Ventura v. Bebo Foods, Inc.

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) JESUS VENTURA, et al., ) ) Plaintiffs, ) ) v. ) Civil Action No. 08-621 (RCL) ) BEBO FOODS, INC., et al., ) ) Defendants. ) ____________________________________)

MEMORANDUM OPINION

On July 27, 2010, this Court granted plaintiffs’ Motion for Summary Judgment, finding

defendant Roberto Donna (“Donna”), and corporate defendants SER, Inc. d/b/a Galileo

Restaurant, and RD Trattoria, Inc. d/b/a/ Bebo Trattoria Restaurant (collectively “defendants”),

liable to plaintiffs and collective plaintiffs for violations of the Free Labor Standards Act, 29

U.S.C.A. § 201, et. seq. (“FLSA”), the District of Columbia Wage Payment and Collection Law,

D.C. Code § 32-1301, et. seq. (“DCWPCL”), and the Equal Pay Act, 29 U.S.C.A. § 206(d). The

Court conducted additional hearings on August 4, 2010, and August 24, 2010, to determine the

amount of damages. Upon consideration of the applicable law and the entire record herein, the

Court will award plaintiffs and collective plaintiffs $526,893.16 for the reasons set forth below.

I. BACKGROUND

The Court incorporates by reference the findings of fact and law from its July 27, 2010

opinion granting summary judgment. Jesus Ventura (“Ventura”), Rosa Rivas (“Rivas”),

Mohammed Douah (“Douah”) (collectively, “plaintiffs”), were joined in this action by Arturo

Ramos (“Ramos”), Bisera Romic (“Romic”), Tulga Dorjgotov (“Dorjgotov”), Carlos Sosaya

(“Sosaya”), Dorde Milojevic (“Milojevic”), Igor Vuckovic (“Vuckovic”), Marijuana Bosnijak (“Bosnijak”), Hicham El Hallou (“El Hallou”), and Elizabeth Scott (“Scott”) (collectively,

“collective plaintiffs”). Defendants employed plaintiffs and collective plaintiffs in various

capacities at Galileo Restaurant (“Galileo”) and Bebo Trattoria Restaurant (“Bebo”) for various

periods from 1992 to 2008. (Pls.’ Mot. Summ. J. 2–4, ECF. No. 42; Pls.’ Mot. J. Ex. 1, ECF No.

48.)

Over that time, defendants consistently failed to abide by their duties under federal and

District of Columbia wage and hour laws. They rarely paid their employees on time and

engaged in a persistent and widespread practice of issuing checks without signatures, issuing

post-dated checks, and issuing checks despite insufficient funds in defendants’ account. (See,

e.g., Pls.’ Mot. Summ. J. Ex. C, Ventura Aff. ¶¶ 7–8, Scott Aff. ¶ 20; Compl. Ex. D, ECF No. 1.)

Plaintiffs and collective plaintiffs ceased cashing paychecks at their own banks because the

checks often bounced. (See, e.g., Pls.’ Mot. Summ. J. Ex. C, Ramos Aff. ¶ 22.) When

defendants did pay their employees, the pay stubs did not indicate the correct number of hours

worked. (See, e.g., Pls.’ Mot. Summ. J. Ex. C, Douah Aff. ¶ 6, Rivas Aff. ¶ 5.) Furthermore,

defendants failed to pay overtime wages to employees who almost always worked more than

forty hours per week. (See, e.g., Pls.’ Mot. Summ. J. Ex. C, Rivas Aff. ¶ 5, Sosaya Aff. ¶ 7;

Compl. Ex. A.)

Although tipped employees took home approximately $150 to $200 in cash tips per week

(see, e.g., Ramos Test., August 4, 2010), defendants withheld significant portions of those

employees’ credit card tips (see Pls.’ Mot. Summ. J. Ex. C). Defendants implemented a system

whereby they paid all credit card tips in cash. (See R. Bonino Test., August 24, 2010.) Few

restaurant patrons paid with cash, however, and defendants did not keep enough cash on hand to

pay all of the credit card tips after each shift. (Id.) Although defendants made periodic

2 payments of the credit card tips owed to their employees, they owed several employees

thousands of dollars at a time. (See Pls.’ Mot. Summ. J. Ex. C.)

Defendants paid Ventura, a busser, $8.00 per hour. (See Compl. Ex. A.) Defendants

only paid fellow busser Rivas $3.35 per hour, even though she performed the same amount and

type of work as Ventura. (Rivas Aff. ¶ 4.) Defendants also failed to pay their salaried

employees at the agreed-upon rates. (See Pls.’ Hr’g Ex. 1–3, August 4, 2010; Pls.’ Mot. Summ.

J. Ex. C, El Hallou Aff. ¶¶ 6–7.) When plaintiffs and collective plaintiffs approached defendants

about these pay practices, defendants explained that they withheld payments to pay the

restaurant’s expenses. (See, e.g., Pls.’ Mot. Summ. J. Ex. C, Romic Aff. ¶¶ 9–10.) Despite

promising to quickly and fully reimburse their employees, defendants made no such recompense.

(See, e.g., Romic Aff. ¶ 10.)

When granting summary judgment, the Court found that defendants did not maintain

proper payroll records pursuant to 29 U.S.C. § 211(c) (2006). (Mem. Op. Granting Pls.’ Mot.

Summ. J. 8, ECF No. 50.) The Court also found that plaintiffs’ and collective plaintiffs’

estimates of the hours they worked were reliable and supported by sufficient evidence. (Id. at 8–

9.) The Court found all defendants liable for violations of the FLSA, DCWCPL, and EPA. (Id.

at 1.) The Court, however, did not issue an award for damages at that time. When estimating

their damages, plaintiffs and collective plaintiffs assumed that defendants paid them no wages,

despite record evidence to the contrary. (See, e.g., Scott Aff. ¶ 21; Pls.’ Mot. J. Ex. 1.) The

Court held two hearings to determine the amount of these wages and the amount of damages the

Court should award plaintiffs and collective plaintiffs.

3 II. LEGAL STANDARD

Because the Court has already found that defendants did not maintain proper payroll

records pursuant to their obligations under 29 U.S.C. § 211(c) (2006), the Court may

approximate damages under the FLSA based on “just and reasonable” inferences. Anderson v.

Mt. Clemens Pottery Co., 328 U.S. 680, 686–88, superseded by statute on other grounds, Portal-

to-Portal Act, Pub. L. No. 80-49, 61 Stat. 84. Indeed, when a defendant has not properly

maintained employment records, a court will give the plaintiff’s estimate of damages a strong

presumption of validity, provided that the estimate is reasonably derived from the record. See

Arias v. U.S. Servs. Indus., 80 F.3d 509, 510–12 (D.C. Cir. 1996) (per curiam) (holding that the

district court erred by not entering a judgment for the plaintiffs when the plaintiffs’ uncontested

estimate of damages was not “unduly speculative” and was pieced together from disparate “time

cards, sign-in sheets, and payroll documents”). When assessing damages under the Anderson

standard, a court may draw inferences from oral testimony, sworn declarations, and whatever

relevant documentary evidence a plaintiff is able to provide. See Pleitez v. Carney, 594 F. Supp.

2d 47, 49 (D.D.C. 2009). Although a court’s discretion under Anderson is broad, it is not

unfettered. A court’s inferences must be consistent with the evidence in the record. Cf. Pleitez,

594 F. Supp. 2d at 51 (inferring that the plaintiff was paid for time for which he made no specific

claim of unpaid wages, in order to “maintain consistency in [plaintiff’s] claims”). Generally,

once the court has found that a defendant-employer has failed to abide by its record-keeping

duties under the FLSA, the burden shifts to the defendant to present evidence refuting the

plaintiff’s estimate of damages. Anderson, 328 U.S. at 687–88.

When making findings and awarding damages under the DCWPCL, a court has

substantially similar discretion. As under the FLSA, when a plaintiff has established a prima

4 facie case under the DCWPCL, the burden shifts to the defendant to produce evidence refuting

the plaintiff’s claim. See Nat’l Rifle Ass’n v. Ailes, 428 A.2d 816, 821 (D.C. 1981) (finding that

when a plaintiff has established a right to accrued paid leave and has further established the

amount of leave accrued, the burden shifts to the defendant to prove “an agreement to the

contrary”). Federal courts in this Circuit have also implemented the just and reasonable standard

under Anderson when determining unpaid wages under the DCWPCL. See Pleitez, 594 F. Supp.

2d at 49–50 (awarding unpaid vacation pay based, in part, on plaintiff’s recollection of his hourly

rate).

III. ANALYSIS

Several elements of the FLSA and DCWPCL apply generally to all plaintiffs and

collective plaintiffs in this case. Thus, it is helpful to discuss those elements before engaging in

a more detailed discussion of individual damages.

A. Collective Action under 29 U.S.C.A. § 216(b)

Ramos, Romic, Dorjgotov, Sosaya, Milojevic, Vuckovic, Bosnijak, El Hallou, and Scott

sought to join plaintiffs Ventura, Rivas and Douah in this action pursuant to 29 U.S.C.A § 216(b)

(West 1998 and Supp. 2010). (See Pls.’ Mot. Summ. J. Ex. A.) It provides, in pertinent part,

that in an action to recover unpaid minimum wage and overtime wages under the FLSA:

[T]he liability . . . may be maintained against any employer . . . by any one or more employees for and in behalf of himself or themselves and other employees similarly situated. No employee shall be a party plaintiff to any such action unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought.

29 U.S.C.A. § 216(b). Although the Court proceeded to grant summary judgment as though it

had declared that this action could be maintained as a collective action under 29 U.S.C.A. §

5 216(b) (see Mem. Op. Granting Pls.’ Mot. Summ. J. 1–2), the Court never actually made that

declaration. So as to resolve any doubt, the Court finds that plaintiffs have satisfied the

requirements of 29 U.S.C.A. § 216(b) and that this action was properly maintained, and will

continue to be properly be maintained, as a collective action under the FLSA.

In plaintiffs’ Motion for Summary Judgment, the collective plaintiffs submitted written

statements consenting to join this action. (See Pls.’ Mot. Summ. J. Ex. A.) This clearly satisfied

the second requirement set forth in 29 U.S.C.A. § 216(b): that the parties file with this Court

written consent to join the action. The remaining issue, as the statute provides, is whether or not

the plaintiffs and collective plaintiffs are “similarly situated.”

District courts in the D.C. Circuit have identified and focused on three sets of factors

when determining whether or not plaintiffs and collective plaintiffs are similarly situated for the

purposes of the FLSA. The first set of factors “involves an examination of the alleged activities

of defendant.” Hyman v. First Union Corp., 982 F.Supp. 1, 3 (D.D.C. 1997) (Lamberth, J.). “If

there is evidence that the alleged [wrongdoing] was part of a [sic] institution wide practice, such

evidence would support use of a collective action.” Id. The second set of factors focuses on the

similarities of plaintiffs’ and collective plaintiffs’ employment. These factors include the

similarity of the employees’ job responsibilities, compensation methods, and supervision. See id.

at 5 (finding that one factor in favor of allowing the plaintiffs’ collective action was that

plaintiffs only sought to add other “exempt line employees,” like themselves, who had similar

job responsibilities); Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 51 (3d Cir. 1989),

overruled in part on other grounds by Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089 (3d

Cir. 1995) (affirming that whether or not employees were “employed in the same corporate

department, division, and location” was one factor courts should consider when granting a

6 motion for a collective action under 29 U.S.C. § 216(b)). Cf. Hunter v. Sprint Corp., 346

F.Supp.2d 113, 119 (D.D.C. 2004) (Bates, J.) (noting that whether the employer classified

potential collective plaintiffs as either exempt or non-exempt from FLSA overtime requirements

created two distinct categories of plaintiffs, each with differing legal issues in the action). The

final set of factors focuses on the “efficient resolution of common issues of law and fact arising

from the same alleged . . . activity.” Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 170

(1989). Among these factors, courts consider whether plaintiffs and collective plaintiffs “will

rely on common evidence to prove” the alleged wrongful employment practices, Hyman, 982

F.Supp. at 5, and “whether they all advanced similar claims” and “sought substantially the same

form of relief.” Lockhart, 879 F.2d at 51.

Turning to the instant case, plaintiffs and collective plaintiffs are similarly situated for the

purposes of the FLSA. All plaintiffs and collective plaintiffs, with the exception of Scott, were

front-of-house staff working as servers, bussers, or floor managers. (See Pls.’ Mot. J. Ex. 1.)

Although front-of-house duties were not identical, defendants compensated front-of-house staff

in the same way—through base wages and tips. Defendants, however, paid neither tips nor

wages in full, nor did they pay overtime wages. (See, e.g., Rivas Aff. ¶ 5; Pls.’ Mot. Summ. J.

Ex. C.) Although defendants paid Scott an annual salary, and although she served as defendant

Donna’s personal assistant, she also periodically engaged in front-of-house duties at Bebo. (See

Pls.’ Mem. Opp’n to Defs.’ Mot. to Dismiss Ex. 2, ECF No. 12; Scott Aff. ¶¶ 2, 6, Oct. 7, 2009.)

More fundamentally, however, defendants repeatedly issued deficient pay checks to all plaintiffs

and collective plaintiffs in this action. (See, e.g., Ventura Aff. ¶¶ 7–8, Scott Aff. ¶ 20, Oct. 7,

2009.) Thus, as is the case with other plaintiffs and collective plaintiffs in this action, defendants

did not properly compensate Scott.

7 It is clear from the evidence that defendants’ illegal pay practices were sufficiently

widespread to weigh in favor of collective action. Additionally, the legal issues of the original

plaintiffs’ claims fall squarely upon whether defendants’ failure to pay wages, overtime, and to

distribute tips violates the provisions of the FLSA and the DCWPCL. The Court need not settle

any other legal issue by adding the collective plaintiffs. It is also clear that plaintiffs and

collective plaintiffs have relied, and will continue to rely on the same evidence in this action.

Because the Court has broad discretion to make inferences from relevant circumstantial evidence

in this case, the evidence on record applies equally to both plaintiffs and collective plaintiffs.

The Court therefore finds that plaintiffs and collective plaintiffs are similarly situated.

Because each collective plaintiff has submitted written consent to join this action, the Court

formally declares that this is a collective action under 29 U.S.C.A. § 216(b), and the Court will

evaluate the damages for both the original plaintiffs and collective plaintiffs. For the sake of

brevity and clarity, the Court will henceforth refer to the plaintiffs and collective plaintiffs,

collectively, as “plaintiffs.”

B. Minimum Wage and Overtime under the Fair Labor Standards Act

The FLSA sets forth the minimum wage that employers engaged in interstate commerce

must pay their employees. 29 U.S.C.A. § 206(a). Generally, determining the minimum wage is

a straightforward process—the FLSA expressly states the minimum wage. Id. § 206(a)(1)(A)–

(C). In a similarly straightforward fashion, the FLSA’s overtime provision provides that

employers engaged in interstate commerce must pay an employee at a rate of one and one-half

times the employee’s regular rate of pay for every hour over forty hours worked in a given

workweek (“overtime hours”). Id. § 207(a)(1).

8 The FLSA modifies the minimum wage and overtime requirements for tipped employees.

Tipped employees “customarily and regularly receive more than $30 a month in tips.” 29

U.S.C.A. § 203(t). Tips, as they pertain to the FLSA, may be in the form of cash, an amount left

on the merchant copy of a credit card receipt (“credit card tips”), or other means of

compensation. See 29 C.F.R. § 531.53 (2010). The FLSA considers tips separate from wages.

See 29 U.S.C.A. § 203(m). Although tipped employees must still receive the federal minimum

wage set forth in 29 U.S.C.A. § 206(a), an employer need only pay its tipped employees $2.13

per hour, provided that the employees earn enough tips to earn the minimum wage after

combining their tips and base wages. See id. § 203(m) (requiring employers taking a tip credit to

pay half of the minimum wage in 1996); 29 U.S.C. § 206(a)(1) (2000). The difference between

the minimum wage and the wages an employer pays its tipped employees is known as a “tip

credit.” See 29 C.F.R. § 531.59 (2010). To illustrate, the current minimum wage is $7.25 per

hour. See 29 U.S.C.A. § 206(a). An employer paying its tipped employees $2.13 per hour takes

a $5.12 tip credit. If an employer’s tipped employees do not receive enough tips to bring their

hourly rate to $7.25, the employer is required to claim a smaller tip credit and pay tipped

employees more wages, so that the tipped employees receive the minimum wage. An employer

may also take a tip credit with respect to overtime wages, although the tip credit taken for

overtime hours may not exceed $5.12. 1

The tip credit, however, is conditional. An employer may take a tip credit only if the

employer has expressly informed its tipped employees that it is doing so, and it must allow those

1 For example, a tipped employee working forty-five hours in a week is entitled to $344.40 (($7.25 x 40) + ($10.88 x 5)). For the first forty hours, the employer only needs to pay $2.13 per hour. It would be incorrect, however, to multiply $2.13 by 1.5 to get the rate the employer must pay for the overtime hours. That would result in the employer paying only $3.20 for each overtime hour, which would mean the employer takes a tip credit of $7.68 ($10.88 - $3.20). This amount is higher than the tip credit permitted by 29 U.S.C.A. § 203(m), which, even for overtime hours, is still the minimum wage less $2.13, or $5.12. Thus, for each hour worked over forty hours, the employer must pay $5.76 ($10.88 – $5.12). Adding regular and overtime wages, the employer must pay a total of $114 (($2.13 x 40) + ($5.76 x 5)).

9 tipped employees to retain all the tips they receive. 29 U.S.C.A. § 203(m). See Martin v.

Tango’s Rest., 969 F.2d 1319, 1323 (1st Cir. 1992); Richard v. Marriott Corp., 549 F.2d 303,

305 (4th Cir. 1977). Some courts, however, have allowed employers to withhold a limited

portion of tips in order to recover costs associated with that type of tip. See Myers v. Copper

Cellar Corp., 192 F.3d 546, 554 (6th Cir. 1999) (finding no violation of the FLSA tip-retention

requirement when an employer withheld a percentage of credit card tips equal to the percentage

of credit card sales that credit card companies charged the employer). If an employer fails to

comply with the tip credit requirements, the employer is liable to tipped employees for the

difference between the minimum wage and the wage paid to tipped employees, regardless of the

tips that tipped employees received. See, e.g., Chung v. New Silver Palace Rest., Inc., 246 F.

Supp. 2d 220, 231 (S.D.N.Y. 2002) (awarding plaintiffs the difference between the federal

minimum wage and the wage defendants paid them after first finding that defendants were not

entitled to a tip credit).

Turning to the instant case, defendants took tip credits, paying their servers only $2.13

per hour and paying Rivas $3.35 per hour. (See Defs.’ Hr’g Ex. 1, August 24, 2010; Rivas Aff. ¶

4.) The Court finds that defendants have not met their obligations under the FLSA to claim a tip

credit. Defendants distributed credit card tips in cash. (See R. Bonino Test., August 24, 2010.)

Although defendants tried to distribute the credit card tips at the end of each shift, there was not

enough cash on hand to pay each employee the credit card tips he or she earned. (Id.) As a

result, defendants often withheld credit card tips for weeks at a time while keeping a spreadsheet

tracking the accrued credit card tips owed to each employee. (Id.) These spreadsheets clearly

show that defendants owed several employees thousands of dollars in outstanding credit card tips

at a time. (See Pls.’ Mot. Summ. J. Ex. C.)

10 The record reflects no legally acceptable reason for defendants to have withheld their

employees’ credit card tips. When confronted by their employees about their failure to pay

wages, including tips, defendants said that they needed to withhold payment to cover the

restaurant’s operating expenses. (See, e.g., Romic Aff. ¶ 10.) Defendants have not demonstrated

that these operating expenses were caused by or related to the collection of credit card tips.

Because defendants did not properly allow their tipped employees to retain their tips, they were

not entitled to claim a tip credit against plaintiffs’ wages.

Having wrongfully taken a tip credit, defendants are required to pay the difference

between the federal minimum wage and the wages they paid the respective plaintiffs. See 29

U.S.C.A. § 216(b). At the very least, plaintiffs can recover the tip credit that defendants

wrongfully took. For example, for each hour worked, plaintiffs employed as servers can recover

the difference between the minimum hourly wage in effect at the time they were employed and

the $2.13 hourly wage that defendants paid them.

Because defendants often failed to pay wages altogether plaintiffs are also entitled to

minimum wage damages beyond the tip credit that defendants wrongfully took. Defendants

frequently issued post-dated paychecks, unsigned paychecks, and paychecks that plaintiffs could

not cash due to insufficient funds in defendants’ account. (See, e.g., Pls.’ Mot. Summ J. Ex. B,

Ex. C, Rivas Aff. ¶¶ 7–8; Scott Aff. ¶ 20.) When defendants issued paychecks that plaintiffs

were unable to cash, defendants paid them nothing for those pay periods. Therefore, for those

pay periods, they are liable to plaintiffs for the full minimum wage.

Plaintiffs’ estimate of their damages, however, was remarkably less nuanced than

defendants’ pay practices would suggest. At the summary judgment stage, plaintiffs provided a

breakdown of damages for each plaintiff, based on the duration of each plaintiff’s employment,

11 the average hours per week each plaintiff worked, and the federal minimum wage rate

supposedly in effect while each plaintiff worked for defendants. (See Pls.’ Mot. J. Ex. 1.) The

estimated damages for each plaintiff, however, were all prone to the same critical flaw: they did

not account for any wages defendants paid plaintiffs. (See id.) In other words, plaintiffs

assumed that because defendants did not meet the statutory requirements to take a tip credit,

defendants were thus liable to plaintiffs in an amount equal to the entire minimum wage rate for

each hour plaintiffs worked. Such an assumption is incongruous with the FLSA. The FLSA

provides that employers who fail to pay their employees the required minimum wage or overtime

wages are “liable to the employee or employees affected in the amount of their unpaid minimum

wages, or their unpaid overtime compensation . . . .” 29 U.S.C.A. § 216(b) (emphasis added).

This language strongly indicates that defendants are only liable for the difference between the

minimum wage and those wages they already paid the plaintiffs. As discussed above, the

Court’s interpretation of the FLSA is consistent with relevant case law, see supra pp. 6–7, and

thus the Court could only rely on plaintiffs’ calculation of damages if it could find by just and

reasonable inference that defendants completely failed to pay plaintiffs’ wages.

The record does not show that defendants paid the plaintiffs no wages. Not a single

plaintiff claimed that he or she had received no wages from defendants. 2 Scott stated in her

affidavit that she cashed some paychecks. (Scott Aff. ¶ 21.) The Complaint also alleges that

defendants admonished Ventura when he cashed multiple paychecks at once. (Am. Compl. ¶¶

60–61, ECF No. 4.) Thus, although the Court found ample support in the record for the

plaintiffs’ estimates of hours and the duration of their employment, the Court could not simply

2 Although many plaintiffs stated in their affidavits that their check amounts were “always zero” (see, e.g., Douah Aff. ¶ 6), the Court gives these statements no weight. Several of the plaintiffs who made those statements submitted paychecks that, even if they could not be cashed due to some defect, showed positive dollar amounts. (See Pls.’ Mot. Summ. J. Ex. B.)

12 award plaintiffs the damages laid out in their Motion for Judgment. (See Mem. Op. Granting

Pls.’ Mot. Summ. J. 8–9.) Additionally, the plaintiffs failed to properly calculate the minimum

wage and, by extension, the overtime rate for minimum wage earners. When a particular

plaintiff’s employment spanned two different minimum wage periods, the plaintiffs broadly

applied the later (and higher) minimum wage rate to the entire duration of employment. While

Anderson grants the Court leeway to make certain evidentiary conclusions in FLSA actions, it

grants no such leeway when the Court must make easily derived calculations.

In order to determine the wages defendants paid plaintiffs, the Court held two evidentiary

hearings. The Court’s instructions were clear: plaintiffs were required to “present an

approximation of the damages that [took] into account the wages which they received” through

“bank records, pay stubs, pay checks, or supplemental affidavits.” (Mem. Op. Granting Pls.’

Mot. Summ. J. 9).

Despite the Court’s mandate, plaintiffs failed to provide an estimate of the wages they

had received. Ramos and Vuckovic testified that they each took home between $150 and $200

in cash tips per week. (Ramos Test., August 4, 2010; Vuckovic Test., August 4, 2010.)

Plaintiffs misconstrued the issue. As discussed above, the amount of tips an employee received

is irrelevant when the employer cannot claim a tip credit. The only issue for determining

minimum wage damages in this case is the amount of wages defendants paid plaintiffs.

Further complicating matters, defendants’ evidence rebutting plaintiffs’ estimate of

damages was unreliable. Although defendants submitted their own estimates of what they owe

plaintiffs, defendants derived these estimates from the payroll data they used to print plaintiffs’

paychecks. (See Defs.’ Hr’g Ex. 2, August 24, 2010.) Although this data shows the amounts of

certain paychecks, neither the data nor defendants’ estimates account for the paychecks that

13 plaintiffs were unable to cash. Defendants’ estimates, for example, do not account for post-dated

or unsigned checks. As the facts of this case demonstrate, there is a significant difference

between issuing a paycheck and actually providing wages for employees. Their estimates

address the former and neglect the later. Defendants’ estimates and accompanying evidence are

therefore unreliable, and the Court cannot give them weight.

Because plaintiffs did not offer an estimate of the wages defendants paid them, the Court

must look to the record to determine such wages by just and reasonable inference. Several

plaintiffs, in sworn affidavits, provide lump sums of “wages” that defendants still owe them.

(See, e.g., Pls.’ Mot. Summ. J. Ex. C, Vuckovic Aff. ¶ 13.) From this figure, using the plaintiffs’

estimates of employment duration and average hours worked per week, the Court could work

backward to determine the wages defendants paid plaintiffs. It is doubtful, however, that

plaintiffs have distinguished their “wages” from their tips. For example, Ramos states in his

affidavit that he approached defendant Donna to discuss Donna’s failure to pay “tipped wages.”

(Ramos Aff. ¶ 12.) Similarly, Vuckovic states in his affidavit that defendants owed him $12,000

in “wages,” but explained in his testimony on August 4, 2010, that the $12,000 was all in

outstanding credit card tips. (Vuckovic Aff. ¶ 13; see Vuckovic Test., August 4, 2010.)

Because there is no other evidence suggesting that plaintiffs’ claims for unpaid “wages” in their

affidavits are limited solely to those they should have received in their paychecks, the Court

cannot use these claims for the limited purpose of determining the wages defendants paid them.

As an alternative method to determining the total wages plaintiffs received, the Court

could average the net wages distributed to each type of employee, based on the copies of

paychecks that plaintiffs submitted. (See Pls. Mot. Summ. J. Ex. B.) The Court could then

multiply those amounts by the total number of paychecks plaintiffs were able to cash.

14 That calculation, however, would require the Court to determine how frequently plaintiffs

received their wages. This the Court cannot do. Plaintiffs do not even speculate, let alone

stipulate, as to how frequently they were able to cash their paychecks. Further, there is little

evidence in the record from which the Court can estimate how frequently plaintiffs were able

cash their paychecks. Perhaps the most helpful statement came from Sosaya, who stated in his

affidavit that during his year of employment, “there were several times I had 3–4 checks I was

unable to cash.” (Sosaya Aff. ¶ 12.) There is no indication in the affidavit, however, what

“several” means. The record also casts some doubt as to what Sosaya means when he says that

he was unable to cash the checks. Sosaya states that one defect of defendants’ pay practices was

that they often issued post-dated checks. (Sosaya Aff. ¶ 10.) It is possible that Sosaya was only

temporarily unable to cash his paychecks during one of the several times he had accumulated

multiple checks. Indeed, the complaint alleges that defendants admonished Ventura when he

cashed multiple back-paychecks at once. (Am. Compl. ¶¶ 60–61.) Make no mistake; the Court

does not believe that plaintiffs were able to cash their paychecks often. Without further guidance

from plaintiffs, however, any estimate that this Court makes on the matter would be wholly

arbitrary and beyond the discretion permitted under Anderson.

Because the Court can neither determine the wages plaintiffs received nor the frequency

with which they were able to cash their paychecks, the Court will only award plaintiffs minimum

wage damages in the amount of the federal minimum wage rate less the wage rate defendants

paid them. Where plaintiffs have submitted copies of paychecks they could not cash, the Court

will award those plaintiffs the full minimum wage for the time period each check represents,

provided that such an award does not conflict with other claims for unpaid wages.

15 The deficiencies in plaintiffs’ evidence requiring the Court to limit their damages for

unpaid minimum wages have no effect on the Court’s ability to award damages for unpaid

overtime wages. Nearly all plaintiffs stated that their paystubs never accounted for the hours of

overtime they worked and that, moreover, they were never properly compensated for that

overtime. (See, e.g., Sosaya Aff. ¶ 7; Rivas Aff. ¶ 5.) A copy of Ventura’s paystub showing

that, in a two-week pay period, Ventura worked 144.80 hours but no overtime hours

substantiates these claims. (Compl. Ex. A.) In a two week pay-period, only eighty hours should

have been regular; the rest of those hours should have been overtime. Using plaintiffs’ estimates

of the hours they worked per week, the Court can award plaintiffs the overtime rate to which

they are entitled, minus the regular pay rate defendants paid them, for each overtime hour that

they worked.

C. District of Columbia Wage Payment and Collection Law

The DCWPCL, D.C. Code § 32-1301, et seq. (2010), requires employers to pay their

employees “at least twice during each calendar month, on regular paydays . . . provided,

however, that an interval of not more than 10 working days may elapse between the end of the

pay period covered and the regular payday.” Id. § 1302. The DCWPCL also obligates

employers to make timely payment of all outstanding wages owed to employees who quit,

resign, or are released by the employer. Id. § 32-1303(1)–(2).

The DCWPCL broadly defines “wages” as “monetary compensation after lawful

deductions, owed by an employer for labor or services rendered, whether the amount is

determined on a time, task, piece, commission, or other basis of calculation.” Id. § 32-1301(3)

(emphasis added). Although this definition does not expressly mention tips, the District of

Columbia Court of Appeals has considered tips to be an element of compensation in other D.C.

16 labor provisions. See Mason v. D.C. Dep’t of Emp’t Servs., 562 A.2d 644, 646 (D.C. 1989)

(finding tips to be an element of wages for computation of worker’s compensation payment);

Gordon v. Dist. Unemp’t Comp. Bd., 402 A.2d 1251, 1258 (D.C. 1979) (noting that for

computation of unemployment benefits, wages include “all forms of compensation,” including

tips).

Thus, to the extent that plaintiffs have sufficiently proven late and outstanding payments,

whether in the form of unpaid tips, wages, or salary, the Court may award those payments under

the DCWPCL. For the purposes of this case, the DCWPCL will generally only apply to: (1)

outstanding wages plaintiffs claim in their affidavits; and (2) the unpaid wages represented by

paychecks submitted by plaintiffs that they were unable to cash.

As noted above, the Court finds that stipulations in plaintiffs’ affidavits as to outstanding

wages represent some combination of unpaid tips and wages. Except as otherwise noted,

plaintiffs have submitted enough evidence to substantiate by reasonable inference that

defendants owe them the outstanding amounts claimed in their affidavits. Vuckovic stated in his

affidavit that defendants owed him $12,000. (Vuckovic Aff. ¶ 13.) It was defendants, however,

that asked Vuckovic during cross-examination to clarify that the amount he claimed was in the

form of outstanding credit card tips. (Vuckovic Test., August 24, 2010.) Vuckovic confirmed

this. (Id.) The spreadsheets tracking outstanding credit card tips show that defendants owed

several plaintiffs thousands of dollars. (See Pls.’ Mot. Summ. J. Ex. C.) Additionally, while

plaintiffs still worked for defendants, defendants gave them print-outs showing how much

defendants owed them. (See, e.g., Ventura Aff. ¶ 12; Ippolito Test., August 24, 2010.)

Defendants’ pay practices were widespread and indiscriminate. It is reasonable to presume the

validity of the amounts plaintiffs claim, absent conflicting evidence in the record. In addition to

17 providing estimates of plaintiffs’ damages that the Court cannot validate, defendants have

challenged plaintiffs’ claims by making an unsubstantiated assertion that they had fully paid their

employees at the time they shut down operations at Galileo and opened Bebo. But nearly every

plaintiff claims unpaid wages for the time he or she worked at Bebo. Thus, defendants’ assertion

that their employees were paid in full when Bebo opened is irrelevant.

The paychecks plaintiffs submitted represent unpaid wages because they were not

signed by defendants and could not be cashed. (See Pls.’ Mot. Summ. J. Ex. C.) There is

nothing in the record that indicates that defendants reissued checks or otherwise remedied the

paychecks’ deficiencies. Some plaintiffs have both claimed unpaid wages in their affidavits and

submitted paychecks that they could not cash. In these cases, unless otherwise noted in this

Court’s discussion of individual plaintiff’s damages, because the Court cannot determine the

composition of the “wages” plaintiffs claim in their affidavits, the Court will only award the

amount claimed in the affidavit. The Court thereby does not risk awarding the same unpaid

wages twice. Where the Court can award the unpaid wages represented in paychecks that could

not be cashed, the Court will award plaintiffs the hourly rate defendants paid them for each hour

they estimated working during the respective pay period.

D. Liquidated Damages

Both the FLSA and DCWPCL have liquidated damages provisions that apply

here. The FLSA provides that an employer who violates the FLSA’s minimum wage,

equal pay, or overtime provisions “shall be liable to the employee or employees affected

in the amount of their unpaid minimum wages, or their unpaid overtime compensation, as

the case may be, and in an additional equal amount as liquidated damages.” 29 U.S.C.A.

§ 216(b). Liquidated damages are not, however, mandatory in all FLSA cases:

18 [I]f the employer shows to the satisfaction of the court that the act

or omission giving rise to such action was in good faith and that he

had reasonable grounds for believing that his act or omission was

not a violation of the [FLSA] . . . the court may, in its sound

discretion, award no liquidated damages or award any amount

thereof not to exceed the amount specified in section 216 of this

title.

29 U.S.C. § 260 (2006).

This Circuit has consistently emphasized that 29 U.S.C. § 260 requires more than a

showing of good faith. In Thomas v. Howard Univ. Hosp., 39 F.3d 370, 373 (D.C. Cir. 1994),

the Court of Appeals distinguished good faith from the “reasonableness” discussed in § 260,

noting that “liability for liquidated damages follows, unless the employer has a certain kind of

excuse—a reasonable belief that its acts or omissions did not violate the law.” The Court went

on to emphasize that “[i]n most instances an employer will be able to satisfy § 260’s ‘reasonable

grounds’ requirement only if it has relied on a reasonable, albeit erroneous, interpretation of the

[FLSA] or the regulations issued thereunder.” Id.

In the instant case, defendants have offered no explanation as to why this Court should

not award liquidated damages. They have not suggested that they believed they were in

compliance with the FLSA, let alone given any reason for their noncompliance. Because

defendants have not met their burden, the Court will award plaintiffs full liquidated damages

under the FLSA.

The DCWPCL’s liquidated damages clause only applies when employers fail to pay

former employees the amounts owed to them. D.C. Code § 32-1303(4). In addition to amounts

19 owed, employers must also pay “10 per centum of the unpaid wages for each working day during

which such failure shall continue after the day upon which payment is hereunder required, or an

amount equal to the unpaid wages, whichever is smaller.” Id. In the instant case, the later

calculation represents the smaller liquidated damages award. Finally, unlike the FLSA, the

DCWPCL contains no good faith exception. Thus, the plaintiffs to whom defendants owe

outstanding wages are entitled to twice those wages under the DCWPCL’s liquidated damages

provision.

E. Consequential Damages and Prejudgment Interest

Plaintiffs also seek consequential damages and prejudgment interest, but neither is

available under the FLSA or DCWPCL. As discussed above, the FLSA provides that for

violations of its minimum wage and maximum hour provisions, plaintiffs may recover “the

amount of their unpaid minimum wages, or their overtime compensation . . ., and in an additional

equal amount as liquidated damages.” 29 U.S.C.A. § 216(b). The statute also provides that a

court shall “allow a reasonable attorney’s fee to be paid by the defendant, and costs of the

action.” Id.

Although Congress did not expressly state that § 216(b)’s remedies are exclusive, most

courts have interpreted them as being so. See, e.g., Carter v. Marshall, 457 F. Supp. 38, 40–41

(D.D.C. 1978) (finding that “[b]ecause the [FLSA] specifically outlines the type of relief

available and also provides for liquidated damages, it appears that Congress intended the relief

provided to be exclusive”); Lerwill v. Inflight Motion Pictures, Inc., 343 F. Supp. 1027, 1028–29

(N.D. Cal. 1972) (“It should not require resort to Latin maxims of construction to show that the

provision of one detailed remedy, which necessarily works to define the substantive right to be

20 enforced, would exclude the possibility of alternative remedies in the absence of a clear showing

that Congress intended such alternatives to be provided by judicial construction”).

Furthermore, in Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 715 (1945), the Supreme

Court held that plaintiffs cannot not recover prejudgment interest under § 216(b) because the

award of liquidated damages already serves to compensate them for damages arising from

delayed payment. Although the Portal-to-Portal Act, Pub. L. No. 80-49, 61 Stat. 84 (codified at

29 U.S.C. § 260 (2006)), signed into law after O’Neil, made liquidated damages discretionary, it

has been the practice of courts in this Circuit to deny prejudgment interest under § 216(b) when a

court awards a plaintiff the maximum amount of liquidated damages. See Lopez v. Rodriguez,

688 F.2d 1376, 1381 n.10 (D.C. Cir. 1981); Harrison v. District of Columbia, 674 F. Supp. 34,

36 (D.D.C. 1987).

The DCWPCL uses similarly restrictive language when disclosing its remedies.

Aggrieved employees may bring an action under the DCWPCL “to recover unpaid wages and

liquidated damages.” D.C. Code § 32-1308(a). The DCWPCL later provides, however, that “in

addition to any judgment awarded to the plaintiff” a court shall “allow costs of the action,

including costs or fees of any nature, and reasonable attorney’s fees, to be paid by the

defendant.” Id. § 32-1308(b). The Court has found no legislative history or case law that

contradicts what is apparent on the face of the DCWPCL—that the remedies provided therein are

exclusive.

Because the remedies provided in the FLSA and DCWPCL are exclusive, plaintiffs’

claims for prejudgment interest and consequential damages will be denied.

21 F. Damages for Individual plaintiffs

i. Igor Vuckovic

Vuckovic worked for defendants as a server at Bebo for ninety-seven weeks between

January 2007 and November 2008. (Pls.’ Mot. J. Ex. 1, at 1.) He worked an average of forty-

eight hours per week and earned $2.13 per hour. (Id.; Vuckovic Aff. ¶ 4.) Over Vuckovic’s

ninety-seven weeks of employment, there were three different federal minimum wage rates.

From January 2007 to July 23, 2007—approximately twenty-nine weeks—the federal minimum

wage was $5.15 per hour; from July 24, 2007, until July 23, 2008—approximately fifty-two

weeks—the federal minimum wage was $5.85 per hour; from July 24, 2008, until November

2008—approximately sixteen weeks—the federal minimum wage was $6.55 per hour. See 29

U.S.C.A. § 206(a). For the first forty hours that Vuckovic worked each week (“regular hours”),

because defendants improperly took a tip credit against Vuckovic’s wages, Vuckovic is entitled

to the difference between the federal minimum wage rate and the $2.13 rate defendants paid him.

See 29 U.S.C.A. § 216(b). Table 1-1 lays out Vuckovic’s minimum wage damages.

Table 1-1: Vuckovic Minimum Wage Damages January 2007—July 23, 2007 (($5.15 - $2.13) x 40 hours x 29 weeks) $3,503.20 July 24, 2007—July 23, 2008 (($5.85 - $2.13) x 40 hours x 52 weeks) $7,737.60 July 24, 2008—November 2008 (($6.55 - $2.13) x 40 hours x 16 weeks) $2,828.80 Total Unpaid Minimum Wage $14,069.60

Defendants failed to pay Vuckovic overtime wages for the overtime hours he worked.

(Vuckovic Aff. ¶ 4.) Because defendants could not claim a tip credit and were thus required to

pay Vuckovic the minimum wage, Vuckovic is entitled to the overtime rate for minimum wage

earners, less the $2.13 rate defendants paid him, for each overtime hour that he worked. See 29

U.S.C.A. § 216(b). For the three different minimum wage time periods that he worked, the

22 overtime rate for minimum wage earners was $7.73, $8.78, and $9.83 per hour, respectively. See

29 U.S.C.A. §§ 206(a), 207(a)(1). Table 1-2 below lays out his overtime damages.

Table 1-2: Vuckovic Overtime Damages January 2007—July 23, 2007 (($7.73 - $2.13) x 8 hours x 29 weeks) $1,299.20 July 24, 2007—July 23, 2008 (($8.78 - $2.13) x 8 hours x 52 weeks) $2,766.40 July 24, 2008—November 2008 (($9.83 - $2.13) x 8 hours x 16 weeks) $985.60 Total Unpaid Overtime $5,051.20

Vuckovic stated in his affidavit that defendants owed him $12,000 in wages. (Vuckovic

Aff. ¶ 13.) As noted, Vuckovic later confirmed that this amount was in the form of unpaid credit

card tips. (Vuckovic Test., August 4, 2010.) Vuckovic is entitled to this amount under the

DCWPCL. See D.C. Code § 32-1303. Vuckovic has also submitted copies of two paychecks

that he was unable to cash because they were not signed. (See Pls.’ Mot. Summ. J. Ex. C.) Each

paycheck covered a two-week pay period. (See Comp. Ex. D.) Because he worked for forty-

eight hours per week, the two checks represent 192 hours. 3 At the rate of $2.13 per hour,

Vuckovic is entitled to the $408.96 he should have received for the pay periods represented by

the two paychecks he could not cash. 4 See D.C. Code § 32-1303. Because Vuckovic claims

only outstanding credit card tips in his affidavit, there is no danger that the Court is awarding

him the same unpaid wages by awarding him damages for both the amount claimed in his

affidavit and the amount represented by the two paychecks he submitted.

Vuckovic is entitled to liquidated damages in an amount equal to his damages under both

the FLSA and DCWPCL. See 29 U.S.C.A. § 216(b); D.C. Code § 32-1303(4). Table 1-3 lays

out Vuckovic’s total damages.

3 48 hours x 4 weeks 4 $2.13 x 192 hours

23 Table 1-3: Vuckovic Total Damages Unpaid Minimum Wage $14,069.60 Unpaid Overtime $5,051.20 Unpaid Credit Card Tips (DCWPCL) $12,000.00 Other Unpaid Wages (DCWPCL) $408.96 Subtotal $31,529.76 Liquidated Damages $31,529.76 Total $63,059.52

ii. Arturo Ramos

Ramos worked for defendants as a server at Bebo for forty-four weeks from September 1,

2007, to July 11, 2008. (Pls.’ Mot. J. Ex. 1, at 2.) He worked an average of forty-eight hours per

week and earned $2.13 per hour. (Id.; Ramos Aff. ¶ 7.) Over the course of his employment with

defendants, the minimum wage was $5.85 per hour (overtime for minimum wage earners: $8.78

per hour). See 29 U.S.C.A. §§ 206(a), 207(a)(1). Because defendants improperly took a tip

credit against Ramos’s wages, Ramos is entitled to the difference between the federal minimum

wage rate and the $2.13 rate defendants paid him. See 29 U.S.C.A. § 216(b). Because he

worked forty regular hours over forty-four weeks, defendants owe Ramos $6,547.20 for unpaid

minimum wage damages. 5 Additionally, defendants never paid Ramos at the overtime rate for

minimum wage earners for the eight overtime hours he worked per week. (Ramos Aff. ¶ 8.) He

is therefore entitled to $6.65 per hour for each overtime hour he worked, 6 totaling $2,340.80 in

unpaid overtime damages. 7 See 29 U.S.C.A. § 216(b).

Finally, Ramos testified that defendants owed him $9,000 in unpaid credit card tips, an

amount that defendants did not challenge during cross-examination. (Ramos Test., August 4,

5 ($5.85 - $2.13) x 40 hours x 44 weeks. 6 $8.78 - $2.13 7 ($8.78 - $2.13) x 8 hours x 44 weeks

24 2010.) Ramos is entitled to these damages under the DCWPCL. See D.C. Code § 32-1303.

Ramos may also recover liquidated damages in an amount equal to his damages under both the

FLSA and DCWPCL. See 29 U.S.C.A. § 216(b); D.C. Code § 32-1303(4). Table 2-1 lays out

his total damages.

Table 2-1: Ramos Total Damages Unpaid Minimum Wage $6,547.20 Unpaid Overtime $2,340.80 Other Unpaid Wages (DCWPCL) $9,000.00 Subtotal $17,888.00 Liquidated Damages $17,888.00 Total $35,776.00

iii. Bisera Romic

Romic worked for defendants as a server at Bebo for eighteen weeks from July 2008 to

October 27, 2008. (Pls.’ Mot. J. Ex. 1, at 2). During that time, he worked an average of forty-

eight hours per week. (Id.) Although Romic does not provide his hourly rate, the Court may

reasonably infer that defendants paid him the same $2.13 hourly rate as other servers at Bebo.

(See Defs.’ Hr’g Ex. 1, August 24, 2010.) During the course of Romic’s employment with

defendants, there were two federal minimum wage rates. From July 1, 2008, to July 23, 2008—

approximately three weeks—the federal minimum wage was $5.85 per hour (overtime for

minimum wage earners: $8.78 per hour); from July 24, 2008, to October 27, 2008—

approximately fifteen weeks—the federal minimum wage was $6.55 per hour (overtime for

minimum wage earners: $9.83 per hour). See 29 U.S.C.A. §§ 206(a), 207(a)(1). Because

defendants improperly took a tip credit against Romic’s wages, Romic is entitled to the

difference between the federal minimum wage rate and the $2.13 rate defendants paid him. See

29 U.S.C.A. § 216(b). Table 3-1 lays out his minimum wage damages.

25 Table 3-1: Romic Minimum Wage Damages July 1, 2008—July 23, 2008 (($5.85 - $2.13) x 40 hours x 3 weeks) $446.40 July 24, 2008—October 27, 2008 (($6.55 - $2.13) x 40 hours x 15 weeks) $2,652.00 Total Unpaid Minimum Wage $3,098.40

Because defendants failed to pay Romic overtime wages (Romic Aff. ¶ 8), he is entitled

to the overtime rate for federal minimum wage earners, less the $2.13 rate defendants paid him,

for each overtime hour that he worked. See 29 U.S.C.A. § 216(b). Table 3-2 lays out his

overtime damages.

Table 3-2: Romic Overtime Damages July 1, 2008—July 23, 2008 (($8.78 - $2.13) x 8 hours x 3 weeks) $159.60 July 24, 2008—October 27, 2008 (($9.83 - $2.13) x 8 hours x 15 weeks) $924.00 Total Unpaid Overtime $1,083.60

Although Romic stated in his affidavit that he did not receive any credit card tips, he did

not state how much defendants owe him. (See Romic Aff. ¶ 6.) Additionally, he is not listed on

the credit card tip reports that plaintiffs submitted. (See Pls.’ Mot. Summ. J. Ex. C.) Because the

Court has no way to assess the amount of credit card tips defendants owe Romic, and because

Romic has made no other claim for outstanding wages, the Court will not award him damages

under the DCWPCL.

Romic is entitled to liquidated damages in an amount equal to his damages under the

minimum wage and overtime provisions of the FLSA. See 29 U.S.C.A. § 216(b). Table 3-3 lays

out his total damages.

26 Table 3-3: Romic Total Damages Unpaid Minimum Wage $3,098.40 Unpaid Overtime $1,083.60 Subtotal $4,182.00 Liquidated Damages $4,182.00 Total $8,364.00

iv. Tulga Dorjgotov

Dorjgotov worked for defendants as a server at Bebo for thirty-two weeks, from April

2008 to November 5, 2008. (Pls.’ Mot. J. Ex. 1, at 1.) Over that time, he worked forty-eight

hours per week. (Id.) Although he does not provide his hourly rate, the Court can reasonably

infer that defendants paid him the same $2.13 rate they paid other servers at Bebo. (See Defs.’

Hr’g Ex. 1, August 24, 2010.) While Dorjgotov worked for defendants, there were two federal

minimum wage rates. From April 1, 2008, until July 23, 2008—approximately sixteen weeks—

the minimum wage was $5.85 per hour (overtime for minimum wage earners: $8.78 per hour);

from July 24, 2008, to November 5, 2008—approximately sixteen weeks—the minimum wage

was $6.55 per hour (overtime for minimum wage earners: $9.83 per hour). See 29 U.S.C.A. §§

206(a), 207(a)(1). Because defendants improperly took a tip credit against Dorjgotov’s wages,

Dorjgotov is entitled to the difference between the federal minimum wage rate and the $2.13 rate

defendants paid him. See 29 U.S.C.A. § 216(b). Table 4-1 lays out his minimum wage damages.

Table 4-1: Dorjgotov Minimum Wage Damages April 1, 2008—July 23, 2008 (($5.85 - $2.13) x 40 hours x 16 weeks) $2,380.80 July 24, 2008—November 5, 2008 (($6.55 - $2.13) x 40 hours x 16 weeks) $2,828.80 Total Unpaid Minimum Wage $5,209.60

Unlike the other plaintiffs, Dorjgotov has not asserted that defendants failed to pay him

overtime wages. Because he has effectively made no claim for unpaid overtime wages, the

27 Court will not award him overtime damages for the eight overtime hours per week that he

worked.

Dorjgotov has also failed to stipulate as to other unpaid wages defendants still owe him,

and he has not provided copies of paychecks that he was unable to cash. Thus, he is not entitled

to additional damages under the DCWPCL. His damages are therefore limited to unpaid

minimum wage damages under the FLSA and an equal amount in liquidated damages. See 29

U.S.C.A. § 216(b). Table 4-2 lays out Dorjgotov’s total damages.

Table 4-2: Dorjgotov Total Damages Unpaid Minimum Wage $5,209.60 Liquidated Damages $5,209.60 Total $10,419.20

v. Mohamed Douah

Douah worked for defendants as a server at Bebo for seventy-four weeks, from October

2006 to February 24, 2008. (Pls. Mot. J. Ex. 1, at 3.) Over that time, he worked forty-eight

hours per week and earned $2.13 per hour. (Id.; see Compl. Ex. D.) While Douah worked for

defendants, there were two federal minimum wage rates. From October 2006 until July 23,

2007—approximately forty-two weeks—the minimum wage was $5.15 per hour (overtime for

minimum wage earners: $7.73 per hour); from July 24, 2007, to February 24, 2008—

approximately thirty-two weeks—the minimum wage was $5.85 per hour (overtime for

minimum wage earners: $8.78 per hour). See 29 U.S.C.A. §§ 206(a), 207(a)(1). Because

defendants improperly took a tip credit against Douah’s wages, Douah is entitled to the

difference between the federal minimum wage rate and the $2.13 rate defendants paid him. See

29 U.S.C.A. § 216(b). Table 5-1 lays out his minimum wage damages.

28 Table 5-1: Douah Minimum Wage Damages October 2006—July 23, 2007 (($5.15 - $2.13) x 40 hours x 42 weeks) $5,073.60 July 24, 2007—February 24, 2008 (($5.85 - $2.13) x 40 hours x 32 weeks) $4,761.60 Total Unpaid Minimum Wage $9,835.20

Because defendants failed to pay Douah overtime wages (Douah Aff. ¶ 6), Douah is

entitled to the overtime rate for federal minimum wage earners, less the $2.13 rate defendants

paid him, for each overtime hour that he worked. See 29 U.S.C.A. § 216(b). Table 5-2 lays out

his overtime damages.

Table 5-2: Douah Overtime Damages October 2006—July 23, 2007 (($7.73 - $2.13) x 8 hours x 42 weeks) $1,881.60 July 24, 2007—February 24, 2008 (($8.78 - $2.13) x 8 hours x 32 weeks) $1,702.40 Total Unpaid Overtime $3,584.00

Douah has also claimed that defendants owe him $16,965.24 in unpaid wages. (Douah

Aff. ¶ 11.) But this amount, aside from being markedly greater than the amounts claimed by

other plaintiffs, appears inconsistent with the record. Defendants’ credit card tip report, dated

March 7, 2008, and covering the final time period during which defendants employed Douah,

shows that defendants only owed Douah $7,852.65 in unpaid credit card tips. (See Pls.’ Mot.

Summ. J. Ex. C.) The record in no way accounts for the additional $9,112.59 that Douah claims

defendants still owe him. If defendants never paid Douah wages, they would owe him an

additional $7,565.76. 8 Not only does this amount not fully account for the difference between

the credit card tips and the amount Douah claims defendants owe him, but Douah has not

claimed that defendants failed to pay him any wages. (See generally Douah Aff.) Because

Douah’s claim for outstanding wages is not reasonably related to the claims of his co-plaintiffs,

and because it is not independently substantiated by just and reasonable inference from the 8 $2.13 x 48 hours x 74 weeks

29 record, the Court will only award him $7,852.65 in unpaid credit card tips under the DCWPCL,

as substantiated by defendants’ credit card tip reports. See D.C. Code § 32-1303.

Because the Court is awarding the $7,852.65 in unpaid credit card tips based on

defendants’ credit card tip reports, as opposed to the vague claim for “wages” in Douah’s

affidavit, the Court can also award Douah damages under the DCWPCL for the three paychecks

he submitted that he was unable to cash. (See Compl. Ex. D.) The biweekly paychecks account

for six total weeks. Douah claimed to have worked for forty-eight hours per week and

defendants paid him $2.13 per hour. Thus, he may recover $613.44 for the three paychecks he

was unable to cash. 9 See D.C. Code § 32-1303.

Finally, Douah claims that he had to pay $2,800 in Social Security tax that defendants

failed to pay on his behalf. (Douah Aff. ¶ 11.) Douah is not the only plaintiff who claimed that

defendants failed to pay taxes on his or her behalf. Scott also testified that defendants, despite

withholding income to allegedly pay taxes, also failed to pay those taxes on her behalf. (See

Scott Test., August 4, 2010.) During cross-examination, defendants did not challenge her claim.

(Id.) Under Anderson, this Court is entitled to infer that Scott’s testimony sufficiently

substantiates Douah’s claim that defendants did not pay $2,800 in Social Security taxes on his

behalf. Because defendants have made no effort to counter Douah’s claim, the Court finds that

defendants did not pay $2,800 in Social Security taxes that they withheld. Accordingly, Douah

may recover the wrongfully withheld wages under the DCWPCL. See D.C. Code § 32-1303.

Douah is entitled to liquidated damages for his damages under both the FLSA and

DCWPCL. See 29 U.S.C.A. § 216(b); D.C. Code § 32-1303(4). Table 5-3 lays out his total

damages.

9 48 hours x 6 weeks x $2.13

30 Table 5-3: Douah Total Damages Unpaid Minimum Wage $9,835.20 Unpaid Overtime $3,584.00 Other Unpaid Wages (DCWPCL) ($7,852.65 + $613.44 + $2,800.00) $11,266.09 Subtotal $24,685.29 Liquidated Damages $24,685.29 Total $49,370.58

vi. Carlos Sosaya

Sosaya worked for defendants as a server at Bebo for fifty-two weeks from October 2007

to October 2008. (Pls.’ Mot. J. Ex. 1, at 3.) Although Sosaya stated in his affidavit that he

worked approximately forty-eight hours per week (Sosaya Aff. ¶ 3), plaintiffs later estimated that

he only worked forty hours per week (Pls.’ Mot. J. Ex. 1, at 3). In this situation, the Court finds

highly relevant the timing of Sosaya’s affidavit. Sosaya signed and dated his affidavit on April

27, 2010. Plaintiffs appended Sosaya’s affidavit to their Motion for Summary Judgment, which

they submitted to the Court on May 17, 2010. From May 17, 2010, to July 20, 2010—the date

on which plaintiffs submitted their estimate of damages—neither party in this action submitted

any evidence relating to the hours Sosaya worked. In light of these circumstances, the Court will

give deference to Sosaya’s affidavit and award FLSA damages based on Sosaya’s statement that

he worked forty-eight hours per week.

Over the course of Sosaya’s employment with defendants, there were two minimum

wage rates. From October 2007 to July 23, 2008—approximately forty weeks—the federal

minimum wage was $5.85 per hour (overtime for minimum wage earners: $8.78 per hour); from

July 24, 2008, until Sosaya ceased working for defendants in October 2008—approximately

twelve weeks—the federal minimum wage was $6.55 per hour (overtime for minimum wage

earners: $9.83 per hour). See 29 U.S.C.A. § 206(a), 207(a)(1). Because defendants improperly

31 took a tip credit against Sosaya’s wages, Sosaya is entitled to the difference between the federal

minimum wage rate and the $2.13 rate defendants paid him. See 29 U.S.C.A. § 216(b). Table 6-

1 lays out his minimum wage damages.

Table 6-1: Sosaya Minimum Wage Damages October 2007—July 23, 2008 (($5.85 - $2.13) x 40 hours x 40 weeks) $ 5,952.00 July 24, 2008—October 2008 (($6.55 - $2.13) x 40 hours x 12 weeks) $ 2,121.60 Total Unpaid Minimum Wage $ 8,073.60

Because defendants failed to pay Sosaya overtime wages (Sosaya Aff. ¶ 7), he may

recover the overtime rate for minimum wage earners, less the $2.13 rate defendants paid him, for

each overtime hour he worked. See 29 U.S.C.A. § 216(b). Table 6-2 lays out her overtime

Table 6-2: Sosaya Overtime Damages October 2007—July 23, 2008 (($8.78 - $2.13) x 8 hours x 40 weeks) $2,128.00 July 24, 2008—October 2008 (($9.83 - $2.13) x 8 hours x 12 weeks) $739.20 Total Unpaid Overtime $2,867.20

Sosaya states in his affidavit that defendants owe him $6,000 in unpaid wages. (Sosaya

Aff. ¶ 14.) He can recover this amount under the DCWPCL. See D.C. Code § 32-1303. He is

also entitled to liquidated damages in an amount equal to both his DCWPCL and FLSA

damages. See 29 U.S.C.A. § 216(b); D.C. Code § 32-1303(4). Table 6-3 lays out his total

Table 6-3: Sosaya Total Damages Unpaid Minimum Wage $8,073.60 Unpaid Overtime $2,867.20 Other Unpaid Wages (DCWPCL) $6,000.00 Subtotal $16,940.80 Liquidated Damages $16,940.80 Total $33,881.60

32 vii. Marijana Bosnjak

Bosnjak worked for defendants as a server at Bebo for twenty-seven weeks from July

2008 to December 2008. (Pls.’ Mot. J. Ex. 1, at 4.) Over that time, she worked sixty hours per

week. (Id.) Although Bosnjak has not provided her hourly rate, the Court can infer that

defendants paid Bosnjak the same $2.13 rate they paid other servers at Bebo. (See Defs.’ Hr’g

Ex. 1, August 24, 2010.) While Bosnjak worked for defendants, there were two federal

minimum wage rates. From July 1, 2008, to July 23, 2008—approximately three weeks—the

federal minimum wage was $5.85 per hour (overtime for minimum wage earners: $8.78 per

hour); from July 24, 2008, to December 31, 2008—approximately twenty-four weeks—the

federal minimum wage was $6.55 (overtime for minimum wage earners: $9.83 per hour). See 29

U.S.C.A. §§ 206(a), 207(a)(1). Because defendants improperly took a $2.13 tip credit against

Bosnjak’s wages, Bosnjak is entitled to the difference between the federal minimum wage rate

and the $2.13 rate defendants paid her for each regular hour worked. See 29 U.S.C.A. § 216(b).

Table 7-1 lays out her minimum wage damages.

Table 7-1: Bosnjak Minimum Wage Damages July 1, 2008—July 23, 2008 (($5.85 - $2.13) x 40 hours x 3 weeks) $446.40 July 24, 2008—December 31, 2008 (($6.55 - $2.13) x 40 hours x 24 weeks) $4,243.20 Total Unpaid Minimum Wage $4,689.60

Because defendants also failed to pay Bosnjak overtime wages (Pls.’ Mot. Summ. J. Ex.

C, Bosnjak Aff. ¶ 5), Bosnjak may recover the overtime rate for minimum wage earners, less the

$2.13 rate defendants paid her, for each overtime hour she worked. See 29 U.S.C.A. § 216(b).

Table 7-2 lays out her overtime damages.

33 Table 7-2: Bosnjak Overtime Damages July 1, 2008—July 23, 2008 (($8.78 - $2.13) x 20 hours x 3 weeks) $399.00 July 24, 2008—December 31, 2008 (($9.83 - $2.13) x 20 hours x 24 weeks) $3,696.00 Total Unpaid Overtime $4,095.00

Bosnjak also stated that defendants failed to pay her $5,500 in wages. (Bosnjak Aff. ¶

11.) She can recover this amount under the DCWPCL. See D.C. Code § 32-1303. Bosnjak is

also entitled to recover liquidated damages in an amount equal to the damages awarded under

both the FLSA and DCWPCL. See 29 U.S.C.A. § 216(b); D.C. Code § 32-1303(4). Table 7-3

lays out her total damages.

Table 7-3: Bosnjak Total Damages Unpaid Minimum Wage $4,689.60 Unpaid Overtime $4,095.00 Unpaid Other Wages (DCWPCL) $5,500.00 Subtotal $14,284.60 Liquidated Damages $14,284.60 Total $28,569.20

viii. Dorde Milojevic

Milojevic worked for defendants as a server at Bebo for twenty-two weeks from June 12,

2008, to November 2008. (Pls. Mot. J. Ex. 1, at 4.) He worked sixty hours per week. (Id.)

Although Milojevic has not provided his hourly rate, the Court can infer that defendants paid

Milojevic the same $2.13 rate they paid other servers at Bebo. (See Defs.’ Hr’g Ex. 1, August

24, 2010.) While he worked for defendants, there were two federal minimum wage rates. From

June 12, 2008, until July 23, 2008—approximately five weeks—the federal minimum wage was

$5.85 per hour (overtime for minimum wage earners: $8.78 per hour); from July 24, 2008, until

November 2008—approximately seventeen weeks—the federal minimum wage was $6.55

(overtime for minimum wage earners: $9.83 per hour). See 29 U.S.C.A. §§ 206(a), 207(a)(1).

34 Because defendants improperly took a $2.13 tip credit against Milojevic’s wages, Milojevic is

entitled to the difference between the federal minimum wage rate and the $2.13 rate defendants

paid him for each regular hour that he worked. See 29 U.S.C.A. § 216(b). Table 8-1 lays out his

minimum wage damages.

Table 8-1: Milojevic Minimum Wage Damages June 12, 2008—July 23, 2008 (($5.85 - $2.13) x 40 hours x 5 weeks) $744.00 July 24, 2008—November 2008 (($6.55 - $2.13) x 40 hours x 17 weeks) $3,005.60 Total Unpaid Minimum Wage $3,749.60

Because defendants failed to pay Milojevic overtime wages (Pls.’ Mot. Summ. J. Ex. C,

Milojevic Aff. ¶ 7), he may collect the overtime rate for federal minimum wage earners, less the

$2.13 rate defendants paid him, for each overtime hour that he worked. See 29 U.S.C.A. §

216(b). Table 8-2 lays out his overtime damages.

Table 8-2: Milojevic Overtime Damages June 12, 2008—July 23, 2008 (($8.78 - $2.13) x 20 hours x 5 weeks) $665.00 July 24, 2008—November 2008 (($9.83 - $2.13) x 20 hours x 17 weeks) $2,618.00 Total Unpaid Overtime $3,283.00

Milojevic also stated in his affidavit that defendants owed him $6,500 in unpaid wages.

(Milojevic Aff. ¶ 14.) He can recover this amount under the DCWPCL. See D.C. Code § 32-

1303. He is also entitled to recover liquidated damages in an amount equal to his damages under

both the FLSA and DCWPCL. See 29 U.S.C.A. § 216(b); D.C. Code § 32-1303(4). Table 8-3

lays out his total damages.

35 Table 8-3: Milojevic Total Damages Unpaid Minimum Wage $3,749.60 Unpaid Overtime $3,283.00 Unpaid Credit Card Tips (DCWPCL) $6,500.00 Subtotal $13,532.60 Liquidated Damages $13,532.60 Total $27,065.20

ix. Jesus Ventura

As a threshold matter, the Court must determine when Ventura stopped working for

defendants. In his affidavit, Ventura states that he ceased working for defendants in December

2006. (Ventura Aff. ¶ 2.) Plaintiffs relied on his statement when estimating Ventura’s damages.

(See Pls.’ Mot. J. Ex. 1, at 5.) In their amended complaint, however, plaintiffs state that Ventura

worked for defendants until November 2007. (Am. Compl. ¶¶ 25–26.) They have also provided

a copy of Ventura’s time card, dated November 11, 2007, and three paychecks that Ventura was

unable to cash, two of which were dated December 2007. (Compl. Exs. A, D.) The evidence in

the record clearly establishes that Ventura was employed by defendants in December 2007. For

the purposes of estimating the duration of Ventura’s employment with defendants, the Court

finds that he terminated his employment with them in December 2007.

Ventura began work as a busser at Galileo in February 1992, transferred to Bebo when

Galileo closed in 2006, and continued to work as a busser at Bebo until December 2007. (See

Pls.’ Mot. J. Ex. 1, at 5; Compl. Ex. D.) The statute of limitations under both the DCWPCL and

FLSA, however, is only three years. See 29 U.S.C. § 255(a) (2006); D.C. Code § 32-1013.

Because plaintiffs filed their complaint on April 11, 2008, Ventura may only recover for FLSA

and DCWPCL violations that occurred on or after April 11, 2005, up through the end of his

employment with defendants in December 2007, a span of 142 weeks.

36 Ventura’s case differs from the other plaintiffs in this case because defendants paid him

$8.00 per hour (see Compl. Ex. A), a rate much higher than the federal and District of

Columbia 10 minimum wage rates in effect between April 11, 2005, and December 2007. See 29

U.S.C.A. § 206(a); D.C. Code § 32-1003(a). Although Ventura’s rate of pay precludes him from

recovering minimum wage damages under the FLSA, it raises his overtime rate beyond that of

his fellow plaintiffs. The overtime rate is one-and-one-half times an employee’s regular rate of

pay. See 29 U.S.C.A. § 207(a)(1). Because Ventura’s regular rate of pay was $8.00 per hour,

defendants were required to pay him $12.00 per hour for each overtime hour he worked.

Because defendants failed to pay Ventura overtime wages for his overtime hours (Ventura Aff. ¶

5), he may collect the difference between the overtime rate to which he was entitled and the

$8.00 rate defendants paid him. See 29 U.S.C.A. § 216(b). He worked sixty-five hours per week

over 142 weeks for defendants, and he is thus entitled to $14,200 in unpaid overtime wages. 11

He is also entitled to an equal amount in liquidated damages. See id.

Ventura has also submitted paychecks that he was unable to cash. (See Comp. Ex. D.)

Ventura stated in his affidavit, however, that defendants owe him $40,767 in unpaid wages.

(Ventura Aff. ¶ 12.) The Court notes that in his affidavit, Ventura was discussing the entire

sixteen years he worked for defendants. Unlike plaintiffs’ Motion for Judgment, in which

plaintiffs’ counsel specified that they were calculating Ventura’s damages based on the ninety

weeks of employment within the statute of limitations, Ventura makes no such distinction in his

10 The District of Columbia minimum wage provisions apply only to employees who “regularly spend[] more than 50% of their working time in the District of Columbia.” D.C. Code § 32-1003(b)(1) (2010). Ventura is the only plaintiff who fits this definition of employee because he is the only plaintiff who spent enough time working within the District of Columbia to qualify. The other employees limit their claims to the time they worked at Bebo, located in Virginia. 11 $4.00 x 25 hours x 142 weeks

37 affidavit. (Compare Pls.’ Mot. J. Ex. 1, at 5 with Ventura Aff.) Thus, the Court does not find it

appropriate to award Ventura the full $40,767 under the DCWPCL.

Ventura, however, worked for defendants for fifteen years and ten months (15.83 years).

Assuming that defendants accumulated their debt to Ventura evenly over the course of his

employment, which would be reasonable given that greater or lesser amounts in a given year

would average out over time, defendants would have accumulated $2,575.30 in debt to Ventura

each year. 12 The Court finds this to be a reasonable estimate. Defendants consistently failed to

pay plaintiffs both wages and credit card tips. The credit card tip report listing Ventura shows

that he earned $738.96 over a ten-day span. (See Compl. Ex. C.) If defendants failed to pay

those tips, or only partially paid them, they could easily have failed to pay Ventura $2,575.30

over the course of a year. To boil the estimate down further, defendants would have failed to pay

Ventura $49.53 per week. 13 Thus, over the 142 weeks that Ventura worked for defendants

within the statute of limitations, defendants would have owed Ventura $7,033.26 in unpaid

wages. 14 Ventura is entitled to these wages under the DCWPCL. See D.C. Code § 32-1303.

Defendants have asserted, however, that they had paid all employees at Galileo, including

Ventura, in full by the time it closed in 2006. If this assertion is true, the Court would have to

reduce Ventura’s DCWPCL award to exclude the time he worked at Galileo. To support their

assertion, defendants presented the testimony of Philip Proulx, a part-time bookkeeper at both

Galileo and Bebo, and the affidavit of Mario Mellusi, the manager at Galileo at the time it

closed. Both the testimony and the affidavit suffer from the same flaw—neither finds enough

12 $40,767.00 ÷ 15.83 years 13 $2,575.30 ÷ 52 weeks 14 $49.53 x 142 weeks

38 support in the record to overcome the cumulative weight of plaintiffs’ evidence demonstrating

the prevalent nature of defendants’ pay practices.

Both Prolux and Mellusi made plain, simple statements that defendants paid Galileo

employees, including Ventura, in full by the time the restaurant closed. (See Prolux Test., Aug.

24, 2010; Defs.’ Hr’g Ex. 3, Mellusi Aff., Aug. 24, 2010.) Plaintiffs, however, have submitted

ample evidence showing that defendants deliberately disregarded their legal obligations to pay

their employees. Defendants engaged in pay practices that were widespread and not motivated

by any particular factor. Although plaintiffs’ evidence primarily focuses on defendants’ pay

practices at Bebo, it establishes by just and reasonable inference that defendants’ pay practices at

Galileo were equally suspect. Neither Prolux’s nor Mellusi’s statement, without more, dispels

this inference. Because defendants have not submitted additional records corroborating their

claim that they had paid Ventura in full by the time he transitioned from Galileo to Bebo,

defendants have not met their burden to overcome the Court’s finding that Ventura is entitled to

$7,033.26 in unpaid wages under the DCWPCL. The Court will therefore award that amount.

Ventura may also recover an equal amount in liquidated damages. See D.C. Code § 32-1303(4).

Finally, because the Court cannot determine the allocation of tips and wages within

Ventura’s claim in his affidavit, the Court will not award damages for the three paychecks that

he could not cash. The Court thereby avoids the risk of compensating Ventura for the same

unpaid wages twice. Table 9-1 lays out Ventura’s total damages.

Table 9-1: Ventura Total Damages Unpaid Overtime $14,200.00 Unpaid Wages (DCWPCL) $7,033.26 Subtotal $21,233.26 Liquidated Damages $21,233.26 Total $42,466.52

39 x. Rosa Rivas

Rosa Rivas worked for defendants as a busser at Bebo for fifty-nine weeks from October

2006 to November 2007. (Pls.’ Mot. J. Ex. 1, at 5.) Over that time she earned $3.35 per hour,

and worked seventy hours per week. (Id.; Rivas Aff. ¶ 4.) Defendants never paid her overtime

wages. (Rivas Aff. ¶ 5.) Regardless of whether defendants did not permit her to retain enough

tips to qualify as a “tipped employee” under the FLSA, or whether defendants were not permitted

to take a tip credit, defendants were required to pay Rivas the federal minimum wage for the

regular hours that she worked.

Because the Court has found that defendants violated the Equal Pay Act, 29 U.S.C.A. §

206(d), it must calculate Rivas’ damages for unpaid minimum wage and overtime wages

differently from other tipped employees. Defendants paid Ventura $8.00 per hour while only

paying Rivas $3.35 per hour, despite the fact that both did the same type and amount of work.

Under the EPA, Rivas is entitled to the difference between the $8.00 per hour defendants paid

Ventura and the $3.35 per hour they paid her, or $4.65. These damages, however, overlap with

both her minimum wage and overtime damages. The EPA provides that “[f]or purposes of

administration and enforcement, any amounts owing to any employee which have been withheld

in violation of [the EPA] shall be deemed to be unpaid minimum wages or unpaid overtime

compensation under this chapter.” 29 U.S.C.A. § 206(d)(3) (emphasis added). The $4.65 per

hour to which Rivas is entitled under the EPA is greater than the rate she would otherwise be

able to recover in unpaid minimum wages. 15 Thus, her EPA damages subsume her minimum

wage damages. Accordingly, for defendants’ violations of both the minimum wage provisions

15 As an example, when Rivas ceased working for defendants in November 2007, the federal minimum wage was only $5.85 per hour. See 29 U.S.C.A. § 206(a). Rivas would have normally been entitled only to the difference between the federal minimum wage rate and the $3.35 rate defendants paid her, or $2.50.

40 and equal pay provisions of the FLSA, Rivas is entitled to $4.65 for each regular hour she

worked. Because she worked forty hours per week over the course of fifty-nine weeks, the

Court will award Rivas $10,974 in “minimum wage” damages. 16

The Court must also use the discrepancy between Ventura’s and Rivas’s pay to determine

her unpaid overtime wages. See 29 U.S.C.A. § 206(d)(3). Because the EPA’s purpose is to

ensure that the pay between men and women doing the same work is equal, the Court calculates

Rivas’s overtime rate as the difference between the overtime rate Ventura should have been paid,

to which Rivas was likewise entitled, and the rate Rivas was actually paid for her overtime hours.

As discussed above, Ventura should have been paid $12.00 for each overtime hour. Therefore,

for the thirty overtime hours Rivas worked per week, she is entitled to $8.65 per hour. 17 Because

she worked thirty overtime hours each week for fifty-nine weeks, the Court will award Rivas

$15,310.50 in unpaid “overtime” wages. 18

Rivas also claims that defendants owe her $3,500 in unpaid wages. (Rivas Aff. ¶ 12.)

Rivas is entitled to these wages under the DCWPCL. See D.C. Code § 32-1303. Because the

Court is awarding these damages, however, it cannot grant her the amounts represented by the

paychecks she submitted that could not be cashed. (See Pls.’ Mot. Summ. J. Ex. B.) The Court

cannot determine the allocation of tips and wages in the claim in her affidavit. To avoid

awarding the same unpaid wages twice, the Court will award Rivas the amount stated in her

affidavit and disregard the paychecks she submitted.

Rivas is entitled to liquidated damages under the FLSA, EPA, and DCWPCL. See 29

U.S.C.A. § 216(b); D.C. Code § 32-1303(4). Table 10-1 lays out her total damages.

16 $4.65 x 40 hour x 59 weeks 17 $12.00 - $3.35 18 $8.65 x 30 hours x 59 weeks

41 Table 10-1: Rivas Total Damages Unpaid Minimum Wage $10,974.00 Unpaid Overtime $15,310.50 Unpaid Wages (DCWPCL) $3,500.00 Subtotal $29,784.50 Liquidated Damages $29,784.50 Total $59,569.00

xi. Hical El Hallou and Elizabeth Scott

El Hallou and Scott claim damages only for unpaid wages under the DCWPCL. (See

Pls.’ Mot. J. Ex. 1, at 6.) Both were salaried employees—El Hallou was a floor manager at Bebo

and Scott was Donna’s personal assistant. (Id.) Defendants owe El Hallou $7,200 in unpaid

wages, and defendants owe Scott $10,609.34 in unpaid wages. (Id.) Both El Hallou and Scott

are entitled to these wages under the DCWPCL and an equal amount in liquidated damages. See

D.C. Code § 32-1303. Accordingly, the Court will award El Hallou $14,400, and Scott

$21,218.68.

G. Attorneys’ Fees

A plaintiff is entitled to reasonable attorneys’ fees and costs under both the FLSA and

DCWPCL. See 29 U.S.C.A. § 216(b); D.C. Code. § 32-1308(b). Well aware of this entitlement,

plaintiffs in this case have submitted an estimate of the attorneys’ fees and costs accrued in this

action. A court will grant a plaintiff’s attorneys’ fees according to the plaintiff’s estimates if it

finds that the estimates are based on “a number of hours reasonably expended” and were

calculated using a “reasonable hourly rate.” Save Our Cumberland Mountains, Inc. v. Hodel,

857 F.2d 1516, 1517 (D.C. Cir. 1988) (en banc) (citing Blum v. Stevenson, 465 U.S. 886 (1984)).

The key factor to determining whether an attorney’s time was reasonably expended on a

case is productivity. See Copeland v. Marshall, 641 F.2d 880, 892 (D.C. Cir. 1980). Work that

42 is duplicative, excessive, or otherwise unnecessary is not productive. See id.; Martini v. Fed.

Nat’l Mortg. Ass’n, 977 F. Supp. 482 (D.D.C. 1997). In that vein, time expended on claims or

motions that ultimately fail is not productive and should not be included in an award of

attorneys’ fees. See Copeland, 641 F.2d at 892.

“[A]n attorney’s usual billing rate is presumptively the reasonable rate, provided that the

rate is in line with those prevailing in the community for similar services by lawyers of

reasonably comparable skill, experience, and reputation.” Kattan by Thomas v. District of

Columbia, 995 F.2d 274, 278 (D.C. Cir. 1993) (quoting Blum, 465 U.S. at 895 n.11) (internal

quotations omitted). For attorneys in the District of Columbia, the Laffey Matrix sets forth the

reasonable range of attorneys’ rates based on the respective attorney’s level of experience.

Hodel, 857 F.2d at 1524–25. The United States Attorney for the District of Columbia maintains

an updated version of the Laffey Matrix. See Laffey Matrix 2003–2010, U.S. ATTORNEY’S

OFFICE FOR THE DISTRICT OF COLUMBIA,

http://www.justice.gov/usao/dc/Divisions/Civil_Division/Laffey_Matrix_8.html (last visited

October 14, 2010) [hereinafter Laffey Matrix].

Turning to the instant case, plaintiffs seek $127,765.25 in attorneys’ fees for Denise M.

Clark, Nicole Dafoe, and Michael D. Kirkwood, as well as $4,968.41 in costs. (Pls.’ Mot. J. Ex.

A, at 3.) Ms. Clark has been practicing law for twenty years and charges an hourly rate of $350;

Ms. Dafoe has been practicing law since 2007 and charges an hourly rate of $215; and Mr.

Kirkwood has been practicing law since 2005 and charges an hourly rate of $275. (Id.) Ms.

Clark and Ms. Dafoe charge rates that are lower than those listed in the Laffey Matrix for

attorneys with their experience. See Laffey Matrix. Mr. Kirkwood charges $5 more per hour

than is listed for attorneys with four to seven years of experience. Id. The Court finds this

43 harmless, however, in light of the lower rates charged by Ms. Clark and Ms. Dafoe. The Court

therefore finds that the attorneys’ rates are reasonable.

The Court also finds that plaintiffs’ counsel have expended a reasonable number of hours

in this action. The Court has carefully reviewed a breakdown of plaintiffs’ counsel’s work. The

tasks were not duplicative, all tasks arose from this action, and the time counsel expended on

each task was not excessive. (See Pls.’ Mot. J. Ex. 2.) Thus, the Court finds plaintiffs’ request

for attorneys’ fees reasonable and will award them $127,765.25, as well as the $4,968.41 that

plaintiffs seek in costs.

IV. APPORTIONMENT OF LIABILITY

When it granted summary judgment, the Court found that “Donna is an ‘employer’ under

the FLSA and is personally liable for the corporate defendants’ wage, overtime, and equal pay

violations.” (Mem. Op. Granting Pls.’ Mot. Summ. J. 7.) With respect to apportioning damages,

“if the facts establish that the employee is employed jointly by two or more employers, i.e., that

employment by one employer is not completely disassociated from employment by the other

employer(s), . . . all joint employers are responsible, both individually and jointly, for

compliance with all the applicable provisions of the [FLSA].” 29 C.F.R. § 791.2(a) (2010); see

Donovan v. Agnew, 712 F.2d 1509, 1511 (1st Cir. 1983) (“The overwhelming weight of

authority is that a corporate officer with operational control of a corporation’s covered enterprise

is an employer along with the corporation, jointly and severally liable under the FLSA for unpaid

wages”).

44 Because the Court has found that Donna is a joint employer under the FLSA and, by

extension, under the DCWPCL, 19 he and the corporate defendants are jointly and severally liable

for the damages set forth in this opinion. Accordingly, plaintiffs may recover from whichever

defendant they choose, and defendants must negotiate amongst themselves how to apportion the

V. CONCLUSION

For the reasons set forth above, the Court will ORDER defendants to pay damages as

follows:

1. To Igor Vuckovic, defendants must pay $31,529.76 in damages and $31,529.76 in

liquidated damages.

2. To Arturo Ramos, defendants must pay $17,888.00 in damages and $17,888.00 in

3. To Bisera Romic, defendants must pay $4,182.00 in damages and $4,182.00 in

4. To Tulga Dorjgotov, defendants must pay $5,209.60 in damages and $5,209.60 in

5. To Mohamed Douah, defendants must pay $24,685.29 in damages and $24,685.29 in

6. To Carlos Sosaya, defendants must pay $16,940.80 in damages and $16,940.80 in

7. To Marijana Bosnjak, defendants must pay $14,284.60 in damages and $14,284.60 in

19 Because the DCWPCL and FLSA contain nearly identical provisions with respect to employers’ liability, the DCWPCL is construed consistently with the FLSA. See, e.g., Del Villar v. Flynn Architectural Finishes, 664 F. Supp. 2d 94, 96 (D.D.C. 2009).

45 8. To Dorde Milojevic, defendants must pay $13,532.60 in damages and $13,532.60 in

9. To Jesus Ventura, defendants must pay $21,233.26 in damages and $21,233.26 in

10. To Rosa Rivas, defendants must pay $29,784.50 in damages and $29,784.50 in

11. To Hical El Hallou, defendants must pay $7,200.00 in damages and $7,200.00 in

12. To Elizabeth Scott, defendants must pay $10,609.34 in damages and $10,609.34 in

13. To Denise M. Clark, Nicole Dafoe, and Michael D. Kirkwood, collectively,

defendants must pay $127,765.25 in attorneys’ fees, and $4,968.41 in costs.

The Court will DENY plaintiffs’ request for prejudgment interest and consequential

A separate order consistent with the memorandum opinion shall issue this date.

Signed by Royce C. Lamberth, Chief Judge, on December 3, 2010.