govinfo:USCOURTS-ncmd-1_21-cv-00506-2

IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA 
 
 
TIFFANY WADE, individually, 
and on behalf of all others similarly situated, 
 
 P l a i n t i f f , 
 
 v. 
 
JMJ ENTERPRISES, LLC & 
TRACI JOHNSON MARTIN, 
 
 D e f e n d a n t s . 
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1:21CV506 
 
 
 
 
MEMORANDUM OPINION AND ORDER 
LORETTA C. BIGGS, District Judge. 
Before the Court is a Motion for Summary Ju dgment filed by JMJ Enterprises, LLC 
(“JMJ”) and Traci Johnson Martin (“Defendant s”). (ECF No. 77). For the reasons stated 
herein, Defendants’ Motion for Summary Judgment will be denied. 
I. BACKGROUND AND PROCEDURAL HISTORY 
Plaintiff Tiffany Wade commenced this acti on on June 21, 2021. (ECF No. 1.) On 
January 10, 2022, this Court, upon motion of Plaintiff, conditionally certified Plaintiff’s action 
as a Fair Labor Standards Act (“FLSA”) collective action under 29 U.S.C. § 216(b). (ECF No. 
21 at 6.) Plaintiff subsequently filed an Amended Complaint on June 7, 2022, (ECF No. 53), 
adding allegations that Defendants did not pay employees overtime and adding counts for 
overtime wages under the North Carolina Wage and Hour Act (“NCWHA”), N.C. Gen. Stat. 
§§ 95-25.1–95-25.25, and the FLSA, (id. at 14–17). 
Plaintiff’s Amended Complaint contains five counts, three of which are federal claims 
under the FLSA: (Count I) failure to pay mi nimum wages for all hours worked; (Count II) 

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failure to pay overtime wages; and (Count V) retaliation. ( Id. at 13–15, 18.) Plaintiff also 
brought state claims under the NCWHA: (Count III) failure to pay wages due and (Count IV) 
failure to pay overtime wages. ( Id. at 15–17.) Defendants file d an Answer to the Amended 
Complaint, (ECF No. 54), and asserted a counterclaim against Plaintiff for breach of contract, 
(ECF No. 54 at 13–14). 
On February 13, 2023, Defendants filed th e instant Motion For Summary Judgment. 
Since the filing of Defendants’ motion, signific ant events have occurred including rulings by 
this Court. 
On September 30, 2023, this Court found that Plaintiff’s Count IV of the Amended 
Complaint is preempted and therefore dismissed the claim. (ECF No. 90 at 27.) This Court also 
granted in part Plaintiff’s Motion to Certify a Rule 23 Class. ( Id. at 27–28.) Specifically, the 
Court conditionally certified the NCWHA Class for wages due for tr aining, wages due for 
mandatory meetings, and wages due for improper reductions from employee time logs pursuant 
to N.C. Gen. Stat. § 95-25.6 and § 95-25.7, appointed Plaintiff Wade as class representative, and 
appointed L. Michelle Gessner at GessnerLaw, PLLC as class counsel. (Id.) However, the Court 
noted that if individual issues overtake common issues at trial, the Court will reconsider whether 
the requirements of Rule 23 certification remain satisfied. (Id.) Further, in the September 30 
Order, the Court denied Defendants’ Motion to Decertify the Collective Action. ( Id. at 28.) 
Finally, on December 1, 2023, this Court approved th e Parties’ proposed Rule 23 notice and 
ordered that notice be distributed in accordan ce and compliance with this Court’s Order on 
November 14, 2023. (ECF No. 101.) 
In light of the findings and conclusions of law in the September 30, 2023, Order specifically 
with respect to the Rule 23 class and the FLSA collective action issues in Counts I, II, and III of 

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the Amended Complaint, Defendants’ Motion for Summary Judgment with respect to these 
claims is moot. Defendants may file a renewed motion within 10 days that addresses the claims 
in light of this Court’s certification of the FLSA collective action and conditional certification of 
the Rule 23 class. 
The Court will now address the remaining arguments in Defendants’ Motion for Summary 
Judgment that remain ripe for consideration. 
II. MOTION FOR SUMMARY JUDGMENT 
A. Standard of Review 
Summary judgment is appropriate when “the movant shows that 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). “A dispute is genuine if a reasonable jury could return a verdict for the 
nonmoving party.” Jacobs v. N.C. Admi n. Off. of the Cts. , 780 F.3d 562, 5 68 (4th Cir. 2015) 
(citations and internal quotation marks omit ted). “[I]n deciding a motion for summary 
judgment, a district court is required to view th e evidence in the light most favorable to the 
nonmovant” and to “draw all reasonable inferences in his favor.” Harris v. Pittman, 927 F.3d 
266, 272 (4th Cir. 2019) (citing Jacobs, 780 F.3d at 568). A cour t “cannot weigh the evidence 
or make credibility determinations,” Jacobs, 780 F.3d at 569 (citations omitted), and thus must 
“usually” adopt “the [nonmovant’s] version of th e facts,” even if it seems unlikely that the 
moving party would prevail at trial, Witt v. W. Va. State Police, Troop 2, 633 F.3d 272, 276 (4th 
Cir. 2011) (quoting Scott v. Harris, 550 U.S. 372, 378 (2007)). 
Where the nonmovant will bear the burden of proof at trial, the party seeking summary 
judgment bears the initial burden of “pointing out to the district court . . . that there is an 
absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 
317, 325 (1986). If the moving party carries th is burden, then the burden shifts to the 

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nonmoving party to point out “specific facts showin g that there is a genuine issue for trial.” 
Matsushita Elec. Indus. Co . v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). In so doing, “the 
nonmoving party must rely on more than conc lusory allegations, mere speculation, the 
building of one inference upon another, or the mere existence of a scintilla of evidence.” Dash 
v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013). Instead, the nonmoving party must support 
its assertions by “citing to particular parts of . . . the record” or “showing that the materials 
cited do not establish the absence . . . of a ge nuine dispute.” Fed. R. Civ. P. 56(c)(1); see also 
Celotex, 477 U.S. at 324. 
B. Plaintiff’s FLSA Retaliation Claim (COUNT V) 
Defendants move for summary judgment on Plaintiff’s individual claim for retaliation 
under the FLSA. (ECF No. 78 at 13–15.) Plaint iff initially alleged that Defendants willfully 
terminated her employment “because she opposed working without pay in violation of the 
FLSA and requested to be paid for the time she spent attending mandatory training programs.” 
(ECF No. 53 ¶ 97.) As Defend ants note, Plaintiff later stat ed during her deposition that 
Defendants retaliated against her by writing her up for not showing up to a mandatory meeting 
and retaliated against her by filing a counterclaim against her in this lawsuit. (See ECF No. 78 
at 13 (citing ECF No. 78-2 at 51, 116.)) In th eir summary judgment brief, Defendants argue 
that Plaintiff’s supervisory write up “had absolutely no effect on her continuing employment 
and compensation,” that Plainti ff “did not mention FLSA violat ions prior to receiving the 
write up,” and therefore Plaintiff has “failed to prove that she engaged in protected activity.” 
(ECF No. 78 at 15.) Furthermore, De fendants contend that “[e]ven assuming arguendo 
[Plaintiff] engaged in protected activity contemporaneously while she was receiving the write 
up . . . she fails to establish that she suffere d an adverse employment action subsequent to 

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engaging in that activity.” (Id.) Plaintiff responds that she did suffer an adverse employment 
action because (1) the write up “labeled” Plaintiff as “insubordinate” and (2) “[t]hereafter, her 
paycheck was short and appeared to not include overtime she had worked.” (ECF No. 85 at 
9.) Plaintiff argues, for the first time in her response to the summary judgment motion, that JMJ’s 
omission of her overtime wages was also retaliatory. 
The antiretaliation provision of the FLSA makes it unlawful for any person to 
“discharge or in any other manner discriminate against any employee because such employee 
has 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). To asse rt a prima facie claim of retaliation under the 
FLSA, Plaintiff must show that (1) she engaged in an activity protected by the FLSA; (2) she 
suffered adverse action by the employer subs equent to or contemporaneous with such 
protected activity; and (3) a causal connection ex ists between her activity and the employer’s 
adverse action. Darveau v. Detecon, Inc., 515 F.3d 334, 340 (4th Cir. 2008). 
To the extent Plaintiff’s retaliation claim is related to her complaints about not being 
paid for training hours, it is not clear from the record when Plainti ff first complained about 
not receiving compensation for training hours. (See ECF No. 78-2 at 43:5-24.) To the extent 
Plaintiff’s retaliation claim is related to Plaintiff’s complaints about pay for the March 31, 2021, 
mandatory meeting, there is conflicting evidence about when Plaintiff first complained about 
compensation for meetings. ( Compare ECF No. 78-4 at 3 (Assistant to Plaintiff’s supervisor 
stating that: “Ms. Wade never informed me that she would not attend [the meeting] unless she 
was compensated. Rather, she simply indicate d that she had plans for over two (2) weeks 
which she was not going to cancel.”), with ECF No. 78-2 at 49:12-24 (Plaintiff recounting the 
same conversation about the meeting and stating: “I believe I said, ‘if it’s not paid, I’m not 

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going to come.’”)) Text message records of this conversation reflect that Plaintiff asked if 
employees would be paid for the mandatory meeting to which the assistant to the supervisor 
responded “No,” and Plaintiff later stated “[I] am not going to cancel plans for a meeting that 
i [sic] won’t be paid for.” (ECF No. 78-4 at 8.) It is uncontested that Plaintiff did not attend 
the meeting on March 31, 2021, an d on April 1, 2021, Plaintiff received a write up from her 
supervisors for insubordination. (ECF No. 72-12 at 2.) It is also not contested that on April 
1, 2021, Plaintiff noted in the Staff Comment section of the write up form that “a mandatory 
meeting is considered work under federal labor law i [sic] must be compensated for them. due 
[sic] to the fact that i [sic] was not going to be paid i [sic] did not attend.” (Id.) 
Even assuming that Plaintiff’s complaints we re activity protected by the FLSA, it is 
undisputed that Plaintiff resign ed and was not terminated. (E CF No. 78-2 at 106:11-21.) 
Therefore, JMJ did not terminate Plaintiff as she alleges in her Complaint. On the other hand, 
assuming the supervision write up for not atte nding the mandatory meeting was related to 
Plaintiff’s complaints about not being compensat ed for training or mandatory meetings, the 
record suggests that the write up could be a ma terially adverse action “involving an ultimate 
employment decision related to hiring, leave, discharge, promotion, or compensation.” 
Darveau, 515 F.3d at 341. Here, the write up for in subordination warned Plaintiff that if she 
“continues to be insubordinate, then a level two supervision (suspension) will be presented to 
residential counselor.” (ECF No. 72-12 at 2.) In light of the threat of future discipline, this 
write up could have impacted Plaintiff’s chance for promotion or compensation or could have 
preceded discharge. See Barnes v. Charles Cnty. Pub. Sch., 747 F. App’x 115, 119 (4th Cir. 2018) 
(unpublished) (citing Billings v. Town of Grafton, 515 F.3d 39, 54–55 (1st Cir. 2008) (finding that 

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a letter of warning amounted to an adverse acti on because it included a warning that future 
disciplinary actions could result in further discipline)). 
Plaintiff argues in her response to the summary judgment motion that JMJ’s omission 
of her overtime wages after her April 1, 2021, complaint was also retaliatory. (ECF No. 85 at 
9.) Given both Plaintiff’s alle gations in bringing this acti on and the overwhelming evidence 
in the record reflecting that JMJ’s employee time recording an d wage calculation practices 
could have caused JMJ to under pay employees, including for overtime, (see ECF No. 90 at 22–
24), the record does not reflect that the allege d omission of Plaintiff’s overtime pay was 
retaliatory. 
To the extent Plaintiff argues that Defendants’ counterclaim is retaliatory, a review of 
the record reflects that Defendants’ counterclaim for $600 is related to an outstanding payroll 
advance, see infra pp. 7–9, and therefore has a reasonable basis in both fact and law, which is 
all that is required to dispute that the claim is retaliatory, see Darveau, 515 F.3d at 343. 
Although, the record at this stage does not support Plaintiff’s contentions that the 
alleged omission of overtime pa y or the counterclaim for $600 were retaliatory, there is a 
genuine dispute as to when Plaintiff first engaged in activity protected under the FLSA as well 
as sufficient evidence in the record to show that the write up for insubordination could have 
been retaliatory. For these reasons, Defendants are not entitled to judgment as a matter of 
law as to this claim, and therefore summary judgment is inappropriate. 
Defendants’ Motion for Summary Judgment as to Plaintiff’ s retaliation claim, Count 
V, is denied. 

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C. Defendants’ Counterclaim for Breach of Contract 
Defendants also move for summary judgment on their counterclaim for breach of 
contract. As an initial matter, the Court fi nds it appropriate to exercise supplemental 
jurisdiction over Defendants’ counterclaim. Where federal district courts have proper original 
jurisdiction over a claim, they may exert “supplemental jurisdiction over all other claims that 
are so related to claims in the action within such original jurisd iction that they form part of 
the same case or controversy,” 28 U.S.C. § 1367(a), “deriv[ing] from a common nucleus of 
operative fact,” United Mine Worker s of Am. v. Gibbs , 383 U.S. 715, 725 (1 966). In deciding 
whether to exert supplemental jurisdiction, the Court must “consider and weigh in each case, 
and at every stage of litigation, the values of judicial economy, co nvenience, fairness, and 
comity.” City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 173 (1997) (quoting Carnegie-Mellon 
Univ. v. Cohill , 484 U.S. 343, 350 (1988)). Defend ants’ state law breach of contract 
counterclaim and Plaintiff’s claims under the FLSA are related to and derived from a common 
nucleus of operative facts. To promote judi cial economy, the Court exercises supplemental 
jurisdiction over this claim. 
Defendants contend that JMJ paid Plaintiff a $600 payroll advance for April 2021 and 
Plaintiff signed an agreement which stated that the payment was a payroll advance. (ECF No. 
78 at 21.) Defendants further contend that Plaintiff resigned in April 2021 before working the 
hours to pay back the advance, and as a result JMJ suffered a loss of $600. Id. Plaintiff 
contends that she did not receive her full pay and is “still missing a significant portion of her 
wages for hours worked.” (ECF No. 85 at 11.) Plaintiff does not appear to argue that she 
worked long enough in April 2021 to cover the $600 advance, but instead she argues that she 

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was entitled to wages from her work in February 2021 such that JMJ has “already reimbursed 
itself for the advance.” (ECF Nos. 85 at 11; 80-2 at 77:11-22.) 
Under North Carolina law, to establish a claim for breach of contract, a plaintiff must 
show “(1) existence of a valid contract and (2) breach of the terms of that contract.” Montessori 
Child.’s House of Durham v. Blizzard, 781 S.E.2d 511, 514 (N.C. Ct. App. 2016) (quoting Poor v. 
Hill, 530 S.E.2d 838, 843 (N.C. Ct. App. 2000)). A valid and enforceable contract requires “an 
agreement of the parties upon the essential terms of the contract, definite within themselves 
or capable of being made definite.” Micro Cap. Invs., Inc. v. Broyhill Furniture Indus., Inc. , 728 
S.E.2d 376, 381 (N.C. Ct. App. 2012) (quoting Brawley v. Brawley , 361 S.E.2d 759, 762 (N.C. 
Ct. App. 1987)), aff’d, 736 S.E.2d 172 (N.C. 2013). A vali d contract also requires sufficient 
consideration. McCraw v. Llewellyn, 123 S.E.2d 575, 578 (N.C. 1962). 
The record reflects that on March 25, 2021, Defendant Ma rtin signed a check from 
JMJ Enterprises to Plaintiff fo r $600 with “pay advance April” written in the “Memo” line, 
(ECF. No. 78-2 at 129), and th e following day, Defendant Martin and Plaintiff signed a 
document specifying that the $600 payment on March 25, 2021, was a “pay advancement.” 
(Id. at 128.) The record suggests that the Part ies had a valid and enforceable contract. The 
record also reflects that Plaintiff’s hourly pay rate was approximately $9 an hour, ( id. at 77:8-
14), and during the month of April, Plaintiff worked at Fresh Start Home for Children from 
April 1–4, 2021, called out sick on April 8, 2021, and resigned on April 9, 2021, (ECF No. 78-
4 at 4). 
Based on the information before the Court, it seems unlikely that JMJ owed Wade 
more than $600, such that JMJ’s counterclaim is an attempt to “double dip.” (ECF No. 85 at 
11.) However, Plaintiff’s exact start date and hours worked remain disputed, (see ECF No. 78-

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2 at 6:8-19, 63:23–64:5, 77:8-14; ECF No. 78-1 at 97:4–99:1), so the Court cannot rule on this 
claim at this stage of the litigation. Because the Court must draw all reasonable inferences in 
favor of the nonmoving party, a determination of Defendants’ loss, if any, would be premature 
at this point in the litigation. Therefore, summary judgment as to Defendants’ counterclaim 
is denied. 
D. Defendant Martin is a Proper Defendant 
Defendants argue that Defendant Martin is an improper party and thus she may not 
incur individual liability simply because she is the sole owner of JMJ. (ECF No. 78 at 20–21.) 
Plaintiff argues that Defendant Martin is indi vidually liable because she is a joint employer 
with JMJ. (ECF No. 85 at 9.) 
Under the FLSA and the NCWH A, an employer is “any person acting directly or 
indirectly in the interest of an employer in relation to an employee.” N.C. Gen. Stat. 
§ 95-25.2(5); 29 U.S.C. § 203(d). Furthermore, under both Acts, an in dividual can be an 
“employer” and therefore be personall y liable for wages and damages. Garcia v. Frog Island 
Seafood, Inc., 644 F. Supp. 2d 696, 720 (E.D.N.C. 2009) (citing Brock v. Hamad, 867 F.2d 804, 
808 n.6 (4th Cir. 1989)); Powell v. P2Enterprises, LLC, 786 S.E.2d 798, 801 (N.C. Ct. App. 2016) 
(“Under both state and federal law, the term ‘person’ includes individuals as well as commercial 
entities such as corporations. Accordingly, it is well established that, under certain conditions, 
individuals may be subjected to liability for unpaid wages” (internal quotation marks and 
citations omitted)), cert. denied, 794 S.E.2d 326 (N.C. 2016) (Mem.); see also Chao v. Self Pride, Inc., 
232 F. App’x 280, 283 (4th Cir. 2007) (unpublis hed) (per curiam) (“[T]he CEO . . . was an 
employer as defined in § 203(a) and therefore also liable personally.”) 

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To determine “whether an individual is an ‘employer,’ courts apply an economic reality 
test, which examines: the totality of the circumstances to determine whether the individual has 
sufficient operational control over the workers in question and the allegedly violative actions 
to be held liable for unpaid wages or other damages.” Thompson v. Blessed Home Inc., 22 F. Supp. 
3d 542, 550–51 (E.D.N .C. 2014) (quoting Garcia, 644 F. Supp. 2d at 720–21) (internal 
quotation marks omitted). Courts commonly c onsider “whether the in dividual: (1) had the 
power to hire and fire the employees; (2) supervised and controlled employee work schedules 
or conditions of employment; (3) determin ed the rate and method of payment; and 
(4) maintained employment reco rds. These factors are not ex clusive nor is any one factor 
dispositive.” Id. (quoting Garcia, 644 F. Supp. 2d at 720–2 1) (internal quotation marks 
omitted). 
The record indicates that as sole owner of JMJ, Defendant Martin hired and fired JMJ 
employees, (ECF No. 78-1 at 53:23–54:15, 109:8-25; 171:19-21), controlled the conditions of 
employment as she set employee pay, (id. at 71:18-21; 176:4-10), worked in the JMJ office and 
was responsible for maintaining employment records, (id. at 109:8-25, 296:12-16), and the JMJ 
group home supervisors implemented Defendan t Martin’s directions and instructions, ( id. at 
112:8-15, 171:9–172:25). The record also reflects that when employees had questions or 
wanted to raise concerns about their wages, the supervisors would report those concerns to 
Defendant Martin, (id. at 129 at 3-7, 130:15-21), and least one supervisor instructed employees 
to contact Defendant Martin directly, (ECF No . 78-21 at 16:1-9). De fendant Martin stated 
that she would “take care of” employee wages, if needed, when she received complaints from 
employees. (ECF No. 78-1 at 126:17-25). There is sufficient evidence in the record showing 

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that Defendant Martin had operational control over the employees at JMJ and JMJ’s allegedly 
unlawful actions. 
Once operational control is established, cour ts do not separately consider factors 
related to piercing the corporate veil as Defendants argue. See Brock, 867 F.2d at 808 n.6 
(“Even if the businesses were within a corpor ate structure, [Defendant] would still be the 
employer who would be liable for violations of the FLSA.”); Dole v. Solid Waste Servs., Inc., 733 
F. Supp. 895, 923 (E.D. Pa. 1989), aff’d, 897 F.2d 521 (3d Cir. 1990), and aff’d sub nom. Appeal 
of Solid Waste Servs., Inc., 897 F.2d 524 (3d Cir. 1990) (“The overwhelming weight of authority 
is that a corporate officer with operational control of a corporation’s covered enterprise is an 
employer along with the corporation, jointly and severally liable under [the FLSA] for unpaid 
wages.” (alteration in original)). There is enough information and evidence in the record that 
a reasonable jury could find that Defendant Martin exercised operational control and is 
therefore an employer along with JMJ. Therefore, it would be inappropriate for the Court to 
dismiss Defendant Martin at this stage of the case. 
Should Defendants produce evidence at trial that unde rmines Defendant Martin’s 
operational control, the Court will consider such evidence at that time. For all these reasons, 
the Court declines to dismiss Defendant Martin at this stage of the litigation. 
For the reasons stated herein, the Court enters the following: 
ORDER 
IT IS THEREFORE ORDERED that Defendants’ Motion for Summary Judgment, 
(ECF No. 77), is DENIED as to all claims except Defendants’ summary judgment motion 

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with respect to the Rule 23 class and the FLSA collective action claims in Counts I, II, 
and III of the Amended Complaint is DENIED as MOOT. 
IT IS FURTHER ORDERED that Defendants may file a renewed Motion for 
Summary Judgment as to Counts I, II, and III within 10 days of the entry of this ORDER that 
addresses the claims in light of this Court’s certification of the FLSA collective action and 
conditional certification of the Rule 23 class. 
This, the 13th day of February 2023. 
/s/ Loretta C. Biggs 
United States District Judge 
 

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