MEMORANDUM OPINION
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.
Plaintiff
Santiago Cerros Melendez was formerly employed simultaneously
at three restaurants referred to as Kruba, Teakwood, and
Regent Thai Cuisine, as a kitchen hand, from November 2014 to
December 2015. Plaintiff Luis Eduardo Diaz Argueta was
formerly employed at Teakwood, first as a dishwasher and
later, a cook and sushi preparer, from February 2013 through
December 2016. Plaintiffs allege that the Defendants - the
corporate entities affiliated with the three restaurants and
an individual who has an ownership interest in all three
restaurants - failed to pay them minimum and overtime wages
as required by D.C. and federal law. The federal statute
relied upon by Plaintiffs is the Fair Labor Standards Act
(“FLSA”), which mandates time-and-a-half wages
for hours worked over forty each week and a base minimum wage
of $7.25 per hour, which may be adjusted upward by the state.
See 29 U.S.C. § 207(a)(1), 206(a)(1), 218.
Plaintiffs rely further on the District of Columbia Minimum
Wage Act Revision Act (“DCMWA”), which requires
time-and-a half for hours worked over forty, and a mandatory
minimum wage ranging between $8.25 per hour and $11.50 per
hour during the time frame at issue in this case. D.C. Code
§§ 32-1003(c), 32-1003 (a). Plaintiffs claim
damages pursuant to the District of Columbia Wage Payment and
Collection Law (“DCWPCL”), D.C. Code §
32-1301, et seq. Furthermore, in response to a
Counterclaim by Defendants/Counter-Plaintiffs, Mr. Melendez
alleges retaliation pursuant to the DCWPCL. D.C. Code
§§32-1311(a)(3), 32-1311(b).
After
reviewing the parties' submissions, [1] relevant case law
and applicable statutory authority, the Court GRANTS IN PART
AND DENIES IN PART Plaintiffs' Motion for Partial Summary
Judgment. A separate Order accompanies this Memorandum
Opinion.
I.
BACKGROUND
Many of
the underlying facts in this case are undisputed and will be
set out along with the procedural history of this case. The
disputed facts will be addressed later in this Memorandum
Opinion. Defendant Poy Loung DC Group, LLC owns and operates
the restaurant known as Kruba; Defendant Galae Thai, Inc.
owns and operates the restaurant known as Teakwood; and
Defendant Poy Loung, Inc. owns and operates the restaurant
known as Regent Thai Cuisine. Pls.' SOF ¶ 1;
Defs.' SOF ¶ 1. Defendants admit that Plaintiffs are
covered by the FLSA because the three restaurants are covered
enterprises. Pls.' SOF ¶ 3, Defs.' SOF ¶ 3.
The business records and employment records for all three
restaurants are maintained in one location by the same
accountant. Pls.' SOF ¶ 4, Defs.' SOF ¶ 4.
Plaintiffs
have also named as a Defendant Mr. Chuchart Kampirapang, who
has a 90% ownership interest in Teakwood and a 100% ownership
interest in Kruba and Regent Thai Cuisine. Pls.' SOF
¶ 2, Defs.' SOF ¶ 2. Defendant Kampirapang
determined Plaintiffs' pay, signed and tendered their
paychecks, fired Plaintiff Melendez, promoted Plaintiff
Argueta, and decided how much in “tips” to pay
Plaintiff Argueta. Pls.' SOF ¶¶ 2, 25;
Defs.' SOF ¶¶ 2, 25. Defendants acknowledge
that they did not file any quarterly reports with the
Department of Employment Services regarding any
“tips” provided to Plaintiff Argueta. Pls.'
SOF ¶ 31, Defs.' SOF ¶ 31.
Plaintiff
Melendez was allocated between Defendants' three
restaurants - Kruba, Teakwood, and Regent Thai Cuisine - and
he worked for Defendants from approximately June 1, 2014 to
approximately December 24, 2015. Pls.' SOF ¶¶
5-7; Defs.' SOF ¶¶ 5-7. Mr. Melendez worked as
a kitchen hand whose job duties included washing dishes,
cutting vegetables and meat, and cleaning. Pls.' SOF
¶ 8; Defs.' SOF ¶ 8. Mr. Melendez was paid a
fixed, semimonthly salary, which varied with how much time he
worked, and ranged from $750.00 to $800.00, but Defendants
did not retain precise records of the hours Mr. Melendez
worked. Pls.' SOF ¶¶ 13, 12; Defs.' SOF
¶¶ 13, 12. Mr. Melendez was paid with one check,
issued by Defendant Poy Loung, Inc., for his work at all
three restaurants. Pls.' SOF ¶ 16; Defs.' SOF
¶ 16. Mr. Melendez was fired from all three restaurants
at the same time. Pls.' SOF ¶ 17; Defs.' SOF
¶ 16.
Plaintiff
Argueta worked at Teakwood from approximately February 1,
2013 to approximately December 16, 2016, first as a
dishwasher and later as a cook and sushi preparer. Pls.'
SOF ¶¶ 18 -20; Defs.' SOF ¶¶ 18-20.
Plaintiff Argueta was paid a fixed, semi-monthly salary,
which varied with time worked, and increased over the years.
Pls.' SOF ¶ 24; Defs.' SOF ¶ 24. Defendants
did not itemize any deductions or credits on Plaintiffs'
paychecks. Pls.' SOF ¶31; Defs' SOF ¶ 31.
Plaintiffs
filed their initial Complaint, ECF No. 1, on March 1, 2017,
asserting that Defendants failed to pay the Plaintiffs
minimum and overtime wages. Defendants/Counter-Plaintiffs
answered the Complaint and filed a Counterclaim on April 6,
2017, asserting that: (1) Mr. Melendez conspired with a
plaintiff from another wage and hour lawsuit (the
“Third-Party Defendant”) that was filed against
these Defendants/Counter-Plaintiffs to publicize or share
information about that case, which violated the Settlement
Agreement entered into in that case (Count II), and (2) Mr.
Melendez tortiously interfered with
Defendants/Counter-Plaintiffs' contractual rights when he
and the Third-Party Defendant violated the Settlement
Agreement and/or solicited former co-workers to file suit
(Count III). See generally Counterclaim, ECF No. 11.
On
April 17, 2017, Plaintiffs' filed their First Amended
Complaint. Plaintiffs allege therein that it was typical that
both Plaintiffs worked more than forty hours per week without
receiving overtime pay, and when their semi-monthly salaries
are divided by the number of hours worked, neither Plaintiff
received the applicable minimum wage. See generally
First Amended Complaint, ECF No. 14 (Counts I and II).
Plaintiffs allege further that Defendants failed to pay wages
that were due to them after they left employment (Count III).
They also assert a retaliation claim relevant to Plaintiff
Melendez (Count IV), in response to Defendants'
allegations in its Counterclaim.
After
the close of discovery, Plaintiffs filed the instant Motion
for Partial Summary Judgment, Defendants filed their
Opposition, and Plaintiffs filed a Reply.[2] In their Motion,
Plaintiffs request judgment in their favor on the following
issues regarding liability: (1) Defendant Kampirapang is
individually liable as an “employer;” (2) the
three Corporate Defendants are jointly liable for any
violations of the FLSA and DCMWA; (3) Defendants violated the
overtime provisions of the FLSA and the DCMWA; (4) Defendants
violated the minimum wage provisions of the DCMWA; (5)
Defendants' Counterclaim violates the anti-retaliation
provisions of the DCWPCL, and therefore, the Court should
enter judgment for Counter-Defendant Melendez on the
Counterclaim and against Defendants on Plaintiff
Melendez's claim of retaliation; (6) Defendants may not
take a “tip credit” to partially offset their
failure to pay the minimum wage and may not raise this as a
partial defense; and (7) Plaintiffs are entitled to one hour
of compensation at the then-current D.C. minimum wage for
every full workday they worked. Each of these issues will be
addressed in turn by this Court.
II.
LEGAL STANDARD
Summary
judgment is appropriate where “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, 247-48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). The movant
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). The mere existence of
some factual dispute is insufficient on its own to
bar summary judgment; the dispute must pertain to a
“material” fact. Fed.R.Civ.P. 56(a). A fact is
“material” if it may affect the substantive
outcome of the litigation. See Anderson, 477 U.S. at
248 (“Only disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.”);
Holcomb, 433 F.3d at 895. A dispute is
“genuine” if, upon considering the evidence, a
reasonable jury could return a verdict for the nonmoving
party. See Scott v. Harris 550 U.S. 372, 380 (2007);
Anderson, 477 U.S. at 248; Holcomb, 433
F.3d at 895.
In
order to establish that a fact is or cannot be genuinely
disputed, a party must (a) cite to specific parts of the
record - including deposition testimony, documentary
evidence, affidavits or declarations, or other competent
evidence - in support of its position, or (b) demonstrate
that the materials relied upon by the opposing party do not
actually establish the absence or presence of a genuine
dispute. Fed.R.Civ.P. 56(c)(1); Celotex, 477 U.S.
317, 324 (1986). Conclusory assertions offered without any
factual basis in the record cannot create a genuine dispute
sufficient to survive summary judgment. See Ass'n of
Flight Attendants-CWA, AFL-CIO v. U.S. Dep't of
Transp., 564 F.3d 462, 465-66 (D.C. Cir. 2009).
Moreover, where “a party fails to properly support an
assertion of fact or fails to properly address another
party's assertion of fact, ” the court may
“consider the fact undisputed for purposes of the
motion.” Fed.R.Civ.P. 56(e); see LCvR 7(h)(1)
(in resolving summary judgment motions, the court
“assume[s] that facts identified by the moving party in
its statement of material facts are admitted, unless such
fact is controverted in the statement of genuine issues filed
in opposition to the motion.”).
When
faced with a motion for summary judgment, the district court
may not assess credibility or weigh evidence. See
Anderson, 477 U.S. at 255; Czekalski v. Peters,
475 F.3d 360, 363 (D.C. Cir. 2007) (noting that courts must
“eschew making credibility determinations or weighing
the evidence.”). “If material facts are at issue,
or, though undisputed, are susceptible to divergent
inferences, summary judgment is not available.”
Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009)
(quoting Kuo-Yun Tao v. Freeh, 27 F.3d 635, 638
(D.C. Cir. 1994)). Ultimately, the district court's task
is to determine “whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law.” Anderson, 477 U.S. at 251-52.
Accordingly, the nonmovant must “do more than simply
show that there is some metaphysical doubt as to material
facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986); see
Celotex, 477 U.S. at 324 (the party opposing summary
judgment must present affirmative evidence showing “a
genuine issue for trial”). “If the evidence is
merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 477 U.S.
at 249-50.
III.
ANALYSIS
A.
Defendant Kampirapang's Individual Liability
To be
liable for violations of the FLSA, the defendant must be an
“employer, ” which includes “any person
acting directly or indirectly in the interest of an employer
in relation to an employee, ” where an
“employee” is an individual employed by an
employer, ” and the term “employ” is
defined as “to suffer or permit to work.” 29
U.S.C. § 203 (d), (e)(1), (g); see Rutherfood Food
Corp. v. McComb, 331 U.S. 722, 728 (1947) (finding that
under the FLSA, the “definition of ‘employ'
is broad”). Similar to the FLSA, the DCWPCL states that
an “employer” is “every individual . . .
employing any person in the District of Columbia.” D.C.
Code Section 32-1301(IB). “Because the DCWPCL and the
FLSA contain nearly identical provisions with respect to
employers' liability, the DCWPCL is to be construed
consistently with the FLSA.” Ventura v. Bebo Foods,
Inc., 738 F.Supp.2d 1, 5 n. 2 (D.D.C. 2010).
The
definition of an “employer” is broadly construed
to serve the remedial purposes of the FLSA. Morrison v.
Int'l Programs Consortium, Inc. 253 F.3d 5, 10 (D.C.
Cir. 2001). In analyzing whether a putative employer is an
employer under the FLSA, the Supreme Court found that
“‘economic reality' rather than
‘technical concepts' is to be the test of
employment.” Goldberg v. Whitaker House Corp.,
Inc., 366 U.S. 28, 33 (1961). Courts examine multiple
factors designed to demonstrate “the extent to which
typical employer prerogatives govern the relationship between
the putative employer and employee.” Henthorn v.
Dep't of Navy, 29 F.3d 682, 684 (D.C. Cir. 1994)).
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.”
Morrision, 253 F.3d at 11. There is no one
dispositive factor, but rather, courts look at the totality
of the circumstances. Id.
“At
minimum, an individual who exercises operational control over
an employee's wages, hours and terms of employment
qualifies as an “employer, ” and is subject to
individual liability.” Guevara v. Ischia,
Inc., 47 F.Supp.3d 23, 26 (D.D.C. 2014). Individuals who
own or manage a business may also be held accountable as
employers pursuant to the economic reality test and in
consideration of their ownership interest. “To
determine whether a corporate officer has operational
control, the Court looks at the factors above plus the
ownership interest of the corporate officer.”
Ventura v. Bebo Foods, 738 F.Supp.2d at 5. In that
case, the court found that a restaurant owner was
individually liable as an employer because he had
“operational control over the corporate defendants
insofar as he had a “significant ownership
interest” in the business, as well as the “power
to hire and fire, control work schedules and supervise
employees, determine pay rates, and maintain employment
records.” Id.; see also Martinez v. Asian
328, LLC, No. 15-cv-1071 2016 WL 4621068 *4 (D.D.C.
2016) (finding that the sole owner of defendant restaurant
who “exercised total control over the operations of the
restaurant, including making all decisions to hire and fire
employees, set pay rates, set work schedules, and keep
employment records” was an employer under D.C. and
federal law.)
In the
instant case, Defendant Kampirapang is the sole owner of
corporate Defendants Poy Loung D.C. Group, LLC (Kruba) and
Galae Thai, Inc. (Regent Thai Cusine), and he has a 90%
ownership interest in corporate Defendant Poy Loung, Inc.
(Teakwood). Pls.' SOF ¶ 1; Defs.' SOF ¶ 1.
Defendants concede that Defendant Kampirapang exercised
control over employee promotions and firings, and that he
determined pay and signed and tendered paychecks. Pls.'
SOF ¶ 2; Defs,' SOF ¶ 2. Defendants do not
concede that Defendant Kampirapang supervised Plaintiffs'
performance, directed their schedules or monitored their
compliance with the schedules, but Defendants do not proffer
any evidence or argument to dispute Plaintiffs'
contention. Defs.' SOF ¶ 2; but see
Pls.' Mot. Ex. B [Kampirapang Deposition] at 23
(acknowledging that he decided that Plaintiff Melendez should
work four days at one restaurant, two days at another and one
day at another), at 31 (he determined how much Plaintiff
Argueta should receive in tips based on his job performance);
Ex. E [Defendant Poy Loung, Inc.'s Answers to
Interrogatories] at 8 (“Compliance to schedule was
monitored by Chuchart Kampirapang . . . and Eduardo Murillo
(Chef)”). Accordingly, Defendants' general denial
that Defendant Kampirapang supervised the Plaintiffs'
performance or directed their schedules is contradicted by
Mr. Kampirapang's own deposition testimony and
Defendants' answers to interrogatories.
Plaintiffs
assert that Defendant Kampirapang is an employer pursuant to
the FLSA and the D.C. Code because of his operational control
over Plaintiffs based upon his ability to promote employees,
fire employees, direct their schedules and monitor compliance
therewith, supervise their performance, and set pay rates,
and because of his ownership interest in the corporate
Defendants.
Accordingly,
considering the record before this Court and the lack of any
genuine dispute as to any issue of material fact, the Court
finds that Defendant Kampirapang is an employer for purposes
of this case, and Plaintiffs are entitled to summary judgment
on this issue.
B.
Joint Liability of the Three Corporate Defendants
Plaintiffs
contend that the three corporate Defendants should be treated
as a “joint employer” where “all joint
employers are responsible, both individually and jointly, for
compliance with all of the applicable provisions of the
[FLSA], including the overtime provisions, with respect to
the entire employment for the particular workweek.”
Pls.' Mot. at 9 (citing McKinney v. United Stor-All
Ctrs. LLC, 656 F.Supp.2d 114, 132 (D.D.C. 2009)).
Plaintiff cite further to the applicable FLSA regulation, 29
C.F.R. § 791.2, which discusses Joint Employment as
follows:
(a) . . . If the facts establish that the employee is
employed jointly by two or more employers, i.e., that
employment by one employer is not completely disassociated
from employment by the other employer(s), all of the
employee's work for all of the joint employers during the
workweek is considered as one employment for purposes of the
Act. In this event, all joint employers are responsible, both
individually and jointly, for compliance with all of the
applicable provisions of the act, including overtime
provisions, with respect to the entire employment for the
particular workweek . . .
(b) Where the employee performs work which simultaneously
benefits two or more employers, or works for two or more
employers at different times during the workweek, a joint
employment relationship generally will be considered to exist
in situations such as:
(1) Where there is an arrangement between the employers to
share the employee's services, as, for example, to
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