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Viar-Robinson v. Salon

United States District Court, Fourth Circuit

December 5, 2013

DUDLEY BEAUTY SALON, et al. Defendants.


PAUL W. GRIMM, District Judge.

This Memorandum Opinion disposes of Defendants Alfred D. Dudley, Sr. and Degreat, LLC's Motion for Summary Judgment, ECF No. 26, and supporting Memorandum, ECF No. 26-1; Plaintiff Joyce Viar-Robinson's Opposition, ECF No. 27; and Defendants' Reply, ECF No. 28.

Having reviewed the filings, I find that a hearing is unnecessary. See Loc. R. 105.6. For the reasons stated herein, Defendants' Motion is GRANTED in part and DENIED in part.


In reviewing a motion for summary judgment, the Court considers the facts in the light most favorable to the non-movant, drawing all justifiable inferences in that party's favor. Ricci v. DeStefano, 557 U.S. 557, 585-86 (U.S. 2009); George & Co., LLC v. Imagination Entm't Ltd., 575 F.3d 383, 391-92 (4th Cir. 2009); Dean v. Martinez, 336 F.Supp.2d 477, 480 (D. Md. 2004). Unless otherwise stated, this background is composed of undisputed facts. Where a dispute exists, I consider the facts in the light most favorable to Plaintiff. See Ricci, 557 U.S. at 585-86; George & Co., 575 F.3d at 391-92; Dean, 336 F.Supp.2d at 480.

Plaintiff has been a licensed nail technician in the state of Maryland since 1993. Viar-Robinson Dep. 13:20-14:8, Defs.' Mem. Ex. 4, ECF No. 26-2. Defendant Dudley is the operator of Dudley Beauty Salon in Oxon Hill, Maryland, which he owns through Defendant Degreat, LLC, a Maryland limited liability company of which Dudely is the sole member. Dudley Aff. ¶¶ 3-7, Defs.' Mem. Ex. 1, ECF No. 26-2. Dudley Beauty Salon is managed by Marcia Hinds. Id. ¶ 8.

In around February 2011, Hinds asked Plaintiff if she would like to work at Dudley Beauty Salon. Viar-Robinson Dep. 43:12-44:15. After some negotiations between Plaintiff and Hinds over Plaintiff's compensation, id. at 47:4-48:19, Plaintiff entered into discussions with Dudley and reached an oral agreement, id. at 48:20-13, which never was reduced to writing, id. at 45:1-5. Under that agreement, Plaintiff's customers would pay Dudley Beauty Salon, which would retain twenty-five percent of the proceeds of Plaintiff's work and give her the remaining seventy-five percent. Id. at 49:10-50:11. Plaintiff set her own hours, id. at 137:7-8, but at Hinds's request she generally worked on Wednesdays and Thursdays, id. at 86:18-87:10. Also at Hinds's request, Plaintiff sometimes came in on weekends to help with administrative work, id., but the record does not reflect that Plaintiff requested or received compensation for this work. In addition to her existing clients, Plaintiff was allowed to take clients who walked into the salon, but she never serviced any walk-in clients. Id. at 49:19-40:1. Plaintiff testified that she set her own prices, id. at 138:11-18, and was responsible for keeping track of the money she was owed, which she recorded on slips of paper that she gave to Hinds, id. at 50:15-52:16. Plaintiff also kept track of the money she was owed on a pad, but Plaintiff testified that the pad was kept in the salon and never was returned to her when she retrieved her possessions from the salon. Id. at 52:9-53:2. Plaintiff kept track of her appointments, but not her revenue, on a calendar book that she has retained. Id. at 53:3-11.

During this time, Plaintiff testified to frequent problems with her pay. Plaintiff said that she often received her pay in the form of checks "because they [the salon] didn't have the cash, " and that "[a]ll of them bounced." Id. at 60:3-15. On at least two occasions, Plaintiff was charged a $32 fee for bounced checks. Id. at 65:1-66:19. Plaintiff was not reimbursed for these fees even though she asked to be. Id. at 70:3-10. She also testified that there were frequent disagreements over payment because Hinds would lose the slips representing money Plaintiff was owed, and that Plaintiff's "part would always be short, " although often by less than $10. Id. at 61:19-62:17.

In August 2011, Plaintiff received a payment from Hinds that was significantly lower than she had expected and was told that Dudley unilaterally had decided to modify the agreed seventy-five/twenty-five split of revenues to a sixty/forty split. Id. at 70:17-71:10. Plaintiff believed that she was getting paid at a better rate than other people working at the salon because Plaintiff was paying for her own tools and equipment, and Plaintiff agreed to the sixty/forty split so long as she could subtract the cost of her equipment from her gross revenues before they were divided. Id. at 71:11-72:6.

In October 2011, Plaintiff's commission was reduced further, to a fifty/fifty split, id. at 73:3-20, and in November 2011, Plaintiff's commission was reduced even further, to a forty/sixty split in Dudley's favor, id. 74:21-75:3. Plaintiff began to investigate whether Dudley Beauty Salon was properly licensed and registered to do business. Id. at 77:4-80:20. After Plaintiff threatened to report what she believed to be noncompliance with various regulations, her compensation was increased to a fifty/fifty split again. Id. at 83:2-84:15.

Shortly thereafter, Dudley told Plaintiff that he wanted to charge her a fixed rent for her work station rather than charging her a percentage of her revenues. Id. at 84:20-85:1; see also Letter from Alfred Dudley to All Nail Technicians (Oct. 21, 2011), Defs.' Mem. Ex. 5, ECF No. 26-2. Although Plaintiff preferred paying rent to receiving commission, she believed also that Dudley was asking too high a rate of rent and refused to pay what he said he would charge. Id. at 86:9-88:17. The next day that Plaintiff came to work, she found that Hinds "had thrown [Plaintiff's] stuff in the trash cans in boxes just stacked up on top of [Plaintiff's work] station and pushed it up against the wall." Id. at 89:6-19. Plaintiff did not touch any of her possessions at that time, but noticed that "there's stuff missing already" and walked out. Id. at 90:7-17.

Plaintiff retrieved her belongings two weeks later, at which point she noticed "a lot of stuff missing." Id. at 94:15-6. Among the items missing were UV lights, dryers, a $200 stand, all of her polish, a $199 nail dryer, and about $500 worth of beauty care products. Id. at 95:7-101:17.[1]

On June 18, 2012, Plaintiff filed her Complaint, ECF No. 1, in this Court against Dudley's Beauty Salon, Alfred Dudley, Degreate, LLC, [2] and Dudley Beauty Center and Spa, alleging violation of the Fair Labor Standards Act ("FLSA"), violation of the Maryland Wage Payment and Collection Law ("MWPCL"), breach of contract, wrongful termination, fraud, fraudulently tendering checks with insufficient funds, two counts of misrepresentation that simply repeat the "fraud" claim, [3] and conversion. Defendants Dudley Beauty Salon, Dudley, and Dudley Beauty Center and Spa moved to dismiss, Defs.' Mot. to Dismiss or, in the Alternative, for Summ. J., ECF No. 9, which was granted with respect to Dudley Beauty Salon and Dudley Beauty Center and Spa, but denied with respect to Dudley himself, Order, ECF No. 17.

Discovery has been completed, Status Report ¶ 1, ECF No. 25. On May 30, 2013, Defendants filed the instant Motion for Summary Judgment on all counts of the complaint. Plaintiff responded on June 20, and Defendants replied on June 24. The motion has been fully briefed and now is before me.


Summary judgment is proper when the moving party demonstrates, through "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations..., admissions, interrogatory answers, or other materials, " 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), (c)(1)(A); see Baldwin v. City of Greensboro, 714 F.3d 828, 833 (4th Cir. 2013). If the party seeking summary judgment demonstrates that there is no evidence to support the nonmoving party's case, the burden shifts to the nonmoving party to identify evidence that shows that a genuine dispute exists as to material facts. See Celotex v. Catrett, 477 U.S. 317 (1986). The existence of only a "scintilla of evidence" is not enough to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). Instead, the evidentiary materials submitted must show facts from which the finder of fact reasonably could find for the party opposing summary judgment. Id. "[U]nder Fed.R.Civ.P. 56, as amended in 2010, facts in support of or opposition to a motion for summary judgment need not be in admissible form; the requirement is that the party identify facts that could be put in admissible form." Mallik v. Sebelius, ___ F.Supp.2d ___, 2013 WL 4559516, at *12 (D. Md. Aug. 28, 2013) (citing Niagara Transformer Corp. v. Baldwin Techs., Inc., No. DKC-11-3415, 2013 WL 2919705, at *1 n.1 (D. Md. June 12, 2013)).

A "genuine" dispute of material fact is one where the conflicting evidence creates "fair doubt"; wholly speculative assertions do not create "fair doubt." Cox v. Cnty. of Prince William, 249 F.3d 295, 299 (4th Cir. 2001); see also Miskin, 107 F.Supp.2d at 671. The substantive law governing the case determines what is material. See Hoovan-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001). A fact that is not of consequence to the case, or is not relevant in light of the governing law, is not material. Id .; see Fed.R.Evid. 401 (defining relevance).


A. Fair Labor Standards Act and Maryland Wage Payment and Collection Law

Defendants seek summary judgment on Counts I and II, alleging violations of the FLSA and the MWPCL respectively, on the grounds that Plaintiff was an independent contractor, and not an employee. Defs.' Mem. 5. The FLSA defines an employee as "any individual employed by an employer, " 29 U.S.C. § 203(e)(1), and to "[e]mploy' includes to suffer or permit to work, " 29 U.S.C. § 203(g). Though these definitions deliberately are broad, the FLSA recognizes a difference between employees, which it covers, and independent contractors, which it does not. See Schultz v. Capital Int'l Sec., Inc., 466 F.3d 298, 304 (4th Cir. 2006). To determine which category a worker falls into, "a court considers the economic realities' of the relationship between the worker and the putative employer, ' id. (citing Henderson v. Inter-Chem Coal Co., 41 F.3d 567, 570 (10th Cir. 1994)), to determine "whether the worker is economically dependent on the business to which he renders service or is, as a matter of economic [reality], in business for himself, " id. (alteration in original). To determine the economic reality of the relationship, courts apply a six-factor test that examines:

1) the degree of control which the putative employer has over the manner in which the work is performed;
2) the opportunities for profit or loss dependent upon the managerial ...

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