Orellana v. NBSB Inc.

332 F.Supp.3d 252

Jose ORELLANA, et al., Plaintiffs,

v.NBSB INC. d/b/a George's King of Falafel and Cheesesteak, et al., Defendants.

Civil Action No. 16-2181 (RBW)

United States District Court, District of Columbia.

Signed September 18, 2018

Anthony George Bizien, Michael K. Amster, Zipin, Amster & Greenberg, LLC, Silver Spring, MD, for Plaintiffs.

Albert Wilson, Jr., Lily A. Graves, Veda Law, LLC, Silver Spring, MD, for Defendants.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

The five plaintiffs—Jose Orellana ("Jose"), Santos Orellana ("Santos"), Adali Valeriano Vasquez ("Valeriano"), Herlan Edgardo Cornejo Bajurto ("Cornejo"), and Moises Del Rosario ("Del Rosario")—bring this civil action against three defendants—NBSB Inc. d/b/a George's King of Falafel and Cheesesteak ("George's King"), Souheil Ben Mansour ("Souheil"), and Sofiene Ben Mansour ("Sofiene")—asserting violations of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. §§ 201 – 19 (2012) (the "FLSA"), and the District of Columbia Minimum Wage Act, D.C. Code §§ 32-1001 to - 1015 (2012) (the "DCMWA"). See generally Second Amended Complaint ("2d Am. Compl."). Currently before the Court is the Plaintiffs' Motion for Partial Summary Judgment ("Pls.' Mot."). Upon careful consideration of the parties' submissions,¹ the Court concludes that it must grant in part and deny in part the plaintiffs' motion.

I. BACKGROUND

The following facts are not in dispute.² Defendant George's King "is a corporation formed under the laws of" and "operating as a restaurant in" the District of Columbia. Pls.' Facts ¶ 1; Defs.' Facts ¶ 1. Defendants Souheil and Sofiene are brothers and co-owners of George's King, with each having a twenty-five percent ownership interest in the business.³ Pls.' Facts ¶ 2; Defs.' Facts ¶ 2.

The plaintiffs are former George's King employees: (1) "Jose [ ] worked for [George's King] from at least May 4, 2016, until at least September 2, 2016," Pls.' Facts ¶ 3; Defs.' Facts ¶ 3; (2) "Santos [ ] worked for [George's King] from at least April 30, 2016, until at least December 9, 2016," Pls.' Facts ¶ 7; Defs.' Facts ¶ 7; (3) "Valeriano ... worked for [George's King] from at least May 30, 2016, until at least January 21, 2017," Pls.' Facts ¶ 11; Defs.' Facts ¶ 11; (4) "Cornejo ... worked for [George's King] from at least August 4, 2016, until at least February 25, 2017," Pls.' Facts ¶ 15; Defs.' Facts ¶15; and (5) "Del[ ] Rosario [ ] worked for [George's King] from at least May 3, 2016, until at least January 5, 2017," Pls.' Facts ¶ 19; Defs.' Facts ¶ 19. "During their employment at George's King, [the p]laintiffs spent more than [fifty percent] of their time working in the District of Columbia." Pls.' Facts ¶ 32; Defs.' Facts ¶ 32.

Regarding George's King's overtime and minimum wage obligations, "George's King's employee handbook states: ‘In accordance with Federal Minimum Wage Law, employees are paid overtime when they work more than [forty] hours in one week. Hourly employees are paid at one and one-half times their basic straight time rate for all overtime hours works.’ " Pls.' Facts ¶ 33; Defs.' Facts ¶ 33. Souheil "did not consult an attorney about the legality of choosing not to pay [George's King's] employees overtime." Pls.' Facts ¶ 34; Defs.' Facts ¶ 34.

In their Second Amended Complaint, the plaintiffs assert five causes of action against all three defendants: (1) failure to pay overtime wages in violation of the FLSA, 2d Am. Compl. ¶¶ 31–37; (2) failure to pay overtime wages in violation of the DCMWA, id. ¶¶ 38–43; (3) failure to pay minimum wages in violation of the DCMWA, id. ¶¶ 44–49; (4) retaliation in violation of the FLSA, id. ¶¶ 50–58; and (5) retaliation in violation of the DCMWA, see id. ¶¶ 59–67. After the parties completed discovery, the plaintiffs filed their motion for partial summary judgment on March 2, 2018, seeking judgments regarding their overtime and minimum wage claims. See Pls.' Mot. at 1–2. Specifically, the plaintiffs seek judgment as a matter of law on the following issues:

1. [Whether] the [d]efendants violated the FLSA and the DCMWA by failing to pay [the p]laintiffs at the rate of one-and-one-half times [ ] their regular rates of pay for hours they worked each week in excess of forty [ ];

2. [Whether] the [d]efendants violated the DCMWA by failing to pay [the p]laintiffs at the legally required minimum wage;

3. [Whether] Souheil ... and Sofiene [ ] were [the p]laintiffs' employers under the FLSA and the DCMWA, and are jointly and severally liable to [the p]laintiffs; and

4. [Whether the p]laintiffs are entitled to liquidated damages in an amount equal to three times [ ] their unpaid overtime wages.

Id. Defendants Souheil and George's King concede liability for failing to pay overtime and the minimum wages for some of the hours that some of the plaintiffs worked. See Defs.' Opp'n at 13–16. Otherwise, the defendants oppose the plaintiffs' motion. See Defs.' Sur-Reply at 1–2 (clarifying that the liability is conceded only for these two defendants).

II. STANDARD OF REVIEW

Courts will grant a motion for summary judgment "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" if it "might affect the outcome of the suit under governing law," and a "dispute about a material fact is ‘genuine’ ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When ruling on a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in his or her favor. Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ). "Credibility determinations [and] weighing of the evidence" are not proper functions for the Court on summary judgment. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505.

Thus, "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [his or her] favor." Id.

However, the non-movant may not rely upon "mere allegations or denials," Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (citing Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505 ), and "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, the non-movant "must set forth specific facts showing there is a genuine issue for trial," Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505, and "there is [genuine] issue for trial unless there is sufficient evidence favoring the [non-movant] party for a jury to return a verdict for [the non-movant]," id. at 249, 106 S.Ct. 2505. If the Court concludes that "the nonmoving party has failed to make a sufficient showing on an essential element of [his or her] case with respect to which [he or she] has the burden of proof," the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

III. ANALYSIS

A. Conceded Liability and Damages

As stated above, defendants Souheil and George's King concede liability for failing to pay overtime and the minimum wages for some of the hours that some of the plaintiffs worked. See Defs.' Opp'n at 13–16; see also Defs.' Sur-Reply at 1–2.⁴ The Court will summarize the conceded liability for each failure in turn.

1. Overtime Liability

Section 207 of the FLSA requires employers to pay hourly employees overtime wages "at a rate not less than one and one-half times the regular rate[s] at which [they are] employed" for all hours worked in excess of forty in a given workweek. 29 U.S.C. § 207(a)(1) ; see also Integrity Staffing Sols., Inc. v. Busk, ––– U.S. ––––, 135 S.Ct. 513, 516, 190 L.Ed.2d 410 (2014) ("Enacted in 1938, the FLSA established minimum wage and overtime compensation for each hour worked in excess of [forty] hours in each workweek. An employer who violated these provisions could be held civilly liable for backpay, liquidated damages, and attorney's fees." (citations omitted) ). Similarly, under the DCMWA, an "employee [must] receive[ ] compensation ... at a rate not less than [one and one-half times] the regular rate at which the employee is employed" for hours worked "in excess of [forty] hours" in a workweek. D.C. Code § 32-1003(c). In accordance with the conclusion of its colleagues, this Court construes the overtime provisions in the FLSA and the DCMWA consistently, and shall consider the FLSA and DCMWA overtime claims together. See Rodriguez v. Adams Rest. Grp., 308 F.Supp.3d 359, 363 (D.D.C. 2018) ("The legal standards for the overtime provisions of the Federal Labor Standards Act and the D.C. Minimum Wage Act are essentially identical, so the Court will analyze the claims together."); Hernandez v. Stringer, 210 F.Supp.3d 54, 59 n.2 (D.D.C. 2016) (same); Gainor v. Optical Soc'y of Am., Inc., 206 F.Supp.3d 290, 297 (D.D.C. 2016) (same).

Defendants Souheil and George's King concede liability for failing to pay overtime wages for some of the hours worked by four of the five plaintiffs. See Defs.' Opp'n at 13 (citing Pls.' Mot., Exhibit ("Ex.") 13 (George's King Employee Charts) at 1–6).⁵ Specifically, defendants Souheil and George's King concede the following unpaid overtime wages for each of the four employees:

  Employee     A.           B.        C. Amount     D.            E.           F
               Number of    Hourly    paid for      Overtime      Overtime     Overtime
               overtime     wage      overtime      wage (1.5x    wage that    liability
               hours                  hours         B)            should       (E-C)
               worked

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