Whyte v. PP&G Inc. et al

Filing 77

MEMORANDUM. Signed by Judge William M Nickerson on 5/26/2015. Associated Cases: 1:13-cv-02806-WMN, 1:13-cv-03706-WMN(hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

RAQIYA WHYTE

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v.
PP&G, INC. et al.
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TANAE TAYLOR
v.
PP&G, INC. et al.
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Civil Action No. WMN-13-2806

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Civil Action No. WMN-13-3706

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MEMORANDUM
Before the Court are multiple cross motions for Summary
Judgment in two related cases: Whyte v. PP&G, Inc., Civ. No.
WMN-13-2806 (Whyte) and Taylor v. PP&G, Inc., Civ. No. WMN 133706 (Taylor).

Defendant PP&G, Inc. filed a Motion for Partial

Summary Judgment and Defendant Lisa Ireland filed a Motion for
Summary Judgment in each case.
ECF No. 39.

See Whyte ECF No. 65 and Taylor

Plaintiffs Raqiya Whyte and Tanae Taylor, in their

Oppositions, also cross moved for partial summary judgment.
Whyte ECF No. 70 and Taylor ECF No. 44.
briefed and ripe for review.

See

The motions are fully

Upon a review of the papers,

facts, and applicable law, the Court determines that no hearing
is necessary, Local Rule 105.6, and that Defendants’ motions
will be granted and Plaintiffs’ motions will be denied.

I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant Lisa Ireland owns Defendant PP&G, a corporation
which owns and operates Norma Jean’s Nite Club (Norma Jean’s), a
night club located in Baltimore that features semi-nude female
dancers.

Plaintiff Raqiya Whyte worked at Norma Jean’s from

September 2010 to September 2013 while Plaintiff Tanae Taylor
worked at the club from December 9, 2010, to December 13, 2013.
In their lawsuits, Plaintiffs bring a cause of action under the
Federal Labor Standards Act, 29 U.S.C. §§ 201 et seq. (FLSA) for
Defendants’ alleged failure to pay a minimum wage to its workers
in violation of Section 206 of the FLSA (Count I of both Taylor
and Whyte), failure to pay overtime in violation of Section 207
(Count II of Taylor), and retaliation in violation of Section
215(a)(3) (Count IV of Whyte).1
Ms. Ireland supervises the finances of Norma Jean’s, signs
checks, and maintains pertinent licenses for the club’s
operation.

She appeared at the club on a regular basis to

attend to those tasks.

The day to day operation of Norma Jean’s

is delegated to one manager, who hires and fires dancers, sets

1

Ms. Whyte previously brought one count of a violation of the
Maryland Wage Payment and Wage Payment Law (Count II), which was
voluntarily dismissed, and one count of Wrongful Discharge
(Count III) which was omitted from the Amended Complaint. See
ECF Nos. 12 and 32. Ms. Whyte also dismissed the collective
action aspect of Count I. See ECF No. 21.
2

fees, manages scheduling, orders supplies, pays bills, and
manages disruptions and disputes that arise at Norma Jean’s.
The manager – currently Jeanean Lawson – is provided wide
latitude and discretion in conducting the club’s business.

If

an incident occurs or a staffing decision is made, a note is
sent from the manager to Ms. Ireland, without further action.
When a management transition occurs, the old manager trains the
new hire.

PP&G also employs a bookkeeper to handle tax issues.

Plaintiffs earned money from patrons for a variety of
entertainment forms, the prices of which were set by the club
but regularly altered on a case-by-case basis.

Plaintiffs were

then charged fees by Norma Jean’s that came from the money they
received from guests of the club.

During the time Plaintiffs

performed at the night club, Norma Jean’s did not keep
timesheets or maintain W-2s for its dancers.
II.

LEGAL STANDARD
Summary judgment is appropriate if the record before the

court “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); Celotex Corp. v. Catrett, 377 U.S. 317,
322-23 (1986).

A fact is material if it might “affect the

outcome of the suit under the governing law.”
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Anderson v.
In determining

whether there is a genuine issue of material fact, the Court
3

“views all facts, and all reasonable inferences to be drawn from
them, in the light most favorable to the non-moving party.”
Housley v. Holquist, 879 F. Supp. 2d 472, 479 (D. Md. 2011)
(citing Pulliam Inv. Co. v. Cameo Prop., 810 F.2d 1282, 1286
(4th Cir. 1987)).
When both parties file motions for summary judgment, the
court applies the same standards of review.

ITCO Corp. v.

Michelin Tire Corp., 722 F.2d 42, 45 n. 3 (4th Cir. 1983) (“The
court is not permitted to resolve genuine issues of material
facts on a motion for summary judgment – even where . . . both
parties have filed cross motions for summary judgment.”).

The

role of the court is to “rule on each party’s motion on an
individual and separate basis, determining, in each case,
whether a judgment may be entered in accordance with the Rule 56
standard.”

Towne Mgmt. Corp. v. Hartford Accident and Indem.

Co., 627 F. Supp. 170, 172 (D. Md. 1985).
III. DISCUSSION
A. Defendants’ Motions for Partial Summary Judgment
Plaintiffs have brought this action under the FLSA alleging
that they were employees of Defendants, who failed to pay them a
minimum wage in violation of the act.

Employers who are found

to have violated the FLSA for failure to pay a minimum wage are
liable for unpaid compensation and liquidated damages.
U.S.C. § 216(b).

29

Ms. Ireland has moved for summary judgment on
4

the entirety of Plaintiffs’ claims, while both Defendants have
moved for summary judgment on the issues of the statute of
limitations, punitive damages, and Ms. Whyte’s claim of
retaliation.
a. Ms. Ireland is not an “employer” under the FLSA
Ms. Ireland has moved for summary judgment in her favor as
to both Plaintiffs on the grounds that she is not an “employer”
under the FLSA.

Plaintiffs retort that “[t]he fact that Lisa

Ireland has no roles in hiring and firing of any exotic dancers
is unbelievable.”

Whyte ECF No. 70 at 5.

The evidence, though,

presents a clear and consistent picture that Ms. Ireland was
disengaged from the day-to-day operations of Norma Jean’s,
especially as they related to engaging and managing dancers for
the club.
The FLSA defines an “employer” as “any person acting
directly or indirectly in the interest of an employer in
relation to an employee.”

29 U.S.C. § 203(d).

In determining

whether an individual is an “employer” for the purposes of the
FLSA, the Court analyzes the economic realities of the
relationship between the employee and the alleged employer.
Under the economic reality test, an employer is someone who “(1)
has the authority to hire and fire employees; (2) supervises and
controls work schedules or employment conditions; (3) determines
the rate and method of payment; and (4) maintains employment
5

records.”

Caseres v. S & R Mgmt. Co., Civ. No. 12-AW-1358, 2012

WL 5250561, at *3 (D. Md. Oct. 24, 2012).

In this district,

courts have also looked to “the person’s job description, his or
her financial interest in the enterprise, and whether or not the
individual exercises control over the employment relationship.”
Gionfriddo v. Jason Zink LLC, 769 F. Supp. 2d 880, 890 (D. Md.
2011).

The inquiry does not depend on “isolated factors but

rather upon the circumstances of the whole activity.”
Rutherford Food Corp. v. McComb, 331 U.S. 722, 730 (1947).
Although the Court looks to the financial interest in the
enterprise to evaluate whether a party is an employer, the fact
that Ms. Ireland is the owner of PP&G is not, by itself,
sufficient to establish that she was an employer under the FLSA.
Although Plaintiffs argue that Ms. Ireland “cannot pass the buck
to a subordinate on this issue as [PP&G] is her company,” Whyte
ECF No. 70 at 25, “an individual’s status as a high-level
corporate shareholder or officer does not automatically impart
‘employer’ liability to that individual. . . .”

Pearson v.

Prof’l 50 States Prot., Civ. No. 09-RDB-3232, 2010 WL 4658188,
at *10 (D. Md. Sept. 15, 2014).

Ms. Ireland’s duties at Norma

Jean’s relate to her financial interest in the club, as she
signs checks, approves purchases made by the manager, engages
contractors for capital improvements, and files taxes.

Her

regular activities at the time of Plaintiffs’ employment did not
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involve managing or engaging in personnel matters beyond
securing contract signatures.
Plaintiffs characterize Ms. Ireland’s involvement as a rule
that “[a]nything that deals with money or a problem must go
through Mrs. Ireland.”

Whyte, ECF No. 70 at 14.

A full review

of the record, however, shows that Ms. Ireland’s approval was
often a formality.

She signed checks that were otherwise

drafted by the manager and provided summary approval of
acquisitions made by the manager.
(Lawson Dep.).

ECF No. 70-15 27:12-21

Ms. Ireland was notified of terminations or

altercations at the club by note from the manager after the
fact, and there is no evidence to suggest that Ms. Ireland
required changes in policy or procedure as a result of these
events. Id. 38:12-39:5.
Further, evidence demonstrates that Ms. Ireland exercised
no control over the putative employment relationship between the
dancers and PP&G.

There is a long-standing practice at Norma

Jean’s that the manager serves as the sole person in charge of
overseeing the hiring and firing of dancers at the club.

Lawson

Dep. 6:16-8:21; ECF No. 70-1 72:19-21 (Robinson Dep.); ECF No.
70-16 6:21-7:1 (Ireland Dep.).

The manager received

applications, interviewed prospective dancers, and selected
dancers from the pool of applicants.
12:6-13:3.

Lawson Dep. 7:18-8:21,

There is no evidence that Ms. Ireland was present
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during the Plaintiffs’ interviews and auditions.

If a dancer or

employee needed to be fired, Ms. Ireland was generally notified
after the decision was made.2

The current manager, Ms. Lawson,

testified that she learned how to operate the club, including
how to manage dancers, from her immediate predecessor.
The manager was the individual responsible for monitoring
the work activities of the dancers and maintaining their working
conditions.

Day-to-day operations were left to the discretion

of the manager.

Lawson Dep. 29:15; Ireland Dep. 58:10-14.

The

manager enforced the maintenance fee scheme that was established
by Norma Jean’s first manager, Garrett MacMillion.

Ms. Ireland

testified in her deposition that she never directed a manager to
deviate from the fees assessed by managers.

The manager fielded

complaints or concerns from the dancers and made decisions
related to worker safety and comfort.

Lawson Dep. 36:7-8.

Finally, Ms. Ireland did not maintain employment records for the
dancers during the time that Plaintiffs danced at Norma Jean’s.
Testimony suggests that, prior to the current timesheet system,
any simulacrum of employment records were kept by the manager in
the form of a list of dancers and the number of drinks bought
2

Ms. Whyte testified in her deposition that the manager at the
time, Walter Robinson, told her that Ms. Ireland “said [Ms.
Whyte] could not work there.” ECF No. 70-18 190:18-20 (Whyte
Dep.). Because this statement is clearly hearsay, it would be
inadmissible at trial, and accordingly cannot be considered at
the summary judgment stage. Lorraine v. Markel Am. Ins. Co.,
241 F.R.D. 534, 535 (D. Md. 2007).
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for them.

Lawson Dep. 50:7-51:3.

The lists were thrown away at

the end of the night.
Plaintiffs, in their oppositions, cut and paste deposition
excerpts that they claim undermine Ms. Ireland’s position that
she is not involved in the management of dancers.

The

deposition testimony cited is either irrelevant to the inquiry
at hand or actually bolsters Ms. Ireland’s argument.

See, e.g.,

Whyte ECF No. 70 at 10 (quoting Lawson Dep., 6:16-7:8) (“Q:
[W]ho trained you to be a manager? . . .

A: Lisa showed me some

of the things, but Walt showed me pretty much everything.
Now, can you describe what Lisa showed you?
safe and things of that nature.”).

Q:

A: How to open the

Plaintiffs also advance a

theory that Ms. Ireland was an employer of the dancers at Norma
Jean’s because she retained firing power over the manager, and
the manager, in turn, had hiring and firing power over the
dancers.

They argue that the manager

“had control over Norma Jean’s Nite Club employees’
schedules, responsibilities, and duties, or conditions
to work at the Club. He also states that Lisa Ireland
is his only supervisor. Since Lisa Ireland is his
only supervisor she has apparent authority and has
supervised control over the Norma Jean’s Nite Club
employees’ schedules, responsibilities, and duties, or
conditions to work at the Club through her designee
Mr. Robinson.”
Whyte, ECF No. 70 at 8.

In addition to erroneously referring to

apparent agency theory, Plaintiffs do not present any evidence

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to suggest that the manager position was essentially a conduit
for the desires and wishes of Ms. Ireland.3
Although Ms. Ireland is not quite the “absentee owner” she
argues to be, she has relinquished control of all activities
related to relevant employment matters to the manager of Norma
Jean’s.

The managers during the relevant time in question, Mr.

Robinson and Ms. Lawson, were in charge of all policies and
decisions related to the potential employment relationship
between Norma Jean’s and the dancers, and took action free of
input from Ms. Ireland.

As a result, there was no employer-

employee relationship between Ms. Ireland and Ms. Whyte or Ms.
Taylor sufficient to give rise to liability under the FLSA.
Accordingly, summary judgment will be granted in Ms. Ireland’s
favor.
b. The Statute of Limitations is Two Years for Want of a
Willful Violation
Defendants argue that Whyte and Taylor’s claims are limited
in scope to two years before their claims were filed.

Actions

for alleged violations of the FLSA’s provisions “shall be

3

Plaintiffs also argue that the Court should deny Ms. Ireland’s
motion for summary judgment because “[u]nder the Iqbal
plausibility standard, [Plaintiffs’] allegations are sufficient
to state a claim that the individual defendants [sic] bear
liability under the FLSA.” Whyte ECF No. 70 at 26. Ashcroft v.
Iqbal, 556 U.S. 662 (2009), governs motions to dismiss, not the
motions for summary judgment under review here, and more is
required than “mere plausibility” to deny judgment to Ms.
Ireland.
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forever barred unless commenced within two years after the cause
of action accrued, except that a cause of action arising out of
a willful violation may be commenced within three years after
the cause of action accrued.”

29 U.S.C. § 255(a).

“As such,

the FLSA provides for two potential limitations periods, the
application of which turns on whether the FLSA violations were
conducted ‘willfully.’”

Gionfriddo, 769 F. Supp. 2d at 890.

Unless Taylor and Whyte can show that Norma Jean’s willfully
violated the FLSA – which Defendants contend they cannot - their
claims are limited to violations occurring after September 24,
2011, for Whyte and December 9, 2011, for Taylor.
In order to understand much of Plaintiffs’ remaining
arguments, the Court must refer to a preceding case brought by
another dancer at Norma Jean’s.

In an action filed and resolved

before Ms. Whyte or Ms. Taylor brought their actions, Ms. Unique
Butler, filed suit against PP&G on February 8, 2013.
S. Butler v. PP&G, Inc., Civ. No. 13-WMN-430.

See Unique

The Court granted

in part and denied in part Ms. Butler’s motion, determining that
Ms. Butler was an employee of PP&G, and that PP&G was liable to
Ms. Butler under the FLSA for wages and liquidated damages, but
that Ms. Butler had not demonstrated that she was entitled to
reimbursement under Maryland law.

Ms. Whyte spoke with Ms.

Butler’s attorney regarding the opportunity to testify.

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She

alleges that this meeting was the reason that Defendants fired
her from Norma Jean’s.
In order to show willfulness, plaintiffs must show that the
employer “either knew or showed reckless disregard for the
matter of whether its conduct was prohibited by the [FLSA].”
McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988).
Anything less is insufficient to support a finding of
willfulness, as “[m]ere negligence on the part of the employer
with regard to compliance with the FLSA is not sufficient to
prove willfulness.”

Gionfriddo, 769 F. Supp. 2d at 890.

Plaintiffs offer that Defendants committed willful
violations since Ms. Butler was found by this Court to be an
employee of PP&G under the FLSA, and argues that “[i]t is
inconceivable that when a President of a company learns about a
lawsuit against their company and learns that there is a Federal
ruling telling the company that their practice is illegal under
Federal law that they would continue with the illegal federal
practice.”4

Whyte, ECF No. 70 at 28.

The lawsuit was filed by

Ms. Butler on February 28, 2013, and the Court granted partial
summary judgment to Ms. Butler on November 7, 2013.

4

Neither of

Plaintiffs copy and paste this statement many times throughout
their oppositions and cross-motions for summary judgment. The
Court notes that the repeated use of “inconceivable” is subject
to quickly diminishing returns. See The Princess Bride (ACT III
Communications 1987) (“You keep using that word. I do not think
it means what you think it means.”).
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these events is sufficient to establish a willful violation.
The fact that a dancer filed suit against PP&G under the FLSA
does not establish that PP&G or Ms. Ireland knew of their
obligations under FLSA and recklessly disregarded them during
the period of Ms. Whyte and Ms. Taylor’s employment.

In

addition, the Court’s opinion and order regarding Ms. Butler was
issued after Ms. Whyte was fired and a mere month before Ms.
Taylor left Norma Jean’s.

Plaintiffs fail to present any

evidence to show that at the time of the alleged FLSA
violations, Defendants were aware of their obligations under
FLSA and intentionally disregarded them.

In fact, Ms. Ireland

testified that she was “not aware of the federal law before the
lawyer with Ms. Butler’s case presented it to me.”
Trans. 41:7-9.

Ireland Dep.

Failing to show any other evidence that

Defendants willfully violated the FLSA, Plaintiffs are subject
to the two year statute of limitations.
c. Defendants’ Unopposed Motion as to Retaliation and
Punitive Damages in Whyte Shall be Granted
In Whyte, Defendants have moved for summary judgment on Ms.
Whyte’s count of retaliation under the FLSA (Count IV) and her
claim for punitive damages, in addition to the above arguments.
See Whyte ECF No. 65 at 14-20. Ms. Whyte appears to have
abandoned her claims related to retaliation and punitive damages
as she makes no response in her opposition to Defendant’s

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arguments.5

See Grant-Fletcher v. McMullen & Drury, P.A., 964 F.

Supp. 2d 514, 525 (D. Md. 2013) (opining that the plaintiff
appeared to have abandoned claims by not responding to arguments
directed at those claims in the defendant’s summary judgment
motion).

The Federal Rules of Civil Procedure provide that “if

the adverse party does not so respond, summary judgment, if
appropriate, shall be entered against the adverse party.”
R. Civ. P. 57(e).

Fed.

For the reasons that follow, the Court finds

that summary judgment for Defendants is appropriate with regards
to both arguments.
Section 215(a)(3) of the FLSA makes it unlawful for a
covered employer to “discharge or in any manner discriminate
against any employee because such employee has filed any
complaint or instituted or caused to be instituted any
proceeding under or related to this chapter, or has testified or
is about to testify in any such proceeding . . . .”

Kasten v.

Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325, 1329,
___ U.S. ____ (2011) (quoting 29 U.S.C. § 215(a)(3)).

In order

to evaluate whether such a case of retaliation occurred, the
5

Ms. Whyte and Ms. Taylor – who are represented by the same
attorney, Jimmy A. Bell, whose signature is on their submissions
to the Court - have submitted substantially the same
Opposition/Cross Motion for Summary Judgment and Reply in both
cases. In some areas, Plaintiffs’ counsel did not ensure that
the correct Plaintiff’s name was used. It would not be
difficult to surmise that counsel made the assumption that
Defendants filed the same motion for summary judgment, despite
the different claims of his clients.
14

Court uses the McDonnell Douglas scheme employed in Title VII
cases.

Darveau v. Detecon, Inc., 515 F.3d 334, 342 (4th Cir.

2008).

To make a prima facie case of retaliation under the

FLSA, a plaintiff must show that: (1) she engaged in an activity
protected by the FLSA; (2) she suffered adverse action by the
employer subsequent to the protected activity; and (3) a causal
connection that exists between the employee’s activity and the
employer’s adverse action.

Mould v. NJG Food Serv., Inc., 37 F.

Supp. 3d 762, 778 (D. Md. 2014).

Ms. Whyte has failed to

demonstrate that she engaged in protected activity under the
FLSA or that Defendants retaliated against her for such
activity.
Ms. Whyte pleads in her complaint that, since she had
expressed willingness to testify in Ms. Butler’s FLSA suit, she
engaged in the protected activity of being “about to testify” in
a proceeding under the FLSA.

Her complaint alleges that:

“Defendant Lisa Ireland and her husband [told Walter Robinson]
to fire Plaintiff Whyte and ban her from the club because she
gave testimony against the club and she was listed as a witness
against the club in the FLSA case for Unique Butler,” ECF No. 32
¶ 44; she “gave testimony of Defendant’s illegal practices
defendant had been involved in;” and she “was willing to testify
against PP&G Inc. . . . for violating [the] FLSA.” Id. ¶ 45.

It

is undisputed that Ms. Whyte did not provide a deposition in the
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Butler case nor did she testify in a trial on Ms. Butler’s
claims.

Ms. Whyte, however, has failed to produce evidence that

she was about to engage in the activity of testifying or giving
a deposition.

The Fourth Circuit, in determining what

constitutes an eligible proceeding under the FLSA retaliation
provision, strictly construes the definition of testimony as
“amount[ing] to statements given under oath or affirmation.”
Ball v. Memphis Bar-B-Q Co., Inc., 228 F.3d 360, 364 (4th Cir.
2000).

Therefore, in order for Ms. Whyte’s activity with regard

to Ms. Butler’s case to be protected, there must be conclusive
evidence that Ms. Whyte was about to provide statements under
oath, either through deposition or trial testimony.

In her

deposition for this action, Ms. Whyte testified that Ms. Butler
asked her to be a witness, that she visited Ms. Butler’s
attorney once and told him about the wage and hour practices,
and signed a piece of paper while there.

Whyte Dep. 125-127.

There is no evidence that the signed piece of paper – which may
have constituted a statement made under affirmation – left the
attorney’s office and a review of the docket in Butler shows
that the signed piece of paper was never submitted to the Court.
There is also no evidence that Ms. Whyte’s name appeared on a
list of witnesses for Ms. Butler’s case.

In addition, Ms. Whyte

testified that she never received summons or subpoena to testify

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and that she did not give a deposition in Ms. Butler’s case.
Whyte Dep. 127.
The sole support for Ms. Whyte’s contention that she was
retaliated against is a conversation Ms. Whyte recalled between
herself and the manager at the time, Mr. Walter Robinson.
According to Ms. Whyte:
“The day I got fired . . . he asked me, he said . . .
did you answer any questions about a case against us,
and . . . . I said no at first. Then I said you
what, yeah, I did. I said they asked me questions
about the club . . . I did answer some questions, but
I just told the truth, that’s all. He was like well,
because of that, you’re fired because, you know,
you’re witnessing a case against us. That’s what was
told to me.”
Whyte Dep. 128:14-129:5.

Although from this evidence one could

conclude that her firing may have been directly related to her
visit to Ms. Butler’s lawyer, that visit does not constitute
protected activity under the FLSA.

As the Fourth Circuit

explained: “[T]he statutory language [of the FLSA] clearly
places limits on the range of retaliation proscribed by the Act.
It prohibits retaliation for testimony given or about to be
given but not for an employee’s voicing of a position on working
conditions . . . . Congress has crafted such broader retaliation
provisions elsewhere, such as in Title VII . . . which prohibits
employer retaliation because an employee has ‘opposed any
practice’ . . . or ‘participated in any manner in an
investigation, proceeding or hearing under this subchapter.’
17

But the cause of action for retaliation under the FLSA is much
more circumscribed.”
in original).

Memphis Bar-B-Q, 228 F.3d at 364 (emphasis

Protected activity under the FLSA is limited to

testimonial activity, actual or anticipated.

There is no

evidence to suggest that Ms. Whyte’s sole meeting with the
attorney went beyond an informational session in which Ms. Whyte
provided her opinion regarding Ms. Butler’s situation and as a
result is not protected under the FLSA.

The Defendants’ motion

for summary judgment as to Count IV of Ms. Whyte’s complaint is
granted.
With summary judgment on Ms. Whyte’s claim of retaliation
granted in favor of Defendants, the question of whether punitive
damages are available becomes moot.

Section 216(b) of Title 29

of the United States Code provides:
[a]ny employer who violates the provisions of section
206 or 207 [the FLSA’s minimum wage and overtime wage
provisions] . . . shall be liable to the employee or
employees affected in the amount of their unpaid
minimum wages, or their unpaid overtime compensation,
as the case may be, and in an additional equal amount
as liquidated damages. Any employer who violates the
provisions of section 215(a)(3) [the FLSA’s antiretaliation provision] . . . shall be liable for such
legal or equitable relief as may be appropriate to
effectuate the purposes of section 215(a)(3) . . .
including without limitation employment,
reinstatement, promotion, and the payment of wages
lost and an additional equal amount as liquidated
damages.
29 U.S.C. § 216(b).

The issue of whether punitive damages are

available under the FLSA arises from the phrase “shall be liable
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for such legal or equitable relief as may be appropriate.”

See

Randolph v. ADT Sec. Services, Inc., Civ. No. 09-DKC-1790, 2012
WL 2234362, at *3 (D. Md. June 14, 2012) (Holding that, even if
punitive damages were available, such relief was not appropriate
where Plaintiff failed to prove that retaliation was committed
recklessly or with malice).

This phrase is attached to

liability arising from a violation of the FLSA’s antiretaliation provision in Section 215(a)(3).

Section 216(b) does

not include broad categories of legal and equitable relief for
violations of overtime or minimum wage provisions, explicitly
limiting relief to unpaid compensation and liquidated damages.
As the Court has awarded summary judgment to Defendants on antiretaliation, Ms. Whyte is limited in recovery to the remedy
attached to Section 206, namely unpaid minimum wages and
liquidated damages.6
B. Plaintiffs’ Motions for Partial Summary Judgment
Plaintiffs have moved for partial summary judgment, asking
the Court to find that they were employees of Defendants on
“collateral estoppel” grounds.

Their theory of “collateral

6

Defendants did not raise the issue of punitive damages in
Taylor. In her complaint, however, Ms. Taylor “ask[s] this
court to . . . hold defendants liable to Plaintiff . . . for
punitive damages . . . and any other and further relief this
Court deems appropriate . . . .” Taylor ECF No. 7 ¶ 33. As Ms.
Taylor brings claims for minimum wage and overtime violations
under Sections 206 and 207 only, her relief is similarly limited
to the first sentence of Section 216(b).
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estoppel” is as follows: “Plaintiff[s] claim[] just like
Plaintiff Butler did . . . .

So, Defendants in this case still

improperly classified Plaintiff[s’] work as [] exotic dancers as
[] independent contractors and failed to pay [them] a minimum
hourly wage.”7

In essence, because Ms. Whyte and Ms. Taylor made

the same claim as Ms. Butler, the Court should find that
Defendants violated the FLSA.
The doctrine of collateral estoppel precludes “the
relitigation of issues of fact or law that are identical to
issues which have been actually determined and necessarily
decided in prior litigation in which the party against whom is
asserted had a full and fair opportunity to litigate.”
Sensormatic Sec. Corp. v. Sensormatic Electronics Corp., 455 F.
Supp. 2d 399, 410 (D. Md. 2006).

Non-mutual collateral estoppel

is when a non-party to the previous action seeks to prevent a
defendant in the current action from relitigating issues already
decided against the defendant in the previous case.

S.E.C. v.

Resnick, 604 F. Supp. 2d 773, 778 (D. Md. 2009).
In order to prove that collateral estoppel applies, the
Plaintiffs must establish five elements: “(1) that ‘the issue
sought to be precluded is identical to one previously litigated’
7

This section of Ms. Whyte’s motion refers to “Plaintiff Taylor”
as opposed to “Plaintiff Whyte.” Defendants argue that this
error is fatal to Ms. Whyte’s motion. While the drafting may be
slipshod and careless, it is clear that the argument is made for
Ms. Whyte’s case and will be considered as such.
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(element one); (2) that the issue was actually determined in the
prior proceeding (element two); (3) that the issue’s
determination was a ‘critical and necessary part of the decision
in the prior proceeding’ (element three); (4) that the prior
judgment is final and valid (element four); and (5) that the
party against whom collateral estoppel is asserted ‘had a full
and fair opportunity to litigate the issue in the previous
forum’ (element five).”

Collins v. Pond Creek Mining Co., 468

F.3d 213, 217 (4th Cir. 2006).
Plaintiffs have failed to demonstrate that the issues in
these actions and Ms. Butler’s are identical.

They have pointed

to the fact that they bring the same causes of action against
the same defendant, yet they fail to identify specific facts
establishing that the same relationship existed between
themselves and Defendants as Ms. Butler and Defendants such that
the issue of whether they are employees is to be considered well
settled.

The question of whether Ms. Whyte and Ms. Taylor were

employees of PP&G relies on evaluating the “economic reality”
between the parties.

Plaintiffs have not shown that the

economic reality of their relationship to Defendants was
identical to the economic reality of Ms. Butler’s relationship

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to PP&G.

Accordingly, the Court will deny summary judgment to

Ms. Taylor and Ms. Whyte on the grounds of collateral estoppel.8
Plaintiffs have also moved for summary judgment on
Defendants’ alleged failure to pay a minimum wage and their
entitlement to liquidated damages.

The Court declines to

address these arguments at this time as Plaintiffs failed to
address on the merits the predicate issue of whether they were
“employees” under the FLSA.
Finally, Plaintiffs move for summary judgment on
Defendants’ counter claims for breach of contract and unjust
enrichment on the ground that in her deposition, when asked “How
much do the girls owe you?” Ms. Ireland replied “They don’t owe
me anything.”

Plaintiffs misidentify Ms. Ireland as the

30(b)(6) designee for PP&G, when it was in fact the manager,
Jeanean Lawson, who provided deposition testimony as PP&G’s
representative.

Ms. Ireland’s testimony is her own, and cannot

be imputed to PP&G.

In addition, the statement “They don’t owe

me anything” when taken in the light most beneficial to
Defendants, asserts that no debts were owed by Plaintiffs to Ms.

8

In their Reply briefs, Plaintiffs argue that Defendants
conceded the issue of whether they violated the FLSA. Whyte ECF
No. 76 at 1. Not only is raising an entirely new issue in a
Reply improper, the cited deposition testimony is irrelevant, as
it refers to the practice of Defendants in 2014, after
Plaintiffs worked at Norma Jeans.
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Ireland.

Summary judgment will be denied as to Defendants’

counterclaims.
IV. CONCLUSION
For the reasons stated above, the Defendant’s Motion for
Summary Judgment will be denied.

A separate order shall issue.

______________/s/__________________
William M. Nickerson
Senior United States District Judge

DATED: May 26, 2015

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