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Johnson v. Mueggenborg

United States District Court, N.D. Oklahoma

September 19, 2017

KENDELL JOHNSON, Plaintiff,
v.
JOHN A. MUEGGENBORG; BLACK CAT OJL COMPANY, Defendants.

          OPINION AND ORDER

          GREGORY K. FRIZZELL, CHIEF JUDGE UNITED STATES DISTRICT COURT.

         Before the court is the joint motion for summary judgment of John A. Mueggenborg ("Mueggenborg") and Black Cat Oil Company ("Black Cat") (collectively, "Defendants"). [Doc. No. 19');">19]. For the reasons set forth below, the court grants Defendants' motion for summary judgment as to plaintiffs claims: under the FLSA for conduct before October 27, 2014; under Title VII; under the OADA as to Mueggenborg; for assault and battery; and for intentional infliction of emotional distress. The court denies summary judgment on the remaining claims: under the FLSA for conduct on or after October 27, 2014; and for sexual harassment, hostile work environment, and wrongful discharge under the OADA as to Black Cat.

         I. Factual Background

         Mueggenborg is the sole owner and CEO of Black Cat, an oil and gas rig leasing company in Northeastern Oklahoma. On the side, Mueggenborg also makes money by buying and selling automobiles and real estate. The plaintiff in this case, Kendell Johnson ("Johnson"), worked for Mueggenborg and Black Cat from July 2014 to October 2014, and from January 2015 to May 2015. Johnson contends she worked full-time for Mueggenborg as his personal assistant, while Mueggenborg argues that she was simply a part-time contractor who did light secretarial work.

         Johnson filed the complaint in this case on Oct. 27, 2016, suing Defendants: for intentional infliction of emotional distress; for unpaid compensation under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201, et seq.; and for sexual harassment, hostile work environment, and wrongful discharge under Title VII of the Civil Rights Act of 19');">1991 ("Title VII"), 42 U.S.C. §§ 2000e, et seq. and the Oklahoma Anti-Discrimination Act ("OADA"), 25 O.S. § 1101, et seq. On August 1, 2017, Defendants jointly moved for summary judgment claiming they were not Johnson's employers under the FLSA, Title VII, or the OADA, raising several statute of limitations issues, and arguing Johnson failed to establish the elements of her claim of intentional infliction of emotional distress. [Doc. No. 19');">19].

         II. Standard of Review

         Summary judgment should be granted if "there is no issue as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A dispute is "genuine" if the evidence permits a rational trier of fact to resolve the issue either way. Adler v. Wal-Mart Stores, Inc., 144 F.3d 644, 670 (10th Cir. 19');">1998). A fact is "material" if it is essential to the outcome of the case. Id.

         III. Analysis

         Defendants make six arguments in support of their motion for summary judgment.

         First, Defendants argue that they are not "employers" under the FLSA. [Doc. No. 19');">19, pp. 16-18]. Courts determine employment in this context informally, asking whether the economic realities show that the "individual is economically dependent on the business to which he renders service." Johnson v. Unified Government of Wyandotte County/Kansas City, Kansas, 23');">23');">371 F.3d 723');">23, 729 (10th Cir. 2004). To this end, courts look at several non-exhaustive and non-dispositive factors, including: (1) the degree of control over the worker; (2) the worker's opportunity for profit or loss; (3) the worker's investment in the business; (4) the permanence of the relationship; (5) the degree of skill required; and (6) the necessity of the work to the business. Id.

         Applying these factors to the present case, the court concludes a genuine issue of material fact exists as to whether Defendants qualify as Johnson's employers under the FLSA. Johnson alleges she worked full-time as Mueggenborg's personal assistant at a rate of $15.00 per hour. According to Johnson, her duties included bookkeeping, paying the bills, accessing Mueggenborg's debit and checking accounts, tracking rent payments and other financing arrangements, and buying and selling cars. [Doc. No. 22, pp. 10-11, ¶¶ 3-4, 6-10]. For their part, Defendants largely admit these allegations, disputing only whether Johnson worked full-time or part-time. [Doc. No. 19');">19-1, pp. 1-2, ¶¶ 6-7, 9, 12-13]. Viewed in a light most favorable to Johnson, these facts establish: a level of control and supervision over Johnson's work; a predominate lack of opportunity for Johnson to profit or loss; a complete lack of investment by Johnson in the business; a consistent working relationship; a relative lack of skill or training required by Johnson's duties; and a necessity for Johnson to work. Therefore, "[b]ecause a trier of fact could make findings as to . . . the economic realities test which would support the legal conclusion that [Ms. Johnson] acted as an employee, rather than an independent contractor, [defendants] [are] not entitled to summary judgment as a matter of law." See Lewis v. ASAP Land Express, Inc., 554 F.Supp.2d 1217, 1226 (D. Kan. 2008).

         Second, Defendants contend the statute of limitations has run on Johnson's overtime claim under the FLSA for conduct before October 27, 2014. [Doc. No. 19');">19, p. 18]. The FLSA generally provides a two-year statute of limitations for filing an action, although the window extends to three years for willful violations. Gilligan v. City of Emporia, Kan., 986 F.2d 410, 413 (10th Cir. 19');">1993). Here, Johnson filed this action on October 27, 2016 and does not argue that Defendants acted willfully. Therefore, the court concludes that Johnson's overtime claim under the FLSA is time-barred for conduct before October 27, 2014. See Id. (affirming summary judgment on statute of limitations grounds where claimant "did not present any evidence whatsoever to the district court of the [defendant's] willfulness").

         Third, Defendants maintain they are not "employers" under Title VII. [Doc. No. 19');">19, pp. 11-15]. Title VII's prohibition on sex discrimination only applies to "employers, " defined as "person[s] . . . who [have] fifteen or more employees." 42 U.S.C. § 2000(e)(b). Johnson alleges that Defendants employed more than fifteen people, and that she assisted in the preparation of their 1099s. [Doc. Nos. 2, p. 2, ¶8; 22, p. 14, ¶12]. However, it does not appear that Johnson requested these records during discovery, [Doc. No. 22-1], and she offers no evidence that these persons were employees instead of independent contractors. The use of 1099's "strongly indicates] independent contractor status, " Gonzales v. McDow, No. 1:07-cv-54 MCA/WDS, 2008 WL 11320098, at *5 (D.N.M. Mar. 30, 2008), and Mueggenborg's sworn testimony confirms this, [Doc. No. 19');">19-1, p. 1, ¶¶ 4-5 (stating that Black Cat "does not have any employees), 8 (stating that Mueggenborg "do[es] not have any employees")]; see Castille v. Compliance Solutions, 29 F.App'x 559, 561 (10th Cir. 2002) ("Attached to its motion for summary judgment, [defendant] submitted an affidavit from its corporate president. . . [Plaintiff] did not rebut [his] claim[s] in any fashion, a failure . . . that demanded entry of summary judgment."). Even if viewed in a light most favorable to Johnson, these facts are insufficient to raise a genuine issue that Defendants employed more than fifteen people. As a result, the court concludes as a matter of law that Defendants are not "employers" under Title VII.

         Fourth, Defendants claim they are not "employers" under the OADA. [Doc. No. 19');">19, pp. 19');">19-22]. As a threshold matter, the court agrees that Mueggenborg could not personally be Johnson's employer, because the OADA's definition excludes natural persons. 25 O.S. § 1301(1); Tighman v. Kirby, 662 F.App'x 598, 600-01 (10th Cir. 2016) (emphasizing that the OADA defines "employer as the entity that pays an individual's salary or wages") (emphasis added); Cunningham v. Skilled Trade Servs., Inc., No. CIV-15-803-D, 2015 WL 6442826, at *3 W.D. Okla. Oct. 23');">23, 2015) (stating that "clear pronouncements of federal and state law" establish that "discrimination claims against [an individual defendant] are redundant" where "they are already pled against her employer."). However, Black Cat is not similarly excused, and Johnson's claims against it are "evaluated using the same standard[] as claims under Title VII." Cunningham, 2015 WL 6442826, at *3. Thus, the relevant question is whether Black Cat has the "right to control the means and manner of ...


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