District of Columbia v. Bongam

Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 18-CV-187 & 18-CV-360

DISTRICT OF COLUMBIA, APPELLANT/CROSS-APPELLEE,

v.

ISAIAH BONGAM, APPELLEE/CROSS-APPELLANT

AND

DYNAMIC VISIONS, INC., APPELLEE.

Appeals from the Superior Court of the
District of Columbia
(CAB-5472-07 & CAB-8516-12)

(Hon. Todd E. Edelman, Trial Judge)

(Argued June 3, 2020 Decided March 31, 2022)

Lucy E. Pittman, Assistant Attorney General, with whom Karl A. Racine,
Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General
at the time of argument, and Caroline S. Van Zile, Deputy Solicitor General, were
on the brief, for appellant/cross-appellee.

Isaiah Bongam, pro se.

C. Jude Iweanoge for appellee Dynamic Visions, Inc.
 2

Before BLACKBURNE-RIGSBY, Chief Judge, and RUIZ, and THOMPSON * Senior
Judges.

BLACKBURNE-RIGSBY, Chief Judge: Following a bench trial, the trial court

ruled that Dynamic Visions, Inc. and its Chief Executive Officer Isaiah Bongam

violated the District of Columbia Wage Payment & Collection Law (“DCWPCL”),

D.C. Code §§ 32-1301 to -1312 (2019 Repl.), by failing to pay former employees

earned wages. The trial court limited liability and damages to forty-nine former

employees who testified at trial, excluding from the judgment eighty-seven putative

former non-testifying employees on the basis that no competent evidence was

presented proving these individuals were employees and were not compensated for

work performed. Both the District of Columbia Office of the Attorney General (the

“District”) and Mr. Bongam appealed, but Dynamic Visions did not. For the reasons

discussed, we affirm.

I. Factual and Procedural History

*
Senior Judge Thompson was an Associate Judge of the court at the time of
argument. On October 4, 2021, she was appointed as a Senior Judge but she
continued to serve as an Associate Judge until February 17, 2022. See D.C. Code §
11-1502 & 1504(b)(3) (2012 Repl.). On February 18, 2022, she began her service
as a Senior Judge. See D.C. Code § 11-1504.
 3

Dynamic Visions, a defunct Maryland corporation, and its Chief Executive

Officer (“CEO”) Isaiah Bongam 1 (collectively “Dynamic Visions”), provided home

health services in the District of Columbia up until 2012. One hundred and thirty-

six of Dynamic Visions’ former home health employees filed complaints between

2005 and 2010 with the District of Columbia Department of Employment Services

Office of Wage-Hour Compliance (“OWH”), alleging that Dynamic Visions was

their employer and owed them unpaid wages. OWH investigated the allegations,

gave Dynamic Visions notice and an opportunity to respond, and held at least one

“fact-finding conference.” During OWH’s investigation, Dynamic Visions failed to

provide OWH with any payroll or employment records; instead, it contended that

1
Mr. Bongam argues that the trial court erred in finding him an “employer”
under D.C. Code § 32-1301 et seq., as he maintains that he was merely an employee.
We agree with the trial court’s determination that Mr. Bongam was an employer
pursuant to the definition provided in D.C. Code § 32-1301 (1B), where Mr. Bongam
(1) was the CEO, (2) was a majority shareholder and registered agent, (3) known by
the claimants as “boss,” “owner,” or “director,” (4) controlled almost all aspects of
the business, and (5) and as some employees testified, was personally involved in
resolving wage payment issues by compensating them in cash. D.C. Code § 32-
1301 (1B) (defining “employer” as “every individual, partnership, firm, general
contractor, subcontractor, association, corporation, the legal representative of a
deceased individual, or the receiver, trustee, or successor of an individual, firm,
partnership, general contractor, subcontractor, association, or corporation,
employing any person in the District of Columbia”); see Ventura v. Bebo Foods,
Inc., 738 F. Supp. 2d 1, 5-6 (D.D.C. 2010) (construing broadly the definition of
“employer” to serve the remedial purpose of the DCWPCL; holding that under the
totality of the circumstances, a corporate officer can be an “employer” if they have
operational control over the corporation).
 4

the 136 complainants did not work for Dynamic Visions, and denied that it failed to

pay them. OWH concluded its investigation and assigned the case to the Attorney

General for the District of Columbia for enforcement, pursuant to D.C. Code

§ 32-1306 (2019 Repl.). See D.C. Code § 32-1308 (a)(1)(C)(vii) (authorizing

actions by one or more employees to designate a representative to maintain the

action, which permits designation of the Attorney General for the District of

Columbia as the representative). The District filed two separate actions in Superior

Court, which were later consolidated, asserting DCWPCL wage violations for

breach of contract on behalf of the 136 complainants, jointly and severally against

Dynamic Visions and Mr. Bongam.

The evidence at the 2017 bench trial included testimony from OWH

Compliance Program Specialist Yvonne Hood; the 136 wage complaint forms; an

adverse inference for missing evidence against Dynamic Visions; and testimony

from forty-nine complainants. The trial court found that Dynamic Visions provided

“only a small amount of materials related to payroll,” and none of it was “for the

relevant period” in question.

Ms. Hood testified about OWH’s wage-theft investigative process. According

to Ms. Hood, wage-theft complaints filed with OWH are typically accompanied by
 5

documents — such as “pay stubs or pay statements, timesheets, policies, [and]

handbooks” — though supporting documents are not required. Individuals without

supporting documents “state on the complaint forms the hours that they worked” and

specify “the time periods [for which] that they had not been paid”; it is then the

OWH’s job to “investigate the merits” of their complaints. 2 The trial court prevented

the District from eliciting testimony from Ms. Hood regarding OWH’s

administrative conclusions and factual findings on the 136 complaints filed against

Dynamic Visions regarding whether the employees worked and the amount worked.

The trial court stated it could not “defer to the District’s conclusions,” and had to

instead “make [its] own conclusions” concerning the complainants claimed

uncompensated work.

Following the trial court’s preliminary ruling that the OWH complaint forms

and other documents pertaining to the non-testifying complainants would be

admitted only to show that the claims were filed with OWH, the District filed a

motion to introduce the eighty-seven non-testifying complainants’ sworn complaint

2
As part of the investigation, OWH contacts employers to give notice of and
an opportunity to respond to the complaint(s) filed by individual(s); contacts
employees and witnesses; and most importantly, reviews the documents received
from the complainant(s) and/or the employer. Ms. Hood stated that based on her
experience, OWH did not pursue complaints that it could not substantiate.
 6

forms for lost wages for the truth of the matters asserted therein. 3 Alternatively, the

District requested that the trial court impose an adverse inference against Dynamic

Visions for missing evidence and discovery violations, arguing that Dynamic

Visions failed to maintain and produce payroll records that would either corroborate

or contradict the veracity of the matters asserted in the 136 complaint forms.

Dynamic Visions opposed the motion, asserting: (1) it provided a small amount of

materials related to payroll to the District because the FBI had seized all of its

business records; 4 (2) it was not obligated to maintain payroll records for more than

three years, unless it was placed on notice to do so, per the DCWPCL; and (3) such

3
The District argued: (1) “that the documents should be admitted under the
exception to the hearsay rule for documents affecting an interest in property,”
pursuant to Federal Rules of Evidence 803(15); and (2) “that policies underlying the
. . . DCWPCL support admission of the documents.” The District has not sought our
review of the trial court’s rejection of the argument that the excluded OWH
documents should be admitted under the property interest hearsay exception. The
District also neither asserted to the trial court nor on appeal that the documents
attached to the complaint forms were separately admissible under other hearsay
exceptions. The DCWPCL policy argument, however, is relevant to our conclusion.
4
The trial court found that even though the FBI seized business records from
Dynamic Visions’ office and Mr. Bongam’s home in December of 2008, they
subsequently provided him with digital copies of many of those records.
Additionally, Dynamic Visions should have been in possession of business records
created after 2008, which is the timeframe when most of the complaints were filed
with the OWH.
 7

notice by the OWH only came several years after the relevant time period, by which

point virtually all of the records sought by the District would have been destroyed.

Following a hearing, the trial court ruled that Dynamic Visions’ production of

payroll records was insufficient because the materials were not for the relevant time

period. Furthermore, it ruled that Dynamic Visions was in fact on notice to maintain

the records because, as Ms. Hood testified, once the complaints were lodged, the

employer was notified that a dispute existed and that it had been referred to the

District for resolution and for potential prosecution. 5 Thus, the trial court found that

the evidence that would elucidate the transaction was “peculiarly available to

Dynamic Visions,” such that its failure to maintain that evidence subjected it to the

adverse inference requested by the District.

The court determined that it would apply an adverse inference as to damages

or the specific calculation of the damages, and, with respect to the testifying

employees, as a missing evidence inference for the employment records not

produced by Dynamic Visions. The trial court went on to express concern regarding

“whether this inference alone could provide sufficient evidence of what the District

of Columbia needs to show for the non-testifying claimants;” i.e., “[i]s it enough to

5
The evidentiary record places the initial notice at around August of 2005.
 8

demonstrate by a preponderance of the evidence that these [non-testifying] workers

did the work and were not [compensated]?” Thus, the trial court declined to admit

the complaint forms and documents on behalf of the eighty-seven non-testifying

complainants as substantive evidence. The trial court concluded that (1) the contents

of the OWH complaints were inadmissible hearsay despite Dynamic Visions’

discovery violations; 6 and (2) that the complaints did not qualify under a hearsay

exception or for the statutory purposes of the DCWPCL because the contents were

not wholly trustworthy, the complaints being requests or claims for money and not

prepared for other legal purposes.

The forty-nine testifying complainants stated that they were employees of

Dynamic Visions who worked and were not paid wages. They provided details of

6
Based on its consideration of the Anderson v. Mt. Clemens, 328 U.S. 680
(1946), precedent, as well as Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442 (2016),
and Ventura, 738 F. Supp. 2d at 6-8, the trial court opined that:

“[N]one of these cases stand for the proposition that the
remedial purposes of the DCWPCL allowed the [c]ourt to
rely on hearsay evidence to establish the entirety of the
complainant’s claim as opposed to the details of his
damages. Here I would have to be relying on these
documents even for proof that the non-testifying
employees worked for Dynamic Visions at all, much less
that these employees did not get paid. . . . But, I find that
by itself, that certainly does not justify considering these
documents for the proof of the matter asserted therein.”
 9

Dynamic Visions’ hiring and payroll processes, and outlined requirements for

employees to submit timesheets and pick up paychecks from the company’s office.

They testified that, during their employment, Dynamic Visions unilaterally made

improper deductions from their paychecks, issued paychecks that were returned for

insufficient funds, and, in some cases, stopped issuing paychecks altogether. Some

complainants testified that their paychecks did not always list Dynamic Visions, but

instead listed other entities: Care First Network, LLC; Alpha Home Health Care,

LLC; or Alpha Health Care, Inc. (“sham companies”). Some complainants also

testified that Dynamic Visions’ wage deduction practices required them to agree to

payroll deductions, which were explained as withholdings to pay future taxes;

however, those who agreed to such withholdings never received refunds.

Based on the forty-nine complainants’ testimony, and Dynamic Visions’

failure to comply with production of evidence, the District argued relying on Mt.

Clemens, 328 U.S. 680, that the trial court should accept the prima facie case of wage

theft established by the forty-nine testifying complainants as a “representative

sample” of wage theft for the entire group of 136 complainants. 7

7
The District argued that if the trial court concluded that the District
established a prima facie case of wage theft against the employer on the basis of
some of the complainants’ testimony (that they were employees who performed
work and were not compensated), then the District is entitled to use that evidence as
proof of a prima facie case for all complainants.
 10

The trial court declined to adopt the District’s representative sample

argument. The trial court explained that other than the adverse inference “no

competent evidence was presented at trial as to any element of the DCWPCL claim”

with respect to the non-testifying witnesses. The trial court stated that the District’s

argument that the adverse inference can fill in the missing proof “would be a

different and much more significant use of the missing evidence inference or adverse

inference than employed for the testifying witnesses.” 8 It was the trial court’s

position that

[T]he District can choose to call as many or as few
witnesses as it chooses. Ultimately, the District bears the
burden of proof. Without hearing evidence, the [c]ourt is
not in a position to rule on whether any particular
employee is “similarly situated” to any other employee
. . . . Only after the District has presented, at trial, its
evidence as to those employees it claims are similarly
situated to other employees would it be appropriate to ask
the [c]ourt to rule on whether the employees are similarly
situated.

8
See supra, note 3. The District did not argue and the trial court did not
consider the evidentiary impact of appellees’ statement that none of the
complainants were employed by them or, once the trial court found otherwise based
on the evidence presented by the complainants who testified, whether any inference
favorable to the non-testifying complainants could be drawn from the appellees’
misrepresentation concerning their employment status.
 11

First, the trial court ruled that the forty-nine testifying complainants were

credible and were indeed former employees of Dynamic Visions who worked during

the period covered by their claims. As for liability against Mr. Bongam, the court

found that “the evidence overwhelmingly and really undisputedly demonstrate[d]

that Mr. Bongam qualified as an employer.” See D.C. Code § 32-1301(1B). Further,

it found that the companies that were sometimes listed on the complainants’

paychecks “simply acted as sham companies or alter egos of Dynamic Visions.”

Finally, the trial court applied an adverse inference for missing evidence, finding

that Dynamic Visions’ employment documents, had they been produced, would have

been favorable to the forty-nine complainants’ assertions that they worked for

Dynamic Visions. It explained, however, that it did not give significant evidentiary

weight to the adverse inference, because its conclusion was based solely on the

evidence presented by the District, and would have come out the same with or

without the missing evidence inference.

The trial court also credited the “overwhelming majority” of testimony from

the forty-nine complainants that Dynamic Visions failed to pay earned wages — the

“witnesses remembered most of the central details of what happened, and readily

acknowledged what they could not [remember];” many of them “also submitted

other pieces of supporting documentation in support of their damage.” As to the
 12

amount of damages due, the trial court held that the District easily proved that

Dynamic Visions failed to pay wages to the testifying employees within the period

required by statute, crediting the employees’ testimony that “no payment was [paid]

timely or at all.”

Regarding the eighty-seven non-testifying complainants, the trial court

concluded that the District did not present competent evidence establishing they

were employees who were not compensated for work performed, and therefore, the

court could not impose liability based on the adverse inference alone. The court

reiterated that the complaint forms and supporting documents were “hearsay and not

admissible for the truth of the matters asserted on the documents”; the documents

were admitted “to show that these individuals filed [] complaint[s] at the OWH, and

that [their] supporting documents were included in the complaint files.” On this

point, the trial court found that “no competent evidence was presented at trial” with

respect to the eighty-seven non-testifying complainants:

[T]he District is, essentially, asking the court to permit the
adverse inference to substitute for the evidence that it
would need to prove its case. In other words, the District
is asking for the court to rule that, while there was no
competent evidence produced in support of the claims of
these [complainants], because the court has employed the
adverse inference, it will, nonetheless, sustain those
claims. And that is not a step that the court is willing to
take.
 13

Thus, with respect to the eighty-seven non-testifying complainants, the court

ruled against the District, finding that it did not prove by a preponderance of the

evidence that Dynamic Visions violated the DCWPCL. However, the trial court

ruled in favor of the District with respect to the group of forty-nine testifying

employees, that Dynamic Visions and Mr. Bongam were jointly and severally liable

in the amount of $314,861.86 — that is, $157,430.93 in unpaid wages pursuant to

D.C. Code § 32-1306(a)(2)(A)(iii)(I), as well as $157,430.93 in liquidated damages

pursuant to D.C. Code § 32-1303(4). The trial court further broke down the award

for the group of forty-nine employees in the following manner. Thirty-eight

employees recovered the full amount of damages requested. Eight employees were

awarded a reduced amount of the damages requested, because the court found that

there was “some error in the amount that [these employees] had originally claimed,”

or that they “made damages claims that were undermined, in part, by the documents

that were provided” by the employees themselves. Three employees were denied

recovery entirely, because the court “found more significant problems” with their

testimony due to the “level of imprecision about the amount of damages.” The

District and Mr. Bongam appealed. We now review these consolidated appeals.

II. Discussion
 14

In an appeal from a bench trial, we review the trial court’s legal conclusions

de novo and factual findings for clear error. See, e.g., Ballard v. Dornic, 140 A.3d

1147, 1150 (D.C. 2016); D.C. Code § 17-305(a) (2012 Repl.). Likewise, “[w]e

review the factual findings underlying the trial court’s evidentiary ruling for clear

error and the decision whether to admit or exclude the proffered statement based on

those factual findings for abuse of discretion, recognizing that it is necessarily such

an abuse for the trial court to employ incorrect legal standards.” Holmon v. State,

202 A.3d 512, 517 (D.C. 2019) (citation and internal quotation marks omitted).

The DCWPCL provides that “a person aggrieved by a violation of this chapter

. . . may bring a civil action . . . against the employer,” D.C. Code § 32-

1308(a)(1)(A), “on behalf of all employees similarly situated.” D.C. Code § 32-

1308(a)(1)(C)(vii). 9 The District “acting in the public interest, including the need to

deter future violations,” may bring the civil action on behalf of the employees. D.C.

Code § 32-1306(a)(2)(A)(i-iii). In bringing a wage theft action it is the District’s

burden to prove (1) the complainants were employees of the employer, (2) who

9
Subsection (vii) provides that such actions may be brought “[b]y the
Attorney General for the District of Columbia pursuant to § 32-1306.” D.C. Code §
32-1308(a)(1)(C)(vii).
 15

performed work for the employer, (3) were not compensated or timely compensated

for their work, and (4) the measure of damages due to the employees. See Mt.

Clemens, 328 U.S. at 687-88. Should the Attorney General prevail they “shall be

entitled to”:

(i) Reasonable attorneys’ fees and costs;
(ii) Statutory penalties equal to any administrative
penalties provided by law; and
(iii) On behalf of an aggrieved employee:
(I) The payment of back wages unlawfully
withheld;
(II) Additional liquidated damages equal to treble
the back wages unlawfully withheld; and
(III) Equitable relief as may be appropriate.

D.C. Code § 32-1306(a)(2)(A)(i-iii).10 Where there are multiple aggrieved

employees, the District may establish its case through a representative sample of the

group of employees, after demonstrating the group is “similarly situated.” D.C.

Code § 32-1306(a)(2)(A) and -1308; Sec’y of Labor v. DeSisto, 929 F.2d 789, 793

(1st Cir. 1991).

10
At the time the OWH complaints were filed the statute permitted liquidated
damages in the amount equal to actual damages. D.C. Code § 32-1303(4) (2012
Repl.). The statute was amended in 2017, permitting the trebling of unpaid wages
as an alternative to liquidated damages for the unlawful withholding of payment. 64
D.C Reg. 3987 (April 28, 2017). The District sought an amount of liquidated
damages that was permitted at the time the OWH complaints were filed.
 16

On appeal, the District contends that, in light of the testifying representative

group and adverse inference, the trial court erred in determining that testimony from

the representative group was insufficient to impose liability on Dynamic Visions for

the entire group of aggrieved employees. The District proposes that, due to the lack

of employment records maintained and provided by appellees, we should apply a

minimal burden to the employees as found in the burden-shifting framework

announced in Mt. Clemens. We disagree and hold that the District failed to establish

by a preponderance of the evidence that the eighty-seven non-testifying

complainants were former uncompensated employees.

The Court in Mt. Clemens does not explicitly state that employee status is an

element of a prima facie case, but we think that it is implied, as the District must

prove an employer’s liability to the employees. Therefore, we take this opportunity

to clarify our construction of the DCWPCL, and hold that the question of employee

status is part of the complainants’ burden in establishing a prima facie case under

the DCWPCL.

The minimal burden discussed by the Supreme Court in Mt. Clemens is not as

expansive as the District suggests. In Mt. Clemens, factory employees sought

compensation pursuant to § 16(b) of the FLSA, for time spent either onsite or doing
 17

preliminary activities before beginning their shifts. 328 U.S. at 682-84. The Court

determined that the Circuit Court imposed an impractical standard of proof on the

employees regarding the number of uncompensated hours worked which would

impair the remedial nature of the FLSA in awarding benefits. Id. at 686-87. The

framework announced in Mt. Clemens is specific to evidentiary considerations

regarding the amount and extent of work performed by employees as part of

calculating damages. Mt. Clemens, 328 U.S. at 687. The initial burden falls on the

employees to produce “sufficient evidence to show the amount and extent of that

work as a matter of just and reasonable inference.” Id. “[T]he burden [then] shifts

to the [employer] to produce evidence refuting the [employees’] claim[s].” Ventura,

738 F. Supp 2d at 14. “When the employer has kept proper and accurate records,”

the District, acting on behalf of the “employee[s,] may easily discharge [its] burden

by securing the production of those records.” Mt. Clemens, 328 U.S. at 687.

However, if the employer fails to discharge its burden of producing accurate or

adequate records, the court must calculate and award damages, even if only an

approximation. 11 Id. at 688.

11
“The employer cannot be heard to complain that the damages lack the
exactness and precision of measurement that would be possible had [it] kept records
in accordance with the [statutory] requirements.” Id. at 688. Likewise, “having
received the benefits of such work, [the employer] cannot object to the payment for
the work on the most accurate basis possible under the circumstances.” Id. Notably,
“the rule that precludes the recovery of uncertain and speculative damages . . .
 18

Mt. Clemens does not support the District’s position that appellees’ failure to

maintain or produce employment records vastly minimizes the complainants’ burden

of proof to establish they were employees who performed uncompensated work. In

Mt. Clemens, the Supreme Court neither stated nor implied that deficient records

also lessened an employee’s burden of proving they were in fact employees and

performed work. Instead, the Court explained that “[i]n such a situation we hold

that an employee has carried out his burden if he proves that he has in fact performed

work for which he was improperly compensated and if he produces sufficient

evidence to show the amount and extent of that work as a matter of just and

reasonable inference.” Id. at 687 (emphasis added). The Court expressly held that

an employee maintains their separate burden of proving work performed. Therefore,

a complainant must still prove he or she, in fact, was an employee who performed

work without appropriate compensation. The “just and reasonable inference”

holding of Mt. Clemens is specific to the approach for calculating damages where

applies only to situations where the fact of damage (harm) is itself uncertain.” Id.
In other words, when damage is certain — meaning that the District proved that the
employees who worked were not compensated — “[t]he uncertainty lies only in the
amount of damages arising from the statutory violation by the employer.” Id. “In
such a case ‘it would be a perversion of fundamental principles of justice to deny all
relief to the injured person[s], and thereby relieve the wrongdoer from making any
amend for [its] acts.’” Id. (internal citation omitted).
 19

there is a lack of records and does not extend to the District’s burden to prove all

complainants where employees who performed work for Dynamic Visions. Cf.

DeSisto, 929 F.2d at 794 (“Although [employee who worked as a teacher at the

Massachusetts campus of a boys farm program] could certainly testify about his

own hours and duties, . . . he should not have been permitted to testify in a

representative capacity for all other employees (including blue collar workers [at

that campus] and those employed in Florida”).).

The District also contends that the testimony of the representative group can

satisfy the burden of proof for all employees because “representative employees may

establish prima facie proof of a pattern and practice of FLSA violations.” Martin v.

Selker Bros., 949 F.2d 1286, 1298 (3d Cir. 1991). We are not persuaded because

the specific issue presented in this case is more foundational in bringing a collective

wage claim action, to the extent actual employment is being challenged. It is the

District’s burden to prove (1) the complainants were employees of the employer, (2)

who performed work for the employer, (3) were not compensated or timely

compensated for their work, and (4) the measure of damages due to the employees.

See Mt. Clemens, 328 U.S. at 687-88. The District’s contention skips the

requirement of establishing by a preponderance of the evidence each element of a
 20

wage claim action, which includes proving the non-testifying complainants were

employees and performed work for Dynamic Visions.

Dynamic Visions challenged the status of all complainants as employees;

thus, to resolve this dispute the District needed to provide evidence proving

employment in order for the trial court to find Dynamic Visions liable to all members

of the group in the collective action. Here, the District’s position — that the non-

testifying complainants were employees because they filed OWH claims — is

conclusory and unsupported by any evidence other than the complaint forms, which

were not admitted for the truth of the allegations asserted within them. Furthermore,

OWH’s methodology for verifying employment does not provide assistance. Ms.

Hood testified that to verify employment OWH would either use documentation

provided by the complainant and employer, or in the absence of documentation

would reach a determination based on the testimony of the complainant and

employer. 12 Here, based on Ms. Hood’s testimony, we have to assume that in the

absence of documentation OWH’s verification of employment was a credibility

determination. The trial court did not defer to OWH’s credibility determination.

12
In addition, Ms. Hood’s testimony that it was her experience OWH did not
pursue complaints that it could not substantiate was her personal opinion and
unsupported by data.
 21

The trial court could also not conduct its own credibility assessment considering the

absence of testimony from the non-testifying complainants.

The trial court did not err in determining that the District failed to prove that

the non-testifying complainants were in fact employees. As stated by the trial court,

due to the nature of the work, where “a large number of people who probably don’t

know each other, didn’t really work together, didn’t work at the same time, and don’t

even speak the same language in many cases,” and without some evidence to verify

employment, either testimony from co-workers, admissible documents, or testimony

from those complainants themselves, it was proper to require evidence probative of

the central issue of whether the non-testifying complainants were employees.

Finally, the District argues that the trial court applied the wrong legal standard,

requiring a precise calculation of damages, and therefore erred in reducing damages

to eleven of the testifying complainants. We disagree. The trial court applied the

legal standard announced in Mt. Clemens, which states that an employee must

produce “sufficient evidence to show the amount and extent of that work as a matter

of just and reasonable inference,” which the court should utilize to calculate

approximate damages. Mt. Clemens, 328 U.S. at 687. Mt. Clemens does not support

the District’s assertion that a court must wholly accept, without discretionary
 22

assessment, an employee’s approximated damages whenever the employer has failed

to keep proper records. 13 The trial court’s reduction or denial of damages to eleven

of the testifying employees was not made in error because the complainants’ initially

claimed damages were either “disclaimed” during their testimony at trial, were found

to have tabulation errors, or were found to be false or otherwise discredited.

“[R]esolution of conflicting evidence is within the province of the trial court.”

Johnson & Jenkins Funeral Home, Inc. v. District of Columbia, 318 A.2d 596, 597

(D.C. 1974) (holding that the trial court did not clearly err in awarding damages to

two employees who were under compensated, only after reducing the total amounts

claimed upon finding some testimony untruthful). In other words, the evidence

presented on behalf of these individuals was not sufficient to meet the “just and

reasonable inference” afforded under Mt. Clemens and the damages claims were

properly reduced on that basis.

In conclusion, we affirm the trial court’s judgment in whole.

13
The District cites to several cases in support of this argument. However,
each is distinguishable from the facts in this case. See Arias v. United States Serv.
Indus., 80 F.3d 509, 512 (D.C. Cir. 1996) (finding “nothing unduly speculative”
about inferences drawn from a created document summarizing voluminous time and
payroll records); Herman v. Hector I. Nieves Transp., Inc., 91 F. Supp. 2d 435, 446-
47 (D.P.R. 2000) (finding that testifying truck drivers provided an adequate basis for
determining the average number of hours worked constituting sufficient proof of the
amount and extent of work as a matter of just and reasonable inference).
23

So ordered.