Whittaker v. David's Beautiful People, Inc., et al.

Filing 42

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 2/4/2016. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
IRINA WHITTAKER
:
v.

:

Civil Action No. DKC 14-2483

:
DAVID’S BEAUTIFUL PEOPLE, INC.,
et al.
:

MEMORANDUM OPINION
Presently

pending

employment

case

is

Defendants

David’s

ready

motion

a

and

for

Beautiful

for

resolution

summary

People,

(collectively, the “Defendants”).

in

judgment

Inc.

and

filed

David

(ECF No. 31).

this
by

Cohen

The issues

have been fully briefed, and the court now rules, no hearing
being deemed necessary.

Local Rule 105.6.

For the following

reasons, Defendants’ motion will be granted in part and denied
in part.
I.

Background
A.

Factual Background

Unless
undisputed

otherwise
and

noted,

construed

the

facts

outlined

the

light

most

in

Plaintiff Irina Whittaker (“Plaintiff”).
be

discussed

in

Beautiful

People

Maryland,

owned

the

following

(the
by

“salon”)

Defendant

David

a

favorable

are
to

Additional facts will

section.
is

here

Defendant
salon

Cohen,

in
a

David’s

Rockville,
white

man.

Plaintiff, a white woman of Ukrainian descent, began working at
the salon in December 2012, when Defendants took on clients and
employees
worked.

of

a

nearby

salon

at

which

Plaintiff

previously

Plaintiff was paid a commission based on the number and

type of client services she performed.
37-1 ¶ 30).

(ECF Nos. 31-1, at 15;

At the beginning of her employment at the salon,

Plaintiff became friends with Mahshid Hosseini, a female coworker of Iranian descent.
31-5, at 6).

(ECF Nos. 31-2, at 6; 31-3, at 8;

A few months later, this relationship soured, and,

Plaintiff alleges, Ms. Hosseini subjected her to constant “vile
and vicious insults and abuse” from February to June 2013.
No. 37-1 ¶ 9).

(ECF

According to Plaintiff, Ms. Hosseini called her,

among other things, a “Russian whore,” a “golddigger,” and a
“bitch.”

(Id.).

Ms. Hosseini also sent two text messages to

Plaintiff, one which read, “You are nothing but a [f]ucking
Russian whore go[l]d digger[]!!
12).1

So disgusted by you!!”

(Id. at

The other read, “You really deserve a spit to ur face!”

(Id. at 11).

Plaintiff informed Mr. Cohen about Ms. Hosseini’s

actions, showed him the text messages, and told him that she was
having a “hard time” working with Ms. Hosseini.
37-2, at 10).

(See ECF No.

Mr. Cohen told both Plaintiff and Ms. Hosseini to

1

In her deposition, Ms. Hosseini confirmed that her phone
autocorrected her text messages to say “ducking Russian whore
good diggers,” but that the quoted language above, as edited, is
what she intended to write. (ECF No. 37-4, at 18).
2

try to stay away from each other and focus on their work.

(Id.

at 12).
On June 19, 2013, Plaintiff and Ms. Hosseini were involved
in a physical altercation at the salon.

The parties dispute the

details of the event, but agree that Plaintiff and Ms. Hosseini
were walking past each other when they bumped into each other.
(See ECF Nos. 31-3, at 19-20; 37-2, at 12-13).
escalated

into

confrontation.
police.

a

more

serious

and

This contact

violent

physical

Following the altercation, Plaintiff called the

(ECF No. 31-3, at 23).

Officers from the Montgomery

County Police Department interviewed people at the scene and
informed Plaintiff and Ms. Hosseini how to file charges if they
so wished.

(ECF No. 41-3, at 4).

Mr. Cohen, after speaking

with Ms. Hosseini, a client who witnessed the altercation, and a
police officer, concluded that Plaintiff was responsible for the
altercation and sent her a letter the following day terminating
her employment at the salon.
B.

(ECF No. 31-1, at 17-18).

Procedural History

On July 30, 2013, Plaintiff filed a complaint with the
Montgomery County Office of Human Rights (“OHR”).
31-17, at 2).
Plaintiff

(See ECF No.

The OHR terminated its investigation because

failed

to

rebut

Defendants’

“verified

non-

discriminatory reason and documentation for [their] actions.”
(Id. at 7).

Plaintiff then received a right to sue letter from
3

the U.S. Equal Employment Opportunity Commission (“EEOC”).

(ECF

No. 31-18).
On August 5, 2014, Plaintiff timely commenced this action.
(ECF

No.

1).

Plaintiff’s

complaint

includes

the

following

counts: harassment and discrimination in violation of Title VII
of

the

Civil

Rights

Act

of

1964

(“Title

VII”)

(Count

I);

retaliation in violation of Title VII (Count II); discrimination
in violation of the Montgomery County Code (Count III); wrongful
discharge

(Count

IV);

negligent

retention

and

supervision

(Counts V and VI); assault (Count VII); battery (Count VIII);
intentional infliction of emotional distress (Count IX); aiding
and abetting (Count X); failure to pay minimum wage in violation
of the Fair Labor Standards Act (“FLSA”), the Maryland Wage and
Hour Law (“MWHL”), and the Maryland Wage Payment and Collection
Law (“MWPCL”) (Counts XI and XII).

Defendants answered (ECF No.

7), and the parties held a settlement conference in front of
Magistrate Judge Charles B. Day on March 27, 2015.

On June 15,

Defendants filed the pending motion for summary judgment.
No. 31).

(ECF

Plaintiff responded in opposition (ECF No. 37), and

Defendants replied (ECF No. 41).
II.

Standard of Review
Summary judgment is appropriate under Federal Rule of Civil

Procedure Rule 56(a) when there is no genuine dispute as to any
material

fact,

and

the

moving
4

party

is

plainly

entitled

to

judgment in its favor as a matter of law.

In

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986), the Supreme Court
of the United States explained that, in considering a motion for
summary judgment, the “judge’s function is not himself to weigh
the

evidence

determine

and

whether

determine

the

there

a

is

truth

of

genuine

the

issue

matter

for

but

trial.”

to
A

dispute about a material fact is genuine “if the evidence is
such

that

nonmoving

a

reasonable

party.”

jury

Id.

at

could

248.

return
Thus,

a

verdict

“the

judge

for

the

must

ask

himself not whether he thinks the evidence unmistakably favors
one

side

return

a

or

the

other

verdict

presented.”

but

for

the

whether

a

[nonmoving

fair-minded
party]

on

jury

the

could

evidence

Id. at 252.

In undertaking this inquiry, a court must view the facts
and the reasonable inferences drawn therefrom “in the light most
favorable to the party opposing the motion.”

Matsushita Elec.

Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(quoting

United

States

v.

Diebold,

Inc.,

369

U.S.

654,

655

(1962)); see also EEOC v. Navy Fed. Credit Union, 424 F.3d 397,
405 (4th Cir. 2005).
evidence

in

support

The mere existence of a “scintilla” of
of

the

nonmoving

is

not

sufficient to preclude an order granting summary judgment.

See

Liberty Lobby, 477 U.S. at 252.

5

party’s

case

A “party cannot create a genuine dispute of material fact
through mere speculation or compilation of inferences.”

Shin v.

Shalala, 166 F.Supp.2d 373, 375 (D.Md. 2001) (citation omitted).
Indeed,

this

court

has

an

affirmative

obligation

to

prevent

factually unsupported claims and defenses from going to trial.
See

Drewitt

v.

Pratt,

999

F.2d

774,

778–79

(4th

Cir.

1993)

(quoting Felty v. Graves–Humphreys Co., 818 F.2d 1126, 1128 (4th
Cir. 1987)).
III. Analysis
A.

Hostile Work Environment (Counts I and III)2

Plaintiff
unlawful
prohibits

asserts

harassment

in

discrimination

claims

of

violation
based

discrimination
of

on

Title
an

VII.

employee’s

based

on

Title

VII

personal

characteristics such as “race, color, religion, sex, or national
origin.”

42 U.S.C. § 2000e–2(a)(1); Univ. of Texas Sw. Med.

Ctr. v. Nassar, 133 S.Ct. 2517, 2525 (2013).

Plaintiff alleges

that she was subjected to a hostile work environment on the
basis of her gender, ethnicity, race, and national origin while

2

Count III alleges discrimination under the Montgomery
County Code, to which a private right of action is given by Md.
Code, State Gov’t § 20-1202.
Maryland courts construe such
claims similarly to those made under Title VII.
Haas v.
Lockheed Martin Corp., 396 Md. 469, 504 (2007) (“Considering the
mimicry of state and local laws to Title VII, it is appropriate
to consider federal precedents when interpreting state and local
laws.”), see also Finkle v. Howard Cnty., Md., 12 F.Supp.3d 780,
784 (D.Md. 2014).
Accordingly, Counts I and III will be
analyzed together.
6

working at the salon.

(ECF No. 1 ¶¶ 22-37).

According to

Plaintiff, “[d]espite actual and constructive knowledge of [Ms.
Hosseini’s]

harassment,

environment

and

discrimination,

despite

Plaintiff’s

and

hostile

complaints,

work

Defendants

failed to take and refused to take any meaningful action to
remedy,

stop,

prevent,

or

otherwise

adequately

address

such

harassment, discrimination, and hostile work environment.”

(Id.

¶ 32).3
“To

establish

a

prima

facie

case

of

hostile

work

environment, a plaintiff must prove: (1) that she was harassed
because of her [protected status]; (2) that the harassment was
unwelcome; (3) that the harassment was sufficiently severe or
pervasive to create an abusive working environment; and (4) that
some

basis

exists

for

imputing

liability

to

the

employer.”

Moret v. Green, 494 F.Supp.2d 329, 341 (D.Md. 2007) (citing
Smith v. First Union Nat’l Bank, 202 F.3d 234, 241 (4th Cir.
2000)).

To impute liability to an employer for the harassment

3

Counts I and III of the complaint nominally assert claims
for both discrimination and hostile work environment, but
Plaintiff only puts forth facts reflecting a hostile work
environment claim.
Moreover, Plaintiff does not respond to
Defendant’s argument for summary judgment on her discrimination
claim in her opposition, thereby abandoning any claim for
discrimination.
See Ferdinand-Davenport v. Children’s Guild,
742 F.Supp.2d 772, 777 (D.Md. 2010) (citing Mentch v. Eastern
Savings Bank, FSB, 949 F.Supp. 1236, 1247 (D.Md. 1997)).
Accordingly, to the extent that Counts I and III assert claims
of unlawful discrimination beyond a claim of hostile work
environment, Defendants will be granted summary judgment.
7

of a co-worker (as opposed to a supervisor), a plaintiff must
show that the employer was negligent in “failing, after actual
or constructive knowledge, to take prompt and adequate action to
Mikels v. City of Durham, N.C., 183 F.3d 323, 332 (4th

stop it.”

Cir. 1999) (citing Burlington Indus., Inc. v. Ellerth, 525 U.S.
742, 757-58 (1998)).
Defendants argue that Plaintiff has failed to show that the
alleged

hostile

conduct

was

based

ethnicity, race, or national origin.

on

Plaintiff’s

gender,

Defendants also contend

that the conduct was not “sufficiently severe or pervasive so as
to alter the conditions of [Plaintiff’s] employment.”
31-1, at 27).

(ECF No.

Finally, Defendants assert that they are not

liable for Ms. Hosseini’s conduct because the offending conduct
is

not

imputable

harassment

she

to

them.4

experienced

Plaintiff
was

unwelcome

counters
and

that

severe

“the
and/or

pervasive (to include regular insults and a physical beating),
that

[]

[D]efendants

knew

about

the

harassment

(having

been

advised on numerous occasions), and that [] [D]efendants failed
to take any sufficient and reasonable action to stop or even
abate the harassment.”

(ECF No. 37, at 11).

4

Because Plaintiff has failed to meet her burden
establishing the severity or pervasiveness of the conduct, it is
unnecessary to consider if liability should be imputed to
Defendants.
8

1.

Harassment Based on a Protected Trait

Defendants’
messages,

by

Plaintiff

conclusory

based

persuasive.

argument

themselves,
on

a

do

not

that

“[t]he

establish

protected

two

harassment

characteristic”

is

text
of
not

To establish that Ms. Hosseini’s conduct was based

on a protected trait, Plaintiff must show that she was targeted
because of such trait.

See First Union, 202 F.3d at 242–43.

Ms. Hosseini sent a text message calling Plaintiff a “[f]ucking
Russian

whore.”

(ECF

No.

37-1,

at

12).

Plaintiff

also

testified that Ms. Hosseini called her a “Russian bitch” at the
salon.

(ECF

No.

31-3,

at

8).

Such

derogatory

slurs

that

explicitly reference Plaintiff’s national origin are evidence of
animus based on national origin.5
and

cite

to

no

case

law

Defendants make no argument

suggesting

otherwise.

Defendants’

assertion that Ms. Hosseini was an “‘equal opportunity’ bad coworker” because she bullied other co-workers does not negate the
direct

evidence

that

shows

Ms.

Hosseini’s

Plaintiff were motivated by a prohibited animus.
at 27 n.11).6

actions

towards

(ECF No. 31-1,

Equally unpersuasive is Defendants’ contention

5

Although Plaintiff is of Ukrainian descent, she was born
in the U.S.S.R., “lived for an extended period of time in the
Russian Federation,” and speaks English with a Russian accent.
(ECF No. 1 ¶ 13).
6

It is also notable that another co-worker testified that
Ms. Hosseini made a comment about Brazilians being prostitutes.
(ECF No. 31-6, at 5).
9

that “it makes no sense that [Ms.] Hosseini originally would be
friends

with

Plaintiff

if

she

held

such

animus

protected group to which Plaintiff belonged.”
27 n.11).

2006

inapposite.

claim

any

(ECF No. 31-1, at

The case Defendants cite, Rodriguez v. Gutierrez, No.

CCB-06-1045,

Rodriguez

toward

WL

3914783

Defendants

dismissed

because

the

there

(D.Md.

correctly

note

plaintiff’s

was

“no

Dec.

29,

that

hostile

indication

2006),
court

the

work

is
in

environment

from

plaintiff’s

allegations that her co-workers held any animosity toward [the
plaintiff] because of her race or national origin.”

Id. at *4.

The court noted, however, that the plaintiff’s supervisor made
potentially hostile comments that were motivated by race and
national origin when she expressed a dislike for Mexicans and
Mexico, but “[a]ny complaint based on those comments” was timebarred.

Id.

Here,

animosity

based

on

Plaintiff

national

provided

origin

in

direct

the

form

evidence
of

the

of

text

message calling her a “[f]ucking Russian whore,” and her claims
are

not

time-barred.

Although

it

is

possible

that

Ms.

Hosseini’s hostility towards Plaintiff was caused by some other
non-protected
appropriate

personal
at

the

animus,
summary

such

a

judgment

determination
stage

in

Plaintiff’s direct evidence of prohibited animus.

is

light

not
of

See Walker v.

Mod-U-Kraf Homes, LLC, 775 F.3d 202, 209 (4th Cir. 2014) (“We
recognize

that

some

of

the

.
10

.

.

individuals’

motives

are

disputed,

but

such

factual

details

and

credibility

determinations are [] not issues to be resolved at the summary
judgment stage.”).
2.

Severe or Pervasive Conduct

Although

Title

VII

“surely

prohibits

an

employment

atmosphere that is permeated with discriminatory intimidation,
ridicule, and insult, it is equally clear that Title VII does
not

establish

a

general

civility

code

for

the

American

E.E.O.C. v. Sunbelt Rentals, 521 F.3d 306, 315 (4th

workplace.”

Cir. 2008) (citations and internal quotation marks omitted).
determining

whether

the

offending

conduct

was

In

sufficiently

severe or pervasive, the court must consider: “(1) the frequency
of the discriminatory conduct; (2) its severity; (3) whether it
is physically threatening or humiliating, or a mere offensive
utterance; and (4) whether it unreasonably interferes with an
employee’s work performance.”

First Union, 202 F.3d at 242; see

also Sunbelt Rentals, 521 F.3d at 315.
only

that

she

subjectively

Plaintiff must show not

believed

that

her

workplace

environment was hostile, but also that an objective reasonable
person would have found it to be hostile.
F.3d at 315.

Sunbelt Rentals, 521

Furthermore, “[t]he behavior need not be both

severe and pervasive: the more severe the conduct, the less
pervasive the plaintiff need prove that it is.”

Williams v.

Silver Spring Volunteer Fire Dept., 86 F.Supp.3d 398, 413 (D.Md.
11

2015) (quoting Reed v. Airtran Airways, 531 F.Supp.2d 660, 669
n.15 (D.Md. 2008) (citations omitted)).
Plaintiffs in the United States Court of Appeals for the
Fourth Circuit:
must clear a high bar in order to satisfy
the severe or pervasive test.
Workplaces
are not always harmonious locales, and even
incidents that would objectively give rise
to bruised or wounded feelings will not on
that account satisfy the severe or pervasive
standard. Some rolling with the punches is a
fact of workplace life.
Thus, complaints
premised
on
nothing
more
than
“rude
treatment
by
[coworkers],”
Baqir
v.
Principi, 434 F.3d 733, 747 (4th Cir. 2006),
“callous behavior by [one’s] superiors,”
Bass, 324 F.3d at 765, or “a routine
difference
of
opinion
and
personality
conflict with [one’s] supervisor,” Hawkins
v. PepsiCo, Inc., 203 F.3d 274, 276 (4th Cir.
2000), are not actionable under Title VII.

Sunbelt

Rentals,

521

F.3d

at

315-16.

“‘[S]imple

teasing,

offhand comments, . . . isolated incidents (unless extremely
serious)[,] . . . [and] mere unpleasantness [are] not sufficient
to qualify harassment as severe and pervasive.”

Id. (citing

Faragher

788

v.

City

of

Boca

Raton,

524

U.S.

775,

(1998);

Hartsell v. Duplex Prods., 123 F.3d 766, 773 (4th Cir. 1997)).
“‘Summary judgment should not be granted unless no fact finder
reasonably could conclude that the conduct was so severe or
pervasive as to create an abusive [] environment.’”

12

Silver

Spring Fire Dept., 86 F.Supp.3d at 412 (quoting

Williams v.

Poretsky Mgmt., Inc., 955 F.Supp. 490, 497 (D.Md. 1996)).
Here, Plaintiff has not shown that Ms. Hosseini’s alleged
conduct was sufficiently severe or pervasive to create a hostile
work environment.

The text messages Plaintiff received were the

most severe incidents, but were isolated.
texts

were

supervisor

sent

by

lessens

Plaintiff’s

their

The fact that the

co-worker

threatening

rather

character

and

than

a

severity.

See Boyer-Liberto v. Fontainebleau Corp., 786 F.3d 264, 278, 280
(4th Cir. 2015) (noting that “‘a supervisor’s power and authority
invests

his

threatening

or

her

harassing

conduct

(quoting

Ellerth,

character’”

with
524

a

particular

U.S.

at

763)).

The other conduct that Plaintiff contends created a hostile work
environment may be more pervasive, but it is far less severe —
nothing

more

According

to

than

a

Plaintiff,

co-worker’s
Ms.

rude,

Hosseini

callous

“would

Plaintiff, called her names, and insulted her.
at 8).

not

behavior.
speak

to”

(ECF No. 31-3,

This is not enough to show that Plaintiff was subjected

to an objectively severe or pervasive hostile work environment.
In a similar case, Judge Blake noted that,
while the Fourth Circuit has not limited
viable hostile work environment claims to
the “precise behaviors . . . alleged to have
occurred” in previous cases, Walker, 775
F.3d at 209, the conduct alleged here does
not approach the severity of that described
in recent Fourth Circuit cases allowing
13

hostile work environment claims to survive
summary judgment.
See, e.g., id. at 205
(the plaintiff’s coworker made vulgar “sexbased comments to her and other co-workers
on a near-daily basis”); Okoli v. City of
Baltimore, 648 F.3d 216, 220 (4th Cir. 2011)
(the plaintiff’s supervisor forcibly kissed
her,
sexually
propositioned
her,
and
repeatedly
asked
her
sexually
charged
questions); Hoyle v. Freightliner, LLC, 650
F.3d 321, 326-27 (4th Cir. 2011) (the
plaintiffs’
coworkers
placed
sexually
provocative
photographs
throughout
the
workplace, and affixed a tampon to her key
ring).
Testerman v. Procter & Gamble Mfg. Co., No. CCB-13-3048, 2015 WL
5719657, at *6 (D.Md. Sept. 29, 2015); see McLaurin v. Verizon
Md., Inc., No. JKB-14-4053, 2015 WL 5081622, at *4 (D.Md. Aug.
26,

2015)

(holding

that

the

plaintiff

did

not

allege

an

actionable hostile work environment claim despite allegations
that one co-worker called the plaintiff a “bitch,” another coworker “urinated in front of her,” and a supervisor “cursed” at
her); Khoury v. Meserve, 268 F.Supp.2d 600, 614-14 (D.Md. 2003).
The district court in Khoury granted the defendant’s motion for
summary judgment on a hostile work environment claim even though
the

plaintiff

“describe[d]

treatment

that

was

disrespectful, frustrating, critical, and unpleasant.”
268 F.Supp.2d at 614.
supervisor

“yelled

at

often
Khoury,

The plaintiff’s allegations that her
[her],

told

her

she

was

incompetent,

pushed her down in her chair, and blocked the door to prevent

14

[her] from leaving while he continued to yell at her” were not
sufficient to establish a hostile work environment claim.

Id.

Plaintiff’s attempt to show that courts have denied summary
judgment in the face of less severe or pervasive conduct is
unavailing.
Plaintiff

(See ECF No. 37, at 12).
cites

was

more

Hosseini’s conduct here.

severe

The conduct in the cases
and

pervasive

than

Ms.

In Boyer-Liberto, the hostile work

environment was perpetuated by the plaintiff’s supervisor, which
created a more threatening and severe context than if the same
actions

were

done

by

a

co-worker.

786

F.3d

at

278,

280.

Moreover, the conduct was more severe because the plaintiff’s
supervisor, on multiple occasions, “berated [the plaintiff’s]
job

performance

before

threatening

‘to

get

[her]’

and

[her] sorry,’ and then calling her a ‘damn porch monkey.’”
at 279.

‘make
Id.

In Whitten v. Fred’s, Inc., 601 F.3d 231 (4th Cir.

2010), abrogated on other grounds by Vance v. Ball State Univ.,
133 S.Ct. 2434 (2013), the Fourth Circuit noted that “[w]hile
two days of verbal abuse of the type at issue here, could not,
in and of itself, support a hostile work environment claim, that
conduct combined with the physical assaults every day after [the
plaintiff] began working at the store is sufficiently severe” to
survive summary judgment.

The plaintiff’s supervisor “pressed

his genitals against” the plaintiff on several occasions.

Id.

at 236; see also Silver Spring Fire Dep’t, 86 F.Supp.3d at 41215

13

(denying

summary

judgment

where

supervisor

subjected

the

plaintiff to physical sexual contact on multiple occasions).

In

Mosby-Grant v. City of Hagerstown, 630 F.3d 326, 335 (4th Cir.
2010), the Fourth Circuit reversed the district court’s summary
judgment ruling because “[s]exist comments were pervasive . . .
and were frequently made to” the plaintiff.

The record was

replete with multiple specific, severe derogatory comments that
significantly impacted the plaintiff’s performance.

Id. at 329-

33.

a

The

Fourth

Circuit

also

recently

reversed

district

court’s grant of summary judgment in Walker, 775 F.3d 202.

The

conduct in Walker was, however, much more severe and pervasive
than

Ms.

Hosseini’s

conduct

here.

Multiple

co-workers

made

crude sexual comments and explicit gestures toward the plaintiff
and others several times a week for over a year.

Id. at 205.

Ms. Hosseini’s conduct, when viewed in its totality, simply does
not rise to the same level of severe or pervasive hostility.

No

reasonable juror could conclude that the conduct is sufficient
to

establish

Accordingly,

an

objectively

Defendants’

motion

hostile
for

summary

work

environment.

judgment

will

be

granted as to Counts I and III.
B.

Retaliation (Count II)

Title

VII

makes

it

unlawful

for

“an

employer

to

discriminate against any of [its] employees . . . because [s]he
has

opposed

any

practice

made
16

an

unlawful

practice

by

this

subchapter,

or

because

[s]he

has

made

a

charge,

testified,

assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.”
2000e-3(a).
retaliation

42 U.S.C. §

Plaintiff must produce either direct evidence of
or

make

use

of

the

test

outlined

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

in

McDonnell

Because she

does not put forth direct evidence, Plaintiff must employ the
McDonnell Douglas approach.
209, 212 (4th Cir. 2004).

See Price v. Thompson, 380 F.3d
Under this approach, Plaintiff must

establish three elements to establish a prima facie case: (1)
she engaged in a protected activity; (2) her employer acted
adversely

against

her;

and

(3)

the

protected

causally connected to the adverse action.

activity

was

Sewell v. Strayer

Univ., 956 F.Supp.2d 658, 671-72 (D.Md. 2013) (citing Holland v.
Wash.

Homes,

Inc.,

487

F.3d

208,

218

(4th

Cir.

2007)).

If

Plaintiff establishes a prima facie case, Defendant must provide
a

legitimate,

action.

non-retaliatory

explanation

for

the

adverse

The burden then shifts back to Plaintiff to show that

Defendants’ proffered reason is pretextual.
Plaintiff alleges that Defendants terminated her employment
after she “engaged in a protected activity by complaining of,
protesting,

and

opposing

harassment

and

demanding an investigation of the same.”

discrimination,

and

(ECF No. 1 ¶¶ 39-42).

Defendants counter that Plaintiff has not established a prima
17

facie case of retaliation because “simply voic[ing] a general
complaint

about

indication

that

working
[Ms.]

with

Hosseini’s

[Ms.]

Hosseini

behavior

was

without
based

upon

any
or

related to Plaintiff being a member of a protected class” is not
a protected activity.

(ECF No. 31-1, at 30).

Defendants also

argue that Plaintiff has failed to show a causal connection
between any protected activity and her termination.

Finally,

Defendants argue that, even if Plaintiff could establish a prima
facie case, Defendants terminated her employment because of the
physical altercation — a legitimate, non-retaliatory reason —
and Plaintiff has not shown that this reason was a pretext for
retaliation.
1.

Protected Activity

Plaintiff

asserts

that

she

was

“engaged

in

a

protected

activity by complaining of, protesting, and opposing harassment
and discrimination, and demanding an investigation of the same.”
(ECF No. 1 ¶ 39).

Defendants counter that she only complained

to Mr. Cohen that she was having difficulty working with Ms.
Hosseini, but said nothing about alleged harassment because of
race, ethnicity, national origin, or gender.
29).

(ECF No. 31-1, at

In her deposition, Plaintiff said, “I told [Mr. Cohen]

that I don’t know why, but . . . [Ms. Hosseini] is treating me
badly.

And she’s calling me names and she’s calling me names in

front of everybody.”

(ECF No. 31-3, at 15).
18

Plaintiff also

testified

that

she

showed

Hosseini

sent,

and

the

Cohen

complained

altercation on June 19, 2013.
Construing

Mr.

facts

to

the

Mr.

text

Cohen

messages

Ms.

following

the

(Id. at 15-17).
in

the

light

most

favorable

to

Plaintiff, the record indicates that she engaged in a protected
activity

Ms.

Hosseini’s

conduct, particularly showing him the text messages.

Protesting

unfair

by

complaining

treatment

and

to

other

Mr.

Cohen

workplace

about

conduct

that

prohibited by Title VII is not protected activity.

is

not

See Harris

v. Md. House of Correction, 209 F.Supp.2d 565, 570 (D.Md. 2002).
Here, however, Plaintiff has testified that she showed Mr. Cohen
the text message calling her a “Russian whore.”

The Fourth

Circuit

constitutes

has

held

“that

an

employee’s

complaint

protected activity when the employer understood, or should have
understood,
conduct.”

that

the

plaintiff

was

opposing

discriminatory

Burgess v. Bowen, 466 F.App’x 272, 282 (4th Cir. 2012)

(citing, inter alia, EEOC Compliance Manual § 8-II.B.2 (2006)
(“[A] protest is protected opposition if the complaint would
reasonably

have

been

interpreted

as

opposition

to

employment

discrimination.”)); see also Strothers v. City of Laurel, Md.,
No. PWG-14-3594, 2015 WL 4578051, at *10 (D.Md. July 27, 2015)
(denying a motion to dismiss a retaliation claim because the
plaintiff complained about “harassment,” which was sufficient to

19

put

employer

on

notice

that

she

was

complaining

about

discrimination).
Moreover, the Fourth Circuit has expanded the scope of what
constitutes

a

protected

activity.

See,

e.g.,

DeMasters

v.

Carilion Clinic, 796 F.3d 409, 416-21 (4th Cir. 2015); BoyerLiberto, 786 F.3d at 285-88.

As Judge Grimm noted recently,

this “broad[er] reading of Title VII extends its protection to
an employee who reasonably fears that she is being subjected to
unfavorable

treatment

based

on

her

[protected

status],

even

where, as here, that treatment does not rise to the level of
creating a hostile work environment.”
316.

Young, 108 F.Supp.3d at

The court in Young found that the plaintiff’s protest was

a protected activity even though she did not plead a plausible
hostile work environment claim.

Id. at 316-17.

Her protests

were a protected activity because she had a reasonable belief
that the workplace activity was a violation of Title VII and
clearly

indicated

that

she

was

complaining

about

gender

discrimination rather than general workplace grievances.
id.

See

Similarly, here, Plaintiff has sufficiently shown that she

engaged in a protected activity even if the underlying conduct
about

which

she

complained

did

not

created) a hostile work environment.

20

create

(or

had

not

yet

2.

Causal Connection

Defendants also argue that Plaintiff has not shown that her
termination was causally related to her protected activity.

The

Fourth Circuit has held that “a causal connection for purposes
of demonstrating a prima facie case exists where the employer
takes

adverse

employment

against

an

learning of the protected activity.”

employee

shortly

after

See Pepper v. Precision

Valve Corp., 526 F.App’x 335, 337 (4th Cir. 2013) (quoting Price,
380 F.3d at 213) (internal quotation marks omitted).
Plaintiff

testified

that

she

complained

about

the

Here,
alleged

hostile work environment on or about February 11, March 11,
April 29, and June 19, 2013.
6).

(ECF Nos. 31-3, at 15-17; 37, at

Plaintiff was fired on June 20, 2013.

17-18).
between

(ECF No. 31-1, at

The Fourth Circuit has held that a ten-week period
a

protected

activity

and

adverse

employment

“gives rise to a sufficient inference of causation.”
Rumsfeld,

328

F.3d

145,

151,

151

n.5

(4th

Cir.

action
King v.
2003).

Accordingly, Plaintiff has shown a causal relation sufficient to
establish a prima facie case of retaliation.
3.
Defendants’ Legitimate, Non-Retaliatory Reason for
Termination
Defendants

argue

that,

even

if

Plaintiff

establishes

a

prima facie case of retaliation, Mr. Cohen fired her because he
reasonably

believed

she

was

responsible

21

for

the

physical

altercation,

which

amounts

to

a

legitimate,

reason to terminate Plaintiff’s employment.
31; 31-2, at 9).

non-retaliatory

(ECF Nos. 31-1, at

Through his affidavit and deposition, Mr.

Cohen asserts that he determined Plaintiff was responsible for
the altercation after speaking with a client who witnessed the
incident and a police officer who conducted an investigation.
(ECF Nos. 31-2, at 7-9; 31-10 ¶¶ 16-20).
he

terminated

Plaintiff’s

employment

Mr. Cohen avers that

because

“[a]s

a

small

business owner, [he] cannot allow employees to start physical
fights

with

their

co-workers,

in

hours, and in front of clients.”
the

McDonnell

Douglas

the

salon,

during

business

(ECF No. 31-10 ¶ 20).

framework,

once

Defendants

Under

offer

a

legitimate, non-retaliatory reason for their actions, the burden
shifts back to Plaintiff to show “by a preponderance of the
evidence

that

the

employer’s

reason

is

false

[retaliation] was the real reason for the decision.”

and

that

Fordyce v.

Prince George’s Cnty. Md., 43 F.Supp.3d 537, at 549-50 (D.Md.
2014) (citation and internal quotation marks omitted).
Plaintiff

asserts

that

Defendants’

reason

is

false

or

pretextual because Ms. Hosseini, not Plaintiff, was responsible
for the altercation.

(ECF No. 37, at 11).

There is clearly a

factual dispute as to the details surrounding the altercation,
particularly regarding who initiated the contact.

As Defendants

note, however, this dispute is immaterial because Plaintiff has
22

failed to show that Mr. Cohen did not reasonably believe that
Plaintiff was responsible for the altercation.

See Holland, 487

F.3d

argued

at

214-15.

In

Holland,

the

employer

that

the

plaintiff was fired because his supervisor “believed” that the
plaintiff made threats towards a co-worker.

Id. at 214.

The

plaintiff argued that this reason was pretextual because he did
not actually make the threats.

The Fourth Circuit accepted his

denials as true, but nonetheless upheld summary judgment because
“nothing

in

the

record

support[ed]

supervisor’s]

explanation

point,

[the

that

plaintiff]

had

threatened

inference

pretextual,

supervisor]

decision to fire him.”
211-12.

was

an

did

[the

or

not

perhaps

believe

co-worker]

that

when

more

that

he

[the
on

[the

made

the

Id. at 215; see also Walker, 775 F.3d at

The same is true here.

Accordingly, Defendants’ motion

for summary judgment will be granted as to Count II because
Plaintiff

has

failed

to

show

Defendants’

legitimate

non-

retaliatory reason for her termination was pretextual.
C.

Tort Claims

1.

Wrongful Discharge (Count IV)

Plaintiff

alleges

that

her

employment

was

terminated

wrongfully “in violation of a clear mandate of public policy,
including,
harassment

without
and

limitation,

discrimination

the

contained

prohibitions
in

Montgomery

against
County

Code § 27-19, the Maryland Fair Employment Practices Act, and
23

Title

VII.”

Plaintiff

is

(ECF

No.

unable

to

1

¶

52).

assert

a

Defendants
tortious

counter

wrongful

that

discharge

claim for a violation of public policy when a statutory remedy
exists.

(ECF No. 31-1, at 32-33).

It is well established under Maryland law that “at-will
employment can be legally terminated at the pleasure of either
party at any time.”

Makovi v. Sherwin-Williams, Co., 316 Md.

603, 609 (1989) (citation and internal quotation marks omitted).
The Court of Appeals of Maryland created a clear exception to
this rule, however, in Adler v. American Standard Corp., 291 Md.
31, 39-41 (1981), for abusive (or wrongful) discharge.

The tort

of abusive discharge occurs when an employer’s discharge of an
at-will
policy.”

employee

“contravenes

Id. at 47.

some

clear

mandate

of

public

“A cause of action for wrongful discharge

does not lie when the discharge was ‘motivated by employment
discrimination prohibited by Title VII and [Maryland statutory
law].’”

Taylor v. Rite Aid Corp., 993 F.Supp.2d 551, 562 (D.Md.

2014) (quoting Makovi, 316 Md. at 626).

Plaintiff’s wrongful

discharge

“they

claims

are

not

viable

because

are

otherwise

remedied by statutes prohibiting workplace discrimination.”
Although

Plaintiff,

in

her

opposition

to

Defendants’

Id.

motion,

argues that she was discharged for “reporting a crime to law
enforcement” (ECF No. 37, at 17), her complaint alleges only
that the discharge was in violation of public policy of Title
24

VII

and

its

Plaintiff

state

cannot

and

use

local

her

analogs.

opposition

(ECF

to

No.

1

¶

52).

amend

her

complaint.

See, e.g., Zachair, Ltd. v. Driggs, 965 F.Supp. 741, 748 n.4
(D.Md. 1997), aff’d, 141 F.3d 1162 (4th Cir. 1998) (unpublished
table opinion).
allegations

Even if she were able to do so, Plaintiff’s new

attempt

to

argue

that

Defendants

wrongfully

discharged her in retaliation for a protected activity.
claim

is

also

remedies.

not

viable

due

to

the

existence

of

Such a

statutory

Accordingly, Defendants’ motion for summary judgment

will be granted as to Count IV.
2.

Negligent Retention and Supervision (Counts V and VI)

Plaintiff

alleges

that

Defendants

“breached

the

duty

of

care [they] owed Plaintiff by failing to exercise reasonable
care in hiring, retaining, and supervising employees working at
the
(ECF

[salon],
No.

negligent

1

including,
¶¶

56,

retention

without

60).
and

limitation,

Defendants
supervision

argue

claims

[Ms.]

Hosseini.”

that

Plaintiff’s

are

preempted

by

federal and state antidiscrimination statutes because the claims
are

based

on

Plaintiff’s

retaliation claims.

discrimination,

harassment,

(See ECF No. 31-1, at 35-36).

and

Plaintiff

counters that the negligent retention and supervision claims are
not

necessarily

preempted

by

the

antidiscrimination

statutes

because “[i]t is not inconceivable that a jury could find that

25

Plaintiff was abused for reasons other than” for being a member
of a protected class.

(ECF No. 37, at 13).

Defendants’ preemption argument is misguided.
a

plaintiff

may

not

maintain

a

negligent

In Maryland,

supervision

and

retention claim when the underlying conduct is not actionable
under Maryland common law.
Greater

Md.,

omitted).

923

F.Supp.

See Bryant v. Better Bus. Bureau of
720,

751

(D.Md.

1996)

(citation

Maryland courts repeatedly have held that “Title VII

may not form the predicate for claims of negligent retention and
supervision” because there is no Maryland common law cause of
action

for

Trucking

employment

Co.,

Inc.,

(citations omitted).
Appeals

has

held

that

discrimination.
961

F.Supp.

873,

See

Demby

881-82

v.

(D.Md.

Preston
1997)

Despite this general rule, the Court of
a

negligent

retention

and

supervision

claim is not preempted when the underlying conduct is based, at
least partially, on an independent common law cause of action
such as assault and battery.

Ruffin Hotel Corp. of Md. v.

Gasper, 418 Md. 594, 615-18 (2011); see also Robinson v. DarCars
of New Carrolton, Inc., No. DKC-11-2569, 2012 WL 993405, at *5
(D.Md. March 22, 2012) (“Thus, for example, where a negligence
claim is based on common law assault or battery, Title VII does
not preempt the negligence claim.”).
directly applicable here.
action

under

The analysis in Ruffin is

Although Plaintiff alleges causes of

antidiscrimination
26

statutes,

she

also

asserts

common

law

torts

of

assault

and

battery.

Accordingly,

Plaintiff’s negligent supervision and retention claims are not
preempted.
Defendants also argue that they cannot be held vicariously
liable for Ms. Hosseini’s tortious conduct.
argument

will

be

discussed

in

The merits of this

relation

to

Plaintiff’s

intentional tort claims, but it is not relevant for Plaintiff’s
negligent supervision and retention claims.

Such claims do not

allege that Defendants are vicariously liable for the tortious
acts of an employee, but rather that Defendants were directly
negligent

in

some

way.

See,

e.g.,

Liberty

Univ.,

Inc.

v.

Citizens Ins. Co. of Am., 792 F.3d 520, 530-31 (4th Cir. 2015)
(distinguishing

“allegations

of

a

principal’s

vicarious

liability for its agent’s intentional torts” from “assertions
that the principal was liable for the agent’s intentional act
due

to

its

negligent

failure

to

supervise”).

Accordingly,

Defendants’ motion for summary judgment will be denied as to
Counts V and VI.
3.
Intentional Torts: Assault, Battery, and Intentional
Infliction of Emotional Distress (Counts VII, VIII, and IX)
Plaintiff

asserts

that

Defendants

should

be

held

vicariously liable for the intentional torts allegedly committed
by Ms. Hosseini.

Defendants argue that they cannot be held

vicariously liable for Ms. Hosseini’s intentional torts because

27

she

was

acting

outside

the

scope

of

her

employment.7

“‘An

employer is vicariously liable for the torts of its employee
when the employee committed the tort within the scope of [her]
employment.’”
(D.Md.

2002)

Perry v. FTData, Inc., 198 F.Supp.2d 699, 708
(quoting

Lee

v.

Pfeifer,

916

F.Supp.

501,

508

(D.Md. 1996) (citing Sawyer v. Humphries, 322 Md. 247 (1991))).
“‘To be within the scope of the employment the conduct must be
of the kind the [employee] is employed to perform.’”

Hare v.

Opryland Hospitality, LLC, No. DKC-09-0599, 2010 WL 3719915, at
*13 (D.Md. Sep. 17, 2010) (quoting E. Coast Freight Lines v.
Mayor of Baltimore, 190 Md. 256, 285 (1948)).
Plaintiff’s bald assertions that Ms. Hosseini was acting
“within the scope of the agency and/or employment relationship
between

her

and

Defendants”

vicarious liability.

are

not

enough

to

establish

There is no question that Ms. Hosseini’s

alleged intentional torts were not committed in furtherance of
Defendants’ salon business.

There is also no evidence that

Defendants authorized Ms. Hosseini’s alleged tortious actions.
In her opposition to Defendants’ motion, Plaintiff argues only
that “[t]he persistence of [Ms.] Hosseini’s abusive conduct and
the [D]efendants’ failure and refusal to act is evidence that

7

Defendants also argue that various statutes preempt
Plaintiff’s intentional tort claims.
It is not necessary to
reach
this
question
because
Defendants
cannot
be
held
vicariously liable for Ms. Hosseini’s actions.
28

the [D]efendants did not view it as a departure from their rules
and norms of workplace behavior.”

(ECF No. 37, at 14).

This

vague accusation, unsupported by the record or case law, is not
sufficient to impute liability to Defendants for Ms. Hosseini’s
alleged tortious conduct.

See Jones v. Family Health Centers of

Baltimore, Inc., ---F.Supp.3d---, 2015 WL 5719461, at *6 (D.Md.
Sep. 28, 2015) (“There is no evidence in the summary judgment
record

that

[the

allegedly

tortious]

acts

furthered

[the

defendant’s] business interests or were otherwise authorized by
the organization.

Plaintiff’s vicarious liability theory must

therefore fail.”).

Accordingly, Defendants’ motion for summary

judgment will be granted as to Counts VII, VIII, and IX.
4.

Aiding and Abetting (Count X)

Plaintiff alleges that Defendants “assisted” Ms. Hosseini
in committing her intentional torts against Plaintiff.

(ECF No.

1 ¶¶ 76-81).

Maryland law recognizes aider and abettor civil

liability

those

commission

for
of

a

who

tort.”

“actively
Alleco

participate
Inc.

Weinberg Found., 340 Md. 176, 200 (1995).

v.

.

.

.

in

the

Harry

&

Jeannette

“To establish a claim

for aiding and abetting, [a] plaintiff must establish ‘1) there
is a violation of the law by the principal; 2) defendant knew
about

the

assistance

violation;
or

and

3)

encouragement

to

tortious conduct.’”

defendant
the

gave

principal

to

substantial
engage

in

Christian v. Minn. Min. & Mfg. Co., 126
29

F.Supp.2d

951,

960

(D.Md.

Alleco, 340 Md. at 186).

2001)

(emphasis

added)

(quoting

Assuming arguendo that Ms. Hosseini

committed the underlying intentional torts, the record is devoid
of evidence that Defendants assisted or encouraged such conduct,
let alone substantially assisted or encouraged.

Accordingly,

Defendants’ motion for summary judgment will be granted as to
Count X.
D.

Wage Claims (Counts XI and XII)

Plaintiff alleges that she was not paid the minimum wage in
violation of the FLSA, the MWHL, and the MWPCL.
82-96).

(ECF No. 1 ¶¶

The MWHL is not applicable to Plaintiff’s employment

because she was paid on a commission basis.

(ECF Nos. 31-2, at

4; 31-3, at 5); see Randolph v. ADT Sec. Servs., Inc., 701
F.Supp.2d 740, 748 (D.Md. 2010) (citing Md. Code, Lab. & Empl. §
3-403(5)).

Defendants’ argument that the MWPCL does not apply

to minimum wage claims such as Plaintiff’s is incorrect.

The

MWPCL provides that employers “shall pay each employee at least
once in every 2 weeks or twice in each month.”
Lab. & Empl. § 3-502(a)(1)(ii).

Md.Code Ann.,

The Court of Appeals reiterated

the reach of an MWPCL claim in Peters v. Early Healthcare Giver,
Inc., 439 Md. 646, 646 (2014):
Maryland has two wage enforcement laws . . .
the [M]WHL and the [M]WPCL. The [M]WHL aims
to protect Maryland workers by providing a
minimum wage standard. The [M]WPCL requires
an employer to pay its employees regularly
30

while
employed,
and
in
full
at
the
termination of employment.
Read together,
these statutes allow employees to recover
unlawfully
withheld
wages
from
their
employer,
and
provide
an
employee
two
avenues to do so.
See

also

Marshall

v.

Safeway,

437

Md.

542,

561-62

(2014)

(holding that the MWPCL generally provides an employee a cause
of action against an employer, not just for the failure to pay
wages on time, but also for “the refusal of employers to pay
wages lawfully due”).

The MWPCL does not have an exception for

workers paid on commission.

See Hausfeld v. Love Funding Corp.,

---F.Supp.3d---, 2015 WL 5521789, at *8 (D.Md. Sept. 17, 2015)
(“Commissions are wages for the purposes of the MWPCL” (citing
Md. Code, Lab. & Empl. § 3-501(c)(2)(ii))).

Accordingly, the

MWPCL applies to Plaintiff’s employment.8
The FLSA requires that employees be paid a minimum wage of
$7.25 per hour.

29 U.S.C. § 206 (a)(1).

In order to establish

a minimum wage violation, Plaintiff must show that she did not
receive compensation equal to or exceeding the product of the
total number of hours worked and the statutory minimum hourly
8

Defendants note that Plaintiff may not recover under both
the FLSA and MWPCL.
(ECF NO. 31-1, at 42).
Although this is
correct, Plaintiff may, at this stage, assert liability under
both statutes. The MWPCL provides that “each employer shall pay
an employee . . . all wages due for work that the employee
performed before the termination of employment, on or before the
day on which the employee would have been paid the wages if the
employment had not been terminated.” Md.Code Ann., Lab. & Empl.
§ 3-505(a).
Ultimately, because Plaintiff cannot establish a
claim for wages owed under the FLSA, she has no MWPCL claim.
31

rate during a given week.

See Blankenship v. Thurston Motor

Lines, Inc., 415 F.2d 1193, 1198 (4th Cir. 1969).

“[I]n order to

meet the requirements of the FLSA’s minimum wage provisions, an
employee compensated wholly or in part on a commission basis
must be paid an amount not less than the statutory minimum wage
for all hours worked in each workweek without regard to [her] .
. . productivity.”

Rogers v. Savings First Mortgage, LLC, 362

F.Supp.2d 624, 631 (D.Md. 2005) (citation and internal quotation
marks omitted).
Defendants contend that Plaintiff was paid well above the
minimum wage for the hours she worked.

(ECF No. 31-14).

They

assert that Plaintiff worked between .75 and 24.25 hours per
two-week pay period.

(Id.).

Defendants calculate this time

based on the services Plaintiff performed and for which she was
paid commission.

(See ECF Nos. 31-10 through 31-14).

Plaintiff

counters that she generally worked five or six days a week,
starting around 10:00 am and leaving between 4:00 and 7:30 pm.
(ECF Nos. 31-3, at 3; 37-1 ¶ 27).

Plaintiff asserts that, in

addition to servicing clients, she would assist other employees,
receive job-related training, and attend to walk-in customers.
(ECF No. 37-1 ¶ 27).
Plaintiff

worked

two

In his deposition, Mr. Cohen stated that
to

three

days

per

approximately eleven to thirteen hours per week.
at 15).

week,

averaging

(ECF No. 37-2,

When asked if Plaintiff came in when she was not
32

scheduled to work, Mr. Cohen said “[t]hat is what she does.”
(Id. at 19).

He said that Plaintiff sometimes came in, despite

not being scheduled, and performed services, perhaps because the
customers were Plaintiff’s friends.

(Id.).

A salon employee

responsible for booking clients testified that “[i]f [Plaintiff]
did not have clients, she was not in the salon.”

(ECF No. 31-7,

at 4).
A plaintiff has the burden of establishing the hours [she]
claims

to

have

worked

and

the

work

[she]

performed for which [she] was not paid.”

claims

to

have

McLaughlin v. Murphy,

436 F.Supp.2d 732, 737 (D.Md. 2005) (analyzing an FLSA overtime
and minimum wage claim), aff’d per curiam, 247 F.App’x 430 (4th
Cir. 2007);

Marshall v. Gerwill, Inc., 495 F.Supp. 744, 749

(D.Md. 1980) (citations omitted) (analyzing an FLSA minimum wage
claim where taxi drivers asserted that they worked more hours
than for which they were compensated).
that

Defendants’

time

records

are

Here, Plaintiff alleges

inadequate

and

incomplete

because they account only for the time Plaintiff was servicing
clients, and not for other time she spent in the salon.

(See

ECF

such

No.

allegedly

37,

at

21).

incomplete

To

meet

records,

her

burden

Plaintiff

in

need

light
not

of

give

exact

evidence of the hours she worked, but must present sufficient
evidence to create a “just and reasonable inference” as to the
amount and extent of the work performed beyond what is included
33

in the records.

McLaughlin, 436 F.Supp.2d at 737-38; see Pforr

v. Food Lion, Inc., 851 F.2d 106, 108-09 (4th Cir. 1988).

The

burden then shifts to the defendant to “negate the inference”
established by Plaintiff.

McLaughlin, 436 F.Supp.2d at 737.

“‘If the employer fails to produce such evidence, the court may
then award damages to the employee, even though the result may
be only approximate.’”

Id. at 738 (quoting Anderson v. Mt.

Clemens Pottery Co., 328 U.S. 680, 688 (1946)).
Here, Plaintiff has not met her burden of establishing a
reasonable inference that she was not compensated the minimum
wage for hours worked.

The only evidence she has provided is

testimony of general estimates of hours worked and a printout of
a

calendar

from

June

18,

2013.

(ECF

No.

37-1,

at

16).

Plaintiff’s declarations that she worked nearly full-time and
the calendar of scheduled services for one day do not establish
a reasonable inference that she was not paid the minimum wage
for work performed.

Rough estimates of hours worked in a week

are not sufficient.

McLaughlin, 436 F.Supp.2d at 738 (noting

that an “imprecise estimate that amounts to a 40-hour work-week”
was not sufficient to satisfy a plaintiff’s burden); see also
Lee v. Vance Exec. Prot., Inc., 7 F.App’x 160, 166 (4th Cir.
2001) (holding that “general testimony about” work performed did
not meet the plaintiffs’ burden because “the record [was] bereft
of evidence showing the amount or extent of [the] extra work”
34

performed)9; Sizemore v. Affordable Battery, Inc., 49 F.Supp.3d
1138, 1143 (S.D.Fla. 2014) (granting summary judgment to the
defendants because “Plaintiffs offer[ed] mere bare statements of
the most general nature and no evidence of Defendants’ failure
to pay minimum wage and overtime compensation as required by the
FLSA”); Deloatch v. Harris Teeter, Inc., 797 F.Supp.2d 48, 57
(D.D.C.

2011)

(granting

summary

judgment

to

the

defendant

because the plaintiff provided “only minimal details” regarding
alleged unpaid shifts, which was “hardly sufficient grounds upon
which a reasonable juror could infer the amount and extent of
uncompensated work allegedly performed by the plaintiff” (citing
Lee, 7 F.App’x at 166)).

Furthermore, the record indicates that

Plaintiff was paid substantially more than the minimum wage for
the

hours

during

which

client

services

were

performed.

Plaintiff’s lowest hourly rate for a pay period was $14.55,
approximately double the minimum wage.

(ECF No. 31-14, at 4).

The calendar Plaintiff puts forth as evidence shows that she was
scheduled to perform 2.25 hours of services on one day.
No. 37-1, at 16).

(ECF

Plaintiff argues that this supports her wage

claims because Defendants contend that she did not work on June
18.

In order to survive summary judgment, however, Plaintiff
9

Although these cases generally address the application of
the FLSA’s overtime provisions, the analysis is informative to
Plaintiff’s minimum wage claim.
As in the overtime cases, the
key question here is the number of hours Plaintiff worked. See
Marshall, 495 F.Supp. at 749.
35

would need to establish a reasonable inference that she worked
approximately

twice

as

many

hours

as

Defendants’

allegedly

incomplete records show, a burden she falls significantly short
of meeting.

Cf. Avery v. Chariots for Hire, 748 F.Supp.2d 492,

501 (D.Md. 2010) (noting that “[t]he FLSA does not guarantee
that employees are paid for every hour of work and does not
allow for employees to recover more than the statutory minimum
wage” (citing Blankenship, 415 F.2d at 1198)).
Moreover, even if Plaintiff were able to meet her initial
burden, Defendants have put forth evidence in the form of work
schedules, receipts of services performed, an affidavit signed
under the penalty of perjury, and deposition testimony of an
employee

responsible

for

booking

clients

that

negates

reasonable inference Plaintiff may have established.
31-7,

at

4;

31-10

through

31-14).

Accordingly,

any

(ECF Nos.
Defendants’

motion for summary judgment will be granted as to Counts XI and
XII.
IV.

Conclusion
For the foregoing reasons, the motion for summary judgment

filed by Defendants will be granted in part and denied in part.
A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge
36