Hernandez v. Stringer

UNITED STATES DISTRICT COURT
FOR THE DIS'I`RICT OF COLUMBIA

ISRAEL HERNANDEZ, §
Plaintiff, §
v. § Civil Case No. 14-922 (RJL)
CASEY B. STRINGER, et al., §
Defendants. § FI L E D
) SE`P 2 9 2016
MEMoRANDUM/oPINIoN c‘f,?,'§§ l'o'rsih%'i)tgmm

(Septemberz_g/, 2016) [Dkt. #28]

Plaintiff Israel Hernandez (“plaintift") brings this action against Casey B. Stringer
(“Stringer"`) and Broughton Construction Company, LLC (“Broughton”) (togethcr
“defendants”) alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C.
§§ 201 et seq., the District of Colurnbia Minimurn Wage Act (“DCMWA”), D.C. Code
§§ 32-1001 et seq., and the District of Columbia Wage Payment and Collection LaW
(“DCWPCL”), D.C. COde §§ 32-13()1 etseq. See generally Compl. [Dkt. #l]. Defend€:nts
answered plaintiff s Cornplaint on July 15, 2014 and raised a counterclaim of breach of
contract against plaintiff Defs.’ Answer to Cornpl. and Counterclaim [Dkt. #5]. Presently
before the Court is plaintiff`s Motion for Partial Surnmary Judgrnent [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 1l 8 [hereinafter “Pl.’s SOl\/IF”] [Dkt. #28-1]. Plaintiff
worked for defendants from approximately February l, 2010 to February 27, 20]4. Pl.’s
SOMF 1l l. Defendants paid plaintiff a set salary, as opposed to paying him by the hour.
Pl.’s SOMF il l. Plaintiff claims that at times during his employment with defendants he
worked more than forty hours a week. Pl.’s SOMF il 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 il 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 ll 4.

Although the parties agree that plaintiffs title was “Assistant Superintendent,” Pl.’s
SOMF ll 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.

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Plaintiff denies being a manager or supervisor and asserts that he was a carpenter. Pl.’s
SOMF 11 27. At the close of plaintiffs 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 11 2 [Dkt.
#28-9] (“1 am releasing and giving up claims 1 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 11 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 11 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 il 1. Without consulting with

an attorney, plaintiff signed the Agreement on the spot. Pl.’s SOMF 1111 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 l 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

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nonmoving party.”’ Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting
Ana’erson v. Lz'berzy Lobby, [nc., 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
Celolex 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.”
Ia’. 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.”
Grosa'ia'z`er v. Braacl. Ba’. OfGovemors, Chal`rman, 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 Practz`ce and

Procedure § 2737 (4th ed.).

atw»aw’ ».,¢~»,» w c ...

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,l 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.” Ia’. § 213(a). The exemptions serve as
“affirmative defense[s] on which the employer has the burden of proof.” Comng Glass
Works v. Brerman, 417 U.S. 188, 196-97 (1974). Exemptions from the FLSA “are to be
narrowly construed against the employers seeking to assert them.” Arnolcl 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. Unz`tea’ 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.”
Ia’. (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

l lt is undisputed here that Broughton is an entity subject to the FLSA, DCMWA, and DCWPCL. Moreover,
defendants’ opposition did not address plaintiffs argument that both Broughton and Stringer were his
“employers” under those acts. The Court therefore deems the argument conceded See Shaw v. District of
Columbia, 824 F. Supp. 2d 173, 177 (D.D.C. 201 1) (“lt is well-established in this Circuit that when a [non-
moving party] files an opposition to a dispositive motion and addresses only certain arguments raised by
the [moving party], the court may treat those arguments that the [non-moving party] failed to address as
conceded.” (internal quotation marks omitted)).

or the DCMWA2 because plaintiff was an exempt executive employee Defs.’ C)pp’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 l agree with plaintiff that the executive exemption is inapplicable here, 1
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.” Ia’. § 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.” Ia’. Without citing any authority beyond the regulation itself, defendants

2 The DCMWA’s overtime requirement mirrors that ofthe FLSA. D.C. Code § 32-1003(0), lt also provides
for the same executive exemption, specifically referencing the FLSA. Id. § 32-1003(a)(1). The parties
agree that FLSA standards govern the applicability of the executive exemption to plaintiffs DCMWA
claim. Pl.’s l\/lem. 4 n.4; Defs.’ Opp’n 10 n.49, See also Thompson v. Lina’a AndA., Inc., 779 F. Supp. 2d
139, 146 (D.D.C. 2011) (explaining that “[w]ith respect to employers’ liability, [the DCMWA and
DCWPCL] are construed consistently with the FLSA”). The Court will therefore address plaintiffs FLSA
and DCMWA claims together.

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. Dislrict ofColambz'a, 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 Dell`mz'ting the Exemptz`ons for Executive, Adrninz'sz‘raz‘l've, Professional,
Outsl`de Sales and Computer Ernployees, 69 Fed. Reg. 22,122, 22,135 (Apr. 23, 2004)
(rejecting an interpretation of the executive exemption that would “count the supervision
of volunteers, contractors, and other non-employees” because the “FLSA itself defines the
term ‘employee’ as an ‘individual employed by an employer”’).3 Therefore, plaintiff was

not an exempt employee pursuant to the FLSA’s or the DCMWA’s executive exemption

3 See also Calll` v. ARC Mal`nt., Inc., No. 5:14-CV-5292, 2016 WL 245323, at *6 (E.D. Pa. Jan. 21, 2016);
Haley v. Kuna’u, No. 1:11-CV-265, 2013 WL 1984363, at *3 (E.D. Tenn. May 13, 2013); Vl`llegas v.
Dependable Constr. Servs., No. 4:07-cv_2165, 2008 WL 5137321 (S.D. Tex. Dec. 8, 2008); Bagwell v.
Florida Broadband, LLC, 385 F. Supp. 2d 1316, 1329 (S.D. Fla. 2005); Murphy v. Commonwealth Edison
Co., No. 01 C 1741, 2002 WL 832608, at *3 (N.D. Ill. May 1, 2002).

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II. FLSA and DCMWA Liability and Damages

Plaintiff asks the Court to rule now that defendants are liable for violations of the
FLSA and DCMWA. But it is well-established that the employee “has the burden of
proving that he performed work for which he was not properly compensated.” Arz`as v.
US. Serv,. Indus., Inc., 80 F. 3d. 509, 511 (D.C. Cir. 1996) (internal quotations omitted).
At this juncture, plaintiff has not set forth sufficient evidence as to the number of overtime
hours he worked without time and a half pay. Although plaintiff submits his timesheets
from Broughton that purport that plaintiff worked more than forty hours a week during
thirty-three weeks that he was employed by defendants he argues that those records have
been highly altered and do not reflect the full extent of his overtime hours Pl.’s Mem.
2 n.3. Defendants here do not contest that plaintiff at times worked more than forty hours
a week. Compare Pl.’s SOMF 11 2 with Defs.’ Opp’n 2-10. Defendants also argue that
plaintiffs timesheets are inaccurate, but in their view the errors derive from plaintiff over-
reporting his time. Defs.’ Opp’n 21 (citing Tamla Kirkland Aff. § 22 [Dkt. 29-1]).
Assuming arguendo that the timesheets Broughton maintained regarding plaintiff are
inaccurate, plaintiffs burden to set forth a prima facie case of FLSA and DCMWA liability
would include “produc[ing] sufficient evidence to show the amount and extent of [the work
for which he was improperly compensated] as a matter of just and reasonable inference.”

Anderson v. Mz. Clernens Pottery Co., 328 U.S. 680, 687 (1946) (emphasis added).4 lf he

4 The Anderson standard also applies to claims under the DCMWA. Serrano v. Chicken-Oul Inc., Civ. No.
15-0276, 2016 WL 3962800, at *4 (D.D.C. July 22, 2016) (citing Plel'tez v. Carney, 594 F. Supp. 2d 47, 49
(D.D.C. 2009)).

were to do so, “[t]he burden then shifts to the employer to come forward with evidence of
the precise amount of work performed or with evidence to negative the reasonableness of
the inference to be drawn from the employee’s evidence.” Id. at 687-88. “If the employer
fails to produce such evidence, the court may then award damages to the employee, even
though the result be only approximate.” Id. at 688.

Without a showing by plaintiff as to how many hours he actually worked, “the Court
can draw no ‘just and reasonable inference’ about how often . . . and to what extent
[plaintiff] worked in excess of forty hours per week,” and, therefore, “summary judgment
on the issue of [FLSA and DCMWA] liability would be inappropriate.” Guevara v. lschz`a,
Inc., 47 F. Supp. 3d 23, 28 (D.D.C. 2014). Moreover, the Court cannot make credibility
determinations regarding the parties’ respective evidence on a motion for summary
judgment, and for that reason the issue of the number of hours of work plaintiff actually
performed may ultimately be one for a jury. Because liability has not yet been established,
consideration of plaintiffs claim that he is entitled to liquidated damages would be
premature, and the Court will reserve judgment on that issue. See id. at 28-29.

III. Defendants’Counterclaim

Defendants raise a breach of contract counterclaim against plaintiff, stating that his
filing of this lawsuit violates the Agreement and that he has released the claims he pursues
here. See Defs.’ Opp’n 22~23. They further argue that plaintiff owes them costs and
attomeys’ fees incurred in defending against plaintiffs claims under the Agreement’s
indemnity clause. See Defs.’ Opp’n 22~23. Plaintiff moves for summary judgment on the

counterclaim, arguing that the Agreement is invalid. Pl.’s Mem. 4-1 1. Despite defendants’

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assertions that “consenting adults” should be free to “‘close the books’ on their business
relationship,” Defs.’ Opp’n 20, the “typical tenants of contract law do not apply to FLSA
settlements.” Sarceno v. Choi, 66 F. Supp. 3d 157, 167 (D.D.C. 2014). As the Supreme
Court has recognized, Congress’s purpose in enacting the FLSA was “to protect certain
groups of the population from substandard wages and excessive hours which endangered
the national health and well-being and the free flow of goods in interstate commerce,”
Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 706 (1945). Thus, “to allow waiver of
statutory wages by agreement would nullify the purposes of the Act.” Id. at 707; see also
Beara’ v. D.C. Hous. Auth., 584 F. Supp. 2d 139, 143 (D.D.C. 2008) (“lt is a long-held view
that FLSA rights cannot be abridged or otherwise waived by contract because such private
settlements would allow parties to circumvent the purposes of the statute by agreeing on
sub-minimum wages.”). When a court is faced with an agreement purporting to release
FLSA claims, it must therefore question “whether [the] release was given in settlement of
a bona fide dispute between the parties with respect to coverage or amount due under the
Act or whether it constituted a mere waiver of his right to liquidated damages.” Id. at 703.
A settlement resolves a bona fide FLSA dispute if it “reflects a reasonable compromise
over issues that are actually in dispute, since merely waiving a right to wages owed is

disallowed.”5 Sarceno v. Chol`, 78 F. Supp. 3d 446, 450 (D.D.C. 2015).

5 Defendants rely on 29 U.S.C. § 253 as authorization for private settlement of wage claims By its own
terms that provision applies only to claims that “accrued prior to May 14, 1947,” the date of the FLSA’s
enactment

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The release provision of the Agreement between plaintiff and Broughton is
unenforceable as to plaintiffs FLSA claim. Defendants do not even argue, much less
provide evidence, that at the time the parties executed the Agreement they were settling a
dispute between them regarding wages owed to plaintiff under the FLSA. lndeed,
defendants do not argue or point to any evidence that there was any communication
between the parties whatsoever of the applicability of the FLSA’s overtime requirements
to plaintiff or of the number of hours he worked but was not compensated for in accordance
with the FLSA before they entered into the Agreement lnstead, it is uncontroverted that
the Agreement was a standard separation agreement generally issued to employees who,
like plaintiff, were involuntarily terminated from Broughton. Kirkland Dep. 128:15~18;
129:2-4 [Dkt. #28-4]. Moreover, Kirkland testified that she and plaintiff never specifically
discussed the FLSA’s coverage or plaintiffs right, if any, to receive overtime
compensation pursuant to the FLSA prior to plaintiff signing the Agreement. Kirkland
Dep. 131:16-22. True, the Agreement provided plaintiff with an additional couple days’
salary. However, defendants have set forth no evidence that the payment derived from
negotiations between the parties as to the amount actually owed to plaintiff under the FLSA
or had any relation whatsoever to such an amount. But see Kirkland Dep. 133:10 (stating
that she did not consult records regarding plaintiff s hours of overtime work in determining
the amount Broughton would pay plaintiff pursuant to the Agreement). Because the
Agreement “was [not] given in settlement of a bona fide dispute between the parties with

respect to coverage or amount due under the” FLSA and because it was instead precisely

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the sort of “mere waiver” of FLSA rights that is clearly prohibited, the Agreement does not
serve as a bar to plaintiffs present FLSA claim.6 O’Nez'l, 324 U.S. at 707.

Similarly, the DCMWA and DCWPCL provide that the obligations and rights they
impose cannot be contracted around by employers and employees See D.C. Code
§ 32-1305(a) (DCWPCL stating that “[e]xcept as herein provided, no provision of this
chapter will in any way be contravened or set aside by private agreement”); D.C. Code
§ 32-1012(d) (DCMWA providing that “[a]ny agreement between an employer and
employee in which the employee agrees to work for less than the wages to which the
employee is entitled under this subchapter or any regulation issued under this subchapter
shall be no defense to any action to recover unpaid wages or liquidated damages.”). ln
other words, DCMWA and DCWPCL rights and claims cannot be waived. lf plaintiff
demonstrates that under the DCMWA or the DCWPCL he is owed more wages than he
received as a result of the Agreement, the release provision cannot be enforced as to the
relevant local law claims and cannot serve as the basis of a defense or counterclaim for
defendants

Turning to the Agreement’s indemnity clause, defendants concede that “whether the
clause is triggered or not is [] inextricably bound up with t`he question of whether the release
is valid. lf the release is valid and [plaintiff] released the claims he is now asserting, then

the clause comes into play; if the release is invalid, then it does not.” Defs.’ Opp’n 22. My

6 Because the Court finds the Agreement was not a settlement of a bona fide dispute, it need not analyze
the Agreement for indicia of fairness and reasonableness See Carrillo v. Dandan Inc., 51 F. Supp. 3d 124,
128 (D.D.C. 2014) (describing a finding of a bona fide dispute as a “requisite” to the evaluation of “the
validity of an FLSA settlement”).

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holding that the Agreement is invalid as to plaintiffs FLSA claim, therefore necessitates a
holding that it is likewise invalid as to plaintiffs obligation to indemnify defendants for
costs and attorney’s fees incurred in litigating the FLSA claim, Because the Court cannot
determine at this juncture the enforceability of the release provision as to the DCMWA or
DCWPCL claims, see discussion ofDCMWA and DCWPCL supra, it withholdsjudgment
of the indemnity clause’s enforceability as to those claims

Finally, defendants’ counterclaim asserts that plaintiff breached the Agreement by
“fail[ing] to return various items of Broughton’s property, including (without limitation)
keys and tools” Defs.’ Answer and Counterclaim 11 16 [Dkt. #5]. Plaintiff argues the
Court lacks jurisdiction to adjudicate this portion of the defendants’ counterclaim. Pl.’s
Mem. 19. Although defendants fail to cite any legal authority in response, their argument
is, in essence, that the Court has supplemental jurisdiction over their counterclaim to the
extent it alleges that plaintiff breached the release and indemnity clauses pursuant to 28
U.S.C. § l367(a), which provides for supplemental jurisdiction over claims that “are so
related to claims in the action within such original jurisdiction that they form part of the
same case or controversy.” 28 U.S.C. § 1367(a). l agree. Unfortunately for defendants
however, their response does not address plaintiffs objection to supplemental jurisdiction
over the counterclaim’s allegation that plaintiff did nol return Broughton ’s properly in
breach of the Agreement l therefore deem any argument that the Court should exercise
Section l367(a) supplemental jurisdiction over defendants’ claim that plaintiff failed to
return Broughton’s property in breach of the Agreement waived and will decline to exercise

supplemental jurisdiction over that portion of the counterclaim See Doe by Fez`n v. Distrz'ct

14

of Colz¢mbz'a, 93 F.3d 861, 871 (D.C. Cir. 1996) (arguments related to “[t]he discretionary
aspect to supplemental jurisdiction [are] waivable”). My conclusion is bolstered by the
fact that “courts have been hesitant to permit an employer to file counterclaims in FLSA
suits for money the employer claims the employee owes it, or for damages the employee’s
tortious conduct allegedly caused.” Martz'n v. PepsiAmerieas, Inc., 628 F.3d 73 8, 740 (5th
Cir. 2010); see also Slaughter v. Alplza Drugs, LLC, 907 F. Supp. 2d 50, 54 (D.D.C. 2012)
(“[T]he Court is cognizant of the fact adjudicating counterclaims filed by an employer in
the same context as a suit seeking unpaid wages may be inconsistent with the purpose of
the FLSA.”).
CONCLUSION

For all the foregoing reasons, the Court GRANTS lN PART plaintiffs Motion for
Partial Summary Judgment in that the following issues are deemed established: (1) both
Broughton and Stringer were plaintiffs “employers” under the FLSA, the DCMWA, and
the DCWPCL; (2) plaintiff was not an exempt employee pursuant to the FLSA’s or the
DCMWA’s executive exemption; (3) the Agreement’s release provision is unenforceable
as to plaintiffs FLSA claim; (4) the Agreement’s indemnity clause is unenforceable as to
plaintiffs FLSA claim; (5) any argument that the'Court should exercise supplemental
jurisdiction over the allegation contained in paragraph 16 of defendants’ counterclaim is

waived. The Court DENIES lN PART plaintiff s Motion for Partial Summary Judgment,

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without prejudice, as to the remaining issues An Order consistent with this decision

accompanies this Memorandum Opinion.

R'icHARD J.\LB€)N
United States District Judge

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