United States District Court, District of Columbia
KAY, UNITED STATES MAGISTRATE JUDGE
Jose Milton Bautista Escamilla (“Plaintiff” or
“Mr. Escamilla”) seeks partial Summary Judgment
against Defendants David Nuyen d/b/a USA Home Champion Realty
and d/b/a Opmax (“Mr. Nuyen”), USA Home Champion
Realty, Inc. (“Home Champion Realty”), Opmax
Management, LLC (“Opmax Mgmt.”), and Opmax, LLC
“Defendants”). (See Mot. for Partial
Summary Judgment (“Motion”) .) Plaintiff and
Defendants consented to a referral of the case to this Court
for all purposes, including trial. (Order of Referral .)
For the reasons set forth below, Plaintiff’s Motion is
denied. An appropriate Order accompanies this Memorandum
Federal Fair Labor Standards Act of 1938
(“FLSA”), as amended, 29 U.S.C. § 201 et
seq., sets forth the requirements under which an
employee is entitled to overtime pay. The D.C.
Wage Revision Act of 1992 (“DCMWA”), D.C. Code
§§ 32-1001 et seq., largely mirrors the
FLSA’s overtime requirements. See Williams v.
W.M.A. Transit Co., 472 F.2d 1258, 1260-61 (D.C. Cir.
1972). Specifically, the FLSA provides that “no
employer shall employ any of his employees . . . for a
workweek longer than forty hours unless such employee
receives compensation for his employment in excess of the
hours above specified at a rate not less than one and
one-half times the regular rate at which he is
employed.” 29 U.S.C. § 207(a)(1). Somewhat
tantamount, the FLSA defines an “employer” as
“any person acting directly or indirectly in the
interest of an employer in relation to an employee” and
an “employee” as “any individual employed
by an employer.” Id. § 203(d)-(e)(1).
construing the FLSA, the Supreme Court determined that
“‘economic reality’ rather than
‘technical concepts’ is to be the test of
employment.” Goldberg v. Whitaker House Coop.,
Inc., 366 U.S. 28, 33 (1961). The economic reality test
considers “whether the alleged employer (1) had the
power to hire and fire the employees, (2) supervised and
controlled employee work schedules or conditions of
employment, (3) determined the rate and method of payment,
and (4) maintained employment records.” Morrison v.
Int’l Programs Consortium, Inc., 253 F.3d 5, 11
(D.C. Cir. 2001) (quoting Henthorn v. Dep’t of
Navy, 29 F.3d 682, 684 (D.C. Cir. 1994)).
violation of the FLSA’s overtime provisions results in
liability “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. § 216(b). The employee’s private right of
action is subject to a two-year statute of limitations unless
the employer committed a “willful violation, ” in
which case the statute of limitations is extended to three
years. Id. § 255(a). An employer commits a
willful violation if “the employer either knew or
showed reckless disregard for the matter of whether its
conduct was prohibited by the statute.” McLaughlin
v. Richland Shoe Co., 486 U.S. 128, 133 (1988).
may refuse to award liquidated damages under the FLSA if the
employer shows that he acted “in good faith” and
“had reasonable grounds for believing that his act or
omission was not a violation of the Fair Labor Standards Act
of 1938.” 29 U.S.C. § 260. A court’s
decision to refrain from awarding liquidated damages is
reviewed for abuse of discretion, but a court’s
determination of “good faith” and
“reasonable grounds” is reviewed for clear error.
See Thomas v. Howard Univ. Hosp., 39 F.3d 370,
372-73 (D.C. Cir. 1994).
began working for David Nuyen (hereafter “Mr.
Nuyen” or “Defendant”) in March 2008.
(Pl.’s Mot. [26-1] at 1; Decl. Sung Dang  at 18.)
Sung Dang (hereafter “Mr. Dang”) hired Plaintiff
to work in Mr. Nuyen’s apartment buildings.
(Def.’s Am. Interrog. Answers [26-7] at 2.) Plaintiff
signed a contract with Mr. Dang and Mr. Nuyen, but Defendant
has been unable to locate a copy of the contract.
(Id.) Plaintiff worked for Mr. Nuyen until January
2013. (Pl.’s Mot. [26-1] at 1; Decl. Sung Dang  at
22, 2014, Plaintiff filed suit against Defendant, alleging
that Defendant denied Plaintiff overtime pay in violation of
the FLSA during the course of his employment with Defendant.
(Pl.’s Compl.  at 2, 8-9.) Specifically, Plaintiff
claims he worked approximately 66 hours per week during his
253 weeks of employment with Defendant but was paid $10 per
hour-his regular rate of pay-for all hours worked.
(Pl.’s Compl.  at 6.) Defendant claims that
Plaintiff rarely, if ever, worked 40 hours per week during
his 253 weeks of employment and that Plaintiff was paid per
job as an independent contractor rather than per hour.
(Def.’s Opp’n  at 7, 11.) Based on the
deposition of Mr. Nuyen and the affidavits of
Plaintiff’s coworkers, Plaintiff now moves for partial
summary judgment. (Pl.’s Mot.  at 1-2.)
Specifically, Plaintiff seeks summary judgment on the
following issues: (1) that Plaintiff was Defendant’s
employee under the FLSA, (2) that Defendant violated the FLSA
by denying Plaintiff overtime pay, (3) that Mr. Nuyen was
Plaintiff’s employer under the FLSA and thus jointly
and severally liable to Plaintiff along with corporate
Defendants, (4) that Plaintiff is entitled to liquidated
damages under the FLSA, and (5) that Plaintiff is entitled to
equitably toll his claims to the beginning of his employment.
Rule 56 of the Federal Rules of Civil Procedure, summary
judgment is to be granted “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); accord Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986). The moving party must
set forth the foundation for its motion and identify segments
of the record demonstrating an absence of genuine dispute of
material facts. See Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). When ruling on a motion for summary
judgment, a court must draw all inferences in a light most
favorable to the non-moving party. McCready v.
Nicholson, 465 F.3d 1, 7 (D.C. Cir. 2006). Because
“[c]redibility determinations, the weighing of
inferences and the drawing of inferences from the facts are
jury functions, ” a court must deny summary judgment to
the extent that reasonable minds could differ over the import
of the evidence. Anderson, 477 U.S. at 250-51, 255.
the Court will be the trier of fact on an issue if this case
proceeds to trial, the summary judgment rules are slightly
altered. “[T]he ‘Court is not confined to
deciding questions of law, but also may . . . draw a
derivative inference from undisputed subsidiary facts, even
if those facts could support an inference to the contrary, so
long as the inference does not depend upon an evaluation of
witness credibility.’” Oao Alfa Bank v. Ctr.
for Pub. Integrity, 387 F.Supp.2d 20, 39 (D.D.C. 2005)
(ellipses in original) (quoting Cook v. Babbitt, 819
F.Supp. 1, 11 & n.11 (D.D.C. 1993)).
argues he is entitled to summary judgment on the following
issues: (1) that Plaintiff was Defendant’s employee
under the FLSA, (2) that Defendant violated the FLSA by
denying Plaintiff overtime pay, (3) that Mr. Nuyen was
Plaintiff’s employer under the FLSA and is jointly and
severally liable to Plaintiff along with corporate
Defendants, (4) that Plaintiff is entitled to liquidated
damages under the FLSA, and (5) that Plaintiff’s claims
are properly tolled to the beginning of his employment.
(Pl.’s Mot.  at 1-2.)
This Court will not strike Defendant’s Opposition