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Jesus Ventura, et al v. Bebo Foods

December 3, 2010

JESUS VENTURA, ET AL., PLAINTIFFS,
v.
BEBO FOODS, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Royce C. Lamberth, Chief Judge

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"), 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 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.

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. 2dat 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 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, 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. § 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 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.

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).

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.*fn1

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 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.)

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, 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.*fn2 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 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 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.

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.

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.

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 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 ...


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