UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 20-1898
ROSS ROLEY,
Plaintiff - Appellant,
v.
NATIONAL PROFESSIONAL EXCHANGE, INC.; SHARON BELL,
Defendants - Appellees.
Appeal from the United States District Court for the District of Maryland, at Greenbelt. Theodore D. Chuang, District Judge. (8:18-cv-00152-TDC)
Submitted: May 21, 2021 Decided: June 15, 2021
Before WILKINSON, MOTZ, and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brian J. Markovitz, Nicholas N. Bernard, JOSEPH, GREENWALD & LAAKE, P.A., Greenbelt, Maryland; Olivia N. Sedwick, Francis D. Murnaghan, Jr. Appellate Advocacy Fellow, PUBLIC JUSTICE CENTER, Baltimore, Maryland, for Appellant. Craig F. Ballew, Rafiq R. Gharbi, FERGUSON, SCHETELICH & BALLEW, P.A., Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Ross Roley appeals the district court’s order granting summary judgment to Sharon
Bell and denying his request for treble damages against National Professional Exchange,
Inc. (“NPX”). Finding no reversible error, we affirm the district court’s order.
We “review[] de novo the district court’s order granting summary judgment.”
Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 565 n.1 (4th Cir. 2015). “A district
court ‘shall grant summary judgment if 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.’” Id. at
568 (quoting Fed. R. Civ. P. 56(a)). “A dispute is genuine if a reasonable jury could return
a verdict for the nonmoving party.” Id. (internal quotation marks omitted). In determining
whether a genuine dispute of material fact exists, “we view the facts and all justifiable
inferences arising therefrom in the light most favorable to . . . the nonmoving party.” Id.
at 565 n.1 (internal quotation marks omitted). However, “the nonmoving party must rely
on more than conclusory allegations, mere speculation, the building of one inference upon
another, or the mere existence of a scintilla of evidence.” Humphreys & Partners
Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532, 540 (4th Cir. 2015) (internal
quotation marks omitted).
Because this case was brought under the district court’s diversity jurisdiction, we
must apply Maryland law as it was determined, or as we predict it would be determined,
by the highest court of Maryland. Young v. Equinor USA Onshore Props., Inc., 982 F.3d
201, 206 (4th Cir. 2020). “[W]here the state’s highest court has spoken neither directly nor
indirectly on the particular issue before us,” decisions from the state’s intermediate
2 appellate courts “constitute the next best indicia of what state law is, although such
decisions may be disregarded if the federal court is convinced by other persuasive data that
the highest court of the state would decide otherwise.” McKiver v. Murphy-Brown, LLC,
980 F.3d 937, 964 (4th Cir. 2020) (internal quotation marks omitted).
Roley first argues that Bell should be individually liable for his unpaid wages under
the Maryland Wage Payment and Collection Law (“MWPCL”), Md. Code Ann., Lab. &
Empl. §§ 3-501 to 3-509 (LexisNexis 2020). “The MWPCL is a statutory cause of action,
the purpose of which is to provide a vehicle for employees to collect, and an incentive for
employers to pay, back wages.” Cunningham v. Feinberg, 107 A.3d 1194, 1202 (Md.
2015) (internal quotation marks omitted). As relevant here, the MWPCL provides that
“each employer shall pay an employee . . . all wages due for work that the employee
performed before the termination of employment, on or before the day on which the
employee would have been paid the wages if the employment had not been terminated.”
Md. Code Ann., Lab. & Empl. § 3-505(a). An employer is defined as “any person who
employs an individual in the State.” Id. § 3-501(b).
In Campusano v. Lusitano Construction, LLC, the Maryland Court of Special
Appeals first applied the economic reality test to determine if an individual defendant is an
employer under the MWPCL. 56 A.3d 303, 308 (Md. Ct. Spec. App. 2012). That court
recognized that the Maryland Court of Appeals—Maryland’s highest court—had applied
the test under a similar law, the Maryland Wage and Hour Law. Id. (citing Md. Code Ann.,
Lab. & Empl. § 3-401(b) (LexisNexis 2020)).
3 Recognizing that there is “more than one incarnation of the economic reality test,”
the Campusano court held that when the putative employer has not “personally benefited
from [the employee’s] labor,” a court should apply the “four-factor economic reality test
for control.” Id. at 309 (internal quotation marks omitted).
The economic reality test for control examines whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.
Id. (internal quotation marks omitted).
The court cautioned that these factors “are not to be applied mechanistically, and
their general purpose must be understood as ultimately assigning responsibility under the
law.” Id. at 310. Thus, the court cited approvingly to additional factors that the First
Circuit considers such as whether an individual has “‘operational control over significant
aspects of the business and an individual’s ownership interest in the business.’” Id.
(quoting Baystate Alt. Staffing, Inc. v. Herman, 163 F.3d 668, 678 (1st Cir. 1998)).
Ultimately, the role of the court is to analyze the totality of the circumstances. Id.
Maryland courts have continued to apply this test to determine if an individual should be
personally liable for wages owed by a corporate entity. See Pinnacle Grp., LLC v. Kelly,
178 A.3d 581, 603-05 (Md. Ct. Spec. App. 2018). But, as the Court of Special Appeals
has cautioned, “managers with no equity interest in the fruits of employee labor should not
have to act as insurers of last resort, either to their employers or to the employees that they
supervise.” Campusano, 56 A.3d at 311.
4 The district court appropriately considered Campusano and Pinnacle Group in
finding that Bell was not Roley’s employer. Under the totality of the circumstances, Bell
is more like the individual in Campusano, who was found not to be an employer under the
MWPCL, than the defendant found to be an employer in Pinnacle Group. We agree with
Roley that the facts of this case are unusual, but they lead us to conclude that Bell should
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UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 20-1898
ROSS ROLEY,
Plaintiff - Appellant,
v.
NATIONAL PROFESSIONAL EXCHANGE, INC.; SHARON BELL,
Defendants - Appellees.
Appeal from the United States District Court for the District of Maryland, at Greenbelt. Theodore D. Chuang, District Judge. (8:18-cv-00152-TDC)
Submitted: May 21, 2021 Decided: June 15, 2021
Before WILKINSON, MOTZ, and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brian J. Markovitz, Nicholas N. Bernard, JOSEPH, GREENWALD & LAAKE, P.A., Greenbelt, Maryland; Olivia N. Sedwick, Francis D. Murnaghan, Jr. Appellate Advocacy Fellow, PUBLIC JUSTICE CENTER, Baltimore, Maryland, for Appellant. Craig F. Ballew, Rafiq R. Gharbi, FERGUSON, SCHETELICH & BALLEW, P.A., Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Ross Roley appeals the district court’s order granting summary judgment to Sharon
Bell and denying his request for treble damages against National Professional Exchange,
Inc. (“NPX”). Finding no reversible error, we affirm the district court’s order.
We “review[] de novo the district court’s order granting summary judgment.”
Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 565 n.1 (4th Cir. 2015). “A district
court ‘shall grant summary judgment if 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.’” Id. at
568 (quoting Fed. R. Civ. P. 56(a)). “A dispute is genuine if a reasonable jury could return
a verdict for the nonmoving party.” Id. (internal quotation marks omitted). In determining
whether a genuine dispute of material fact exists, “we view the facts and all justifiable
inferences arising therefrom in the light most favorable to . . . the nonmoving party.” Id.
at 565 n.1 (internal quotation marks omitted). However, “the nonmoving party must rely
on more than conclusory allegations, mere speculation, the building of one inference upon
another, or the mere existence of a scintilla of evidence.” Humphreys & Partners
Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532, 540 (4th Cir. 2015) (internal
quotation marks omitted).
Because this case was brought under the district court’s diversity jurisdiction, we
must apply Maryland law as it was determined, or as we predict it would be determined,
by the highest court of Maryland. Young v. Equinor USA Onshore Props., Inc., 982 F.3d
201, 206 (4th Cir. 2020). “[W]here the state’s highest court has spoken neither directly nor
indirectly on the particular issue before us,” decisions from the state’s intermediate
2 appellate courts “constitute the next best indicia of what state law is, although such
decisions may be disregarded if the federal court is convinced by other persuasive data that
the highest court of the state would decide otherwise.” McKiver v. Murphy-Brown, LLC,
980 F.3d 937, 964 (4th Cir. 2020) (internal quotation marks omitted).
Roley first argues that Bell should be individually liable for his unpaid wages under
the Maryland Wage Payment and Collection Law (“MWPCL”), Md. Code Ann., Lab. &
Empl. §§ 3-501 to 3-509 (LexisNexis 2020). “The MWPCL is a statutory cause of action,
the purpose of which is to provide a vehicle for employees to collect, and an incentive for
employers to pay, back wages.” Cunningham v. Feinberg, 107 A.3d 1194, 1202 (Md.
2015) (internal quotation marks omitted). As relevant here, the MWPCL provides that
“each employer shall pay an employee . . . all wages due for work that the employee
performed before the termination of employment, on or before the day on which the
employee would have been paid the wages if the employment had not been terminated.”
Md. Code Ann., Lab. & Empl. § 3-505(a). An employer is defined as “any person who
employs an individual in the State.” Id. § 3-501(b).
In Campusano v. Lusitano Construction, LLC, the Maryland Court of Special
Appeals first applied the economic reality test to determine if an individual defendant is an
employer under the MWPCL. 56 A.3d 303, 308 (Md. Ct. Spec. App. 2012). That court
recognized that the Maryland Court of Appeals—Maryland’s highest court—had applied
the test under a similar law, the Maryland Wage and Hour Law. Id. (citing Md. Code Ann.,
Lab. & Empl. § 3-401(b) (LexisNexis 2020)).
3 Recognizing that there is “more than one incarnation of the economic reality test,”
the Campusano court held that when the putative employer has not “personally benefited
from [the employee’s] labor,” a court should apply the “four-factor economic reality test
for control.” Id. at 309 (internal quotation marks omitted).
The economic reality test for control examines whether the alleged employer (1) had the power to hire and fire the employees, (2) supervised and controlled employee work schedules or conditions of employment, (3) determined the rate and method of payment, and (4) maintained employment records.
Id. (internal quotation marks omitted).
The court cautioned that these factors “are not to be applied mechanistically, and
their general purpose must be understood as ultimately assigning responsibility under the
law.” Id. at 310. Thus, the court cited approvingly to additional factors that the First
Circuit considers such as whether an individual has “‘operational control over significant
aspects of the business and an individual’s ownership interest in the business.’” Id.
(quoting Baystate Alt. Staffing, Inc. v. Herman, 163 F.3d 668, 678 (1st Cir. 1998)).
Ultimately, the role of the court is to analyze the totality of the circumstances. Id.
Maryland courts have continued to apply this test to determine if an individual should be
personally liable for wages owed by a corporate entity. See Pinnacle Grp., LLC v. Kelly,
178 A.3d 581, 603-05 (Md. Ct. Spec. App. 2018). But, as the Court of Special Appeals
has cautioned, “managers with no equity interest in the fruits of employee labor should not
have to act as insurers of last resort, either to their employers or to the employees that they
supervise.” Campusano, 56 A.3d at 311.
4 The district court appropriately considered Campusano and Pinnacle Group in
finding that Bell was not Roley’s employer. Under the totality of the circumstances, Bell
is more like the individual in Campusano, who was found not to be an employer under the
MWPCL, than the defendant found to be an employer in Pinnacle Group. We agree with
Roley that the facts of this case are unusual, but they lead us to conclude that Bell should
not be considered an employer. Bell, the managing partner of NPX, a nonprofit
organization, essentially acted as a middleman, allowing Roley to obtain a job at the United
States Indo-Pacific Command (“PACOM”), and enabling PACOM to hire Roley without
proceeding through normal government hiring processes. And Roley has not identified a
single work task that he performed that benefitted NPX. This is an unusual situation, but
it does not cast doubt on the district court’s application of the economic reality test. Thus,
the district court did not err in granting summary judgment to Bell.
Roley also argues that the district court erred in declining to award treble damages
on his claim against NPX. If “a court finds that an employer withheld the wage of an
employee in violation of [the MWPCL] and not as a result of a bona fide dispute, the court
may award the employee an amount not exceeding 3 times the wage.” Md. Code Ann.,
Lab. & Empl. § 3-507.2(b). NPX does not dispute that Roley is entitled to enhanced
damages.
An appellate court reviews a lower court’s decision regarding an award of enhanced
damages under the MWPCL for an abuse of discretion. Peters v. Early Healthcare Giver,
Inc., 97 A.3d 621, 629 (Md. 2014). The Maryland Court of Appeals has declined to apply
“a presumption in favor of granting enhanced damages.” Id. While it has not offered
5 detailed guidance, the Maryland Court of Appeals has “encouraged [lower courts] to
consider the remedial purpose of the [M]WPCL when deciding whether to award enhanced
damages to employees.” Id. at 630. And the court explained that this purpose is “to cure
what the Legislature saw as a problem with wage theft, and practical difficulties that
employees had in bringing lawsuits to recover wages owed.” Id. (footnote and internal
We conclude that the district court did not abuse its discretion in only awarding
double damages. The court recognized that Roley had to engage in costly litigation in an
attempt to recover his unpaid wages. While he faults the district court for focusing on the
lack of malicious intent on the part of NPX, this does not amount to legal error. The
Maryland Court of Appeals explained in Peters that it used the term wage theft “simply as
a short-hand term referring to an apparently widespread failure to pay workers their wages
due and owing.” Id. at 630 n.14. Peters does not foreclose a lower court’s consideration
of intent in deciding to what extent to award enhanced damages.
Therefore, we affirm the district court’s order. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
AFFIRMED