter of law, the same four issues. As it appears to the Court, the only difference between the first motion for partial summary judgment and the pending, second motion for partial summary judgment is Plaintiff's inclusion of and reliance on deposition testimony.


The purpose of summary judgment is to dismiss claims and defenses that lack evidentiary support. Celotex Corp. v. Catrett , 477 U.S. 317, 323-24 (1986). Accordingly, the Court will grant a motion for summary judgment if "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. In ruling on a motion for summary judgment, all facts and inferences will be drawn in the light most favorable to the non-moving party. Evans v. Techs. Applications & Serv. Co. , 80 F.3d 954, 958 (4th Cir. 1996). A motion for summary judgment will be denied when there is a "dispute about a material fact [that] is genuine, ' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986).


A. Plaintiff was an Employee Under the FLSA

As the Court previously noted with respect to Plaintiff's First Motion for Partial Summary Judgment, for a plaintiff to recover wages under the FLSA and MWPCL, the Court must find that there was an employment relationship between the plaintiff and the defendant. An employee under the FLSA is "any individual employed by an employer, " and to employ is "to suffer or permit to work." 29 U.S.C. §§ 203(e)(1), (g). The FLSA has been construed liberally to ensure that it "applie[s] even to those who would decline its protections" because "employers might be able to use superior bargaining power to coerce employees to... waive their protections under the Act." Tony & Susan Alamo Found. v. Sec. of Labor , 471 U.S. 290, 296, 302 (1985). Under the MWPCL, an employer is "any person who employs an individual in the State." Md. Code Ann., Lab. & Empl. § 3-501(b).

In order to determine whether an individual is an employee, courts must look to the "economic reality" of the relationship by analyzing the following six factors:

(1) The degree of control that the putative employer has over the manner in which the work is performed;
(2) The worker's opportunities for profit or loss dependent on his managerial skill;
(3) The worker's investment in equipment or material, or his employment of other workers;
(4) The degree of skill required for the work;
(5) The performance of the working relationship; and
(6) The degree to which the services rendered are an integral part of the putative employer's business.

Schultz v. Capital Int'l Sec., Inc. , 466 F.3d 298, 305 (4th Cir. 2006); see also United States v. Silk , 331 U.S. 704 (1947). "No single factor is dispositive." Schultz , 466 F.3d at 305. Further, "[c]ourts have also stressed that the label that the parties give to their relationship is not controlling." Heath v. Perdue Farms, Inc. , 87 F.Supp.2d 454, 457 (D. Md. 2000). The ultimate question for the Court's consideration is whether the dancers were, "as a matter of economic reality, dependent on the business they served, or, conversely, whether they were in business for themselves." Schultz , 466 F.3d at 305.

1. Degree of Control

In determining whether the degree of control indicates the existence of an employer-employee relationship, courts generally consider "the degree of control that an alleged employer has in comparison to the control exerted by the worker." Id . (emphasis omitted). "Where putative employers provide specific direction for how workers, particularly low-skilled workers, are to perform their jobs, courts have weighed the control factor in favor of employee status." Montoya v. S.C.C.P. Painting Contractors, Inc. , 589 F.Supp.2d 569, 578 (D. Md. 2008). The Court must resolve whether Plaintiff's "freedom to work where she wants and for whomever she wants ...

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