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Mouloki v. Epee

United States District Court, N.D. Illinois, Eastern Division

June 29, 2017

CHRISTINE EKALLIIPSE MOULOKI, Plaintiff,
v.
MARIE PAULE EPEE & ERIC NGADO EPEE, Defendants.

          MEMORANDUM OPINION AND ORDER

          Hon. Virginia M. Kendall, United States District Court Judge

         Plaintiff Christine Ekalliipse Mouloki filed a nine-count Complaint seeking relief for the childcare she provided Defendants Marie Paule Epee and Eric Ngado Epee after she moved to the United States from Cameroon. The Epees move for leave to file an Amended Answer to the Complaint and for partial summary judgment. For the below reasons, the Court denies the Epees' Motion for Leave to File Amended Answer to Complaint [120] and the Court grants in part and denies in part the Epees' Partial Motion for Summary Judgment. [126]

         BACKGROUND

         The parties do not dispute the below facts unless otherwise noted.

         Plaintiff Christine Ekalliipse Mouloki (“Mouloki”) was born in 1965 in Douala, Cameroon. (Dkt. 1, ¶ 9.) She did not attend college or obtain any kind of higher education. (Dkt. 149, ¶ 1.) She cannot speak or read English well.[1] (Id., ¶ 12.)

         Defendant Eric Ngando Epee (“Mr. Epee”) was born and raised in Cameroon and later moved to France to pursue his education. (Dkt. 143-5, at 4, 13:1-11.) Defendant Marie Paule Epee (“Mrs. Epee”) was born and studied in France, but she has family in Cameroon and lived there for a period. (See Dkt. 149-1, at 1-2, 11:1-12:23; Dkt. 149-6, at 5, 99:16-19; Dkt. 143-4, at 3, 9:10-10:3.) The Epees, who are married to each other, are both U.S. citizens. (Dkt. 143, ¶ 7; Dkt. 143-4, at 7, 40:22-25.) Mrs. Epee has a Bachelor's Degree in business and took evening classes to earn her degree in early childhood development. (Dkt. 149-1, at 2-3, 12:3-13:2; Dkt. 149-2, at 3, 23:13-20; Dkt. 149-2, at 6, 26:1-3.) Mr. Epee earned his Master's in Business Administration in a full-time program at Duke University and then obtained a job working for United Airlines, which brought him to Chicago. (Dkt. 143-5, at 4-5, 16:19-17:11.)

         Mrs. Epee traveled to Cameroon in December 2000. (Dkt. 149-2, at 2, 22:10-15.) Mouloki was living in Cameroon working as a nanny at the time of the Epees' visits. (Dkt. 1, ¶¶ 10-11; Dkt. 149-6, at 5, 99:4-5; Dkt. 149-3, at 6, 70:3-5.) Mouloki says that she cared for the Epees' children during their 2-3 week vacations to Cameroon in 2000 and 2001, [2] and they paid her money for doing so.[3] (Dkt. 149, at 2, ¶ 3; Dkt. 149-2, at 10, 30:2-19; Dkt. 149-3, at 6, 70:3-5.) The Epees have two children, Kenny and Kimberly. (Dkt. 1, ¶¶ 13-14.) Mouloki has two children of her own, Ntone Vincent Jacque-Oliver, who was born in 1983, and Sicke Hermine Yoolande, who was born in 1989. (Id., ¶ 10.)

         Mouloki says that the Epees asked her around that time to travel to the United States in order to work as their nanny; Mrs. Epee says that Mouloki came to live with the Epees after Mrs. Epee's mother called her and said that Mouloki needed some temporary help. (Dkt. 149, ¶ 4; Dkt. 149-2, at 10-11, 30:20-31:1.) Mouloki says that Mrs. Epee promised her good pay, housing, [4] help obtaining legal immigration status, and assured her that if she came to the United States she could return home to Cameroon after three years of service once Mrs. Epee gave birth to all of her children. (Dkt. 143-1, ¶ 3; Dkt. 143-3, at 30, 57:16-24; Dkt. 149, ¶¶ 4-5, 8.) Mrs. Epee says that she and Mouloki never had any sort of agreement, let alone an employment agreement. (Dkt. 149-4, at 12, 55:10-18; Dkt. 149-5, at 3, 100:8-10.) She and Mrs. Epee never discussed specific numerical wages. (Dkt. 143, ¶ 19.) Mouloki never discussed any terms, tasks, salary, or wages with Mr. Epee. (Id. at ¶¶16-18.) In any case, Mr. and Mrs. Epee never threatened Mouloki or her family in order to make her come to the United States. (Id. at ¶¶ 12-15.)

         Whatever the terms, Mouloki ultimately moved to the United States, though the Parties dispute the Epees' role in helping her get here. Mouloki contends that Mrs. Epee coordinated her travel to the United States, including procuring a French passport from Mr. Epee's cousin for Mouloki to use. (Dkt. 143-3, at 27-29, 54:11-56:6; Dkt. 149, ¶ 7.) She arrived in Chicago on May 8, 2002 and Mr. Epee picked her up from the airport. (Dkt. 149, ¶ 9.) Mouloki says that Mr. Epee took the passport back upon her arrival and that Mrs. Epee eventually took the passport back to France. (Id. at ¶ 10; Dkt. 143-3, at 29-30, 56:17-57:4.) Defendants gave Mouloki a brief tour of Schaumburg, Illinois, where they lived. (Dkt. 149, ¶ 11.) They did not explain to Mouloki how to contact the police or fire department. (Id. at ¶ 11.) Regardless, Defendants state that they “were not involved in assisting with [Mouloki's] travel from Cameroon to the United States.” (Dkt. 143-8, at 4, Interrogatory No. 6.)

         From her arrival in May 2002 until her departure from Chicago on December 9, 2007, Mouloki, Mr. Epee, and Mrs. Epee all resided together at the Epee household in Schaumburg, Illinois. (Dkt. 143, ¶ 8.) Once in the Epee household, Mouloki cared for the Epee children and did household chores, [5] typically working from at least 6:30 a.m. to 10:00 p.m. and sometimes waking up in the middle of the night to care for the children.[6] (Dkt. 149, ¶¶ 13, 23; Dkt. 143-5, at 15, 93:1-9.) When Mouloki requested one day off per week, Defendants refused.[7] (Dkt. 149, ¶ 17.) Mr. and Mrs. Epee never discussed work hours with Mouloki. (Dkt. 143, ¶¶ 20-21.) Mouloki stayed in a bedroom with the two Epee children and slept on a twin mattress on top of a bed base while the children shared a bunk bed. (Dkt. 143-8, at 5, Interrogatory No. 11; Dkt. 149, ¶ 18.)

         During this time, Defendants did not ask Mouloki to pay rent or pitch in for food. (Dkt. 149-4, at 12, 55:5-9.) Defendants gave Mouloki cash, food, and clothes.[8] Mouloki states that at first she was not given money but over time the Epees began providing her $50 each month and later that amount was increased to approximately $350 per month. (Dkt. 149, ¶ 20.) Mouloki claims that this cash equated to less than $1.00 per hour although she disputes that she was ever “paid.”[9] (Id.) None of the parties memorialized in writing how much money the Epees gave to Mouloki. (Dkt. 143, ¶¶ 22-25.)

         In December 2007, Mouloki gave Mr. Epee approximately $600 to hold onto for her. (Dkt. 143-8, at 4, Interrogatory No. 7; Dkt. 149-7, at 2-3, 121:1-122:3.) Mouloki gave Mr. Epee money to hold onto via Mrs. Epee when she had the funds to do so because she believed based on Mrs. Epee's comments that Mr. Epee had a bank account available where he could set the money aside for Mouloki to take with her when she left.[10] (Dkt. 143-1, at 6, ¶ 10; Dkt. 149, ¶ 21.) He did not give her the money back. (Dkt. 149-7, at 4, 123:1-3; Dkt. 149, ¶ 22.) The parties dispute whether Mouloki ever demanded the money back from Mr. Epee. (Dkt. 149, ¶ 37; Dkt. 149-7, at 4, 123:1-6.) Mouloki says that once when she asked Mrs. Epee for her money, Mrs. Epee told her that she would never see that money again and that it would be used to pay for Mouloki's return fare to Cameroon. (Dkt. 149, at 7, ¶ 21; Dkt. 143-1, at 6, ¶ 10.) Over the course of what became more than five years, Mr. Epee was aware that Mouloki lived in his home, cared for his children for long hours each day, and slept on a mattress on top of a bed base in his children's room.[11] (Dkt. 149, ¶ 23.)

         Mouloki says that during her years with the Epees they isolated her from others and did not permit her to leave the residence as she pleased. (Dkt. 149, ¶ 24.) Defendants point out that Mouloki was permitted to attend Epee family gatherings and that she kept her own acquaintances in Illinois. (Id. at ¶ 24.) Mouloki says that she “knew some people” but they were not friends. (Dkt. 149-9, at 3, 100:5-10.) Specifically, she knew two people, Bernadette and Flo, who babysat for friends of Mrs. Epee. (Dkt. 149-9, at 3-4, 100:11-101:12.) They “would get together at the barbecues” and “have sympathy for each other.” (Id. at 4, 101:7-9.) Mouloki could come and go from the household when the Epees went on vacation and did not bring her with them. (Dkt. 143, ¶¶ 27-28.) While she lived with the Epees, Mouloki had a cell phone that she kept in her possession. (Id. at ¶ 29.) Sometimes, she held onto a set of keys to the Epee house.[12] (Id. at ¶ 26.) Sometimes she even took the bus to the mall on her own and left the house to do things without the Epees. (Id. at ¶¶ 30-31.)

         Yet when Mouloki asked the Epees if she could return home to Cameroon when her sister became ill in 2006. (Dkt. 143-1, ¶ 12; Dkt. 149, ¶ 28.) Defendants refused, and Mouloki did not get to see her sister again before her sister died.[13] (Dkt. 149, ¶ 28.)

         For the first several years, Mouloki did not have a physical encounter with either of the Epees. (Dkt. 143, ¶ 40.) Then one day in 2006, Mrs. Epee pushed Mouloki and pulled her by the shirt.[14] (Id. at ¶ 38; Dkt. 143-3, at 37-39, 64:23-66:7.) Mouloki had to go down the staircase, ostensibly to balance herself, but did not fall. (Dkt. 143-3, at 38-39, 65:24-66:5.) Mrs. Epee raised her hand up to hit Mouloki. (Dkt. 143, ¶¶ 39-40; Dkt. 14-3, at 39, 66:7-9.) Mouloki said, “[I]f you hit me, I will call the police.” (Dkt. 143-3, at 39, 66:7-14.) Mrs. Epee replied, “[I]f there's anyone here who would call the police, it is me, because you do not have any papers here.”[15] (Id. at 39, 66:14-16.) Mouloki testifies that Mrs. Epee threatened her repeatedly: “[W]henever [we] had problems, all the time she would say that to me.” (Id. at 76, 113:24-114:10.) She also says that Mrs. Epee said to her: “[I]f the police found out that you were here…it's not only that you're going to be in trouble, not only that they're going to arrest you, but they're also going to take the keys and throw them in the river.” (Id. at 96-97, 161:17-162:3; Dkt. 149, ¶ 25; Dkt. 149-3, at 3, 67:2-5.) Mouloki sometimes saw police while she was living with the Epees, but she says she did not contact them “[b]ecause I did not have any identity.”[16](Dkt. 143-3, at 40, 67:2-22.) Mr. Epee never used physical force or restraint against Mouloki, nor did he threaten to do either. (Dkt. 128, at 9; Dkt. 143, ¶¶ 32-33; Dkt. 143-3, at 38, 65:7-9.) He also did not threaten to call the police or make any threats to Mouloki regarding her immigration status. (Dkt. 143, ¶¶ 35-36; Dkt. 143-3, at 75, 113:20-23.)

         In 2006, Mouloki suffered an ulcer.[17] (Dkt. 143-1, ¶ 11; Dkt. 149, ¶ 26.) She stayed in the hospital three days and Mr. Epee came to pick her up and drive her back to the Epee household. (Dkt. 149, ¶ 27.) Mouloki still had staples in her stomach when she returned to the house. (Id. at ¶ 27.) Despite this, she immediately started caring for the children without time to rest and recover upon her return.[18] (Id. at ¶ 27.)

         Around 2007, Defendants told Mouloki that she would need to find a new place to live when they returned to Cameroon.[19] (Dkt. 1, ¶ 47; Dkt. 143, ¶ 43.) Mouloki learned that the Defendants were considering having her stay in the United States with Mrs. Epee's cousin, Marie Reed (“Mrs. Reed”). (Dkt. 1, ¶ 47.) Mouloki spoke with Mrs. Reed about the possibility of working for her and disclosed what the Epees had paid her, as well as her working conditions. (Id. at ¶ 47.) In response, Mrs. Reed told Mouloki that was the Epees were doing to her was wrong and the equivalent to slavery. (Id.) Mrs. Reed promise that if Mouloki could get herself to New York that Mouloki could stay with her. (Id.)

         On December 9, 2007, the Epees dropped Mouloki off at a shopping center to run errands for them.[20] (Dkt. 1, ¶ 48; Dkt. 149, ¶ 29.) They planned to pick her up several hours later. (Dkt. 1, ¶ 48.) Unbeknownst to the Epees, Mouloki had prearranged for someone to meet her at the shopping center that day and drive her to a friend's home, where she had started to store some of her belongs in anticipation of getting out of the Epee household. (Dkt. 1, ¶ 48.) She called a taxi with the help of her friend and asked the taxi to take her to the bus station in Chicago. (Id.) There, Mouloki boarded a bus heading to New York City. (Id.) Mouloki did not tell the Epees that she was leaving. (Dkt. 143, ¶ 46.) She went to live with Mrs. Reed, Mrs. Epee's cousin, who had told Mouloki that she could stay with her in New York. (Dkt. 1, ¶ 47; Dkt. 143, ¶ 48; Dkt. 149, ¶¶ 29-30.) Mouloki lived with Mrs. Reed until 2011. (Dkt. 143, ¶ 49; Dkt. 149, ¶ 30.) During this time, Mrs. Reed was also abusive to Mouloki.[21] (Dkt. 149, ¶ 31.)

         In 2012, while receiving additional treatment for her ulcer, Mouloki encountered a social worker at the hospital. (Dkt. 149, ¶ 32.) The social worker referred Mouloki to an attorney who referred Mouloki to Safe Horizon, who conducted intake with Mouloki on June 28, 2012. (Dkt. 149, ¶¶ 33-34; Dkt. 143-1, ¶ 13.) Safe Horizon worked with Mouloki to obtain her T-Visa, report her situation to the authorities, and find pro bono counsel for her civil suit. (Dkt. 149, ¶ 35.) In 2014, Mouloki obtained the T-Visa that she currently holds. (Dkt. 143, ¶¶ 50-51.)

         Mouloki continues to reside in the New York City area. (Dkt. 143, ¶ 2.) The Epees have returned to Cameroon. (Id. at ¶¶ 5-6.)

         On July 21, 2014, Mouloki filed this Complaint. (Dkt. 1.)

         LEGAL STANDARD

         “The 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.” Fed.R.Civ.P. 56(a). Whether a fact is material depends on the underlying substantive law that governs the dispute. Carroll v. Lynch, 698 F.3d 561, 564 (7th Cir. 2012) (citation omitted). “A factual dispute is ‘genuine' only if a reasonable jury could find for either party.” Nichols v. Mich. City Plant Planning Dep't, 755 F.3d 594, 599 (7th Cir. 2014) (internal quotation marks and citation omitted). Because the plaintiff bears the ultimate burden of persuasion, the defendant's summary judgment burden “may be discharged by ‘showing'-that is, 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); see also Andrews v. CBOCS W., Inc., 743 F.3d 230, 234 (7th Cir. 2014). “Upon such a showing, the nonmovant must then ‘make a showing sufficient to establish the existence of an element essential to that party's case.'” Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013) (quoting Celotex, 477 U.S. at 322). The Court views the evidence in a light most favorable to the nonmoving party and draws all reasonable inferences in her favor. See Popovits v. Circuit City Stores, Inc., 185 F.3d 726, 731 (7th Cir. 1999) (internal citations omitted); see e.g., Duff v. Grandberry, No. 14 C 8967, 2017 WL 2424236, at *1 (N.D.Ill. June 5, 2017) (citing Popovits, 185 F.3d at 731). Summary judgment is only appropriate where “no reasonable jury could rule in favor of the nonmoving party.” See Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., 811 F.3d 866, 879 (7th Cir. 2016) (citation omitted).

         DISCUSSION

         In her Complaint, Mouloki sets forth nine counts against the Epees. Counts I-III allege violations of the Trafficking Victims Protection Reauthorization Act (“TVPRA”) for peonage (18 U.S.C. §§ 1581, 1595), forced labor (18 U.S.C. §§ 1589, 1595), and trafficking into servitude (18 U.S.C. §§ 1590, 1595).[22] Count IV alleges a violation of the Fair Labor Standards Act (“FLSA”) for violating its Federal Minimum Wage and Overtime Pay law (29 U.S.C. §§ 206, 207, 216(b)). The remaining counts allege state claims for not paying minimum wage and overtime compensation (820 ILCS 105/2, 105/4) (Count V); failure to provide the lawful frequency of payments (820 ILCS 115/3 - 115/5, 115/14) (Count VI); conversion (Count VII); fraudulent misrepresentation (Count VIII); and unjust enrichment (Count IX).

         The Epees submit that the Court should grant summary judgment against most of Mouloki's claims either due to the inapplicability of the TVPRA based on timing (Dkt. 128, at 6-8) or for lack of timeliness for Counts IV-V and VII-IX (Id. at 12-17). To make this argument, the Epees move for leave to file an Amended Answer to the Complaint because they waited to use a statute of limitations defense until after the close of discovery so that they could assert it in good faith. (Dkt. 120, at 1-2.) The Epees also contend that no material, disputed facts remain that would allow Mouloki to prevail on the merits of her TVPRA or state law claims because the facts cannot show that the Epees coerced or harbored Mouloki (Dkt. 128, at 10-12); that Mouloki entered into a labor contract with Mr. Epee (Id. at 14)[23]; that Mouloki demanded that the Epees return a specified amount of money that they refused to give (Id. at 14-15); nor that Mouloki's activities in the Epee household constituted a business rather than personal relationship (Id. at 15-17).[24]

         I. Motion for Leave to File an Amended Answer

         As a threshold matter, the Epees move for leave to file an Amended Answer to the Complaint. (Dkt. 120.) The Epees did not plead any affirmative defenses in their Answer. (Id., ¶ 2; see Dkt. 36.) They seek leave to amend their answer to include statute of limitations defenses for Counts IV-V and VII-IX. (Dkt. 120, ¶ 4.) The Epees state that they “can now in good faith claim that some of Plaintiff's claims are time barred” because “[f]act discovery is closed.” (Id., ΒΆ 3.) Parties must affirmatively state any affirmative defense in responding to a ...


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