Kenneth Church v. Home Fashions International, 4th Cir. (2013)
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Scribd Government DocsKenneth Church v. Home Fashions International, 4th Cir. (2013)
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Scribd Government DocsUNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2322
KENNETH E. CHURCH; KEN E. CHURCH ENTERPRISES, LLC,
Plaintiffs - Appellees,
v.
HOME FASHIONS INTERNATIONAL, LLC,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.
David C. Keesler,
Magistrate Judge. (5:10-cv-00133-DCK)
Submitted:
June 27, 2013
Decided:
July 8, 2013
Before MOTZ, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Nicholas Stevens, STARR, GERN, DAVISON & RUBIN, P.C., Roseland,
New Jersey, for Appellant.
Paul E. Culpepper, YOUNG, MORPHIS,
BACH & TAYLOR, L.L.P., Hickory, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Home Fashions International, LLC (HFI), appeals the
magistrate judges grant of partial summary judgment to Kenneth
E.
Church
on
his
claim
seeking
unpaid
wages
and
commissions
under the North Carolina Wage and Hour Act (NCWHA), N.C. Gen.
Stat. 95-25.22 (2011).
HFI also challenges the damages award.
We affirm.
We review de novo an order granting summary judgment.
Robinson v. Clipse, 602 F.3d 605, 607 (4th Cir. 2010).
Summary
judgment shall be granted when there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a
matter
of
law.
Fed.
R.
Civ.
P.
56(a).
At
the
summary
judgment stage, facts must be viewed in the light most favorable
to the nonmoving party only if there is a genuine dispute as to
those
facts.
Scott
v.
Harris,
550
U.S.
372,
380
(2007)
(internal quotation marks omitted).
Summary judgment should be granted unless a reasonable
jury
could
return
verdict
for
the
nonmoving
party
on
the
evidence presented.
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249-50 (1986).
An otherwise properly supported motion for
summary judgment will not be defeated by the existence of any
factual dispute; only disputes over facts that might affect the
outcome of the suit under governing law will properly preclude
summary judgment.
Id. at 248-49.
2
Conclusory or speculative
allegations
do
not
suffice,
nor
does
mere
scintilla
of
evidence in support of the nonmoving partys case.
Thompson v.
Potomac
Cir.
Elec.
Power
Co.,
312
F.3d
645,
649
(4th
2002)
(internal quotation marks omitted).
HFI first contends that Church was not entitled to
raise claims under N.C. Gen. Stat. 95-25.22 because he was not
an HFI employee, but, instead, was hired as an independent
contractor.
N.C. Gen. Stat. 95-25.2(4).
In North Carolina,
[a]n independent contractor is defined . . . as one
who exercises an independent employment and contracts
to do certain work according to his own judgment and
method, without being subject to his employer except
as to the result of his work.
Where the party for
whom the work is being done retains the right to
control and direct the manner in which the details of
the
work
are
to be
executed,
however,
it
is
universally held that the relationship of employer and
employee is created.
Youngblood v. N. State Ford Truck Sales, 364 S.E.2d 433, 437
(N.C.
1988)
suggestive
(internal
of
an
citations
individuals
omitted).
status
as
Circumstances
an
independent
contractor include whether
[t]he person employed (a) is engaged in an independent
business, calling, or occupation; (b) is to have the
independent use of his special skill, knowledge, or
training in the execution of the work; (c) is doing a
specified piece of work at a fixed price or for a lump
sum or upon a quantitative basis; (d) is not subject
to discharge because he adopts one method of doing the
work rather than another; (e) is not in the regular
employ of the other contracting party; (f) is free to
use such assistants as he may think proper; (g) has
full control over such assistants; and (h) selects his
own time.
3
McCown
v.
Hines,
537
S.E.2d
242,
244
(N.C.
Ct.
App.
2000).
Although no single factor is controlling, nor must all factors
be present or in agreement, there are four principal factors
generally
recognized
as
details of the work:
demonstrating
the
right
to
control
(1) method of payment; (2) the furnishing
of equipment; (3) direct evidence of exercise of control; and
(4) the right to fire.
Youngblood, 364 S.E.2d at 439.
After a careful review of the record, we conclude that
the magistrate judge accurately determined that Church was HFIs
employee during the period in question.
First, HFI has not
produced any authority to support its contention that Churchs
act
of
assigning
agreement
with
HFI
under the NCWHA.
in
McCown
Church
his
to
payment
categorically
under
precludes
his
employment
Churchs
recovery
Further, consideration of the factors outlined
clearly
worked
right
indicates
exclusively
that
for
Church
HFI
on
was
a
HFIs
regular
employee.
basis
for
eighteen months and did not hold himself out as a contractor or
independent
businessman.
See
Youngblood,
364
S.E.2d
at
439
(fact that plaintiff did not hold himself out as contractor or
engage
in
employee).
other
During
contract
that
work
time,
indicated
HFI
paid
that
Church
he
a
was
an
guaranteed
$11,000 per month, regardless of the work he completed, plus
commission
status.
on
his
sales,
thus
also
suggesting
his
employee
See Capps v. Se. Cable, 715 S.E.2d 227, 234 (N.C. Ct.
4
App. 2011) (payment based on time is a strong indication of
employee
status
while
payment
based
on
completed
projects
indicates independent contractor status; payment on a piece-work
or commission basis is consistent with either).
Moreover,
HFI
provided
Church
with
an
office
and
reimbursed his various business-related expenses, some of which
had to be pre-approved by HFI.
See Youngblood, 364 S.E.2d at
438 ([W]hen valuable equipment is furnished to the worker, the
relationship
is
employee.).
almost
invariably
Similarly,
Church
that
was
of
not
employer
entitled
to
and
hire
assistants without the consent of HFI, and Church never became
responsible for compensating the sales representatives he hired.
See Lloyd v. Jenkins Context Co., 266 S.E.2d 35, 37 (N.C. Ct.
App. 1980) (individuals ability to hire assistants only upon
approval of employer indicates employer-employee relationship).
Most
assigned
Church
responsibilities
company.
importantly,
an
ever-evolving
during
Consistent
however,
his
with
first
the
is
the
and
diverse
eighteen
broad
fact
terms
months
of
his
that
HFI
range
of
with
the
employment
agreement, Church, at the direction of and in collaboration with
HFI executives, assisted in almost every aspect of HFIs attempt
to expand into furniture manufacturing.
See Johnson v. News &
Observer Publg Co., 604 S.E.2d 344, 347 (N.C. Ct. App. 2004)
(finding
that
plaintiff
was
not
5
engaged
in
independent
business, calling, or occupation where he performed function
that
was
integral
business).
to
the
primary
objective
of
employers
Consequently, Church was clearly subject to HFIs
control and was not entitled to independently employ his own
judgment regarding how best to achieve HFIs goals.
Cf. McCown,
537 S.E.2d at 244 (individual was independent contractor where
he
rarely
consulted
with
employer
on
how
job
was
to
be
accomplished and chose the manner and means of performing his
tasks, subject only to the specifications of his employer).
Under such circumstances, the labels the parties used
in Churchs employment agreement and the manner in which HFI
regarded Church for tax purposes are of little consequence.
See
Capps, 715 S.E.2d at 231 (facts that individual was treated as
independent
contractor
for
tax
purposes,
was
told
he
was
subcontractor, and had to carry his own workers compensation
insurance did not control his employment status because they
simply
indicated
employers
preference
regarding
the
characterization of the relationship); Lloyd, 266 S.E.2d at 37
(evidence
regarding
the
employment
relationship
that
in
fact
existed controls, not the parties intentions or the labels they
ascribe to themselves).
Accordingly, we conclude that Church
was correctly regarded as an employee under N.C. Gen. Stat.
95-25.22.
We also find no merit in HFIs contention that its
obligations
to
Church
under
the
terms
of
his
agreement were settled by accord and satisfaction.
employment
Although HFI
did not raise this specific issue below, the magistrate judge
properly
found
that
there
is
no
evidence
that
the
parties
reached an arrangement regarding Churchs compensation that may
have
satisfied
Moore
v.
or
supplanted
Frazier,
305
their
S.E.2d
original
562,
564
agreement.
(N.C.
Ct.
See
App.
1983)
(Establishing an accord and satisfaction defense . . . requires
evidence . . . that shows the unequivocal intent of one party to
make
and
the
other
party
to
accept
lesser
payment
in
satisfaction . . . of a larger claim. (internal quotation marks
omitted)).
Last,
HFI
alleges
several
errors
judges calculation of Churchs damages.
specifically
assert
its
arguments
below,
in
the
magistrate
Although HFI did not
we
find
no
error.
Universal Furniture Intl, Inc. v. Collezione Europa USA, Inc.,
618 F.3d 417, 427 (4th Cir. 2010) (A courts calculation of
damages is a finding of fact and therefore is reviewable only
for
clear
influenced
quotation
error,
by
marks
but
legal
to
the
error,
omitted)).
extent
review
The
those
is
calculations
de
magistrate
novo.
judge
were
(internal
properly
awarded Church the six months of unpaid wages he was due under
the terms of his employment agreement with HFI and there is no
7
indication that the award of liquidated damages, under N.C. Gen
Stat. 95-25.22(a1), constituted an abuse of discretion.
See
Kornegay v. Aspen Asset Grp., LLC, 693 S.E.2d 723, 742 (N.C. Ct.
App.
2010)
damages
(trial
even
court
where
has
evidence
discretion
suggests
to
award
employers
liquidated
good
faith
violation of NCWHA).
Accordingly, we affirm the grant of summary judgment
to Church and the denial of HFIs motion for reconsideration.
We
dispense
contentions
with
are
oral
argument
adequately
because
presented
in
the
facts
and
the
materials
legal
before
this court and argument would not aid the decisional process.
AFFIRMED
