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Thong v. Salon

July 13, 2009


The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge


Upon consideration of defendants' Motion for Summary Judgment on all counts [82], plaintiff's Opposition [90], defendants' Reply [93], the applicable law and the record herein, for the reasons set forth below, the Motion for Summary Judgment is denied as to Counts V and VI and granted as to Counts I-IV and VII-IX.

I. Background

Plaintiff, Jennifer Thong, is a former employee of the Andre Chreky Salon, who has alleged violations of the Fair Labor Standards Act of 1963 ("FLSA"), the D.C. Wage and Hour Act ("WHA"), the D.C. Wage Payment and Collection Act ("WPCA"), and the D.C. Human Rights Act ("DCHRA"), as well as common law actions for unlawful assault and battery, conversion, negligence, and intentional infliction of emotional distress. Ms. Thong was employed by the salon for a number of years, from 1998 until 2006, and alleges that she was subjected to constant sexual harassment during that time, in particular a series of sexual assaults during the period between 2003 and the end of 2005. She also alleges insufficient compensation and conversion of tips. Ms. Thong filed suit in Superior Court on September 22, 2006 and the case was removed to this Court on October 18, 2006. Discovery progressed in conjunction with the related case of Barrett v. Chreky under Magistrate Judge Kay, and the defendants moved for summary judgment on March 17, 2009.

II. Legal Standard

When considering a motion for summary judgment, the court must take the facts in the light most favorable to the non-moving party, granting them "all justifiable inferences," and then determine if there remains a genuine issue of material fact upon which a jury could hold either way. Dingle v. District of Columbia, 571 F. Supp. 2d 87, 94 (D.D.C. 2008). In determining whether or not such an issue exists which could determine the outcome of the suit, the primary consideration is the substantive law on the claim. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986).

III. Discussion

a. Compensation Claims (Counts I-IV)

Ms. Thong's claims for insufficient compensation as alleged in her complaint have been conclusively shown by the evidence to be false. She was initially concerned about being miscategorized as salaried when she was more accurately an hourly employee (Complaint at ¶ 11-13), but seems in her deposition to be saying that she was docked pay whenever she worked less than 40 hours a week, despite being salaried (Thong Dep. at 160-5). The evidence in the record clearly shows that Ms. Thong was paid overtime and she does not seem to dispute this in her opposition to summary judgment. The arguments on under-compensation contained in that opposition are completely different from those in the original and amended complaint and cannot serve as the grounds for recovery now. Even if Ms. Thong were to be allowed to use these new claims going forward, however, she has failed to provide this Court with sufficient evidence with which to support these claims or any reasonable grounds upon which to estimate damages. Defendants' motion for summary judgment on Ms. Thong's compensation claims found in Counts I-IV of the Complaint is granted.

b. Intentional Infliction of Emotional Distress (IIED), Negligence, Assault and Battery Claims (Counts VII, VIII, X and XI)

Claims of assault and battery are subject to a one-year statute of limitations in the District of Columbia, and while IIED claims normally have a three-year statute of limitations, when they are "intertwined" with and completely based on claims which have a shorter statute of limitations, they are subject to that period. Speranza v. Nassim, 107 F.3d 913, 920 (D.C. Cir. 1997). As there is no "continuing violation" theory of liability for common law torts like assault and battery,*fn1 Ms. Thong must rely exclusively on events which occurred after September 22, 2005 for these common law claims. She has alleged only one assault during this period, which she claims occurred "late" in 2005 when it was "cool." As defendants note in their motion, it would be impossible for a jury to determine what emotional or financial damages arose as a result of that final alleged assault or, in the case of the negligence and IIED claims, any other allegedly harassing behavior, and which arose from any stale claims upon which Ms. Thong cannot bring suit. For this reason, defendants' motion for summary judgment on Ms. Thong's common law tort claims of IIED, negligence, assault and battery (Counts VII, VIII, X and XI) is granted.

c. Conversion Claim (Count IX)

While Ms. Thong has produced a great deal of evidence as to the belief of many salon stylists and other employees that tips went missing and their belief that Mr. Chreky might be at least partially responsible, she has produced no evidence upon which a reasonable jury could find that Mr. Chreky did, in fact, take those tips. Ms. Thong has also failed to provide this Court with any reasonable basis upon which a jury could determine damages on this claim. This is due in part to a failure on Mr. Chreky's to keep detailed records, but it is also due to Ms. Thong's failure to keep her own records of 'expected' tips to be compared to the tips she actually reported. While she correctly points to the Andersen and Hunter cases, among others, as showing a hesitation on the part of courts to use a lack of records against the employee in an under-compensation claim, she fails to provide support for the argument that the claim should go forward without any basis for determining the extent of the under-compensation. Ms. Thong has not provided "sufficient evidence [of] the amount and extent of the work" for which she was not paid, as requested in Andersen, nor has she provided an "approximation" or "imprecise evidence" as the Hunter court required. Andersen v. Mount Clemens Pottery, 328 U.S. 680, 688 (1946); Hunter v. Sprint, 453 F. Supp. 2d 44, 53 ...

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