Armento v. Asheville Buncombe Community Christian Ministry, Inc.

Filing 66

MEMORANDUM OF DECISION AND ORDER granting in part and denying in part Deft's 49 Motion to Dismiss; granting in part and denying in part Deft's 46 Motion for Partial Summary Judgment; and setting this matter for trial during the 9/9/2019 term in the Asheville Division. (See Order for details.) Signed by District Judge Martin Reidinger on 3/27/2019. (ejb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:17-cv-00150-MR-DLH

GREGORY ARMENTO,

)
)
Plaintiff, )
)
vs.
)
)
ASHEVILLE BUNCOMBE
)
COMMUNITY CHRISTIAN
)
MINISTRY, INC.,
)
)
Defendant.
)
___________________________ )

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER comes before the Court on Defendant’s Motion for
Partial Summary Judgment [Doc. 46], Defendant’s Motion to Dismiss [Doc.
49], and the parties’ supplemental briefing pursuant to the Court’s October
9, 2018 sua sponte Order [Doc. 62] on the issue of “whether the Defendant
is ‘an enterprise engaged in commerce’ within the meaning of § 203(s) of the
FLSA.” [Docs. 63, 64].
I.

INTRODUCTION
On June 12, 2017, the Plaintiff filed this action pro se, alleging failure

to pay minimum wage and overtime in violation of the Fair Labor Standards
Act (“FLSA”), 29 U.S.C. §§ 206 and 207, and the North Carolina Wage and

Hour Act (“NCWHA”), N.C. Gen. Stat. §§ 95-25.3 and 95-25.4; recordkeeping violations under 29 U.S.C. § 211(c) and N.C. Gen. Stat. § 95-25.13;
misclassification of employees under 29 C.F.R. Part 541; retaliation and
wrongful termination in violation of 29 U.S.C. §§ 215 and 218c and the North
Carolina Retaliatory Employment Discrimination Act (“REDA”), N.C. Gen.
Stat. § 95-241; claims under 42 U.S.C. §§ 1983 and 1985; and claims for
“duress, undue influence, and illegal contracts” and intentional infliction of
emotional distress. [Doc. 1]. The Plaintiff sought and was granted leave to
proceed in forma pauperis in this action. [Docs. 2, 7]. On the same day as
filing the Complaint, the Plaintiff also filed a 59-page “Plaintiff’s Affidavit in
Support of Complaint,” together with 171 pages of exhibits thereto [Doc. 3],
and a Motion for Injunctive Relief under 29 U.S.C. § 217 [Doc. 4]. The Court
denied this motion for the reasons stated in its Order thereon. [Doc. 23].
On July 7, 2018, the Defendant filed a motion to dismiss all of Plaintiff’s
claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure and a
partial motion for summary judgment under Rule 56 of the Federal Rules of
Civil Procedure, seeking dismissal of the Plaintiff’s FLSA, NCWHA, and
REDA claims. [Docs. 46, 49].
The matters before the Court have been fully briefed and are ripe for
adjudication.
2

II.

STANDARD OF REVIEW
A.

Motion to Dismiss

In reviewing a motion to dismiss filed pursuant to Rule 12(b)(6), the
Court is guided by the Supreme Court’s instructions in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007), and Ashcraft v. Iqbal, 556
U.S. 662, 129 S.Ct. 1937 (2009). As the Fourth Circuit has noted, “those
decisions require that complaints in civil actions be alleged with greater
specificity than previously was required.” Walters v. McMahen, 684 F.3d
435, 439 (4th Cir. 2012).
In order to survive a motion to dismiss pursuant to Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a
claim for relief that is plausible on its face.” Iqbal, 556 U.S. at 678, 129 S.Ct
at 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct 1955). To be
“plausible on its face,” a plaintiff must demonstrate more than “a sheer
possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678,
129 S.Ct. at 1949.
In reviewing the complaint, the Court must accept the truthfulness of
all factual allegations but is not required to assume the truth of “bare legal
conclusions.” Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir. 2011). “The
mere recital of elements of a cause of action, supported only by conclusory
3

statements, is not sufficient to survive a motion made pursuant to Rule
12(b)(6).” Walters, 684 F.3d at 439.
To survive a Rule 12(b)(6) motion, “a complaint must state a ‘plausible
claim for relief.’” Id. (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949).
Determining whether a complaint states a plausible claim for relief is “a
context-specific task,” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.
2009), which requires the Court to assess whether the factual allegations of
the complaint are sufficient “to raise a right to relief above the speculative
level,” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. As the Fourth Circuit has
explained:
To satisfy this standard, a plaintiff need not forecast
evidence sufficient to prove the elements of the
claim. However, the complaint must allege sufficient
facts to establish those elements. Thus, while a
plaintiff does not need to demonstrate in a complaint
that the right to relief is probable, the complaint must
advance the plaintiff’s claim across the line from
conceivable to plausible.
Walters, 684 F.3d at 439 (citations and internal quotation marks omitted).
B.

Summary Judgment

Summary judgment is proper “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(c). “As the Supreme Court has observed,
4

this standard provides that the mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no genuine
issue of material fact.’” Bouchat v. Baltimore Ravens Football Club, Inc., 346
F.3d 514, 519 (4th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48, 106 S.Ct. 2505 (1986)) (emphasis in original)).
A genuine issue of fact exists if a reasonable jury considering the
evidence could return a verdict for the nonmoving party. Shaw v. Stroud, 13
F.3d 791, 798 (4th Cir. 1994), cert. denied, 513 U.S. 814, 115 S.Ct. 68
(1994). “Regardless of whether he may ultimately be responsible for proof
and persuasion, the party seeking summary judgment bears an initial burden
of demonstrating the absence of a genuine issue of material fact.” Bouchat,
346 F.3d at 522. If this showing is made, the burden then shifts to the nonmoving party who must convince the Court that a triable issue does exist. Id.
A party opposing a properly supported motion for
summary judgment may not rest upon the mere
allegations or denials of his pleadings, but rather
must set forth specific facts showing that there is a
genuine issue for trial.
Furthermore, neither
unsupported speculation, nor evidence that is merely
colorable or not significantly probative, will suffice to
defeat a motion for summary judgment; rather, if the
adverse party fails to bring forth facts showing that
reasonable minds could differ on a material point,
then, regardless of any proof or evidentiary
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requirements imposed by the substantive law,
summary judgment, if appropriate, shall be entered.
Id. (internal citations and quotation marks omitted).

Nonetheless, in

considering the facts for the purposes of a summary judgment motion, the
Court will view the pleadings and material presented in the light most
favorable to the nonmoving party. Matsushita Elec. Industrial Co. v. Zenith
Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348 (1986).
III.

FACTUAL BACKGROUND1
The Plaintiff formerly resided at the Veterans Restoration Quarters

(“VRQ”), a homeless shelter for veterans owned and operated by Defendant.
[Doc. 1 at ¶ 17]. Defendant is a non-profit organization that is supported by
284 churches throughout Western North Carolina and provides services to
individuals in need, including veterans. [Doc. 47 at ¶¶ 3-4]. Plaintiff arrived
at the VRQ on September 2, 2015. [Doc. 1 at ¶ 38]. As a condition of
residing at the VRQ, the Plaintiff was required to work a number of “service
hours” necessary to the daily operation of the facility. [Id. at ¶ 23]. The
Plaintiff began performing his service hours on or about September 4, 2015.
[Id. at ¶ 42]. Plaintiff’s service hours were completed primarily in his capacity

For ease of reference, the Court presents the relevant facts as gleaned from the record
as a whole. The Court notes that it considered only the allegations of the Complaint and
evidence of record as appropriate for its determinations of Defendant’s motion to dismiss
and motion for partial summary judgment, respectively.
1

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as a Duty Driver and as the Front Desk Manager of the VRQ. [Doc. 47 at ¶¶
14, 18; see Doc. 1 at ¶ 50]. The parties dispute how many service hours the
Plaintiff performed and for how long he performed them. [See Docs. 1 at ¶¶
55, 61; 3 at ¶ 39; 47 at ¶ 18, 23-25].
In addition, the Plaintiff was employed for pay on a part-time basis by
Defendant as a Front Desk Manager beginning on or about September 8,
2015. [Doc. 1 at ¶¶ 69-70]. Plaintiff’s employment for pay as a Front Desk
Manager was through Defendant’s “1,000-hour program,”2 which is designed
to help transition homeless veterans to meaningful employment in the
community by providing them with job skills and the opportunity to earn
money. [Docs. 47 at ¶¶ 15, 17; 55-7 at 6]. The 1,000-hour program allows
a veteran to be paid for up to 1,000 hours of work for the VRQ. [Docs. 47 at
¶ 16; 55-7 at 19]. Many residents do not finish the 1,000-hour program
because they find full-time employment with employers outside the VRQ.
[Doc. 47 at ¶ 16]. The Plaintiff completed his 1,000 work hours on or about
June 1, 2016. [Docs. 1 at ¶¶ 118-119; 47 at ¶ 17]. At that time, Plaintiff was
discharged from his employment as the VRQ’s Front Desk Manager. [Doc.
1 at ¶ 119].

The 1,000-hour program is also referred to in the record as the “Transitional Employment
Program (“TEP”)” and the “temporary employment program.” [See Doc. 47].
2

7

The Plaintiff now alleges that he is entitled to unpaid wages and
overtime compensation as a result of work performed both as “service hours”
and in his capacity as a part-time employee as a Front Desk Manager. [Doc.
1 at ¶¶ 61, 67, 96, 100]. Beginning on or about November 11, 2015, only
two months after beginning his service hours and paid work at the VRQ, the
Plaintiff began making complaints regarding his alleged unpaid wages. [Doc.
1 at ¶ 103]. On November 11, 2015, the Plaintiff complained to the staff at
the VRQ. [Id.]. On November 12, 2015, the Plaintiff went to the U.S.
Department of Labor office in Asheville, North Carolina, to lodge his
complaints.

Plaintiff also went to Defendant’s primary office, also in

Asheville, and met with various managers and directors of Defendant “to
discuss unpaid wages and Service Hours.” [Doc. 1 at ¶¶ 104-5]. On January
1, 2016, Plaintiff began sending a 17-page statement that he had prepared
entitled “ABCCM Wage Hour and Service Hour Representations” (the
“Statement”) to various government agencies, civil rights groups, U.S.
Senators, and local attorneys. These groups included the U.S. Department
of Veterans Affairs, the U.S. Department of Labor, the N.C. Department of
Labor, the N.C. Justice Center, the Elizabeth Dole Foundation, and the
Southern Poverty Law Center. The Statement related to Plaintiff’s claims for
unpaid wages and service hours, and the Plaintiff attached many documents
8

in support of his claims. [Docs. 1-12; 1-14]. On February 1, 2016, Plaintiff
sent an e-mail to U.S. Senator Thom Tillis attaching the Statement and the
supporting documents seeking Senator Tillis’ help in compelling “the
prevailing Departments to assume their responsibility of advocacy for myself
and the resident veterans at the Veterans Restoration Quarters.” [Doc. 110].
On or about April 18, 2016, Randy Gamble, the VRQ Front Desk
Supervisor, advised Plaintiff that he was nearing completion of his 1,000
work hours and that he would soon be removed from the payroll. [Doc. 1 at
¶¶ 114]. In response, Plaintiff showed Defendant documentation that his
total paid work hours were, in reality, around 727. Plaintiff continued his
employment. [Id. at ¶ 115]. Then, on or about April 28, 2016, Defendant told
Plaintiff that he had completed his 1,000 work hours. [Id. at ¶ 116]. In
response, Plaintiff showed Defendant documentation reflecting that he had
worked only 799 total paid hours. Plaintiff again continued his employment.
[Id. at ¶ 117]. On June 1, 2016, after Plaintiff had completed 1,007 paid work
hours [Doc. 47 at ¶ 13], Defendant advised Plaintiff that he had completed
the 1,000-hour program and that he would no longer be employed as a Front
Desk Manager. [Id. at ¶¶ 118-119].

9

On September 2, 2017, due to the two-year limit on a resident’s
participation in the program, Plaintiff became ineligible to continue living in
the VRQ. [Doc. 47 at ¶ 26]. At the end of Plaintiff’s eligibility for the program,
Defendant assisted Plaintiff in qualifying for another housing program
available through the Veterans Administration. [Doc. 47 at ¶ 27].
IV.

ANALYSIS
A.

Motion to Dismiss

Defendant moves to dismiss all of Plaintiff’s claims under Rule
12(b)(6), arguing that “Plaintiff has failed to plead facts that state a claim for
relief.” [Doc. 49]. The Court concludes that some, but not all, of Plaintiff’s
claims are subject to dismissal under Rule 12(b)(6).3

Typically, in resolving a motion to dismiss for failure to state a claim, a district court
cannot consider matters outside the pleadings without converting the motion into one for
summary judgment. A court may, however, consider a “written instrument” attached as
an exhibit to a pleading, as well as documents attached to the motion to dismiss, so long
as they are integral to the complaint and their authenticity is not in dispute. Occupy
Columbia v. Haley, 738 F.3d 107, 116 (4th Cir. 2013). “There is no uniform rule among
the circuits with respect to whether an affidavit attached as an exhibit to a pleading is a
‘written instrument’ such that it may be considered by a district court in resolving a Rule
12(b)(6) … motion.” Id. The Fourth Circuit has not specifically addressed whether an
affidavit submitted with a complaint can be properly considered on a motion to dismiss
for failure to state a claim. See id. at 117 (“We need not decide the propriety of
considering an affidavit attached as an exhibit to a pleading in the instant appeal.”).
Without guiding precedent, the Court declines to consider the Plaintiff’s Affidavit and its
exhibits in deciding Defendant’s motion to dismiss because the ultimate viability of
Plaintiff’s claims does not turn on the evidence presented therein.
3

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1.

Violations of Record-Keeping Provisions

There is no private right of action for violations of the record-keeping
provisions under the FLSA or NCWHA. With respect to the FLSA, the
“authority to enforce the Act’s record-keeping provisions is vested
exclusively with the Secretary of Labor.” Barton v. Pantry, Inc., No. 1:04-cv748, 2006 WL 1367421, at *3 (M.D.N.C. May 17, 2006) (Tilley, J.) (quoting
Elwell v. Univ. Hosp. Home Care Serv., 276 F. 3d 832, 843 (6th Cir. 2002)).
Namely, 29 U.S.C. § 217 authorizes the Secretary of Labor to initiate
injunction proceedings to restrain any violation of 29 U.S.C. § 215, including
29 U.S.C. § 215(a)(5), which makes it unlawful for an employer to fail to
comply with the record-keeping requirements of 29 U.S.C. § 211(c). Id.
(citing Elwell, 276 F.3d at 843).
Similarly, there is no private right of action under the NCWHA. North
Carolina General Statue 95-25.22 sets forth the rights of action afforded by
the NCWHA. These include the right of an employee to recover for wage
and overtime violations under N.C. Gen. Stat. § 95-24.4 and under N.C. Gen.
Stat. §§ 95.25.6 through 95.25.12. Section 95-25.22 does not include the
record-keeping provisions found in § 95-25.15(b). Further, § 95-25.23A
provides that violations of the record-keeping provisions in § 95-25.15(b)

11

shall be prosecuted by the N.C. Commissioner of Labor or his authorized
representative. N.C. Gen. Stat. § 95-25.23A.
As such, while the FLSA and the NCWHA make employers responsible
for keeping accurate records of the wages and hours of all employees, it is
plain from the language of these Acts that they do not provide a private right
of action for Plaintiff to enforce record-keeping provisions against Defendant.
Because neither the FLSA or the NCWHA provide Plaintiff the right to
request injunctive relief for alleged record-keeping violations, these claims
will be dismissed.
2.

“Duress, Undue Influence, and Illegal Contracts”

The Plaintiff alleges he was damaged as a result of the Defendant
engaging in “a scheme constructed to take advantage of its superior position
of authority and control over the homeless and weakened economic position
of the Plaintiff.” [Doc. 1 at ¶ 146]. Further, “[t]he Defendant coerced the
Plaintiff into agreeing with unconscionable labor demands and contracts
which Plaintiff would not have otherwise agreed, and did so by any means
of economic pressure.”

[Id. at ¶ 147].

The Plaintiff labels the claims

associated with the alleged conduct as “duress, undue influence, and illegal
contracts.” [Doc. 1, Count IV].

12

Duress, undue influence, and illegality are affirmative defenses, not
claims for relief. See N.C. Gen. Stat. § 1A-1, Rule 8(c); Fed.R.Civ.P. 8(c)(1).
Some courts have treated claims for duress as claims for rescission of
contract based on duress. Anderson v. U.S. Life Ins. Co., No. 3:13-cv00489-MOC, 2014 WL 4987207, at *7 (W.D.N.C. Oct. 7, 2014) (Cogburn, J.)
(citing Hinson v. United Fin. Servs., Inc., 123 N.C. App. 469, 472 (1996)).
Duress may be found where one, by the unlawful act of another, is induced
to make a contract or perform or forego some act under circumstances that
deprive him of the exercise of free will. Id. (citing Stegall v. Stegall, 100 N.C.
App. 398, 401 (1990)). Rescission is an equitable remedy that puts the
parties in the position they would have been in without the contract. Morris
v. Scenera Research, LLC, 368 N.C. 857, 867, 788 S.E.2d 154, 161 (2016).
Here, even if there were an enforceable contract between the parties and
even if Plaintiff had alleged conduct by Defendant that rose to the level of
duress or undue influence, rescission would be ineffectual to afford the
Plaintiff any actual remedy. This same conclusion would also be reached if
Plaintiff’s “claim” for illegality were treated as a claim for rescission. As such,
Plaintiff’s “claims” for duress, undue influence, and illegality will be
dismissed.

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3.

Intentional Infliction of Emotional Distress

To state a claim for intentional infliction of emotional distress, Plaintiff
must allege facts showing (1) extreme and outrageous conduct by
Defendant, (2) which is intended to cause and does cause, (3) severe
emotional distress. Holleman v. Aiken, 193 N.C. App. 484, 501, 668 S.E.2d
579, 590 (2008).

“Conduct is extreme or outrageous when it is so

outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community.”

Smith-Price v. Charter Behavioral

Health Systems, 164 N.C. App. 349, 354, 595 S.E.2d 778, 782 (2004).
“Rarely will conduct in the employment context rise to the level of
outrageousness necessary to provide a basis for recovery for the tort of
intentional infliction of emotional distress.” Wilson v. Southern Nat’l Bank of
North Carolina, 1996 WL 445088, at *5 (4th Cir. Aug. 8, 1996) (unpublished).
Plaintiff has alleged no acts by Defendant which the Court can identify as
extreme or outrageous or that this Court would conclude were intended to
cause severe emotional distress.
Furthermore, Plaintiff has not made any specific allegations regarding
the nature of any “severe emotional distress” he is alleged to have suffered.
Severe emotional distress is “any emotional or mental disorder, such as for
14

example, neurosis, psychosis, chronic depression, phobia, or any type of
severe and disabling emotional or mental condition which may be generally
recognized and diagnosed by professionals trained to do so.” Swaim v.
Westchester Acadamy, Inc., 170 F.Supp.2d 580, 585 (M.D.N.C. 2001)
(quoting Johnson v. Ruark Obstetrics & Gynecology Assocs., P.A., 327 N.C.
283, 304, 395 S.E.2d 85, 97, reh’g denied, 327 N.C. 644, 399 S.E.2d 133
(1990)). The North Carolina Supreme Court has noted that “’[c]omplete
emotional tranquility is seldom attainable in this world…. The law intervenes
only where the distress inflicted is so severe that no reasonable man could
be expected to endure it.’” Waddle v. Sparks, 331 N.C. 73, 84, 414 S.E.2d,
22, 27-28 (1992) (quoting Restatement (Second) of Torts § 46 cmt. j (1965)).
Here, Plaintiff alleges only that, as a result of Defendant’s alleged conduct,
“Plaintiff has been deprived of his livelihood, subjected to great humiliation,
and emotional stress, [and] mental anguish….” [Doc. 1 at ¶ 166]. Plaintiff
makes no factual allegations regarding any specific severe and disabling
emotional or mental condition which may be generally recognized and
diagnosed by a professional trained to do so.
As such, Plaintiff’s allegations of intentional infliction of emotional
distress are insufficient as a matter of law, and this claim will be dismissed.

15

4.

Claims Under 42 U.S.C. §§ 1983 and 1985
a.

Section 1983.

“To state a claim under § 1983, a plaintiff must allege the violation of
a right secured by the Constitution and laws of the United States, and must
show that the alleged deprivation was committed by a person acting under
color of state law.”4 West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 225455 (1988). Plaintiff here sought to satisfy the first element by alleging that
Defendant violated his “right to speak to a government official and his liberty
interests in his employment in violation of the First Amendment and the
Fourteenth Amendment.” [Doc. 1, at ¶ 173]. For the sake of efficiency, and
because the second element is determinative of this claim, the Court
assumes without deciding that Plaintiff has identified a valid right secured by
the Constitution.
For the second element, Plaintiff must show that the alleged
deprivation was committed by a person acting under color of state law. West,
487 U.S. at 48, 108 S.Ct. at 2254-55.

Here, the Plaintiff alleged that

Defendant, “[a]cting under color of U.S. Department of Veterans Affairs and

The Court notes that, to the extent Plaintiff’s Section 1983 claim seeks to enforce rights
under the FLSA, it is, as a preliminary matter, preempted by the FLSA. Kendall v. City of
Chesapeake, Va., 174 F.3d 437, 443 (4th Cir. 1999) (“[W]e can only conclude that the
mechanisms established by the FLSA preclude a § 1983 action to enforce FLSA rights.”).
4

16

U.S. Department of Labor contracts the Defendant used said authority to
engage in colorable actions to violate the Plaintiff’s Constitutional Rights.”
[Doc. 1 at ¶ 168]. At best, Plaintiff has alleged Defendant violated Plaintiff’s
constitutional rights under the color of federal, not state, law. The Supreme
Court has made clear that § 1983 does not apply to federal actors. Dowe v.
Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir.
1998) (citing Wheeldin v. Wheeler, 373 U.S. 647, 650 n. 2, 83 S.Ct. 1441,
1445 (1963)).

Plaintiff, therefore, has failed to allege sufficient state

involvement to invoke § 1983.
As such, Plaintiff’s claim under § 1983 is insufficient as a matter of law
and will be dismissed.
b.

Section 1985

To bring a claim of civil conspiracy under § 1985, Plaintiff must show:
(1) a conspiracy of two or more persons, (2) who are
motivated by a specific class-based, invidiously
discriminatory animus to (3) deprive the plaintiff of
the equal enjoyment of rights secured by the law to
all, (4) and which results in injury to the plaintiff as (5)
a consequence of an overt act committed by the
defendants in connection with the conspiracy.
Thomas v. The Salvation Army Southern Territory, 841 F.3d 632, 637 (4th
Cir. 2016). Plaintiff’s claim under § 1985 fails for two reasons. First, in the
context of a § 1985 action, a corporation cannot conspire with itself. Buschi
17

v. Kirven, 775 F.2d 1240, 1251 (4th Cir. 1985). Plaintiff’s allegations of
wrongdoing are limited only to Defendant, a single corporate entity.

[See

Doc. 1 at ¶¶ 171, 173]. As such, Plaintiff has not plead a “conspiracy of two
or more persons” and, therefore, does not satisfy the first element of a claim
under § 1985.
Second, “[t]o meet the requirement of a class-based discriminatory
animus, under [§ 1985] the class must possess the ‘discrete, insular and
immutable characteristics comparable to those characterizing classes such
as race, national origin and sex.’” Buschi, 775 F.2d at 1257 (quoting Bellamy
v. Mason’s Stores, Inc., 368 F.Supp. 1025, 1028 (E.D.Va. 1973), aff’d, 508
F.2d 504 (4th Cir. 1974)). Plaintiff does not allege any facts in support of this
element [See Doc. 1 at ¶¶ 167-174] and there is nothing in the record from
which facts supporting this element could be inferred.
Plaintiff’s claim for violation of 42 U.S.C. § 1985, therefore, will also be
dismissed.
5.

Retaliatory Discharge under the FLSA

The FLSA makes it unlawful to “discharge or in any other manner
discriminate against any employee” because such employee has (1) “filed
any complaint or instituted or caused to be instituted any proceeding under
or related to [the FLSA],” 29 U.S.C. § 215(a)(3), or (2) “provided … to the
18

employer [or] the Federal Government, … information relating to any
violation of, or any act or omission the employee reasonably believes to be
a violation of [the FLSA].” 29 U.S.C. § 218c(a). “A plaintiff asserting a prima
facie claim of retaliation under the FLSA must show that (1) he engaged in
an activity protected by the FLSA; (2) he suffered adverse action by the
employer subsequent to or contemporaneous with such protected activity;
and (3) a causal connection exists between the employee’s activity and the
employer’s adverse action.” Darveau v. Detecon, Inc., 515 F.3d 334, 340
(4th Cir. 2008).
Here, Plaintiff fails to allege facts in support of his FLSA retaliation
claim.

Specifically, Plaintiff claims that Defendant twice attempted to

prematurely terminate his employment in the 1000-hour program and each
time Plaintiff presented Defendant with documentation showing that he had
not completed the full 1000 hours. [Doc. 1 at ¶¶ 114-117]. In both instances,
Plaintiff’s employment continued. [Id. at ¶¶ 115, 117]. Then on June 1, 2016,
Defendant again advised Plaintiff that he had completed the 1,000-hour
program and that he would no longer be employed as a Front Desk Manager.
[Id. at ¶¶ 118-119]. Regarding this occasion, however, Plaintiff does not
allege any “adverse action” by Defendant, only that Plaintiff’s employment
naturally terminated upon completion of the 1000 work hours.
19

For these reasons, the Court concludes that the Plaintiff’s claim for
retaliation under the FLSA must be dismissed.
6.

Retaliatory Discharge Under the REDA

The REDA prohibits an employer from taking retaliatory action against
an employee when the employee files or makes a claim or complaint in
relation to the employer’s alleged violation of the NCWHA. N.C. Gen. Stat.
§ 95-241(a). As with his retaliatory discharge claim under the FLSA, Plaintiff
contends he was terminated by Defendant as a result of his e-mail complaint
to U.S. Senator Tillis. Before an employee may bring an action under REDA,
however, the employee must file a written complaint with the North Carolina
Commissioner of Labor (the “Commissioner”) within 180 days of the alleged
violation. N.C. Gen. Stat. § 95-242(a). Within 20 days of the filing of the
written complaint, the Commissioner begins an investigation of the alleged
violation. Id. Within 90 days of the filing of the complaint, if he finds there is
reasonable cause to believe the allegation is true, the Commissioner
attempts resolution through certain informal methods provided by the statute.
N.C. Gen. Stat. § 95-242(a). If the Commissioner is unable to resolve the
alleged violation through these informal methods, the Commissioner is to
either file a civil action on behalf of the employee or issue a right-to-sue letter
20

to the employee. N.C. Gen. Stat. § 95.242(b). Only after an employee has
been issued a right-to-sue letter by the Commissioner may the employee file
a civil action against the employer. N.C.G.S. § 95-243(e).
Plaintiff does not allege (and the record does not reflect) that Plaintiff
ever filed a complaint with the N.C. Commissioner of Labor or that he ever
received a right-to-sue letter. Further, the 180-day deadline to file such a
complaint has long since expired. As such, the Plaintiff is foreclosed from
filing an action under REDA.
Further, even with a right-to-sue letter, REDA is not violated where the
employer can prove “by the greater weight of the evidence that it would have
taken the same unfavorable action in the absence of the protected activity of
the employee.”

N.C.G.S. § 95-241(b).

Therefore, even if Plaintiff had

followed the statutory pre-requisites to filing this claim, no violation could be
found because Plaintiff’s allegations reflect this his employment would have
ended regardless of any protected activity because he completed his 1,000
work hours under the 1,000-hour program. See N.C. Gen. Stat. § 95-241(b).
For these reasons, the Court concludes that the Plaintiff’s claim for
retaliation under the REDA must be also dismissed.

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The Court declines to address the Defendant’s motion to dismiss as it
relates to Plaintiff’s claims for violation of the FLSA for failure to pay minimum
wage and overtime. These are subjects of the Defendant’s Motion for Partial
Summary Judgment, and evidentiary forecasts have been presented on
these claims. Therefore, they are disposed of on summary judgment rather
than on the motion to dismiss.5
B.

Summary Judgment

The Court now turns to the Plaintiff’s remaining claims, which include
violations of the FLSA and NCWHA for failure to pay minimum wage and
overtime. The Court addresses whether genuine issues of material fact
remain with respect to these claims.
1.

Minimum Wage and Overtime under the FLSA

To establish a violation of the minimum wage provision of the FLSA,
Plaintiff must show that: (1) he was employed by Defendant; (2) Defendant
was engaged in commerce or in the production of goods for commerce; (3)
Plaintiff was not compensated for all hours worked during each workweek at
a rate equal to or greater than the then-applicable minimum wage; and (4)
none of the exemptions in 29 U.S.C. § 213 applied to Plaintiff’s position(s).

Defendant makes no argument for dismissal of Plaintiff’s NCWHA claims in its brief on
its motion to dismiss.
5

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Khaer v. Al Kawthar International, No. 1:16-cv-00652-JCC-MSN, 2017 WL
1416867, at *3 (E.D.Va. Feb. 2, 2017) (citing 29 U.S.C. § 206).
To establish a violation of the overtime provisions of the FLSA, Plaintiff
must show that: (1) he was employed by Defendant, (2) Defendant was
engaged in commerce or in the production of goods for commerce, (3) he
worked more than forty hours per workweek, (4) he was not compensated at
a rate of 1.5 times Defendant’s regular rate for each hour worked longer than
forty hours for each workweek, and (5) none of the exemptions in 29 U.S.C.
§ 213 applied to Plaintiff’s position(s). Id. (citing 29 U.S.C. § 207).
“An enterprise is ‘engaged in commerce or in the production of goods
for commerce’ when it both has at least $500,000 in annual sales and ‘has
employees engaged in commerce or in the production of goods for
commerce’ or ‘has employees handling, selling, or otherwise working on
goods or materials that have been moved in or produced for commerce by
any person.”

Ergashov v. Global Dynamic Transportation, LLC, 680

Fed.Appx. 161, 162 (4th Cir. 2017) (unpublished decision) (quoting 29
U.S.C. § 203(s)(1)(A)(i)-(ii)).
“[E]ven a business engaged in purely intrastate activities can no longer
claim exemption from FLSA coverage if the goods its employees handle
have moved in interstate commerce. The language imposes no requirement
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that the goods have personal involvement in interstate commerce when they
are handled or sold. Instead [the FLSA] broadens coverage to include all
employees within the stream of commerce of such goods, even if their own
participation remains purely intrastate.”

Farrell, 342 F.Supp.2d at 438

(quoting Donovan v. Scoles, 652 F.2d 16 (9th Cir. 1981), cert. denied, 455
U.S. 920, 102 S.Ct. 1276 (1982)). For purpose of the FLSA, “goods” means
any “wares, products, commodities, merchandise, or articles or subjects of
commerce of any character….” 29 U.S.C. § 203(e)(4)(i). Further, “sale”
includes the “consignment for sale.” 29 U.S.C. § 203(e)(4)(k).
Here, the forecast of evidence suggests that Defendant’s employees
handled and sold goods that moved in interstate commerce. Namely, the
Defendant’s business includes the operation of a Warehouse, which
receives, stores, and transports donated items, and a Thrift Store, which sells
the donated items. [See Doc. 55-7 at 18]. Employees of the Warehouse
and the Thrift Store handle donations and merchandise, respectively. [Id.].
Plaintiff, however, has neither alleged nor presented a forecast of evidence
that these goods ever moved in interstate commerce. Moreover, the Plaintiff
also failed to present a forecast of evidence that Defendant had at least
$500,000 in annual sales. Of note, the record shows that Plaintiff requested
and received Defendant’s tax returns for the years 2015, 2016, and 2017.
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[Doc. 56-5 at ¶ 29]. The Plaintiff, however, did not submit these tax returns
in opposition to Defendant’s motion for summary judgment. None of the
other evidence submitted by Plaintiff creates a genuine issue of material fact
on this element of Plaintiff’s FLSA claim.
As such, the Plaintiff cannot withstand summary judgment of his claims
for violation of the minimum wage and overtime provisions under the FLSA
and these claims must be dismissed.
2.

Minimum Wage and Overtime under the NCWHA

Similar proof is required to establish minimum wage and overtime
violations under the NCWHA. Under the NCWHA, however, there is no
requirement that the defendant be engaged in commerce. See N.C. Gen.
Stat. §§ 95-25.3, 95-25.4. Therefore, the failures in Plaintiff’s forecast of
evidence regarding the FLSA are not fatal to this claim.
The Court finds that there are genuine issues for trial related to
Plaintiff’s minimum wage and overtime claims under the NCWHA.

For

example, and not by way of limitation, there remain issues of fact relative to
whether Plaintiff was compensated for all hours that he worked during each
work week at the then applicable minimum-wage under N.C. Gen. Stat. § 9525.14, and whether the Plaintiff was due and paid overtime under N.C. Gen.
Stat. § 95-25.4. The Plaintiff has forecasted evidence that during the time
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Plaintiff was employed with and performing service hours for Defendant,
Defendant’s policy did not require employed residents to perform service
hours at all. [Doc. 3-9 at 10; Doc. 3-10 at 20]. It appears that it was only
after Plaintiff had completed the 1000-hours program and was no longer
employed for pay by Defendant that Defendant’s service hours’ policy was
changed to require residents who were employed part-time to perform
service hours. [See Doc. 3-11 at 12]. Specifically, the amended policy
provided that residents who were employed part-time were required to
perform 10 service hours each week. [Doc. 3-11 at 12; Doc. 1-2 at 1]. As
such, during Plaintiff’s tenure at the VRQ, Defendant’s written policies did
not support requiring Plaintiff to perform service hours given his status as a
paid employee. The Plaintiff has also presented a forecast that tends to
show that he worked more hours than are reflected in the pay records and in
Defendant’s work and service hours logs and that was not paid for his work
during this undocumented time. [Doc. 3 at ¶¶ 48, 51, 61-71]. Also, to the
extent that Plaintiff may have been wrongfully required to perform service
hours, his forecast of evidence tends to show that, between his paid work as
a Front Desk Manager and his unpaid service hours, Plaintiff often worked
over forty (40) hours per week. [See Doc. 57-1].

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In response, Defendant presents evidence that Plaintiff was paid at
least minimum wage for his 1,007 work hours through the 1,000-hour
program. [Doc. 47 at ¶ 17]. Defendant also presents evidence that the value
of Defendant’s provision of room and board to Plaintiff was greater than any
amount Plaintiff can claim he is owed. [Doc. 47 at ¶ 29; see Doc. 59-1].
Defendant argues that the value of the room and board provided to Plaintiff
is properly considered “wages,” as defined by the FLSA, to the FLSA applies.
[Doc. 48 at 12 (citing 29 U.S.C. § 203(m))]. Defendant, however, fails to cite
to a comparable provision of the NCWHA defining “wages” to include the
cost to the employer of providing room and board to an employee. [See id.].
As such, there remain genuine issues of material fact as to the total
number of hours for which Defendant was required to pay Plaintiff minimum
wage and whether Defendant owes Plaintiff overtime pay for hours worked
in excess of forty (40) hours for any work week.
Summary judgment of Plaintiff’s claims under the NCWHA, therefore,
will be denied.
ORDER
IT IS, THEREFORE, ORDERED that the Defendant’s Motion to
Dismiss [Doc. 49] is GRANTED IN PART and DENIED IN PART, in so far
as the Motion is GRANTED with respect to Plaintiff’s claims for record27

keeping violations under the FLSA and NCWHA, duress, undue influence,
illegal contracts, intentional infliction of emotion distress, retaliation and
wrongful termination under the FLSA and REDA, and for violation of 42
U.S.C. §§ 1983 and 1985, and those claims are DISMISSED; and the Motion
is DENIED with respect to Plaintiff’s claims for unpaid wages and overtime
violations under the FLSA and NCWHA.
IT IS FURTHER ORDERED that Defendant’s Motion for Partial
Summary Judgment [Doc. 46] is GRANTED IN PART and DENIED IN
PART, in so far as the Motion is GRANTED with respect to Plaintiff’s claims
for minimum wage and overtime violations under the FLSA and those claims
are DISMISSED; and the Motion is DENIED with respect to Plaintiff’s claims
for minimum wage and overtime violations under the NCWHA.
IT IS FURTHER ORDERED that this matter will be set for trial during
the September 9, 2019 term in the Asheville Division.
IT IS SO ORDERED.
Signed: March 27, 2019

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