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Thompson v. Fathom Creative

June 18, 2009


The opinion of the court was delivered by: John D. Bates United States District Judge


Plaintiff/Counter-Defendant Monique Thompson ("Thompson") filed an action against Defendant/Counter-Plaintiff Fathom Creative, Inc. ("Fathom"), alleging failure to pay overtime wages pursuant to the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq., the District of Columbia Minimum Wage Revision Act, D.C. Code § 32-1003, and the District of Columbia Wage Payment and Collection Act, D.C. Code §§ 32-1302-3. Thompson further alleges a failure to provide continuation health care coverage under the District of Columbia Health Continuation Coverage Act, D.C. Code § 32-731. Fathom filed counterclaims against Thompson for tortious conversion and breach of fiduciary duty. Fathom alleges that Thompson unlawfully converted Fathom's funds by misappropriating them for her own use, misusing her corporate credit card, refusing to return company property, and failing to pay her portion of her health insurance premiums. Countercl. ¶ 105. Fathom also alleges that Thompson breached her fiduciary duty owed to Fathom by these same actions, as well as by creating false time records. Id. ¶ 111.

Now before the Court is Thompson's motion to dismiss, or in the alternative, for summary judgment on Fathom's counterclaims. Thompson argues that Fathom has not established that her control over its funds was unlawful and that her actions fell within the scope of her duties as a fiduciary to Fathom. See Thompson Reply at 12-16. Because discovery has not occurred, summary judgment on the counterclaims is premature at this time, and Thompson's motion will therefore be denied.


In June 2005, Fathom offered Thompson a position as a part-time Bookkeeper/ Administrator. Countercl. ¶ 1. According to Fathom, the offer included a salary of $35,000 per year and an opportunity to join Fathom's health and dental plan; Thompson accepted the offer. Id. ¶¶ 2-4; see also Fathom Ex. C. Fathom agreed to pay half of Thompson's monthly premium payment for the company's health and dental plan. Fathom Ex. C. Thompson alleges different terms of employment than those outlined by Fathom. See Thompson Mem. at 2. In particular, Thompson's version of Fathom's offer letter contains a salary of $36,500 per year, a definition of "part time" as "twenty hours per week," and an agreement that Fathom would pay for Thompson's personal health insurance premiums. Thompson Ex. 1. Thompson also claims that Fathom agreed to pay for all of her health benefits when she initially joined Fathom's plan in 2006, and, later in her employment, for part of her benefits. Thompson Mem. at 2.

Fathom alleges that Thompson's daily job responsibilities included managing Fathom's bank and credit accounts, and were often performed without the express approval of Fathom. Fathom Statement of Material Facts in Dispute ("SOF") ¶¶ 5-11. Thompson was also issued a corporate American Express card for which Fathom paid the bill. Countercl. ¶¶ 10-11. Fathom further argues that only when Fathom president Drew Mitchell's confidence in Thompson had started to deteriorate did he require Thompson to seek his approval before signing any checks.

Fathom SOF ¶ 12. Thompson, on the other hand, claims that she had different job responsibilities that did not include a financial management role. Thompson Mem. at 2. She also claims that she conducted every transaction, financial or otherwise, under the express authorization of Mitchell, obtained through one-on-one weekly meetings. Id. at 3-4. Mitchell denies these regular weekly meetings occurred except near the end of Thompson's employment, when Mitchell requested to meet with Thompson because of his concerns about her work. Fathom SOF ¶ 8.

Fathom further alleges that during her employment, Thompson did not conform with Fathom's timekeeping procedures, and that the unauthorized time records she did keep contradicted Fathom's own records. See Countercl. ¶¶ 12-29. Thompson counters that Mitchell authorized all of her nonconforming timekeeping procedures, and that some irregularities can be explained by technical difficulties with Fathom's timekeeping database. Thompson Mem. at 4.

Initially, Fathom agreed to pay Thompson by check directly from Fathom's account. Fathom SOF ¶ 17. At some point during her tenure at Fathom, Thompson began paying herself through wire transfers into her own bank accounts. Countercl. ¶¶ 34-35. Fathom alleges that despite two pay raises in January 2007 and April 2007, Thompson overpaid herself by over $30,000 during her time at the company. See id. ¶¶ 36-54. Fathom also asserts that Thompson opened an unauthorized "Pay Pal" account in Fathom's name to send and receive electronic payments through the Internet. Id. ¶¶ 58-62. Fathom claims that Thompson diverted company funds into her own bank account via this unauthorized Pay Pal account. Id. ¶¶ 63-67. Thompson, on the other hand, argues that any transfers she made were expressly authorized by Mitchell and that, despite these transfers, Fathom still owes her unpaid overtime wages. See Thompson Mem. at 4-6. Thompson offers evidence of Fathom's approval of one such transfer outside of Fathom's January and April 2007 pay raises made to compensate Thompson for "overages." Thompson Ex. 32.

In September 2007, Fathom funded a two-day company retreat at the Ritz Carlton hotel in San Juan, Puerto Rico. Countercl. ¶¶ 68-69. Fathom claims that Thompson charged the total cost of her own six-night stay on her corporate American Express card, as well as the stay of her friend, Kristal Shipp, and the extended stay of two other Fathom employees. Id. ¶¶ 73-85. Fathom was never reimbursed for these charges. Id. ¶ 86. Thompson argues that the charges were accidental and that she believed she had fixed the situation by calling the Ritz Carlton and alerting them of the error. See Thompson Mem. at 6-7.

Finally, Fathom argues that during her tenure at the company, Thompson made unauthorized purchases at the Apple Store with her corporate American Express card, and never reimbursed Fathom for these purchases. Countercl. ¶¶ 87-92. Fathom additionally claims that when her relationship with the company ended in March 2008, Thompson refused to return Fathom's laptop and other company property, despite Fathom's repeated requests. Id. ¶ 98. Thompson again argues that all of the purchases, and her ownership of the laptop, were authorized by Fathom. See Thompson Mem. at 7-8.

On October 27, 2008, Thompson filed a four-claim complaint seeking unpaid overtime wages and claiming failure to continue health insurance coverage pursuant to the Fair Labor Standards Act and other D.C. wage and hours laws. See Compl. ¶¶ 40-64. With its January 30, 2009 answer, Fathom filed a two-count counterclaim against Thompson. Count one alleges that Thompson converted Fathom's property by (i) paying herself more than what was approved by Fathom; (ii) failing to pay her portion of her health insurance premiums; (iii) misappropriating money from Fathom's Pay Pal account to her personal bank account; (iv) making unauthorized charges and purchases on her corporate American Express card without reimbursing Fathom for the same; and (v) failing to return company property upon her termination. Countercl. ¶ 105. Count two alleges that Thompson breached her fiduciary duty to Fathom through most of the actions alleged in count one, as well as by creating false time records. Id. ¶ 111.

Now before the Court is Thompson's motion to dismiss, or in the alternative, for summary judgment on the counterclaims. Thompson argues that Fathom's conversion claim should be dismissed because (i) she lacked the intent required for conversion, especially in regards to the corporate American Express charges at the Ritz Carlton, (ii) she was explicitly authorized to make payments to herself from Fathom's bank account or Pay Pal account and to make purchases at the Apple Store, and (iii) she paid her health insurance premiums and returned company property consistent with Fathom's authorization. Thompson Mem. at 10. Finally, Thompson argues that the breach of fiduciary duty claim also fails ...

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