MICHAEL B. WHARTON and WRAY L. FURGASON v. James Furrer

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 9, 2015
Decided August 6, 2015
Before
JOEL M. FLAUM, Circuit Judge
KENNETH F. RIPPLE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 14‐3264
MICHAEL B. WHARTON and WRAY L.
FURGASON,
Plaintiffs‐Appellees,
v.
JAMES FURRER,
Defendant‐Appellant.
Appeal from the United States District
Court for the Southern District of
Indiana, Indianapolis Division.
No. 1:12 CV 00738
Mark J. Dinsmore,
Magistrate Judge.
O R D E R
Two technicians, Michael Wharton and Wray Furgason, were employed by Mr.
Handyman, a single‐member limited liability company. When they were not paid
overtime, Wharton and Furgason sued Mr. Handyman and its sole member, James
Furrer, for violating state and federal wage laws. After liability of Mr. Handyman had
been determined on summary judgment, the case went to trial before a magistrate judge
to decide the amount of damages owed to the plaintiffs. Individual liability of Furrer had
not been determined. At trial and in their proposed findings of fact and conclusions of
law, the plaintiffs argued that Furrer should be held jointly and severally liable with Mr.
Handyman as an “employer” under the applicable state law. The defendants did not
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

-- 1 of 5 --

No. 14‐3264 Page 2
contest this finding. Moreover, in their own proposed findings of fact, the defendants
stated that Furrer and Mr. Handyman employed the plaintiffs and an award should be
assessed against both. The magistrate judge found Furrer to be jointly and severally
liable. We affirm.
I. BACKGROUND
This case came before the district court through two separate actions under the
Fair Labor Standards Act (FLSA) and the Indiana Minimum Wage Law (IMWL). Michael
Wharton and Wray Furgason worked for Proteus Pros, LLC, d/b/a Mr. Handyman (“Mr.
Handyman”) as technicians in 2011. They were not paid overtime despite working
roughly 55 hours per week. James Furrer was the owner, sole member, and sole manager
of Mr. Handyman. Wharton and Furgason each filed suit against Furrer and Mr.
Handyman.
In an order granting partial summary judgment for Furgason (the “September
2013 order”), the district court dismissed Furgason’s FLSA claims because Furgason
stipulated that the FLSA did not apply to his case (Mr. Handyman did not generate
enough annual sales to be covered by the FLSA). However, the court retained
supplemental jurisdiction over the IMWL claims. The district court entered partial
summary judgment for Furgason on the issue of whether Mr. Handyman violated the
IMWL.
The district court later severed some of Wharton’s claims and joined his case with
Furgason’s for purposes of determining liability under the IMWL. The joint cases went
to trial before a magistrate judge on the issue of the extent of damages owed to the
plaintiffs. The parties advised the judge at the beginning of trial that the issue of Furrer’s
liability as an individual defendant had not been decided.
In lieu of closing arguments, the parties submitted proposed findings of fact and
conclusions of law. The plaintiffs proposed a finding that Furrer was an “employer”
under the IMWL. They also proposed that Mr. Handyman and Furrer should be jointly
and severally liable to the plaintiffs for various sums of money. The defendants’
proposed findings defined the “Defendants” to include Mr. Handyman and Furrer. It
said the plaintiffs were employed “by Defendants.” It proposed a small sum of damages
in favor of Wharton and “against Defendants.” It did not differentiate between Mr.
Handyman and Furrer in proposing the award and it did not propose a finding that
Furrer was not an employer. Ultimately, the magistrate judge entered an order holding
Mr. Handyman and Furrer jointly and severally liable for $19,200.50 to Furgason and

-- 2 of 5 --

No. 14‐3264 Page 3
$8,154.50 to Wharton. Furrer appeals only the finding of personal liability against him.
II. ANALYSIS
In this appeal, Furrer argues that he cannot be held personally liable under the
IMWL because he is not an “employer.” He contends that there was no evidence
supporting a finding that he was an “employer” in his individual capacity. He asserts
that Mr. Handyman was the plaintiffs’ employer, and he was simply the sole member
and manager of this LLC. We review findings of fact entered after a bench trial for clear
error. Reynolds v. Tangherlini, 737 F.3d 1093, 1104 (7th Cir. 2013). This same standard
applies to the court’s application of the law to the facts. Id. “Under the clear‐error
standard, we will not reverse unless, after reviewing all the evidence, we are left with
‘the definite and firm conviction that a mistake has been committed.’” Id. (quoting
Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985)). If the district court’s
conclusions are plausible in light of the record viewed in its entirety, then we will not
disturb them. Id.
The IMWL provides that “no employer shall employ any employee for a work
week longer than forty (40) hours unless the employee receives compensation for
employment in excess of the hours above specified at a rate not less than one and
one‐half (1.5) times the regular rate at which the employee is employed.” Ind. Code
22‐2‐2‐4(k). It defines an “employer” as “any individual, partnership, association,
limited liability company, corporation, business trust, the state, or other governmental
agency or political subdivision during any work week in which they have two (2) or
more employees.” Id. at 22‐2‐2‐3. The parties do not cite, and we have been unable to
find, any Indiana cases interpreting what it means to be an “individual” “employer”
under the IMWL.
Viewing the record in its entirety, we cannot say that the magistrate judge clearly
erred in finding that Furrer was an “employer.” First, the magistrate judge primarily
based his finding on the defendants’ own proposed findings of fact, which defined
“Defendants” as Mr. Handyman and Furrer, said that the “Defendants” employed the
plaintiffs, and proposed an award against both. In doing so, Furrer invited the judge to
find that he was an “employer.” A party cannot complain of errors which it committed,
invited, induced the court to make, or to which it consented. Weise v. United States, 724
F.2d 587, 590 (7th Cir. 1984). “When error is invited, not even plain error permits
reversal.” Naeem v. McKesson Drug Co., 444 F.3d 593, 609 (7th Cir. 2006). We have applied
the invited error doctrine in both civil and criminal cases. See id.; United States v.
Muskovsky, 863 F.2d 1319, 1329 (7th Cir. 1988). And we have applied it where the error

-- 3 of 5 --

No. 14‐3264 Page 4
was invited through a party’s elicitation of evidence during trial, see Naeem, 444 F.3d at
609, as well as through a party’s submission of proposed jury instructions, see Muskovsky,
863 F.2d at 1329.
Furrer claims that it is “reach[ing]” to compare the submission of proposed
findings of fact post‐trial to the elicitation of evidence during trial, like in Naeem. The
latter can be subjected to the invited error doctrine, but, in his view, the former cannot.
He makes this claim without citation to any legal authority limiting the invited error
doctrine in such a manner. Regardless, the invited error doctrine has been approvingly
used by this court and others in circumstances where the error was not related to
erroneous testimony or evidence. For example, in Muskovsky, we applied the invited
error doctrine to prevent defendants from complaining of jury instructions which were
substantially similar to the instructions they had submitted because we said that “if the
district court’s instruction was error, it was error that was invited by the Defendants.” Id.
at 1329. The submission of proposed findings of fact is analogous to the submission of
proposed jury instructions. Neither submission is evidence, but a trial court uses each
party’s submissions to develop its final document. Here, any error in the magistrate
judge’s finding was invited by Furrer. Furrer cannot complain now that the judge made
a finding that he requested. See id.; see also Hydrite Chemical Co. v. Calumet Lubricants Co.,
47 F.3d 887, 891 (7th Cir. 1995) (applying the invited error doctrine to party’s complaint
about a “confusing” jury verdict form in a civil case that the complaining party
proposed); Hanks v. United States, 388 F.2d 171, 173 (10th Cir.), cert. denied, 393 U.S. 863
(1968) (finding that where defense counsel requested, in the presence of the jury at trial,
production of certain statements, but on appeal claimed the granting of that request
constituted error, any error was invited by defense counsel and cannot be basis of
complaint).
Furrer’s primary retort to the invited error argument is that the doctrine of invited
error should not be applicable to him because the plaintiffs have presented no evidence
supporting a finding that he is an “employer.” But that claim is an exaggeration. The
plaintiffs presented some evidence that Furrer was an employer. Furrer identified
himself as the person with operational control over the business. He had control over
employment decisions, including hiring, firing, and wages. Wharton testified that Furrer
set his weekly wage when Furrer hired him. Furrer testified that he made hiring and
firing decisions and made the decisions regarding the plaintiffs’ pay. Furrer also testified
that he was the sole owner of Mr. Handyman, but when asked if the company’s LLC
status was still current, he said he had not checked. True, this evidence is consistent with
the activities of a sole member and manager of a closely‐held LLC. But it is also

-- 4 of 5 --

No. 14‐3264 Page 5
consistent with the activities of an individual employer.
We note that Furrer argues the district court erred in saying that “Furrer does not
contest the finding of liability against him made in the district court’s order granting
partial summary judgment [the September 2013 order].” It is true that the September
2013 order did not find that Furrer was personally liable; it found that Mr. Handyman
was liable for violating the IMWL. The magistrate judge’s statement may be a reference
to the fact that at trial, the defendants did not contest the finding of liability generally,
but instead were contesting the extent of damages. Regardless, any flaw in the comment
was ultimately irrelevant, because the judge based his finding of personal liability for
Furrer on Furrer’s proposed findings of fact, not the September 2013 order. So any error
here was harmless. See Goodpaster v. City of Indianapolis, 736 F.3d 1060, 1070 (7th Cir. 2013)
(where a district court’s erroneous finding of fact is ultimately irrelevant to a party’s
claim, any error is harmless).
We also observe that in Meyers v. Meyers, 861 N.E.2d 704 (Ind. 2007), the Indiana
Supreme Court reversed the granting of the defendants’ motion to dismiss where the
plaintiff brought suit under the IMWL against a closely‐held corporation and the
individual shareholders of the corporation. The plaintiff alleged that the individual
defendants and the corporation employed him. Id. at 708. The defendants responded by
saying that the plaintiff was referring to the same employment situation and the plaintiff
could not support a piercing of the corporate veil. Id. But the Indiana Supreme Court
found that the defendants had not demonstrated that the plaintiff would not be able to
recover from the individual defendants. Id. This ruling suggests that the Indiana
Supreme Court does not think it unfathomable that an employee plaintiff could recover
from both a company and the individuals who control a closely‐held company under the
IMWL.
But this is not the case to decide a novel question of Indiana law regarding when a
sole member and manager of an LLC can be held jointly and severally liable as an
“employer” under the IMWL. Instead, we base our conclusion on a determination that
the magistrate judge’s finding was not clearly erroneous, given Furrer’s proposed
findings of fact. Furrer cannot complain of a finding that he proposed.
III. CONCLUSION
For the foregoing reasons, the judgment of the district court is A FFIRMED.

-- 5 of 5 --