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Hernandez v. Stringer

United States District Court, District of Columbia

September 29, 2016

ISRAEL HERNANDEZ, Plaintiff,
v.
CASEY B. STRINGER, et al, Defendants.

          MEMORANDUM OPINION [Dkt. #28]

          RICHARD J. LEON UNITED STATES DISTRICT JUDGE

         Plaintiff Israel Hernandez ("plaintiff) brings this action against Casey B. Stringer ("Stringer") and Broughton Construction Company, LLC ("Broughton") (together "defendants") alleging violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., the District of Columbia Minimum Wage Act ("DCMWA"), D.C. Code §§ 32-1001 et seq., and the District of Columbia Wage Payment and Collection Law ("DCWPCL"), D.C. Code §§ 32-1301 et seq. See generally Compl. [Dkt. #1]. Defendants answered plaintiffs Complaint on July 15, 2014 and raised a counterclaim of breach of contract against plaintiff. Defs.' Answer to Compl. and Counterclaim [Dkt. #5]. Presently before the Court is plaintiffs Motion for Partial Summary Judgment [Dkt. #28]. Upon consideration of the pleadings, the relevant law, and the entire record herein, the Court GRANTS IN PART and DENIES IN PART plaintiffs Motion.

         BACKGROUND

         Broughton, which is owned by Stringer, does business as a general contractor and construction manager. Defs.' Opp'n to Pl's Mot. for Partial Summ. J. 2, 3 [hereinafter "Defs.' Opp'n"] [Dkt. #29]. Broughton does business in Maryland and Washington, D.C. Pl's Statement of Undisputed Facts ¶ 8 [hereinafter "Pl's SOMF"] [Dkt. #28-1]. Plaintiff worked for defendants from approximately February 1, 2010 to February 27, 2014. Pl's SOMF ¶ 1. Defendants paid plaintiff a set salary, as opposed to paying him by the hour. Pl's SOMF ¶ 1. Plaintiff claims that at times during his employment with defendants he worked more than forty hours a week. Pl's SOMF ¶ 2. He points to defendants' own records, which indicate that he worked more than forty hours in at least thirty-three different work weeks while he was employed by defendants. Pl's SOMF ¶ 3 (citing Broughton's Supplemented Answers to Hernandez's First Interrogatories at 18-24 [Dkt. #28-3]). However, plaintiff alleges that Broughton "has highly altered these time records to reduce the number of hours that Plaintiff reported." Pl's SOMF 2 n.2. Defendants maintain that plaintiff repeatedly falsely reported being at work when he was not actually present and that this was one of the reasons that defendants ultimately terminated his employment. Defs.' Opp'n 9. While employed with defendants, plaintiff was not paid time and a half for any hours he worked over forty hours per week. Pl's SOMF ¶ 4.

         Although the parties agree that plaintiffs title was "Assistant Superintendent, " Pl's SOMF ¶ 23; Defs.' Opp'n 3, they dispute the nature of his duties. Defendants claim that plaintiff was a worksite manager who supervised the work of and managed subcontractors. Defs.' Opp'n 9. These subcontractors were not Broughton employees. Defs.' Opp'n 2, 4. Plaintiff denies being a manager or supervisor and asserts that he was a carpenter. Pl's SOMF ¶ 27. At the close of plaintiff s employment with Broughton in February 2014, the company's human resources manager Tamla Kirkland presented him with an Employment Separation and Release Agreement ("the Agreement"). Defs.' Opp'n 30. The Agreement contained a provision releasing all legal claims against Broughton. Agreement ¶ 2 [Dkt. #28-9] ("I am releasing and giving up claims I now know and those I may not know about. This includes all obligations, claims, or causes of action of any kind, whether by tort, by contract or statute, or on any other basis . . . ."). The Agreement went on to state that the waiver:

[includes] but is not limited to claims related to alleged discrimination on the basis of age, color, race, gender, sexual orientation, religion, national origin, handicap or disability, veteran status, marital status or any other basis, and includes claims arising under the Age Discrimination in Employment Act of 1967, as amended ("ADEA"), Title VII of the Civil Rights Act of 1964, as amended, Section 1981 of the Civil Rights Act of 1866, the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), the Fair Labor Standards Act, as amended, the Family and Medical Leave Act, as amended, the Americans with Disabilities Act of 1990, as amended, the Equal Pay Act, the Rehabilitation Act of 1973, as amended, the WARN Act, Executive Order 1246 and claims under any other federal law, and any state or local law.

         Agreement ¶ 2. Moreover, the Agreement provided that no lawsuit would be filed asserting any released claim and that, if such a lawsuit was filed, plaintiff would owe Broughton for its attorneys' fees and costs. Agreement ¶ 3. In exchange for signing the Agreement, plaintiff was offered a continuation of his wages from the date of his termination- February 26, 2014-through February 28, 2014. Agreement ¶ 1- Without consulting with an attorney, plaintiff signed the Agreement on the spot. Pl's SOMF ¶¶ 36, 39.

         Plaintiff filed his Complaint on May 30, 2014. On July 15, 2014, defendants filed their answer and counterclaim alleging that plaintiff had breached the Agreement. On August 4, 2014, plaintiff moved to dismiss the counterclaim, but I denied that request on January 27, 2015. On November 27, 2015, plaintiff filed the instant Motion for Partial Summary Judgment, requesting that the Court find in his favor on the following issues: (1) that defendants violated the FLSA and DCMWA by failing to pay plaintiff time and a half his "regular rate" for the hours he worked over forty in each week; (2) that plaintiff has not waived his right to receive overtime pay and wages under the FLSA, DCMWA, and the DCWPCL (3) that defendants' counterclaim for defendants' attorney fees is invalid and void; (4) that defendants have waived their right to raise any exemption defenses; (5) that Broughton is an enterprise subject to the FLSA, that Casey B. Stringer was at all times plaintiffs employer under the FLSA, DCMWA, and DCWPCL, and, as such, both parties are jointly and severally liable to plaintiff; (6) that plaintiff is entitled to recover liquidated damages under the FLSA and DCMWA; and (7) that defendants' counterclaim must be dismissed for lack of subject matter jurisdiction. Pl's Mot. for Partial Summ. J. 1-2 [Dkt. #28].

         LEGAL STANDARD

         Summary judgment is appropriate when the pleadings and the record demonstrate that "there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "A fact is material if it 'might affect the outcome of the suit under the governing law, ' and a dispute about a material fact is genuine 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The moving party bears the initial burden of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To defeat summary judgment, the nonmoving party must "designate specific facts showing there is a genuine issue for trial." Id. at 324 (quotation marks omitted). In determining whether there is a genuine dispute about material facts, the court "must view the evidence in the light most favorable to the nonmoving party and . . . draw all reasonable inferences in favor of the nonmoving party." Grosdidier v. Broad. Bd. of Governors, Chairman, 709 F.3d 19, 23-24 (D.C. Cir. 2013) (quotation marks and citation omitted). Moreover, "[t]he court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." Local Rule 7(h)(1). Pursuant to Federal Rule of Civil Procedure 56(a), "[a] party may move for summary judgment, identifying each claim of defense-or the part of each claim or defense-on which summary judgment is sought." Thus, even where summary judgment on a claim is not warranted, it is within the court's discretion to "identify[] the facts that no longer may be disputed" in order to "narrow[] the scope of the trial" and to "materially expedite the adjudication." 10B Wright & Miller, Federal Practice and Procedure § 2737 (4th ed.).

         DISCUSSION

         I. Applicability of the Executive Exemption

         Employers who are covered by the FLSA are required to pay an employee one and a half times their "regular rate" for work that exceeds forty hours per week, [1] unless the employee is subject to certain exemptions as set forth in the statute. 29 U.S.C. §§ 207(a), 213. One of those exemptions is for employees "employed in a bona fide executive, administrative, or professional capacity." Id. § 213(a). The exemptions serve as "affirmative defense[s] on which the employer has the burden of proof." Corning Glass Works v. Brennan, 417 U.S. 188, 196-97 (1974). Exemptions from the FLSA "are to be narrowly construed against the employers seeking to assert them." Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392 (1960). The Department of Labor "has promulgated detailed regulations outlining the criteria for the application of the FLSA exemptions." McKinney v. United Stor-All Centers LLC, 656 F.Supp.2d 114, 121 (D.D.C. 2009) (citing 29 C.F.R. §§ 541.100 et. seq.). These regulations "are entitled to judicial deference and are the primary source of guidance for determining the scope of exemptions to the FLSA." Id. (quoting Clements v. Serco, Inc., 530 F.3d 1224, 1227 (10th Cir. 2008)). Defendants here argue that any failure to pay plaintiff overtime wages was not in violation of the FLSA or the DCMWA[2] because plaintiff was an exempt executive employee. Defs.' Opp'n 10-15. Plaintiff asserts that defendants waived their exemption defense by not sufficiently raising it in their Answer and that, regardless, plaintiff did not fall within the executive exemption because he never supervised two or more Broughton employees. Pl's Mem. 11-12. Because I agree with plaintiff that the executive exemption is inapplicable here, I need not and do not address his waiver argument.

         Defendants do not claim that plaintiff supervised two or more Broughton employees and instead assert that he supervised two or more subcontractors working on Broughton projects. Defs.' Opp'n 11, 13-14; see also Def.'s Opp'n to Pl's Mot. to Compel Disc. 1 [Dkt. #25] ("Broughton does not claim that Mr. Hernandez customarily and regularly directed the work of two or more of its own full-time employees."). The Department of Labor regulations define an "executive" employee as one who, inter alia, "customarily and regularly directs the work of two or more other employees." 29 C.F.R. § 541.100(a) (setting forth a conjunctive list of criteria for the executive exemption). The Department has explained "[t]he phrase 'two or more other employees' means two full-time employees or their equivalent." Id. § 541.104(a). "One full-time and two half-time employees, for example, are equivalent to two full-time employees. Four half-time employees are also equivalent." Id. Without citing any authority beyond the regulation itself, defendants argue that the subcontractors at issue here are the equivalent of full-time employees. Defs.' Opp'n 14. But "[t]he examples provided in the [regulation] indicate that the word 'equivalent' pertains to the amount of time an employee works . . . not to the status of the worker." Wilks v. District of Columbia, 721 F.Supp. 1383, 1384 (D.D.C. 1989). As the Department of Labor has made clear, the executive exemption applies only to those who regularly supervise two or more fellow employees, not contractors or subcontractors. See U.S. Dep't of Labor Op. Letter FLSA2007-3, 2007 WL 506576, at *2 (Jan. 25, 2007) ("Only other employees employed by the same employer may be considered when making this determination under the executive exemption; the supervision of employees of independent contractors, subcontractors, or any other 'non-employees' in relation to the employer are not considered for purposes of meeting this test."); U.S. Dep't of Labor, Defining and Delimiting the Exemptions for Executive, Administrative, ...


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