UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
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DAVID MORALES, )
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Plaintiff, )
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v. ) Civil Action No. 08-1463 (PLF)
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LANDIS CONSTRUCTION CORP., et al., )
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Defendants. )
__________________________________________)
MEMORANDUM OPINION
The plaintiff, David Morales, alleges that defendants, Landis Construction
Coporation, Ethan Landis, and Christopher Landis, violated the Fair Labor Standards Act, the
District of Columbia Minimum Wage Revision Act, and the District of Columbia Wage Payment
and Collection law by failing to pay plaintiff time-and-one-half for overtime work. This matter
currently is before the Court on plaintiff’s motion for summary judgment, plaintiff’s motion for
in camera inspection of documents, defendant’s motion for leave to file an amended answer, and
defendant’s motion to strike plaintiff’s reply in support of his motion for summary judgment.
I. BACKGROUND
Plaintiff worked for defendants from either March or May 2005 through
November 2007, although, according to defendants’ payroll records, plaintiff was not employed
by defendant from September 2005 through March 2006. See Plaintiff’s Motion for Summary
Judgment (“Mot.”), Statement of Undisputed Material Facts (“Pl. Facts”) ¶ 1; Defendants’
Opposition to Plaintiff’s Motion for Summary Judgment (“Opp.”), Response to Plaintiff’s
Statement of Material Facts (“Def. Facts”) ¶ 1.1 Plaintiff states that he typically was scheduled to
work between eight and ten hours per day, five to six days per week. See Pl. Facts ¶ 3.
Defendant Ethan Landis submitted a declaration stating that plaintiff’s regular schedule was eight
hours per day, five days per week. See Opp., Declaration of Ethan Landis (“Landis Decl.”) ¶ 3.
Plaintiff’s work shifts were recorded on time sheets. See Pl. Facts ¶ 4; Landis Decl. ¶ 4.
Defendants paid plaintiff on an hourly basis, and his weekly pay depended on the number of
hours he worked. See Pl. Facts ¶¶ 11-12; Def. Facts ¶¶ 11-12. Plaintiff’s final hourly wage from
defendants was $19 per hour, although the parties disagree about the hourly wage he received
earlier in his employment. See Pl. Facts ¶ 13; Def. Facts ¶ 13.
Defendants agree that they failed to pay plaintiff time-and-one-half for a total of
25 hours of overtime over the course of his employment. See Def. Facts. ¶ 14. Plaintiff asserts
that the total number of unpaid overtime hours is 150.5 (although he does not include this total
amount in his filings anywhere other than in an exhibit to his reply brief in support of his motion
for summary judgment). See Reply to Defendants’ Opposition to Plaintiff’s Motion for
Summary Judgment (“Rep.”), Ex. 1. The parties agree that their dispute is about the total amount
of overtime pay that defendants owe to plaintiff.
II. STANDARD OF REVIEW
Summary judgment may be granted if “the pleadings, the discovery and disclosure
materials on file, and any affidavits [or declarations] show that there is no genuine issue as to any
1
In their proposed amended answer, defendants say plaintiff’s dates of employment
were from May 19, 2005 to September 5, 2005, and again from March 19, 2006 to November 23,
2007. See infra at 8.
2
material fact and that the movant is entitled to judgment as a matter of law.” FED . R. CIV . P.
56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). “A fact is ‘material’ if a dispute over it might affect
the outcome of a suit under the governing law; factual disputes that are ‘irrelevant or
unnecessary’ do not affect the summary judgment determination.” Holcomb v. Powell, 433 F.3d
at 895 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). An issue is “genuine” if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott
v. Harris, 550 U.S. 372, 380 (2007); Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; Holcomb
v. Powell, 433 F.3d at 895. When a motion for summary judgment is under consideration, “the
evidence of the non-movant[s] is to be believed, and all justifiable inferences are to be drawn in
[their] favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 255; see also Mastro v. Potomac
Electric Power Co., 447 F.3d 843, 849-50 (D.C. Cir. 2006); Aka v. Washington Hospital Center,
156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc); Washington Post Co. v. U.S. Dep’t of Health
and Human Services, 865 F.2d 320, 325 (D.C. Cir. 1989). On a motion for summary judgment,
the Court must “eschew making credibility determinations or weighing the evidence.” Czekalski
v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).
The nonmoving party’s opposition, however, must consist of more than mere
unsupported allegations or denials and must be supported by affidavits, declarations or other
competent evidence, setting forth specific facts showing that there is a genuine issue for trial.
FED . R. CIV . P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). They are required to
provide evidence that would permit a reasonable jury to find in their favor. Laningham v. United
States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the nonmovants’ evidence is “merely
3
colorable” or “not significantly probative,” summary judgment may be granted. Anderson v.
Liberty Lobby, Inc., 477 U.S. at 249-50; see Scott v. Harris, 550 U.S. at 380 (“[W]here the record
taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is
‘no genuine issue for trial.’”) (quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986)).
III. DISCUSSION
A. Summary Judgment2
Plaintiff’s three statutory claims all arise from defendants’ alleged failure to pay
him adequate compensation for the hours of overtime that he worked. The Fair Labor Standards
Act (“FLSA”) requires, among other things, that employers pay any employee who is covered by
the FLSA “not less than one and one-half times the regular rate at which he is employed” for all
hours worked in excess of forty in a week. 29 U.S.C. § 207(a)(1). See also Hunter v. Sprint
Corp., 453 F. Supp. 2d 44, 50 (D.D.C. 2006). The District of Columbia Minimum Wage
Revision Act has similar requirements. See D.C. Code § 32-1003(c) (“No employer shall
employ any employee for a workweek that is longer than 40 hours, unless the employee receives
compensation for employment in excess of 40 hours at a rate not less than 1 1/2 times the regular
rate at which the employee is employed.”). The District of Columbia Wage Payment and
Collection Law requires that an employer pay the outstanding wages of an employee who has
been discharged or who has resigned within four days of the date of discharge or resignation.
2
Resolution of defendants’ motion for leave to file an amended answer does not
affect the Court’s analysis of plaintiff’s motion for summary judgment. Accordingly, the Court
will address the motion for leave to file an amended answer after resolution of the motion for
summary judgment.
4
D.C. Code § 32-1303(1). The parties agree that defendants owe plaintiff some amount of
overtime pay. Defendants assert that they owe plaintiff for a total of 25 hours of unpaid
overtime. See Def. Facts ¶ 14. Plaintiff asserts that defendants owe him compensation for 150.5
hours of unpaid overtime as well as liquidated damages. See Rep., Ex. 1.
Although plaintiff acknowledges that a genuine dispute exists regarding the
amount of overtime owed, he argues that he is entitled to a presumption that his calculation of
unpaid overtime hours is correct because defendants’ records are inadequate. See Anderson v.
Mt. Clemens Pottery Co., 328 U.S. 680, 687-88 (1946) (using such a presumption); Arias v.
United States Serv. Indus., 80 F.3d 509, 511-12 (D.C. Cir. 1996) (same). In support of his
argument that defendants’ time records are inadequate or inaccurate, plaintiff asserts that some of
the time sheets produced in discovery reflect jobs that plaintiff did not work or do not reflect
projects on which he worked. In addition, plaintiff asserts that defendants “falsified” his time
sheets because the time sheets he reviewed do not all have the project manager’s signature on
them. See Pl. Facts ¶ 10; Mot., Affidavit of Nathan Lindell ¶ 11. Plaintiff also argues that the
reliability of defendants’ time sheets is in doubt because he believes that they do not always
include his original signature, but rather they include a photocopy of his signature or lack his
signature completely. See Mot., Memorandum in Support at 4.
In response to plaintiff’s argument that the time records are unreliable, defendants
rely on the declaration of Ethan Landis, in which Mr. Landis denies that the time sheets are
inadequate. In particular, he states that time sheets are not always required to have the project
manager’s signature, and when no such signature exists, the company verifies the hours worked
by phone prior to issuing a paycheck. See Landis Decl. ¶ 4. He also states that none of the
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signatures on the time sheets has been altered or forged and that the time sheets were not falsified
in any way. See id. ¶¶ 4, 10.3 He states that it is not true that the time sheets fail to reflect certain
work actually performed by plaintiff. See id. ¶ 9. Taking all of Mr. Landis’s statements as
accurate, as the Court must at this stage, there is no basis to determine as a matter of fact or law
that defendants’ time sheets are inaccurate or unreliable. The Court therefore cannot afford
plaintiff’s calculation of overtime hours the presumption of accuracy that he seeks. The cases he
cites do not require the Court to do so in circumstances like those presented here. See, e.g.,
Anderson v. Mt. Clemens Pottery Co., 328 U.S. at 687-88. A genuine issue of material fact
exists as to how many overtime hours plaintiff worked for the relevant time period.4 The Court
therefore cannot grant summary judgment for plaintiff.
In his reply brief, plaintiff suggests that the parties be referred to mediation for the
purpose of resolving the amount of unpaid compensation owed to plaintiff. See Rep. at 4. The
Court agrees that doing so would be prudent, and will order the parties to file a joint statement
regarding whether they prefer to be referred to the court-sponsored mediation program or
randomly to a magistrate judge for settlement discussions.
3
Plaintiff’s Motion for an In Camera Inspection of Documents seeks to have the
Court review these time sheets in order to determine whether Mr. Morales’s signature is
authentic. Such a resolution of a disputed issue of fact is inappropriate on a motion for summary
judgment. Accordingly, the Court will deny the motion.
4
Defendants move to strike the section of the reply brief and accompanying exhibit
in which plaintiff identifies for the first time the specific dates and hours when he allegedly
worked more than 40 hours per week. See Defendants’ Motion to Strike Plaintiff’s Reply to
Defendants’ Opposition to Plaintiff’s Motion for Summary Judgment or for Leave to Sur-Reply
at 1. In its analysis of plaintiff’s motion for summary judgment, the Court did not, however, rely
on the specific number of hours for which plaintiff asserts he is due overtime. Defendants’
motion therefore will be denied as moot.
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B. Defendants’ Motion for Leave to File an Amended Answer
Defendants move for leave to file an amended answer to plaintiff’s first amended
complaint. Rule 15(a) of the Federal Rules of Civil Procedure allows for liberal amendment of
pleadings, “when justice so requires.” FED . R. CIV . P. 15(a); see, e.g., Howard v. Gutierrez, 237
F.R.D. 310, 312 (D.D.C. 2006) (quoting Davis v. Liberty Mutual Insurace Co., 871 F.2d 1134,
1136-37 (D.C. Cir. 1989) (“It is common ground that Rule 15 embodies a generally favorable
policy toward amendments.”) (citations omitted)). The presumption runs in favor of permitting
defendants to amend their answer “[i]n the absence of any apparent or declared reason — such as
undue delay, bad faith or dilatory motive on the part of the [defendant], repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, futility of the amendment, etc.” Foman v. Davis, 371 U.S. 178,
182 (1962).
Defendants explain that they wish to amend their answer because “[i]n their
original answer, defendants admitted plaintiff’s approximate dates of employment and his hourly
rate. Upon re-examination of plaintiff’s payroll records for defendants’ opposition to plaintiff’s
motion for summary judgment, defendants discovered that the dates of employment and hourly
rates” were different than the ones they originally admitted. See Defendants’ Motion for Leave
to File an Amended Answer at 1. Defendants now deny that plaintiff worked for them from
March 2005 to November 2007. Instead they state that plaintiff’s dates of employments were
May 19, 2005 to September 5, 2005, and March 19, 2006 to November 23, 2007. See id., Ex. 1
(“Amended Answer to First Amended Complaint”) ¶ 9. They also deny that plaintiff’s hourly
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wage was $19 per hour, and instead to answer that plaintiff’s “hourly rate was $16.50 for 2005,
$18.00 for 2006 and $19.00 for 2007.” Id. ¶ 19.
Plaintiff opposes the motion on the ground that defendants’ proposed amendments
are prejudicial and futile. As to prejudice, plaintiff argues that because he did not learn that
defendants disagreed with his stated hourly wage until after the completion of discovery, he was
not able to take discovery on this discrepancy. In order to ameliorate any such prejudice, the
Court will permit plaintiff to take additional limited discovery regarding plaintiff’s hourly wage.
Plaintiff may move to do so — and the Court will grant such a motion — if he feels that it is
necessary. But the Court does not agree that any resulting prejudice is a reason to bind
defendants to what they now believe is a factually incorrect answer.
As to futility, plaintiff argues that the statute of limitations bars any recovery for
unpaid overtime accrued more than three years prior to the commencement of litigation. The
lawsuit was filed on August 22, 2008. According to plaintiff, therefore, it does not matter
whether he began his employment with defendants in March 2005 or in May 2005, because any
recovery for hours worked prior to August 22, 2005 would be barred. Plaintiff ignores the fact,
however, that defendants also seek to amend their answer to state that plaintiff did not work for
them for a time period from September 2005 through March 2006, a time period which would
not be barred by the statute of limitations. The Court concludes that the proposed amendment is
not futile. It will grant defendants’ motion.
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IV. CONCLUSION
For the reasons stated above, the Court will deny plaintiff’s motion for summary
judgment, will grant defendants’ motion for leave to file an amended answer, will deny plaintiff’s
motion for an in camera review of documents, and will deny as moot defendants’ motion to
strike. An Order consistent with this Memorandum Opinion will issue this same day.
/s/_________________________
PAUL L. FRIEDMAN
United States District Judge
DATE: June 4, 2010
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Morales v. Landis Construction Corporation
Combined Opinion