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Pleitez v. Carney

January 30, 2009

VICTOR MANUEL PLEITEZ,ET AL., PLAINTIFFS,
v.
STEPHEN CARNEY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John D. Bates, United States District Judge

MEMORANDUM OPINION

The final issue in this case, and the only issue now before the Court, is determining the amount of damages to award to plaintiffs.The Clerk of Court declared Stephen Carney and PiersBalmoral, LLC (collectively, "defendants") in default on June 25, 2008. Thereafter, plaintiffs filed a motion for default judgment. The Court granted the motion on November 26, 2008, but pursuant to Rule 55(b) of the Federal Rules of Civil Procedure, the Court ordered the parties to appear for an evidentiary hearing to determine damages. The Court held the hearing on January 29, 2009. Defendants did not appear.

Plaintiffs Victor Pleitez, Jorge Pleitez, and Wil Ardon (collectively, "plaintiffs") were employed by defendants for various periods from 2005 to 2007. Plaintiffs claim that they were paid neither hourly wages nor full overtime wages and that defendants thereby violated the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. ("FLSA"), the D.C. Minimum Wage Act Revision Act, D.C. Code Ann §§ 32-1001, et seq. ("DCMWA"), and the D.C. Wage Payment and Collection Law, D.C. Code Ann. §§ 32-1301, et seq. ("DCWPCL"). Under the FLSA and the DCMWA, employees are entitled to overtime wages at the rate of one-and-a-half times their regular hourly rate for each hour worked in excess of forty per week. 29 U.S.C. §§ 206-07; D.C. Code Ann. § 32-1003(a). Under the DCWPCL, employees are entitled to promised hourly wages even if an employment agreement is oral. See D.C. Code Ann. § 32-1302; Sanchez v. Magafan, 892 A.2d 1130, 1134 (D.C. 2006). Victor Pleitez also claims that he was promised vacation pay and a bonus but that he never received either. Vacation pay and bonuses qualify as "wages" under the DCWPCL. See D.C. Code Ann. § 32-1301(3) (defining wages as monetary compensation owed "for labor or services rendered, whether the amount is determined on a time, task, piece, commission or other basis of calculation."); Jones v. District Parking Mgmt. Co., 268 A.2d 860, 861-62 (D.C. 1970). Plaintiffs seek to collect what they are owed as well as liquidated damages in an equal amount, as permitted under the statutes. See 29 U.S.C. § 216(b); D.C. Code Ann. § 32-1012(a); id. § 32-1303(4). Plaintiffs also seek to collect attorneys fees and costs. See 29 U.S.C. § 216(b); D.C. Code Ann. § 32-1012(c); id. § 32-1308(b).

When defendants default, courts must determine damages to effectuate judgment. See Fed. R. Civ. P. 55(b). Without defendants' participation in the case, however, the factual record is one-sided and incomplete. Of course, defendants cannot escape liability merely by refusing to participate. When a full documentary record is unavailable, a court may draw reasonable inferences from plaintiffs' recollections and whatever documentation has been presented. See Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 686-87 (1946), superseded by statute on other grounds, Portal-to-Portal Act of 1947, Pub. L. No. 80-49, 61 Stat. 84; Arias v. United States Serv. Indus., Inc., 80 F.3d 509, 510-11 (D.C. Cir. 1996) (per curiam). Here, plaintiffs submitted copies of some time sheets as well as some paychecks that were returned to them because defendants' bank account had insufficient funds. Plaintiffs also submitted sworn declarations setting out their best recollection of when they worked, what they were paid, and what they were not paid. Finally, the Court received testimony from two plaintiffs, Jorge Pleitez and Wil Ardon, at the evidentiary hearing. Based on this evidence and the reasonable inferences the Court may draw from it, the amount to be awarded to each plaintiff is set forth below.

I. Victor Pleitez

Victor Pleitez does not seek to recover any unpaid hourly wages. He does, however, seek to recover unpaid overtime wages. Mr. Pleitez worked an average of 48 hours per week, see V. Pleitez Declaration ¶ 15, so was entitled to eight hours per week at a time-and-a-half rate, see 29 U.S.C. §§ 206-07; D.C. Code Ann. § 32-1003(a). But he only received regular pay for those eight hours each week. V. Pleitez Decl. ¶ 16. Mr. Pleitez's hourly rate changed several times over the two years he worked for defendants. Plaintiffs have identified three rates for the purposes of calculating unpaid overtime wages. For the nine weeks from mid-April 2005 to mid-June 2005, Mr. Pleitez's hourly rate was $20; for the next 78 weeks from mid-June 2005 to December 16, 2006, his hourly rate was $23;*fn1 and for the final eighteen weeks of his employment, from December 17, 2006 to April 20, 2007, his hourly rate was $27. See id. ¶¶ 5, 13. Based on these rates and Mr. Pleitez's estimation that he worked eight overtime hours per week, his unpaid overtime damages are set out in Table 1.

Table 1: V. Pleitez Unpaid Overtime Wages

FormulaResult [(.5) * ($20)] * 8 hrs/wk * 9 wks$720 [(.5) * ($23)] * 8 hrs/wk * 78 wks$7,176 [(.5) * ($27)] * 8 hrs/wk * 18 wks$1,944 Total$9,840

Victor Pleitez also seeks to collect a bonus and vacation pay he was promised. He was promised a bonus upon completion of his first project, the renovation and refurbishment of a home in Washington, D.C. Id. ¶ 25. He was also promised two weeks of paid vacation per year. Id. ¶¶ 21-24. Mr. Pleitez did not take a vacation in his first year of employment; he did take one in his second year but was never paid for it. Id. Bonuses and vacation pay constitute "wages" under the DCWPCL. See D.C. Code Ann. § 32-1301(3); Jones, 268 A.2d at 861-62. The bonus defendants promised Mr. Pleitez was in the amount of $3,000. Plaintiffs' calculation of unpaid vacation pay is slightly more involved. Plaintiffs calculate Victor Pleitez's average hourly rate during each year of employment*fn2 and multiply that rate by the number of promised vacation weeks and then by the number of hours per week.*fn3 Based on those calculations, Mr. Pleitez is entitled to $3,743.20 for unpaid vacation and $3,000 for the unpaid bonus.

Victor Pleitez is also entitled to an equal amount in liquidated damages. The FLSA, DCMWA, and DCWPCL all have liquidated damages provisions. See 29 U.S.C. § 216(b); D.C. Code Ann. § 32-1012(a); id. § 32-1303(4). Under FLSA and DCMWA, liquidated damages are calculated as an amount equal to the amount of unpaid wages. See 29 U.S.C. § 216(b); D.C. Code Ann. § 32-1012(a). For the DCWPCL, liquidated damages are calculated as "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." D.C. Code Ann. § 32-1303(4). Because the employer must pay wages within seven days of an employee's resignation, see id. § 32-1303(2), and because Mr. Pleitez resigned in April 2007, the lesser amount due under the DCWPCL is the "amount equal to the unpaid wages." Therefore, Mr. Pleitez is entitled to liquidated damages in an amount equal to the sum of his unpaid overtime wages, unpaid vacation, and unpaid bonus. Victor Pleitez's total damages, therefore, are summarized in Table 2.

Table 2: V. Pleitez Total Damages

Unpaid Overtime Wages$9,840.00 Unpaid Vacation$3,743.20 Unpaid Bonus$3,000.00 Subtotal$16,583.20 Liquidated Damages$16,583.20 Total$33,166.40

II. Jorge Pleitez

Jorge Pleitez seeks both unpaid hourly wages and unpaid overtime wages. His hourly rate changed several times over the approximately 49 weeks he was employed by defendants. Plaintiffs have identified two rates for purposes of calculating Mr. Pleitez's unpaid hourly and overtime wages. For the 31 weeks from mid-May 2006 to December 16, 2006, Mr. Pleitez's hourly rate was $13;*fn4 for the final eighteen weeks of his ...


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