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Arencibia v. 2401 Restaurant Corp.

March 31, 2010


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


Plaintiffs Freddy Gonzales Arencibia, Farzad C. Pazawak,*fn1 Hamid Guerch, Khalid Chabar, and Carlos Parra (collectively, "Plaintiffs") bring this action on behalf of themselves and all similarly situated employees against Defendants 2401 Restaurant Corporation d/b/a Marcel's Restaurant ("Marcel's") and Robert Weidmaier for violations of various labor and employment discrimination laws. Specifically, Plaintiffs allege in their Amended Complaint that Defendants 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 §§ 32-1001 et seq. ("DCMWA"), the D.C. Wage Payment and Collection Law, D.C. Code §§ 32-1301 et seq. ("DCWPCL"), and the D.C. Human Rights Act, D.C. Code §§ 2-1401.01 et seq. ("DCHRA"). Presently pending before the Court is Defendants' partial [12] Motion to Dismiss. Defendants move to dismiss Plaintiffs' DCHRA claims as barred by the statute of limitations and for failure to state a claim upon which relief can be granted. Defendants also move to dismiss Plaintiffs' DCWPCL claims against Defendant Wiedmaier on the ground that Plaintiffs have failed to allege any basis for holding him individually liable under the DCWPCL. After considering the parties' filings, the applicable authorities, and the record as a whole, the Court finds that all Plaintiffs except Parra and Chabar have failed to state a claim for relief under the DCHRA, and undisputed facts in the record show that any claims by Plaintiffs Parra and Chabar are barred by the statute of limitations. In addition, the Court finds that Plaintiffs' DCWPCL claims must be dismissed against Defendant Wiedmaier because Plaintiffs have not alleged that Wiedmaier was their employer as defined by the statute. Accordingly, the Court shall GRANT Defendants' partial motion to dismiss and partially convert the motion into one for summary judgment and grant it, dismissing Plaintiffs' DCHRA claims and dismissing Plaintiffs' DCWPCL claims against Defendant Wiedmaier.


The following facts are taken from the Amended Complaint and must be accepted as true for purposes of a motion to dismiss. Plaintiffs are current or former employees of Defendants at Marcel's, a fine dining restaurant in Washington, D.C. Am. Compl. ¶ 19. Defendant Robert Wiedmaier is an officer of 2401 Restaurant and owner of Marcel's. Id. ¶ 20. Wiedmaier was the chef who directed the work of several of the Plaintiffs and was responsible for the supervisory staff who directed the work of several Plaintiffs. Id.

During the three years leading up to the filing of the Amended Complaint, Marcel's used a tip pooling arrangement for its wait staff. Am. Compl. ¶ 24. Participating in the tip pool were six full time servers, six full time back servers, two food runners, one bartender, and a manager. Id. At the end of each night, the servers' tips would be pooled and allocated as follows: 3% of the total is subtracted for credit card charges, then 70% of the remainder is divided equally among the servers and manager, with the other 30% divided among the back servers and food runners. Id. ¶ 26. In order for an employee to know how much money was earned each night, he would have to stay at the restaurant until all the servers ran their nightly earnings report and then calculate his share of the tip pool. Id. ¶ 27. Each employee would then determine his weekly paycheck by adding the amounts earned each night that week. Id. Employees were paid with an envelope of cash each Friday based on the previous week's pay period (Sunday through Saturday). Id. ¶ 28. The pay envelope did not indicate how many days the employee worked or reflect how much of the tip-pool money was being remitted to the employee and for what shifts. Id. ¶ 29. Every two weeks, employees received a pay stub indicating how much money was taken out for taxes, how many hours had been worked, and how much cash had been earned in the two-week period. Id. ¶ 30. This system of cash envelopes and pay stubs made it impossible for employees to compare the cash received with the statement on the pay stub. Id. ¶ 32.

Plaintiffs allege that Defendants did not keep records of the tips collected. Am. Compl. ¶ 33. They further allege that the payment system was put in place to make it nearly impossible to track the servers' tips. Id. ¶ 34. Plaintiff Freddy Gonzales Arencibia questioned the tip calculations throughout his employment and was provided limited documentation to verify his wages. Id. ¶ 35. Plaintiffs allege that Defendants' tip-pooling arrangement violated federal regulations and that Plaintiffs were entitled to overtime pay. Id. ¶¶ 37, 66-69. Plaintiff Arencibia alleges that he and others were terminated due to their attempt to enforce their rights under the Fair Labor Standards Act. Id. ¶ 36.

Plaintiffs Khalid Chabar and Carlos Parra, as a part of a subclass of plaintiffs, allege that they were unlawfully terminated after seeking to take time off work in order to attend religious services or pray. See Am. Compl. ¶¶ 38-47. Plaintiff Parra sought time off to worship at Christmas Eve midnight mass, and Plaintiff Chabar sought time off to pray during Ramadan. Id. ¶¶ 39-40. Despite asking for time off well in advance, Parra and Chabar were intimidated by one of Marcel's managers, Adnane Kebair, who told them that "your religion is work" and that "this restaurant is your place of worship." Id. ¶¶ 41-43. Parra and Chabar, as well as other members of the subclass, were terminated from Marcel's due to their religious observance or constructively discharged by the hostile environment. Id. ¶¶ 46-47.

Plaintiff Arencibia, as part of a subclass of plaintiffs, often spoke Spanish during the day with his co-workers in order to the expedite communications and be more efficient in his job. Am. Compl. ¶¶ 48-49. Defendant Wiedmaier told employees that they could not speak Spanish while at work and threatened their jobs if he overheard them speaking Spanish. Id. ¶ 50. Plaintiff Arencibia alleges that he was fired immediately by Wiedmaier for speaking Spanish at work. Id. ¶ 50.


The Federal Rules of Civil Procedure require that a complaint contain "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide the "grounds" of "entitle[ment] to relief," a plaintiff must furnish "more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555; see also Papasan v. Allain, 478 U.S. 265, 286 (1986). Instead, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).

In evaluating a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must construe the complaint in a light most favorable to the plaintiff and must accept as true all reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994); see also Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) ("The complaint must be 'liberally construed in favor of the plaintiff,' who must be granted the benefit of all inferences that can be derived from the facts alleged."). However, as the Supreme Court recently made clear, a plaintiff must provide more than just "a sheer possibility that a defendant has acted unlawfully." Iqbal, 129 S.Ct. at 1950. Where the well-pleaded facts set forth in the complaint do not permit a court, drawing on its judicial experience and common sense, to infer more than the "mere possibility of misconduct," the complaint has not shown that the pleader is entitled to relief. Id. at 1950.

In evaluating a motion to dismiss under Rule 12(b)(6), the Court is limited to considering the facts alleged in the complaint, any documents attached to or incorporated in the complaint, matters of which the court may take judicial notice, and matters of public record. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997); see also Vanover v. Hantman, 77 F. Supp. 2d 91, 98 (D.D.C. 1999), aff'd, 38 F. App'x 4 (D.C. Cir. 2002) ("[W]here a document is referred to in the complaint and is central to plaintiff's claim, such a document attached to the motion papers may be considered without converting the motion to one for summary judgment.") (citing Greenberg v. The Life Ins. Co. of Va., 177 F.3d 507, 514 (6th Cir. 1999)).


Defendants move to dismiss Plaintiffs' DCHRA claims in whole and DCWPCL claims in part for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6).*fn2 Specifically, Defendants argue that Plaintiffs' DCHRA claims are time-barred and that Plaintiffs have failed to plead sufficient facts to support them. Defendants also argue that Plaintiffs' DCWPCL claims against Robert Wiedmaier must be dismissed because ...

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