*1 (4th Davenport, 445 F.3d Cir.
2006) (holding that a than sentence more top advisory
three times the sen-
tencing range was unreasonable where the upon by
factors relied the district court did justify such a sentence the court explain
failed to how the variance sentence 3553(a) factors). §
served the
IV herein, stated judg-
For the reasons court
ment of the district is affirmed.
AFFIRMED.
Tammy STEELMAN, Plaintiff-
Appellant, HIRSCH,
Michelle Hair d/b/a
Dog, Defendant-Appellee.
No. 06-1007. Appeals,
United States Court of
Fourth Circuit.
Argued Oct.
Decided Jan. *2 claim—
federal cause action—the FLSA the state claims without and dismissed law sup- it prejudice after declined to exercise affirm, jurisdiction. We be- plemental only “employees” the FLSA covers cause par- and cannot be stretched to reach Law Of- Vespereny, Linda ARGUED: Al- arrangement issue here. ticular Asheville, Shults, North of Glen C. fices plaintiff may have a basis though the well Carolina, Thomison Appellant. Earl for law, in recovery state the FLSA cannot for Adams, Hendon, Carson, & Holman, Crow into a be transformed blunt instrument Carolina, P.A., Asheville, North Saenger, disputes. all manner financial resolve ON BRIEF: Glen Coile Appellee. for Carolina, Asheville, Shults, Jr., North
Appellant. I. GREGORY, WILKINSON, and Before Tammy and defen- Plaintiff Steelman
DUNCAN, Judges. Circuit ro- Michelle Hirsch met and became dant in mantically involved the fall of 1999. Judge by published opinion. Affirmed relationship quickly became a serious The in which opinion, wrote the WILKINSON in in one and Steelman moved with Hirsch joined. Judge Judge DUNCAN year. initial- December concurring an opinion wrote GREGORY rent, utilities, agreed split and food ly judgment. month, however, next the cou- costs. The arrangement revised their when Steel- ple OPINION job at a local residential man left WILKINSON, Judge. Circuit at Hair of the cleaning company work in this romantic case were Hirsch dog-grooming a business that Dog, vows, lived to- exchanged who partners as a sole proprietorship had founded dog- in a and worked side side gether, of 1999. June “Hair of the business known as grooming job way to build saw as Asheville, Dog” North Carolina. partnership. defendant, Hirsch, plain- a committed domestic Michelle and the on tiff, Steelman, planned them- fact Tammy supported that we “We discussed They proceeds. from the business’ in her de- being together,” selves Steelman said together, lives anticipated spending their her was us “My working for position. ended, relationship romantic but when the also working for our future.” Steelman collapsed as professional financial- would be better off believed she lawsuit, In this seeks well. position job. her new “wasn’t ly, because Dog and ownership share Hair of I and to a busi- committed [Hirsch] was alleges that she compensation ness, could to everything we did on Hirsch’s performed reliance added, She “There was make it succeed.” in ad- compensation, of additional promises going any question that we weren’t never damages in lieu of to or dition weren’t together forever and that we to be (FLSA) Act Fair Labor Standards side in that busi- going to work side Wage Hour Act. Carolina North work, At the time Steelman started ness.” work- only people Hirsch were the summary granted The district court sole at Hair of the ing on the judgment defendant Steelman worked fall-time at Hair of everything. I didn’t believe in that. Dog years, for the next four performing believed we saving money should be tasks such bathing grooming dogs saving for our future.” ordering, receiving, and selling mer- Both Steelman and Hirsch were issued *3 chandise. After Hirsch instructed her American Express cards whose bills were said, dog-grooming technique, Steelman paid from Hair of Dog proceeds, and did, did, I “[ajnything anything she both personal used the cards for expenses did, she did. side-by-side.” We worked gas cigarettes. like couple also Steelman company said when the joint had a checking account and ATM workers, hired additional she acted as su- cards. Before making large expenditures, pervisor and had authority to hire and however, Steelman would generally have fire. to ask Hirsch money to transfer from Han- Dog oi the couple’s personal ac- couple sign did not a compensation count, personal because the account usual- agreement, Steelman, but according to ly contained little cash and Steelman her- they had conversations which Hirsch self could not make withdrawals from the communicated that was “[w]hat mine was business account. Steelman kept sepa- hers and what was hers They was mine.” own, rate savings account of her to which agreed also instead of splitting the she would make occasional deposits, but cost of together initially lives as day-to-day withdrawals for expenses. planned, they pay their expenses She received health through insurance from Hair Dog’s of the revenue. The Hair of Dog for most of her time at the couple company’s took the successes company, and sporadic paychecks received failures into account when made to substantiate the company’s claim that spending decisions, but throughout then- she payroll was on its eligi- insurance relationship, they proceeds used business bility purposes. to pay their rent and their bills for elec- tricity, water, service, cable and Internet Hirsch said in an affidavit during access. The funds also covered Steel- the couple’s relationship, parties spent insurance, man’s phone, cell auto and doc- “substantially more” than the business visits, food, tor’s as well as the cost of earned. Hirsch borrowed par- from her gas, cigarettes. addition, In the cou- pay ents to costs start-up such as expenses ple trips places took including Charles- taxes, and after this lawsuit was filed ton, Vegas, Orleans, Las Phoenix, New Hirsch said an affidavit that she owed California, Florida, and Georgia using $100,000 more than to her parents for company funds. When Steelman needed debts, these most of which she said were a car in purchased she a Jeep from incurred while Steelman worked at Hirsch’s father for $1. company.
Steelman said she was uncomfortable bitterly dispute whether with the amount of pro- their private agreements guaran- included ceeds spent to maintain couple’s life- compensation tees further for Steelman. style. She said “spent Hirsch all the alleges occasions, that on several money on extravagant gifts,” and that beginning in early couple agreed couple was “continuously eating out.” As that she percent would have a 26 stake in she put it in deposition, her “We were Hair Hirsch said that she blowing every penny we made as fast as discussed making partner Steelman a we could make it. business, Had to have the best but had serious reservations deny- wanting other and her a still loved each were promised stake. and never try things “being togeth- to work out” and a partner ing treated Steelman that she problem.” er was con- Hirsch said that she 24/7 in the operat- sidered Steelman Steelman said she asked for severance proprietorship. business as sole ed the month, but that Hirsch told her she was entitled severance because she oth- promised said that Hirsch without notice. The quit neverthe- said Hirsch compensation er as well. She until friendly February less remained late in a money deposit agreed give March, early Hirsch when became ro- account, if left promised that she savings mantically involved with someone else. taken care of the business she would be “devastated,” Steelman said *4 pay- financially, and offered severance first felt unwelcome the time the the ments, in lieu of or in addition to either couple home that the had shared. She Hair She said that when ownership stake. a competing dog-grooming started busi- salary Dog stopped issuing sporadic ness, and filed lawsuit. checks, Hirsch told her the business granted summary The district court sharing.” Finally, “profit institute Steel- judgment to the defendant the FLSA paying her couple man the discussed said plaintiff claims. The court wrote the commissions, that while she received but only if could recover under the FLSA she checks, they did not be- one or two such employee. had been an held the commonplace. Steelman said that come testimony any claim undercut ownership get promises to of an tried FLSA, the because the payments stake and of severance reduced partner Dog to in Hair of the claimed writing to between 2000 and but partnership would be inconsistent with these efforts were unsuccessful. The court declined to status. the Although Steelman said that jurisdiction over supplemental exercise exchanged and consid- point at one vows claims, remaining which were all based in married, they ered themselves drifted law. It therefore dismissed without state counseling, apart. They couples went into claim under the North Car- prejudice the living together but not and considered Act, Wage and Hour as well olina working working together together or, of contract claims fraud breach living together. During her last but not alternative, recovery quantum meru- in the said six months unjust Steel- it or enrichment. Plaintiff taking her of began that Hirsch to accuse appeals. man now giv- more from the business than she was grant summary judg- review the ing. novo, taking light ment de facts January to conflict came a head Their and draw- plaintiff, most favorable Hirsch asked Steelman return permissible in the ing all inferences Express card. Steelman American See, e.g., most favorable her. Walton prompted said she did not know what Ford, Inc., 370 F.3d 449 Greenbrier action, acknowledged Best, that Hirsch’s (4th Cir.2004); but A Inc. v. Fisherman’s Alliance, month after saying had been mother Fishing Recreational (4th Cir.2002). couple spending 183,190 too month that money. and moved quit much II. out of the home the shared. She here feder- agreed couples and Hirsch continue whether We must determine longterm couple in said, prohibited the “we al law counseling, Steelman 128 203(e)(1) (2000), arranging ployer,” § 29 sub
this case from
their finances as
U.S.C.
did,
ject
exceptions,
this is
to avoid
to enumerated
permits
explains nothing,”
supplement
personal
profes-
“completely
circular and
Darden,
Nationwide Mut. Ins. Co. v.
503
bargain
sional
she made with
defen-
318, 323,
112
on the
U.S.
S.Ct.
117 L.Ed.2d
grounds
dant
FLSA re-
(discussing
language
same
29
quired
arrangement.
different
1002(6)).
overtime,
wage,
§
does not
imposes minimum
U.S.C.
FLSA
FLSA
“employ”
add much when it defines
record-keeping requirements,
but the
“to
requirements apply only
“employees.”
permit
include
suffer or
to work.” 29
(minimum
206(a) (2000)
(2000).
§ 203(g)
Consequently,
§
U.S.C.
See
U.S.C.
211(c)
(overtime);
§
§
id.
“there is
the Fair Labor Standards Act
wage);
id.
Tony
problems
no
as to
(record-keeping); see also
& Susan
definition
solves
Found,
Labor,
relation
Sec’y
employer-employee
Alamo
limits of
290, 295,
ship under
the Act.”
Food
131 the and the end to including hiring and mischief to be corrected authority, supervisory primary as the busi- be attained” with “the consider- employees firing, over other [being] of In ation whether effectuation the personnel. on new grew and took ness policy purposes of the Act addition, determine the declared we do not while securing comprehend of the to individual Carolina law under North effect plain- rights guáranteed protection to afforded promises alleged defendant’s 704, Act,” 713, 67 ownership stake 331 S.Ct. percent of a 26 tiff 1463, 1757 (quoting 91 L.Ed. Na- do themselves promises tional Labor Relations Board v. Hearst a traditional relation- bespeak (cid:127) Inc., Ill, 131-32, Publ’ns, 64 322 ship, say to the least. (1944) (internal L.Ed. 1170 sum, financial and parties’ omitted)). quotations arrangements categorized cannot be result, applies to work- from a classic As a the FLSA mere differences” “formal regardless protestations ers of their employment, Goldberg, framework pur- “the employees are not because but instead render U.S. at 81 S.Ct. require applied of the Act that it be poses as distinct from an parties’ protec- those decline its relationship as the in- even to who would employer-employee Found., volunteer, contractor, Tony Alamo and train- tions.” & Susan dependent Otherwise, 1953. already regarded U.S. at 105 S.Ct. relationships that are ee superior to Walling, “employers might be able use FLSA. See as outside the 152-53, bargaining power employees find to coerce U.S. at 67 S.Ct. assertions, or to their falls the make such waive business venture outside parties’ contrast, Id. In protections under the Act.” substantially it “differs FLSA because apply prospective employment para- FLSA does from the traditional on-the-job during train- goes beyond “bargained-for railroad workers digm” and ing, coverage would not be neces- for mutual economic exchange labor sary Act when prevent in a evasion gain employer-em- that occurs true Harker, benefitted from question 990 F.2d at workers ployee relationship.” omitted). (internal employer training and the received quotations Walling, advantage.
no immediate C. U.S. at in light of its Interpreting the FLSA has written that the Supreme Court conclusion purposes leads us a similar “employee” should be defined
term
FLSA,
relationship.
respect
parties’
and an anal
purposes
Congress’
not look hard
find
bolsters our We need
ysis
purposes
of the Act’s
*8
findings
as the
enacted
scope
purpose,
must
Act’s
The FLSA’s
conclusion.
remedy
it
“labor condi-
by “recognizing that we are
state
seeks
determined
of the
to the maintenance
tions detrimental
dealing
beings
with human
and with
necessary
living
of
for
them minimum standard
that is intended to secure to
statute
health, efficiency,
general well-being
the
of
toil and exertion.” Mus
fruits
their
202(a) (2000).
§
coda,
of workers.”
U.S.C.
Similarly, objectives the FLSA’s in Hair of ship Dog, interest an action interposition contract, be advanced federal for fraud or breach of or a basis Retroactively recovery this case. for a theory quantum substituting the unjust enrichment, uniform federal meruit or standard and we note tailored workplace brought traditional for has all these arrange- provided fluid informal financial claims. State law has mecha- dealing ment of the here nisms would bear no the dissolution of relation to the domestic and purposes relationships Such Act. centuries, an extension and the North living Wage would not advance con- Carolina ditions, may Hour supplement Act given those rem- freely drew edies. But as coverage from broad FLSA’s resources and lived is, the statute them, meant to be an well off but simply failed to conform act, omnibus financial imposing relations dealings to the FLSA framework. one-size-fits-all federal upon solution all Nor would such an extension prevent the sorts human relationships and available unfair competition that arises when busi- a weapon as upon the dissolution all nesses cut their paying exploita- costs partnerships domestic and other intimate tively wages, degree low as the of financial arrangements involving shared funds and control the possessed precluded shared labor. “Such an extension on our exploitation. such To the extent that the part would be small no excursion into parties’ sharing of risk and reward created Harker, public arena of policy,” incentives for good hard work and man- and because no we see evidence agement, advantage amounts to fair Congress intended the FLSA to so competition, akin to the partnerships and restructure all manner of personal and other profit-sharing arrangements that the dealings, financial decline the Act evinces no intent to outlaw. push invitation to the Act to this new III. judgment frontier. The of the district court is therefore limited, holding Our befits ex- amination an unorthodox financial rela- AFFIRMED. *9 agree We parties' professional therefore with our arrange- friend con- and financial inquiry currence here is not into employer- ments cannot be described as the interpretation "interference with or employee relationship contemplated by the parties’ relationship.” simply domestic FLSA. circumstances, hold of all the
GREGORY, Judge, concurring Circuit SANCHEZ, LA PAZ DE Jesus judgment: in the Petitioner, affirm the this Court should agree that v. Tammy because judgment below proven Attorney has not she GONZALES, Alberto R. Act Fair Labor Standards purposes General, Respondent. (“FLSA”). not however of view I am No. 05-60973 interference inquiry that the here concerns Summary Calendar. parties’ do- interpretation of the with or Appeals, United States Court relationship. mestic Fifth Circuit. stated, claim Steelman’s FLSA Simply 15, Nov. that she fails there is no evidence compensa- contemplation “work[ed] wages or form of
tion”—whether Tony & Susan her labor.
benefits —for Found, Labor, 471 U.S. Sec’y
Alamo
290, 1953, L.Ed.2d
(1985). Rather, facts as the recounted show, worked to majority Hirsch, Michelle a business with
build compensa- regard any precise
without
tion hours she labored precise worked for her and
Hair of the She advantage their fu- shared
Hirsch’s —“for
ture,” Walling as Steelman testified. Cf. Co.,
v. Portland Terminal
(denying that scenario Moreover, she described
employment). arrangement
financial that became and Hirsch had
best evidence “bargained-for length,”
made “Farms’ of labor for mutual economic
exchange occurs in
gain” typically Indus.,
relationships. Harker State Use (4th Cir.1993) (emphasis
added). reason, I in the For this concur
judgment.
notes
she
that her FLSA count was one of
strued,
limits,” Tony
but “it does have its
made in
several claims
the alternative.
Found.,
295,
& Susan Alamo
471
atU.S
in
sup-
While some evidence
the record
1953,
105 S.Ct.
and those limits must be
stake,
ported
ownership
her claim to an
a
in
with
defined
accordance
“economic reali
might
court
nevertheless find that she was
301,
ty,” id. at
(quoting