Kenneth Church v. Home Fashions International

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:10-cv-00133-DCK Copies to all parties and the district court/agency. [999144314].. [12-2322]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-2322

KENNETH E. CHURCH; KEN E. CHURCH ENTERPRISES, LLC,
Plaintiffs - Appellees,
v.
HOME FASHIONS INTERNATIONAL, LLC,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.
David C. Keesler,
Magistrate Judge. (5:10-cv-00133-DCK)

Submitted:

June 27, 2013

Decided:

July 8, 2013

Before MOTZ, DUNCAN, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Nicholas Stevens, STARR, GERN, DAVISON & RUBIN, P.C., Roseland,
New Jersey, for Appellant.
Paul E. Culpepper, YOUNG, MORPHIS,
BACH & TAYLOR, L.L.P., Hickory, North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Home Fashions International, LLC (“HFI”), appeals the
magistrate judge’s grant of partial summary judgment to Kenneth
E.

Church

on

his

claim

seeking

unpaid

wages

and

commissions

under the North Carolina Wage and Hour Act (“NCWHA”), N.C. Gen.
Stat. § 95-25.22 (2011).

HFI also challenges the damages award.

We affirm.
We review de novo an order granting summary judgment.
Robinson v. Clipse, 602 F.3d 605, 607 (4th Cir. 2010).

Summary

judgment shall be granted when “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).

“At

the

summary

judgment stage, facts must be viewed in the light most favorable
to the nonmoving party only if there is a genuine dispute as to
those

facts.”

Scott

v.

Harris,

550

U.S.

372,

380

(2007)

(internal quotation marks omitted).
Summary judgment should be granted unless a reasonable
jury

could

return

a

verdict

for

the

nonmoving

party

on

the

evidence presented.

Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 249-50 (1986).

An otherwise properly supported motion for

summary judgment will not be defeated by the existence of any
factual dispute; only disputes over facts that might affect the
outcome of the suit under governing law will properly preclude
summary judgment.

Id. at 248-49.
2

“Conclusory or speculative

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allegations

do

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not

suffice,

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nor

does

a

mere

scintilla

of

evidence in support of” the nonmoving party’s case.

Thompson v.

Potomac

Cir.

Elec.

Power

Co.,

312

F.3d

645,

649

(4th

2002)

(internal quotation marks omitted).
HFI first contends that Church was not entitled to
raise claims under N.C. Gen. Stat. § 95-25.22 because he was not
an HFI “employee,” but, instead, was hired as an independent
contractor.

N.C. Gen. Stat. § 95-25.2(4).

In North Carolina,

[a]n independent contractor is defined . . . as one
who exercises an independent employment and contracts
to do certain work according to his own judgment and
method, without being subject to his employer except
as to the result of his work.
Where the party for
whom the work is being done retains the right to
control and direct the manner in which the details of
the
work
are
to be
executed,
however,
it
is
universally held that the relationship of employer and
employee is created.
Youngblood v. N. State Ford Truck Sales, 364 S.E.2d 433, 437
(N.C.

1988)

suggestive

(internal
of

an

citations

individual’s

omitted).
status

as

Circumstances
an

independent

contractor include whether
[t]he person employed (a) is engaged in an independent
business, calling, or occupation; (b) is to have the
independent use of his special skill, knowledge, or
training in the execution of the work; (c) is doing a
specified piece of work at a fixed price or for a lump
sum or upon a quantitative basis; (d) is not subject
to discharge because he adopts one method of doing the
work rather than another; (e) is not in the regular
employ of the other contracting party; (f) is free to
use such assistants as he may think proper; (g) has
full control over such assistants; and (h) selects his
own time.
3

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McCown

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v.

537

Hines,

S.E.2d

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242,

244

(N.C.

Ct.

App.

2000).

Although no single factor is controlling, nor must all factors
be present or in agreement, there are “four principal factors
generally

recognized

as

details of the work:

demonstrating

the

right

to

control

(1) method of payment; (2) the furnishing

of equipment; (3) direct evidence of exercise of control; and
(4) the right to fire.”

Youngblood, 364 S.E.2d at 439.

After a careful review of the record, we conclude that
the magistrate judge accurately determined that Church was HFI’s
employee during the period in question.

First, HFI has not

produced any authority to support its contention that Church’s
act

of

assigning

agreement

with

HFI

under the NCWHA.
in

McCown

Church

his

to

payment

categorically

under

precludes

his

employment

Church’s

recovery

Further, consideration of the factors outlined

clearly

worked

right

indicates

exclusively

that

for

Church

HFI

on

was
a

HFI’s

regular

employee.
basis

for

eighteen months and did not hold himself out as a contractor or
independent

businessman.

See

Youngblood,

364

S.E.2d

at

439

(fact that plaintiff did not hold himself out as contractor or
engage

in

employee).

other
During

contract
that

work

time,

indicated

HFI

paid

that

Church

he
a

was

an

guaranteed

$11,000 per month, regardless of the work he completed, plus
commission
status.

on

his

sales,

thus

also

suggesting

his

employee

See Capps v. Se. Cable, 715 S.E.2d 227, 234 (N.C. Ct.
4

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App. 2011) (payment based on time is a strong indication of
employee

status

while

payment

based

on

completed

projects

indicates independent contractor status; payment on a piece-work
or commission basis is consistent with either).
Moreover,

HFI

provided

Church

with

an

office

and

reimbursed his various business-related expenses, some of which
had to be pre-approved by HFI.

See Youngblood, 364 S.E.2d at

438 (“[W]hen valuable equipment is furnished to the worker, the
relationship

is

employee.”).

almost

invariably

Similarly,

Church

that

was

of

not

employer

entitled

to

and
hire

assistants without the consent of HFI, and Church never became
responsible for compensating the sales representatives he hired.
See Lloyd v. Jenkins Context Co., 266 S.E.2d 35, 37 (N.C. Ct.
App. 1980) (individual’s ability to hire assistants only upon
approval of employer indicates employer-employee relationship).
Most
assigned

Church

responsibilities
company.

importantly,
an

ever-evolving

during

Consistent

however,

his

with

first

the

is

the

and

terms

months
of

his

that

HFI

range

diverse

eighteen

broad

fact

of

with

the

employment

agreement, Church, at the direction of and in collaboration with
HFI executives, assisted in almost every aspect of HFI’s attempt
to expand into furniture manufacturing.

See Johnson v. News &

Observer Publ’g Co., 604 S.E.2d 344, 347 (N.C. Ct. App. 2004)
(finding

that

plaintiff

was

not
5

engaged

in

“independent

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business, calling, or occupation” where he performed function
that

was

integral

business).

to

the

primary

objective

of

employer’s

Consequently, Church was clearly subject to HFI’s

control and was not entitled to independently employ his own
judgment regarding how best to achieve HFI’s goals.

Cf. McCown,

537 S.E.2d at 244 (individual was independent contractor where
he

rarely

consulted

with

employer

on

how

job

was

to

be

accomplished and chose the manner and means of performing his
tasks, subject only to the specifications of his employer).
Under such circumstances, the labels the parties used
in Church’s employment agreement and the manner in which HFI
regarded Church for tax purposes are of little consequence.

See

Capps, 715 S.E.2d at 231 (facts that individual was treated as
independent

contractor

for

tax

purposes,

was

told

he

was

a

subcontractor, and had to carry his own workers compensation
insurance did not control his employment status because they
simply

indicated

employer’s

preference

regarding

the

characterization of the relationship); Lloyd, 266 S.E.2d at 37
(evidence

regarding

the

employment

relationship

that

in

fact

existed controls, not the parties’ intentions or the labels they
ascribe to themselves).

Accordingly, we conclude that Church

was correctly regarded as an “employee” under N.C. Gen. Stat.
§ 95-25.22.

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We also find no merit in HFI’s contention that its
obligations

to

Church

under

the

terms

of

his

agreement were settled by accord and satisfaction.

employment
Although HFI

did not raise this specific issue below, the magistrate judge
properly

found

that

there

is

no

evidence

that

the

parties

reached an arrangement regarding Church’s compensation that may
have

satisfied

Moore

v.

or

supplanted

original

305

Frazier,

their
562,

564

S.E.2d

agreement.

(N.C.

Ct.

See

App.

1983)

(“Establishing an accord and satisfaction defense . . . requires
evidence . . . that shows the unequivocal intent of one party to
make

and

the

other

party

to

accept

a

lesser

payment

in

satisfaction . . . of a larger claim.” (internal quotation marks
omitted)).
Last,

HFI

alleges

several

errors

judge’s calculation of Church’s damages.
specifically

assert

its

arguments

below,

in

the

magistrate

Although HFI did not
we

find

no

error.

Universal Furniture Int’l, Inc. v. Collezione Europa USA, Inc.,
618 F.3d 417, 427 (4th Cir. 2010) (“A court’s calculation of
damages is a finding of fact and therefore is reviewable only
for

clear

error,

influenced

by

quotation

marks

but

legal

to

the

error,

omitted)).

extent
review
The

those
is

calculations

de

magistrate

novo.”
judge

were

(internal
properly

awarded Church the six months of unpaid wages he was due under
the terms of his employment agreement with HFI and there is no
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indication that the award of liquidated damages, under N.C. Gen
Stat. § 95-25.22(a1), constituted an abuse of discretion.

See

Kornegay v. Aspen Asset Grp., LLC, 693 S.E.2d 723, 742 (N.C. Ct.
App.

2010)

damages

(trial

even

court

where

has

evidence

discretion
suggests

to

award

employer’s

liquidated
good

faith

violation of NCWHA).
Accordingly, we affirm the grant of summary judgment
to Church and the denial of HFI’s motion for reconsideration.
We

dispense

contentions

with
are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.

AFFIRMED

8