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Escamilla v. Nuyen

United States District Court, District of Columbia

December 30, 2016

JOSE MILTON BAUTISTA ESCAMILLA, Plaintiff,
v.
DAVID NUYEN, et al., Defendants.

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

          ALAN KAY UNITED STATES MAGISTRATE JUDGEALAN KAY.

         This case involves the Federal Fair Labor Standards Act of 1938 (“FLSA”), as amended, 29 U.S.C. §§ 201 et seq., and the D.C. Minimum Wage Act Revision Act of 1992 (“DCMWA”), D.C. Code §§ 32-1001 et seq. On December 18, 2014, this matter was assigned to the undersigned for all purposes and trial. (Order of Referral [11]; December 18, 2014 Minute Order.) On October 25, 2016, the Court concluded a two-day bench trial. Following the bench trial, and as instructed by the Court, the parties submitted their proposed Findings of Fact and Conclusions of Law. (See Plaintiff's Proposed Findings of Fact and Law [40] (“Pl.'s Findings”); Findings of Fact and Conclusions of Law; F.R.C.P. Rule 52(a) [41] (“Def.'s Findings”).) The Court now makes its Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52(a)(1). Any facts not expressly stated in the below findings are either immaterial or undisputed. For the reasons set forth herein, and after considering parties' submissions, witness testimony, and evidence presented at trial, the Court finds the plaintiff is entitled to his unpaid overtime wages pursuant to the FLSA and the DCMWA. The Court, therefore, enters judgment in favor of the plaintiff.

         I. BACKGROUND

         Jose Milton Bautista Escamilla (“Plaintiff” or “Mr. Escamilla”) brings this suit against David Nuyen d/b/a USA Home Champion Realty and d/b/a Opmax (“Mr. Nuyen), USA Home Champion Realty, Inc. (“HCR”), Opmax Management, LLC (“OM”), and Opmax, LLC (“Opmax”) (collectively, “Defendants”). Plaintiff worked for Defendants from approximately March 1, 2008 through about January 28, 2013. (Plaintiff's Pretrial Statement [33] (“Pl.'s PTS”) at 1; Trial Tr. [37], 17:11-16.) For the entire duration of Plaintiff's employment, Mr. Nuyen served as president and primary owner of Opmax, OM, HCR, and the rental properties that Defendants operate in Washington, D.C. (Complaint [1] (“Compl.”) ¶¶ 6, 10; see also Trial Tr. [37], 18:15-24; Trial Tr. [38], 5:25, 6:1-4.)

         Mr. Nuyen's building manager, Sung Dang (“Mr. Dang”), recommended Plaintiff speak with Mr. Nuyen about a job. (Trial Tr. [37], 19:2-16.) After speaking with Plaintiff, Mr. Nuyen subsequently hired Plaintiff to perform maintenance work on Mr. Nuyen's rental properties in Washington, D.C. (Trial Tr. [37], 19:2-21.) While employed as a “general laborer, ” Plaintiff cleaned, painted, and repaired Defendants' apartment buildings, as well as completed plumbing and carpentry tasks (Pl.'s PTS at 2; see also Defendant's Pretrial Statement [34] (“Def.'s PTS”) at 2.)

         On May 22, 2014, Plaintiff brought suit against Defendants, alleging that, during the course of his employment with Defendants, Mr. Nuyen denied Plaintiff overtime compensation in violation of the FLSA and DCMWA. (Compl. ¶¶ 2, 44-56.) Specifically, Plaintiff claims he worked approximately 66 hours per week during his 253 weeks of employment with Defendants and was only paid $10.00 per hour rather than receiving his “half time” premium of $5.00 for every hour worked beyond a 40-hour workweek. (Compl. ¶¶ 28-31; Pl.'s PTS at 1-2; Trial Tr. [37], 20:1-20.) Plaintiff thus argues that Defendants owe him unpaid overtime wages, totaling $20, 670.00. (Pl.'s Findings 3, 10, 20.) In addition to overtime wages, Plaintiff maintains that he is entitled to liquidated damages, equitable tolling of his claims, and reasonable attorney's fees pursuant to both the FLSA and the DCMWA. (Compl. ¶¶ 38-40, 43; Pl.'s Findings 16-19.)

         Defendants deny Plaintiff's claims and argue that Plaintiff was hired as an independent contractor who was paid per job rather than per hour. (Def.'s PTS at 1-3.) Moreover, Defendants claim that Plaintiff signed a contract, on February 1, 2012, agreeing that Mr. Nuyen does not control Plaintiff's hours and that Plaintiff may rely on his own skills and training while working for Defendants. (See Def.'s PTS at 1.)

         The undersigned conducted a two-day bench trial on October 24, 2016 and October 25, 2016. Plaintiff testified and also called former coworkers Cesar Gaytan Rodriguez and Melbin Javier Ochoa to testify. Defendants subsequently called Mr. Dang to testify. After considering witness testimony, evidence presented, and the parties' proposed Findings of Fact and Conclusions of Law, the undersigned finds that Plaintiff met his burden of proof in showing that Defendants violated FLSA and DCMWA for their failure to pay Plaintiff his overtime wages.

         II. FINDINGS OF FACT

         A. Duration of Plaintiff's Employment

         1. Mr. Dang told Plaintiff to meet with Mr. Nuyen about a job. (Trial Tr. [37], 19:2-16.) Mr. Nuyen subsequently hired Plaintiff. (Trial Tr. [37], 19:17-21.)

         2. Plaintiff worked for Defendants from approximately March 1, 2008 through about January 28, 2013. (Trial Tr. [37], 17:11-16, 27:14-20; Trial Tr. [38], 16:5-7, 82:1-18.)

         3. Throughout Plaintiff's employment with Defendants, Plaintiff only worked for Defendants and not for any other employer. (Trial Tr. [37], 27:14-23, 28:2-4, 67:19-25, 78:20-25, 79:1-4, 87:6-8; Trial Tr. [38], 16:16-19.) Plaintiff did not advertise or market himself to others about the services or work he could do. (Trial Tr. [37], 27:24-25, 28:1-4, 87:9-11; Trial Tr. [38], 16:13-15.)

         4. During his employment with Defendants, Plaintiff never took an extended vacation from work. (Trial Tr. [38], 17:1-10.)

         B. Plaintiff's Work Duties

         5. The type of work Plaintiff performed for Defendants was building maintenance. (Trial Tr. [37], 18:12-14.) As a general laborer, Plaintiff performed cleaning, painting, plumbing, and carpentry tasks and repairs in Defendants' apartment buildings. (Trial Tr. [37], 18:12-24, 31:16-23; Trial Tr. [38], 43:19-22.)

         6. Plaintiff did not have any advanced degrees or certifications. (Trial Tr. [37], 27:7-9.) An advanced degree or certification was not required for the type of work Plaintiff was performing. (Trial Tr. [37], 27:10-13.) Plaintiff was a low-skilled worker. (Trial Tr. [37], 6:8-10, 12:10-13, 27:7-9, 31:4-8; Trial Tr. [38], 15:23-25, 25:15-17.)

         7. Plaintiff's coworkers included Cesar Gaytan Rodriguez and Melbin Javier Ochoa, who performed various duties alongside Plaintiff. (Trial Tr. [37], 17:17-23, 18:6-11, 77:17-19, 78:1-7, 78:11-14, 78:20-23; Trial Tr. [38], 5:9-11, 22:12-20.)

         C. Plaintiff's Work Schedule

         8. Each week, Plaintiff worked Monday through Saturday. (Trial Tr. [37], 24:18-20.) Plaintiff also sometimes worked on Sundays. (Trial Tr. [37], 24:18-25, 98:23-25, 99:6-8; Trial Tr. [38], 9:8-12.)

         9. Mr. Nuyen determined the hours Plaintiff worked. (Trial Tr. [37], 82:20-25; Trial Tr. [38], 13:10-15.) Mr. Nuyen would tell Plaintiff when he was able to leave work for the day. (Trial Tr. [37], 23:8-14.)

         10. Plaintiff would begin work at around 8 a.m. and work until 7 p.m., taking a 30- or 45-minute break for lunch. (Trial Tr. [37], 20:21-25, 23:3-7, 23:8-17, 62:1-8, 62:24-25, 63:1-2, 68:10-12, 80:21-23, 81:2-5; Trial Tr. [38], 7:13-25, 8:1-6, 31:6-7.)

         11. Plaintiff was not required to “clock in” or “clock out” of work each day. (Trial Tr. [37], 21:16-22, 23:22-24; Trial Tr. [38], 29:7-17.)

         12. Plaintiff sometimes worked later than 7 p.m. (Trial Tr. [37], 68:10-19; Trial Tr. [38], 8:7-19.) If there was an emergency, Plaintiff would finish work later than 7 p.m. (Trial Tr. [37], 23:18-21, 81:10-16; Trial Tr. [38], 9:13-25, 10:1-2, 32:4-9.) Plaintiff was available at any time of the day for an emergency repair. (Trial Tr. [37], 69:14-18.)

         13. The fewest hours Plaintiff worked per week was 60 hours and the most hours Plaintiff worked per week was 70 hours. (Trial Tr. [37], 46:5-16, 61:24-25, 62:1-25. 63:1-2.)

         D. Plaintiff's Payment Method, Rate, and Schedule

         14. Defendants consistently paid Plaintiff $10.00 per hour. (Trial Tr. [37], 20:1-20, 25:4-6, 26:8-10, 79:7-17, 80:2-16, 84:22-25, 85:1-5, 88:11-16; Trial Tr. [38] 6:5-7, 13:4-6.) Mr. Nuyen is the person who decided to pay Plaintiff $10.00 per hour. (Trial Tr. [37], 25:4-9, 83:17-21; Trial Tr. [38], 13:16-21.) Mr. Nuyen also made the payments. (Trial Tr. [38], 23:17-21, 48:15-18.)

         15. Plaintiff was paid per hour rather than per task. (Trial Tr. [38], 12:23-25.)

         16. Each day, Plaintiff would inform Defendants about the number of hours he worked that day. (Trial Tr. [37], 38:10-14.) Mr. Nuyen and Mr. Dang would write down the hours Plaintiff and his coworkers reported. (Trial Tr. [37], 96:7-20.)

         17. Mr. Dang's report does not constitute a business record under the hearsay exception. (Trial Tr. [38], 50:14-25, 51:1-25, 52:1-25, 57:5-25, 58:1-25, 66:11-24, 67:18-25, 68:1-25, 69:12-20, 70:23-25, 71:1-11, 79:1-12, 89:20-25, 90:1-25.)

         18. Mr. Nuyen decided to pay Plaintiff by check. (Trial Tr. [37], 25:10-14, 83:22-25, 84:1-4; Trial Tr. [38], 14:2-5, 62:22-25.)

         19. Defendants paid Plaintiff every two weeks. (Trial Tr. [37], 28:14-15.) At the beginning of Plaintiff's employment, Defendants paid him every week, but it later became every two weeks. (Trial Tr. [37], 28:14-25, 29:1-3, 63:3-8.) Defendants never paid Plaintiff early or late. (Trial Tr. [37], 28:20-23.)

         20. Plaintiff never received a raise throughout his employment with Defendants. (Trial Tr. [37], 20:8-10, 80:11-16; Trial Tr. [38], 6:21-23.)

         21. The only way Plaintiff could make more money was by working more hours. (Trial Tr. [37], 26:14-17, 85:6-14; Trial Tr. [38], 15:7-10.) Mr. Nuyen and Mr. Dang controlled whether Plaintiff could work additional hours. (Trial Tr. [37], 26:14-22, 85:15-25.)

         22. For any hours Plaintiff worked over the regular 40-hour workweek, Defendants paid $10.00 for every hour. (Trial Tr. [37], 20:1-20, 79:7-17.)

         E. Work Conditions

         23. When Plaintiff would arrive each day, Mr. Nuyen would call Mr. Dang and inform him of Plaintiff's assignments. (Trial Tr. [37], 21:1-8, 37:14-19, 83:4-9.)

         24. Mr. Nuyen and Mr. Dang would inspect Plaintiff's work before Mr. Nuyen assigned Plaintiff his next task. (Trial Tr. [37], 21:23-25, 22:1-5, 25:15-24, 81:17-25, 82:1-5; Trial Tr. [38], 10:10-25.)

         25. Mr. Nuyen and Mr. Dang would instruct Plaintiff on how to complete each assignment. (Trial Tr. [37], 22:6-10, 25:25, 26:1-7, 84:9-21; Trial Tr. [38], 11:1-11.)

         26. Mr. Nuyen determined Plaintiff's daily schedule. (Trial Tr. [37], 25:1-3.)

         27. Mr. Nuyen was often at the properties where Plaintiff was working. (Trial Tr. [37], 37:20-25.) He would be there four to five times per week, including on Sundays. (Trial Tr. [37], 38:1-3.)

         28. Mr. Nuyen had the authority to fire Plaintiff and his coworkers if they did not follow Mr. Nuyen's orders. (Trial Tr. [37], 86:11-19.)

         F. Defendants' Job Sites

         29. Mr. Nuyen was the owner of the apartment buildings where Plaintiff and his coworkers performed their work assignments. (Trial Tr. [38], 5:25, 6:1-4.) Mr. Dang was the building manager. (Trial Tr. [37], 19:9-13.)

         30. Defendants' gross revenue was over $500, 000. (Trial Tr. [38], 38:8-19.)

         31. Plaintiff worked on four different buildings for Mr. Nuyen and Mr. Dang. (Trial Tr. [37], 36:10-16, 76:7-8.) Each building had about 30 units, so there were about 120 units in total. (Trial Tr. [37], 76:2-14.)

         32. Defendants provided the tools. (Trial Tr. [37], 82:12-19, 93:8-19; Trial Tr. [38], 11:12-20, 28:3-18, 82:25, 83:1-5.) Each of Defendants' apartment buildings had a tool shop with an ...


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