1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

FREDDY PAZ PEREZ, et al.,

Plaintiffs,

v.

C.R. CALDERON CONSTRUCTION, INC.,

et al.,

Defendants.

Civil Action No. 12-697 (BAH)

Chief Judge Beryl A. Howell

MEMORANDUM OPINION SETTING FORTH

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Thirteen construction workers bring this action against a first-tier subcontractor and its 

owners, C.R. Calderon Construction, Inc. (“CRC”), Carlos R. Calderon and Ana P. Calderon 

(collectively, the “CRC defendants”), a second-tier subcontractor and its owner, Jacinto 

Construction, Inc. (“JCI”) and Jacinto E. Cespedes (“Jacinto Cespedes”) (collectively, the “JCI 

defendants”), and a company which served as a surety on a payment bond with CRC, Travelers 

Casualty and Surety Company of America (“Travelers”), for alleged violations of the Fair Labor 

Standards Act (“FLSA”), 29 U.S.C. § 201 et seq., the District of Columbia Wage Payment and 

Collection Act (“DCWPCA”), D.C. Code § 32-1301 et seq., and the District of Columbia 

Minimum Wage Revision Act (“DCMWRA”), D.C. Code § 32-1001 et seq., and for commonlaw breach of contract.1

 The plaintiffs seek the payment of wages they claim are owed in 

connection with drywall, ceiling and other work they performed on a construction project at the 

H. Carl Moultrie Courthouse in Washington, D.C (the “Project”). The defendant CRC has 

 1 The plaintiffs are Freddy Paz Perez, Gerardo Moya, Jose Ramiro Perez, Mario Moya, Juan Amurio Quiroz, 

Peter Soto, Samuel Lopez, Wilson Perez Zapata, Luis Rocha Moya, Edgardo Pablo Terceros, Jose Rocha Cespedes, 

Jose Lenin Rocha Quiroz, and Javier Cespedes Becerra.
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asserted cross-claims for indemnification and breach of contract against the JCI defendants, and 

the JCI defendants, likewise, have asserted cross-claims for contribution and breach of contract 

against the CRC defendants. Following a bench trial, the Court concludes that the JCI and CRC 

defendants were plaintiffs’ employers under the relevant statutes and are liable to plaintiffs for 

unpaid wages and statutory liquidated damages, and that Travelers is liable to the extent of its

surety bond with CRC. Finally, since the Court declines to enforce the subcontracts between 

CRC and JCI, the various cross-claims among the CRC and JCI defendants are denied. The 

factual and legal findings supporting these conclusions are summarized after review of the 

procedural background in this case.

I. PROCEDURAL BACKGROUND

The plaintiffs’ allegations as well as significant issues raised and either resolved or 

deferred in pre-trial motions are summarized below.

A. CLAIMS

The plaintiffs’ operative complaint in this action, Pls.’ First Amended Compl. (“Pls.’ 

FAC”), ECF No. 40, asserts six claims for relief. All thirteen plaintiffs claim that the CRC and 

JCI defendants violated (1) the regular payment schedule requirement of the DCWPCA, by 

failing to pay the plaintiffs promptly, on regular payment dates, and upon the plaintiffs’ 

discharge, for “all wages earned” for certain work performed, id. ¶¶ 39–50 (Count I); (2) the 

prompt payment requirement of the FLSA, by failing to pay the plaintiffs “promptly on regular 

payment dates” for certain work performed, id. ¶¶ 56–57 (Count III); (3) the minimum wage 

provisions of the DCMWRA, by failing to pay the plaintiffs minimum wages “for the first 40 

hours that Plaintiffs worked” for certain work performed, id. ¶¶ 58–63 (Count IV); and (4) the 

minimum wage provisions of the FLSA, by failing to pay the plaintiffs minimum wages 
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“promptly on regular payment dates” for certain work performed, id. ¶¶ 64–72 (Count V). All 

thirteen plaintiffs additionally claim that the defendant Travelers breached the terms of a 

payment bond by which Travelers, acting as a surety, agreed to answer for the debts owed by the 

defendant CRC to laborers on the Project. Id. ¶¶ 73–77 (Count VI). Lastly, nine plaintiffs—

Gerardo Moya, Mario Moya, Peter Soto, Wilson Perez Zapata, Jose Lenin Rocha, Juan Amurrio 

Quiroz, Edgardo Pablo Terceros, Samuel Lopez, and Jose Rocha Cespedes—claim that all the 

defendants violated the overtime provisions of the FLSA and the DCMWRA by failing to pay 

these plaintiffs overtime wages earned. Id. ¶¶ 51–55 (Count II). The plaintiffs seek unpaid 

wages and liquidated damages in the total amount of approximately $340,974.64, an unspecified 

amount in “unpaid overtime wages,” id. at 13, “an additional amount of liquidated damages 

equal to the unpaid overtime wages,” id. at 14, as well as attorneys’ fees and costs.

The defendant CRC, in its operative cross-complaint in this action, CRC’s First Amended 

Cross-Compl. Against JCI Defs. (“CRC’s Cross-Compl.”), ECF No. 79, asserts four cross-claims

against the JCI defendants. Specifically, CRC claims that it is entitled to indemnification from 

the defendant JCI for any amounts found to be owed to the plaintiffs (1) based on “two subsubcontract[]” agreements between CRC and JCI, id. ¶¶ 11–15 (Count I), and (2) by the 

Department of Labor for any Davis-Beacon Act violations arising from the plaintiffs’ work on 

the Project, “[a]s a direct result of JCI’s actions and inactions,” id. ¶¶ 16–19 (Count II). CRC

further claims that it is entitled to indemnification from the defendant Jacinto Cespedes, 

personally, for any amounts found by the Department of Labor to be owed to the plaintiffs for 

any Davis-Bacon Act violations arising from the plaintiffs’ work on the Project, because 

Cespedes allegedly knowingly signed certified payrolls and false certifications that “JCI had paid 

for all labor supplied to the Project.” Id. ¶¶ 20–28 (Count III). Lastly, CRC asserts a breach of 
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contract claim against the defendant JCI for damages in the amount of $200,879.26 as a result of 

JCI’s breach of the two subcontracts when JCI allegedly abandoned and failed to complete the 

work for the Project. Id. ¶¶ 29–36 (Count IV). 

The JCI defendants assert similar cross-claims against the CRC defendants. See JCI 

Defs.’ Countercl. Against CRC Defs. (“JCI’s Cross-Compl.”), ECF No. 29.

2 The JCI defendants 

claim that they are entitled to contribution from the CRC defendants “for any amounts found” to 

be owed by the JCI defendants to the plaintiffs. Id. at 3.3 The JCI defendants further assert they 

are entitled to damages “resulting from breach of agreement” by the CRC defendants, and that 

the CRC defendants failed to pay JCI all it was owed under the parties’ “agreement for services,” 

id. ¶ 1, as well as “for extra work” performed by JCI outside the scope of the subcontracts, id. ¶ 

2; “for overtime work” for which the CRC defendants promised to pay; for “holiday pay cost for 

the plaintiffs that [JCI] never contracted to pay,” id. ¶ 4; and “for work [Cespedes] personally 

performed,” id. ¶¶ 3-5. 

B. DISPOSITIVE MOTIONS

The parties engaged in extensive motions practice requiring the resolution prior to trial

of, inter alia, seven dispositive motions, including a motion to dismiss or, in the alternative, for 

summary judgment filed by Travelers, ECF No. 43; two motions for partial summary judgment 

filed by the plaintiffs, ECF Nos. 45, 96; and three motions for summary judgment filed by the 

CRC defendants, ECF Nos. 49, 95, 99. 

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 The JCI defendants refer to their claims as “counterclaims,” when their claims are actually cross-claims, as 

the parties recognized in the joint statement of the case submitted before trial. Jt. Pre-Trial Statement (“JPTS”) at 2, 

ECF No. 117. 3 The JCI defendants’ cross-complaint refers to “indemnification,” but the JCI defendants are actually 

seeking contribution, as the parties recognize in the joint statement of the case submitted before trial. JPTS at 2.
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Specifically, the Court denied cross-motions filed by the plaintiffs and Travelers 

regarding the issue of Travelers’ liability for breach of contract, under Count VI of the FAC, 

based on a payment bond in the amount of $929,693, which Travelers signed as a surety on 

March 4, 2011, in connection with CRC’s subcontract agreement (“Prime Subcontract”) with the 

Project’s prime contractor, Whiting-Turner Contracting Company (“Whiting-Turner”).

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 Mem. 

& Order (July 10, 2013) at 2, ECF No. 58. Finding the language of the bond unambiguous, the 

Court concluded “that the plaintiffs are potential third-party beneficiaries of the bond” and held 

that, as a result, Travelers’ liability, if any, depends entirely upon CRC’s liability. Id. at 8, 10–

12; see id. at 11 (“Travelers’ obligation under the payment bond is co-extensive with [CRC]’s 

obligation to pay ‘all persons supplying labor . . . in the performance of the said Contract.’” 

(ellipsis in original)). CRC’s liability and the plaintiffs’ third-party-beneficiary status, however, 

could not definitively be determined due to a genuine dispute of material fact as to whether CRC 

was the plaintiffs’ employer and “obligated to pay the plaintiffs for their work,” which question 

“remain[ed] to be decided.” Id. at 11.

For the same reason, the Court subsequently denied the CRC defendants’ motion for 

summary judgment regarding whether the plaintiffs were the CRC defendants’ “employees” for 

purposes of the DCWPCA, the DCMWRA, and the FLSA. Order (Nov. 15, 2013) at 1, ECF No. 

74. Material factual disputes precluded a determination of whether the plaintiffs were the CRC 

defendants’ “employees,” including, inter alia, factual disputes as to whether the CRC 

defendants (1) had the express or de facto power to hire and fire the plaintiffs, (2) supervised or 

controlled the plaintiffs’ work schedules or the conditions of the plaintiffs’ employment or 

 4

 Whiting-Turner is not a party to this lawsuit.
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manner of work, (3) determined the rate and method of the plaintiffs’ payment, and (4) 

maintained employment records for the plaintiffs. Id. at 2. 

Similarly, the Court denied the plaintiffs’ motion for partial summary judgment regarding 

(1) whether the CRC and JCI defendants were the plaintiffs’ “joint employers,” (2) “the exact 

wage rate to which the plaintiffs are entitled,” (3) whether CRC qualifies as an “enterprise under 

the FLSA,”5 and (4) whether the plaintiffs were “engaged in commerce” under the FLSA. Mem.

& Order (Mar. 30, 2015) at 5–7, ECF No. 108. Notwithstanding that “both the CRC and JCI 

defendants apparently concede that the plaintiffs performed work for which they were not paid, 

in violation of established local and federal laws, . . . disputed facts about CRC’s role in hiring 

the plaintiffs and/or the control, if any, CRC exercised over the plaintiffs,” precluded summary 

judgment on the issue of “whether CRC should be considered a joint employer.” Id. at 5–6. The 

plaintiffs’ request for a judicial determination that they were entitled to a wage rate of “$33.98 

per hour up to 40 hours in a work week and $39.57 for each hour over 40 that they worked in a 

particular week” was also disputed and precluded resolution of that issue. In particular, the 

parties raised material issues about “the skill level required for the jobs assigned to the plaintiffs 

and the rate of pay to which they were entitled based on the jobs they actually performed,” which 

issues were “dependent upon credibility determinations as to what was promised by Jacinto 

Cespedes and understood by the plaintiffs, which are quintessential determinations for the fact 

finder.” Id. at 6–7. In light of these factual disputes, the Court concluded that it was “premature 

to make a finding that CRC (and/or JCI) met the definition for enterprise liability under the 

FLSA or other findings as a matter of law regarding the plaintiffs’ coverage under the FLSA.” 

Id. at 8.

 5 The CRC defendants now concede that CRC qualifies as an enterprise under the FLSA. J. Ex. 14 

(stipulation as to CRC’s enterprise status).
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Finally, the Court denied the CRC defendants’ motion for summary judgment against the 

JCI defendants for “breach of contract,” “fraudulent misrepresentation,” and “indemnification for 

any and all amounts found due to the Plaintiffs from CRC.” Id. at 2, 8. The JCI defendants 

raised genuine disputes of material fact regarding the negotiation, creation, performance and 

enforceability of the parties’ subcontracts by presenting evidence of alleged “unfairness and 

exploitation of Jacinto Cespedes,” including his “limited education, rudimentary business 

acumen” and lack of experience, as well as evidence that the total payment due from CRC to JCI 

for the subcontract work (approximately $230,499) was almost four times less than the total 

payment due from the prime contractor, Whiting-Turner, to CRC for the same work ($929,639). 

Id. at 9. Moreover, the validity of the subcontracts were potentially undermined by the JCI 

defendants’ allegations that the subcontracts “‘do not contain [] federally required clauses’” and 

that “a Department of Labor employee allegedly ‘told Jacinto Cespedes [that] JCI’s contract with 

[CRC] was invalid because he was not advised of or required to obtain a pay bond insurance, 

because JCI did not have a net gross income of $500,000, and because no bidding took place for 

the contract.’” Id. (citation omitted). 

The enforceability of a broad indemnification clause contained in the subcontracts

depended upon the validity of the subcontracts as a whole, thereby “highlight[ing] the need to 

resolve the genuine issues of material fact surrounding the validity, or lack thereof, of the 

[subcontracts] before any judicial determinations may be made about the meaning, scope and 

application of the indemnification clauses.” Id. at 10. To the extent that the CRC defendants 

attempted “to assert that the indemnification clauses require JCI to indemnify CRC not only for 

JCI’s own negligent action but also any negligent actions of CRC,” however, the Court found

“that allegation would fail as a matter of law.” Id. at 10 n.2 (citing Rivers & Bryan, Inc. v. HBE 
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Corp., 628 A.2d 631, 635 (D.C. 1993) (“If the [C]ourt determines that the contract is ambiguous 

on the issue of indemnifying the negligence of the indemnitee, then rather than the interpretation 

becoming a jury question, a particular result is required, . . . there is no indemnification for the

indemnitee’s own negligence.”)).

C. PRETRIAL TRIAL PROCEEDINGS

Both before and after the pretrial conference, the parties argued extensively over (1) the 

admissibility of certain summary chart exhibits related to the total amount of the plaintiffs’ 

damages; (2) this Court’s jurisdiction to determine whether the plaintiffs’ wage rate was properly 

classified as carpenters; and (3) the effect of a pre-trial settlement agreement between the U.S. 

Department of Labor (“DOL”) and CRC (“DOL Settlement”). The parties’ positions and the 

resolution, or deferral of resolution, with respect to each of these issues is summarized seriatim

below since this background provides helpful context for the factual findings and legal 

conclusions reached by the Court.

1. Charts Summarizing the Plaintiffs’ Damages

In a motion in limine filed before the pretrial conference, the CRC defendants and 

Travelers requested that the plaintiffs be barred from introducing any testimony at trial 

supporting the plaintiffs’ claims for damages, and that the plaintiffs’ proposed summary chart

regarding their alleged damages derived from interrogatory answers provided by the JCI 

defendants, be excluded. See CRC Defs. & Travelers’ Motion in Limine at 2–3, ECF No. 111.

This motion in limine was denied in its entirety at the pretrial conference, in light of Federal Rule 

of Evidence 1006, which provides that a summary chart may be used to prove the content of 

voluminous writings that cannot be conveniently examined in court, as long as the proponent 

makes the underlying documents reasonably available for review. Rough Trial Tr. of Pretrial 
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Conference Hr’g (June 16, 2015) (“PTC Tr.”) at 78–80. To the extent the defendants argued that 

the underlying supporting documentation for the summary chart was “inconsistent with other 

underlying supporting documentation,” PTC Tr. at 78, the defendants were permitted to make 

those arguments in evaluating the weight to be given the summary chart, but the Court held that 

such arguments did not warrant exclusion altogether, id. at 79–80.

Despite resolving the challenge to the plaintiffs’ summary chart, the issue was raised 

again when, after the pretrial conference, the plaintiffs and the JCI defendants jointly moved to 

admit a “Replacement Wage and Hour Summary as a Joint Exhibit” (“Consolidated Summary 

Chart”), to replace both the plaintiffs’ initially proposed summary chart exhibit and a separate 

summary chart proposed by the JCI defendants. Mem. Op. & Order (July 1, 2015) (“Evid. Op. 

& Order”) at 1–2 & n.2, ECF No. 137. The CRC defendants and Travelers sought to exclude the 

Consolidated Summary Chart, as well as another chart, offered solely by the JCI defendants, 

reflecting unpaid wages information for eleven non-plaintiff workers (“Non-plaintiff Summary 

Chart”). Id. To assist in evaluating the objections to the exhibit, the plaintiffs and JCI 

defendants were required “to submit . . . a description identifying for each entry on their 

[Consolidated Summary Chart], the derivation and source documents for the entry,” and the 

CRC defendants and Travelers to submit, in response, an explanation of “the basis for any 

objection to any entry in the [Consolidated Summary Chart],” detailing “any contrary 

information and provid[ing] citation to any source document relied upon for the objection that 

the entry is erroneous.” Minute Order (June 24, 2015). 

In a written Memorandum Opinion and Order, the objections of the CRC defendants and 

Travelers to the Consolidated Summary Chart and the Non-plaintiff Summary Chart were 

rejected. See generally Evid. Op. & Order. The Court explained that the Consolidated Summary 
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Chart Exhibit, which “reflects a compilation of evidence from disparate sources, including 

‘certified payrolls, daily reports, sign-in sheets’ and other records . . . regarding the dates and 

hours allegedly worked by the plaintiffs that were not paid at all or at the rates required by 

applicable law,” is “plainly relevant to the plaintiffs’ claims for unpaid wages and overtime.” Id. 

at 2–3. The CRC defendants and Travelers’ objections were merely attempts to avoid “deal[ing] 

with” the varied sources of evidence necessary to calculate the plaintiffs’ damages and did not 

identify any “actual inaccuracies in the entries” on the proffered chart. Id. The objections 

amounted to arguments about “which set of time records are most reliable, whether the plaintiffs 

qualify as skilled carpenters or other category of labor and how much of the Federal and State 

taxes have already been paid on the wages owed.” Id. at 4–5. Since “[s]uch arguments may be 

made at trial and in post-trial briefing and do not undercut the usefulness and accuracy of the 

chart in reflecting the claims of the plaintiffs,” the objections were rejected. Id. at 5. In the end, 

the Court noted that “the challenged summary charts will certainly aid the Court in consolidating 

multiple sources of information relevant to the plaintiffs’ claims and the defendants’ cross-claims 

as well as help focus the disputed facts among the parties and clarify the substance of their 

respective arguments.” Id. at 7.

After the pretrial conference and on the eve of trial, the CRC defendants moved to add a

trial exhibit, a document entitled “Profit and Loss Statement,” ECF No. 135-1 at 9–27, 

containing a “summary with respect to the actual costs incurred by [CRC]” on the Project, Trial 

Tr. at 26.6

 The underlying documents used to create the Profit and Loss Statement, including 

 6

 The transcript of the bench trial has been placed on the docket as follows: July 20, 2015, ECF No. 163 (pp. 

1–209); July 21, 2015, ECF No. 164 (pp. 210–348); July 22, 2015, ECF No. 161 (pp. 349–495); and July 23, 2015, 

ECF No. 162 (pp. 496–593). Citations to the transcript indicate, if not otherwise apparent from the context, the 

name of the witness testifying to the information referenced.
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“invoices, delivery tickets, the certified payrolls, [and] the check entry dates,” were located in 

eight to ten file boxes in defense counsel’s office and had been available to all parties’ since May 

2013. Id. at 27–28, 30. According to the CRC defendants, the exhibit constitutes an admissible 

business record and has “absolutely no bearing” on the plaintiffs’ “proof of their damages” but, 

rather, pertains only to the JCI defendants’ unconscionability argument. Id. at 26. Upon 

consideration of the parties’ arguments, including the plaintiffs’ and the JCI defendants’ 

objections, a ruling on the admissibility of the exhibit was reserved pending the introduction of 

evidence and foundational support satisfying the requirements of Federal Rule of Evidence 

803(6). Id. at 35; see FED. R. EVID. 803(6)(A)–(E) (providing five requirements that must be 

satisfied for records of a regularly conducted activity to be admissible notwithstanding the rule 

against hearsay).

At trial, a revised version of the Consolidated Summary Chart was marked as “PJ Exhibit 

15” and admitted, with no renewed objection from the CRC defendants or Travelers, as a joint 

exhibit between the plaintiffs and the JCI defendants. Trial Tr. at 90–91.7 The Non-plaintiff 

Summary Chart was marked as “PJ Exhibit 6” and admitted as a joint exhibit between the 

plaintiffs and the JCI defendants during the defendant Jacinto Cespedes’ testimony, after a 

foundation for its admission was established and upon no further objections. Trial Tr. at 524–27. 

Similarly, CRC’s Profit and Loss Statement was marked at trial as “Defs.’ Exhibit 13” and was

admitted during the testimony of Edgar Butler, CRC’s employee and accountant, over the 

plaintiffs’ and JCI defendants’ objections to the exhibit’s alleged inaccuracy, which the Court 

ruled “goes to the weight” to be afforded to the exhibit “as opposed to its admissibility,” 

 7 Changes to the chart were made based on stipulations reached by the parties. See Stipulations of the Parties 

(“First Stips.”) ¶ 4(a)–(h), ECF No. 155; id., Ex. B, ECF No. 155-2.
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particularly “given the fact that the underlying documents ha[d] been available [to the parties] for 

two years.” Id. at 569–72.

2. Worker Classification Issue

After the pretrial hearing but before trial, the plaintiffs moved, inter alia, for a 

determination that the Court lacks jurisdiction to decide the plaintiffs’ correct employment 

classification. Pls.’ Mot. Ruling Ct. Jurisdiction at 1, ECF No. 149.8 The plaintiffs argued that 

the DOL alone has jurisdiction to determine worker classifications and that the Court may only 

decide the factual issue of what classification the plaintiffs actually received. Id. at 2–3, 7, 9. In 

response, the CRC defendants and Travelers argued that the plaintiffs were judicially estopped 

from claiming that the DOL controls the classification of laborers, since the plaintiffs’ position 

has been that any DOL administrative determination regarding the Project “is not significantly 

related to this case.” CRC Defs. & Travelers’ Mem. Opp’n Pls.’ Mot. Ruling Ct.’s Jurisdiction

at 1–2, ECF No. 151. The JCI defendants took no position, asserting that “it’s always been Mr. 

Cespedes’ position that [the plaintiffs] were carpenters.” Trial Tr. at 36. The Court reserved 

ruling on this belatedly raised issue until completion of post-trial briefing. Id. at 54.

3. Department of Labor Settlement Agreement

DOL’s Wage and Hour Division (“WHD”) conducted an investigation of CRC and JCI 

for violations of the Davis-Bacon Act, 40 U.S.C. § 3141 et seq., and related regulations, 29 

C.F.R. §§ 5.1–5.32.9

 Shortly before trial, the CRC defendants and Travelers notified the Court 

 8 The plaintiffs also moved to add as a witness an experienced local carpenter and union organizer, Raul 

Castro Ramirez, to testify that the work performed by the plaintiffs all falls within the definition of carpentry work. 

Id. at 2, 10. This motion was granted, Trial Tr. at 60, but the plaintiffs did not call Mr. Ramirez as a witness at trial. 9

 The Court had previously denied a request by the CRC defendants and Travelers to stay the instant case 

due to DOL’s investigation and ongoing administrative proceedings, “[s]ince the plaintiffs’ claims are predicated on 

violations of the DCWPCA, the DCMWRA, and the FLSA,” and Davis-Bacon Act proceedings “are not necessarily 

germane to the instant action and, therefore, proceedings in this case need not be bound in any way to those 

administrative proceedings.” Order (Nov. 15, 2013) at 2-3, ECF No. 74. 
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that CRC had finalized a settlement agreement with the DOL in June 2015, Second Joint Status 

Rep. at 1, ECF No. 134, and “resolve[d] all disputes arising from an FLSA, Davis-Bacon and 

CWHSSA investigation conducted by the WHD of [CRC] and [JCI] . . . on a construction 

contract . . . awarded by the District of Columbia Courts to Whiting-Turner,” id., Ex. A, DOL 

Settlement Agreement ¶ 2, ECF No. 134-1; Defs.’ Ex. 18 (DOL Settlement Agreement) ¶ 2. 

Pursuant to the DOL Settlement Agreement, CRC consented to pay “back wages in the 

amount of $150,000,” and agreed to waive its right to a hearing on the WHD’s investigative 

findings. Defs.’ Ex. 18 ¶ 4. The $150,000 was to be distributed in specified amounts by WHD 

to twenty-two persons listed in an attachment to the agreement, id. ¶ 9, which list included the 

thirteen plaintiffs in this action. Although CRC and the WHD “agree[d] that all matters 

pertaining to the payment of wages for work performed by [CRC] on its subcontract with 

Whiting-Turner” were “fully and finally resolved by this agreement,” id. ¶ 4, “[t]he WHD 

acknowledge[d] that” the plaintiffs in the instant case, “thirteen (13) of the twenty-two (22) 

employees listed on Exhibit A[,]” had filed suit in this Court “concerning the same 

circumstances investigated by WHD,” id. ¶ 9; id., Ex. A. Accordingly, the DOL Settlement 

Agreement provided that CRC “may request from the WHD notification of payment to any 

employee pursuing the [instant] [a]ction, and [CRC] may introduce such notification as evidence 

in the [instant] [a]ction, to the extent allowable by law, to prevent double recovery by any 

employee.” Id. Notably, the Settlement Agreement expressly stated that CRC did “not concede 

it employed five (5) of the employees included on Exhibit A,” but none of those five employees 

is a plaintiff in the instant case. Id. ¶ 10.

In light of the DOL Settlement Agreement, the Court directed the parties to submit before 

trial “an explanation of the impact, if any” of this agreement “on any factual and legal issues 
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requiring resolution at the scheduled bench trial [in] this matter, including (1) whether CRC will 

seek to introduce notification of payment to the plaintiffs . . . ; (2) whether the Settlement 

Agreement should be construed as CRC’s concession of employment of the plaintiffs, 

particularly in light of CRC’s express renouncement of employment of only five other 

individuals . . . ; (3) whether CRC’s cross-claims for indemnification for any amounts due to 

plaintiffs through the Department of Labor continue to have any viability since the prime 

contractor agreed to issue a check for the payment of back wages to the plaintiffs . . . ; and (4) 

how [the JCI defendants’] cross-claim for ‘indemnification’ from defendant CRC is affected, if 

at all, by the Settlement Agreement.” Minute Order (June 29, 2015).

The parties submitted responsive briefing, but also “pose[d] a number of additional issues 

for the Court to consider.” Trial Tr. at 5. CRC informed the Court that it would “seek to 

introduce the Settlement Agreement with DOL” and would continue “to seek indemnification 

from Jacinto Construction, Inc. and Jacinto Cespedes.” CRC Defs.’ Resp. Ct.’s Min. Order June 

29, 2015 (“CRC Defs.’ Resp.”) at 2-3, ECF No. 138. CRC also argued that the settlement 

agreement should not be construed as an admission of CRC’s status as an “employer” of the 

plaintiffs. Id. at 3-4. 

The JCI defendants’ response acknowledged that “[a]ny amount paid to the plaintiffs by 

either Calderon or Whiting Turner for payment of back wages to the plaintiffs” would affect both 

CRC and JCI’s cross-claims “by reducing the amount of that claim.” JCI Defs.’ Resp. Ct.’s Min.

Order June 29, 2015 (“JCI Defs.’ Resp.”) at 5-6, ECF No. 140. All parties agreed that payments 

made under the DOL Settlement Agreement would offset any damages to which the plaintiffs 

were entitled. Trial Tr. at 11 (Court noting that “everybody agrees, at a minimum, that the 
15

Department of Labor Settlement is an offset, at a minimum, against whatever unpaid wages the 

plaintiffs are seeking here.”). 

In addition to the responses provided by the parties to the Court’s questions, the CRC 

defendants and Travelers requested that DOL’s finding “on the amount of back wages be given 

deference and adopted by the Court as full and final satisfaction of the claims asserted” by the 

plaintiffs in the instant case. CRC Defs.’ Resp. at 3; Travelers’ Resp. June 29, 2015 Min. Order 

(“Travelers’ Resp.”) at 1–3, ECF No. 139. Travelers additionally requested a ruling that 

statutory liquidated damages and attorneys’ fees are not recoverable against the payment bond, 

Travelers’ Resp. at 4–6, and, in response, the plaintiffs requested a contrary ruling, that Travelers 

is liable for liquidated damages and attorneys’ fees under the bond, Pls.’ Consolidated Resp. 

June 29, 2015 Min. Order Impact Settlement Agreement & Resps. Travelers & CRC Defs. Same 

Order (“Pls.’ Resp.”) at 2, ECF No. 145. Lastly, the plaintiffs and the JCI defendants requested a 

ruling that CRC made a binding admission in the DOL Settlement Agreement that it employed 

the plaintiffs and can, therefore, no longer contest the issue. JCI Defs.’ Resp. at 6; Pls.’ Resp. at 

2. 

The Court found that the DOL Settlement Agreement “does not constitute the full and 

final satisfaction of the claims asserted by the plaintiffs in this case,” since “[i]t is undisputed 

that” the plaintiffs “were not part of settlement negotiations with the [DOL], nor did they 

expressly or impliedly waive their right to proceed with this lawsuit, nor has the [DOL] asked 

them to waive their rights[,] [a]nd they will not receive from the [S]ettlement all of the wages 

they claim they are owed,” Trial Tr. at 74. By expressly acknowledging the instant case, the 

DOL Settlement Agreement “impliedly recognizes that the plaintiffs may still pursue this action 

for the balance of wages they are owed and that the money they receive through the settlement 
16

agreement will merely offset their recovery.” Id. at 74-75. Since the plaintiffs “did not sign any 

release surrendering any of their rights, nor were they ever asked to do so by the [DOL],” the 

Court found that the plaintiffs “did not release their claims against the defendants.” Id. at 75 

(citing Walton v. United Consumers Club, Inc., 786 F.2d 303, 306–07 (7th Cir. 1986)).

Accordingly, the Court concluded “that the [DOL] settlement doesn’t preclude the plaintiffs’ 

claims here, but, instead, will serve only as an offset to any damages that may be found here.” 

Trial Tr. at 77.

With respect to Travelers’ and the plaintiffs’ divergent requests for rulings about whether 

Travelers was liable under the surety bond for attorneys’ fees and liquidated damages, the Court 

reserved ruling. Trial Tr. at 77. While the surety bond contains “very broad language” and 

“does not appear to exclude such payments or be so limited as Travelers seeks to narrowly 

construe it,” the Court found no “reason for a final ruling on this issue yet,” since a 

determination need only be made “in the event that CRC is found liable.” Id. at 78. 

Consequently, the Court reserved ruling on whether Travelers would be liable under the bond for 

attorneys’ fees and liquidated damages. Id. 

Lastly, the Court similarly reserved ruling on whether CRC admitted in the DOL 

Settlement Agreement that it employed the plaintiffs, until hearing all of the evidence in the case. 

Id. at 79. 

D. BENCH TRIAL 

A bench trial was conducted over the course of four days, with live testimony from a total 

of fifteen witnesses, including twelve of the plaintiffs (Luis Rocha, Peter Soto, Wilson Perez 

Zapata, Edgardo Pablo Terceros, Freddy Paz Perez, Juan Amurio Quiroz, Jose Lenin Rocha 

Quiroz, Mario Moya, Geraldo Moya, Jose Rocha Cespedes, Samuel Lopez, and Javier Cespedes 
17

Becerra), defendant Jacinto Cespedes, Enrique Sanz, who worked as CRC’s foreman on the 

Project, and Edgar Butler, who, as noted, was CRC’s accountant. A stipulation was read into the 

record as to what the plaintiff Jose Ramiro Perez would say if called to testify. Trial Tr. at 575. 

None of the defendants called any witnesses for the defense case. See Trial Tr. at 576–77.

The Court received the following exhibits into evidence during the bench trial: thirty-six 

exhibits submitted jointly by all of the parties, Joint. Exs. (“J. Ex.”) 1–36, see Ex. Log, ECF No. 

158; six exhibits submitted jointly by the plaintiffs and the JCI defendants, Pls.’ Joint Exs. (“PJ 

Ex.”) 6, 7, 9, 12, 13, 15, see Ex. Log., ECF No. 159; eight plaintiffs’ exhibits, Pls.’ Exs. 1–8, see

Ex. Log, ECF No. 156, including the deposition of Jacinto Cespedes (May 22, 2013) (“Cespedes 

Dep.”) as Pls.’ Ex. 5; the deposition of Ana Calderon (April 29, 2014) (“Ana Calderon Dep.”) as

Pls.’ Ex. 6; and the deposition of Carlos Calderon (October 22, 2013) (“Carlos Calderon Dep.”)

as Pls.’ Ex. 7; and thirteen exhibits submitted by the CRC defendants, Defs.’ Exs. 1, 4, 10–11, 

13, 15, 17–19, 21, 25, 27–28, see Ex. Log., ECF No. 157. In addition, the parties entered a 

number of stipulations, memorialized in two documents filed on the record. See Stipulations of 

the Parties (“First Stips.”), ECF No. 155; Stipulations of the Parties (“Second Stips.”), ECF No. 

160.

Following the conclusion of the bench trial, the parties submitted tables of proposed 

findings of fact (“FOF”) regarding: (1) the plaintiffs’ claims, see Pls.’ Proposed FOF Re: CRC & 

Travelers (“FOF Table – Pls. v. CRC & Travelers”), ECF No. 174; Pls.’ Proposed FOF re: JCI 

(“FOF Table – Pls. v. JCI”), ECF No. 173; (2) the CRC defendants’ cross-claims against the JCI 

defendants, see CRC’s Proposed FOF Re: Cross-Claim (“FOF Table – CRC v. JCI”), ECF No. 

175; and (3) the JCI defendants’ cross-claims against the CRC defendants, see JCI’s Proposed 
18

FOF Re: Cross-Claim (“FOF Table – JCI v. CRC”), ECF No. 176.10 The parties also submitted

proposed conclusions of law (“COL”) regarding (1) the plaintiffs’ claims, see Pls.’ Proposed 

COL (“Pls.’ COL”), ECF No. 177; Def. Travelers’ Proposed COL (“Travelers’ COL”), ECF No. 

179; CRC Defs.’ Resp. Pls.’ Proposed COL (“CRC Defs.’ Resp. Pls.’ COL”), ECF No. 182; JCI 

Defs.’ Proposed Resps. Pls.’ COL (“JCI Defs.’ Resp. Pls.’ COL”), ECF No. 180; Pls.’ Reply 

CRC Defs. & Travelers’ COL (“Pls.’ Reply CRC Defs.’ & Travelers COL”), ECF No. 185; Pls.’ 

Reply JCI Defs.’ COL (“Pls.’ Reply JCI Defs.’ COL”), ECF No. 183; (2) the defendant CRC’s 

cross-claims against the JCI defendants, see CRC Defs.’ Proposed COL Regarding Cross-Cl. 

Against JCI Defs. (“CRC’s COL”), ECF No. 178; JCI Defs.’ Opp’n CRC’s Proposed COL

Regarding Cross-Cl. (“JCI Defs.’ Opp’n CRC’s COL”), ECF No. 184; and (3) the JCI 

defendants’ cross-claims against the CRC defendants, see JCI Defs.’ Proposed COL Regarding 

Cross-Cl. Against CRC Defs. (“JCI Defs.’ COL”), ECF No. 181; CRC Defs.’ Opp’n JCI Defs.’ 

Proposed COL (“CRC Defs.’ Opp’n JCI Defs.’ COL”), ECF No. 186; JCI Defs.’ Reply CRC’s 

Opp’n Proposed COL Regarding Cross-Cl. (“JCI Defs.’ Reply COL”), ECF No. 188.11 The 

Court has considered these submissions along with the testimony and exhibits at trial.

II. FINDINGS OF FACT

Based upon the parties’ stipulations, testimony presented, and exhibits admitted at the 

bench trial, the Court makes the findings of fact set forth below and further states its conclusions 

of law. See FED. R. CIV. P. 52(a)(1) (“In an action tried on the facts without a jury . . . , the court 

 10 The Court’s Final Pretrial Order at ¶ 8, ECF No. 123, directed that the FOF tables be filed first as proposed 

findings by the plaintiffs or cross-claimants, then with responses from opposing parties, and finally with replies from 

the original parties. Consequently, only the final iteration of each table noting remaining factual disputes needs to be 

considered by the Court.

11 The JCI defendants have moved “for the entry of an order striking from the record” the CRC defendants’ 

opposition to the JCI defendants’ proposed conclusions of law because that opposition was filed late without leave 

of the Court. JCI Defs.’ Mot. Entry Order Striking CRC’s Opp’n JCI Defs.’ Proposed COL, ECF No. 187. Since 

the Court holds that the subcontracts between the JCI defendants and the CRC defendants are unenforceable, this 

motion to strike is denied as moot.
19

must find the facts specially and state its conclusions of law separately. The findings and 

conclusions ... may appear in an opinion or a memorandum of decision filed by the court.”). In 

setting forth the findings of fact, the court need not “address every factual contention and 

argumentative detail raised by the parties,” Mayaguez v. Corporacion Para El Desarrollo Del 

Oeste, 824 F. Supp. 2d 289, 295 (D.P.R. 2011), or “discuss all evidence presented at trial,” 

Wachovia Bank N.A., Nat. Ass'n v. Tien, 598 F. App’x 613, 617–618 (11th Cir. 2014). Instead, 

the Advisory Committee Notes on Rule 52 explain that “a judge need only make brief, definite, 

pertinent findings and conclusions upon the contested matters; there is no necessity for overelaboration of detail or particularization of facts.” FED. R. CIV. P. 52(a), Advisory Committee’s 

Note to 1946 Amendment. While “a district court's opinion should not simply state conclusions 

where circumstances require more detail,” courts have “wide leeway... in determining what facts 

to include.” Thermo Electron Corp. v. Schiavone Constr. Co., 958 F.2d 1158, 1160-1161 (1st 

Cir. 1992) (Breyer, C.J.). The findings must be “sufficient to allow [the appellate] court to 

conduct a meaningful review, which is the main point of the rule.” Caffey v. West, 1998 U.S. 

App. LEXIS 4689, 6-7 (D.C. Cir. Feb. 9, 1998); see also Lyles v. United States, 759 F.2d 941, 

943-945 (D.C. Cir. 1985)(noting that “an appellate court requires some reasonable measure of 

detail and exactness in the trial court's findings as a predicate for intelligent review”) (internal 

quotations omitted); Fasolino Foods Co. v. Banca Nazionale del Lavoro, 961 F. 2d 1052, 1058 

(2d Cir. 1992) (“All that is required by Rule 52(a) is that the trial court provide findings that are 

adequate to allow a clear understanding of its ruling”).

A. The Prime Subcontract

On January 7, 2011, Whiting-Turner entered into a subcontract (“the Prime Subcontract”) 

with CRC to complete portions of a project renovating the D.C. Superior Court for the fixed 
20

price of $929,639.00. J. Ex. 2 (Subcontract between Whiting Turner and CRC). Carlos 

Calderon is president of CRC, which has been in business for over 20 years, but only recently 

began working on federal contracts. Pls.’ Ex. 7 (Carlos Calderon Dep.) at 8-9. The Prime 

Subcontract required CRC to do “drywall, framing, ceilings, doors[,] hardware” and “rough

carpentry” for the Superior Court renovation. Id. at 14-15. Carlos Calderon estimated that 40 

percent of his contract with Whiting-Turner concerned putting up drywall and “framing,” thirty 

percent involved work on the ceilings, and the remaining thirty percent concerned “acoustics” 

and “GRG molding.” Id. at 16. He understood that, under the Prime Subcontract, he was 

required to pay workers “consistent[] with the Department of Labor’s prevailing wages” at the 

time of the work, id. at 24, and that the contract expressly provided that any person classified as 

a “carpenter” was entitled to a wage of $33.38 per hour, id. at 30. 

The Prime Subcontract between Whiting-Turner and CRC required CRC to “provide onsite supervision and coordination” of “Second Tier Subcontractors,” J. Ex. 2 at SC13. To this 

end, in February 2011, Enrique Sanz began work on the Project as CRC’s foreman, with only 

one other CRC employee, who helped “doing the layout” until the general contractor, WhitingTurner, granted approval to “start with the framing” work. Trial Tr. at 97, 119, 171. 

B. Carlos Calderon Hires Jacinto Cespedes

In early April 2011, Carlos Calderon was put in contact with Jacinto Cespedes by 

Cespedes’s brother for purposes of hiring a subcontractor for the Project. Id. at 313–14, 383. 

Cespedes had worked in the construction industry for approximately 30 years and owned JCI

with his wife for the duration of its existence, from 2010 to 2013. Id. at 312–13, 394, 438. On 

around April 10, 2011, as instructed by Carlos Calderon, Cespedes went to the Project site and 

met with Enrique Sanz for approximately 30 minutes, reviewing the layout of the Project. Id. at 
21

314–15. Enrique Sanz showed Cespedes “three floors,” but did not show him the “basement” or 

“roof.” Id. at 315, 383-84. Immediately after the tour, Cespedes went to CRC’s office and met 

with Carlos Calderon, who told Cespedes to start work on the Project right away and that four 

carpenters were needed. Id. at 314, 319. They did not sign a subcontract or speak about contract 

prices at this meeting but, nonetheless, the next day, on around April 11, 2011, Cespedes and 

three other workers, Juan Quiroz, Jose Rocha, and Luis Rocha, began work on the Project as 

carpenters. Id. at 314, 318, 320. 

Approximately one week later, during Cespedes’ second week working on the Project, he 

met again at Calderon’s office with Carlos Calderon, who presented him with a written 

subcontract agreement (“First Subcontract”). Id. at 322. The First Subcontract was drafted by 

CRC and set a fixed price of $191,099.10 that JCI would receive for its work on the Project. Id.

at 318; J. Ex. 3 (First Subcontract) at 4. The contract price was set regardless of the number of 

workers utilized or the overall cost of labor. See FOF Table – Pls. v. CRC & Travelers ¶ 8. Like 

the Prime Subcontract, the language of the First Subcontract provided that any person classified 

as a “carpenter” was entitled to a wage of $33.38 per hour. J. Ex. 3 (First Subcontract) at 

APPENDIX 4. Virtually all of CRC’s construction work on the Project was, according to Carlos 

Calderon, performed by JCI under this Subcontract. Pls.’ Ex. 7 (Carlos Calderon Dep.) at 59. 

Carlos Calderon and Cespedes did not negotiate the contract or review its contents. Trial 

Tr. at 324, 435-36. Rather, Carlos Calderon advised Cespedes that the first three pages were 

“just regulations” and did not need to be read. Id. at 326-29. Cespedes testified that he cannot 

read or write in the English language, id. at 312, 381, and that due to his illiteracy, he was unable 

to read the First Subcontract, to review the scope of the work described by its terms, or to 

compare that scope of work to the scope of the work required under the Prime Subcontract, 
22

which he never received or read, id. at 404–05. Cespedes signed the subcontract without reading 

it, and his testimony at trial did not help explain, what, if anything, he understood to be the terms 

of the agreement between JCI and CRC. Id. at 322-36. 

C. Plaintiffs’ Work on the Project

Both CRC’s foreman, Enrique Sanz, and Jacinto Cespedes were present on site at the 

Project every day, except for one week in September or October 2011 when Cespedes was offsite. Id. at 100-101; 329–31. Sanz was responsible for ensuring that all the workers were 

equipped with the proper equipment, including ladders and scaffolding, which equipment was 

owned by CRC and needed for the workers on the Project. Id. at 100–01, 130–31, 171–72. 

While Carlos Calderon did not work directly on the site, he testified at his deposition that Sanz, 

would advise him of “any issues with [Whiting-Turner], and problems with the trades, and 

coordinations, [and] the scheduling” of the job. Pls.’ Ex. 7 (Carlos Calderon Dep.) at 40. Carlos

Calderon confirmed that CRC provided “scaffolds, lifts, and ladders” on the Project. Id. at 50. 

Sanz was also responsible for conducting “safety meetings” with the workers, 

communicating with the CRC office regarding materials needed for the work, coordinating with 

the general contractor regarding where work would start or continue, and directing the workers 

“where to go, what to do, what is the material.” Id. at 100–01, 131; see also id. at 107 (Sanz 

agreeing that he gave “workers assignments each day on what they were supposed to do”). Sanz 

would typically spend “the whole day” supervising the workers on the Project, walking around 

each level of the building to “be sure that everybody is doing it the right way,” particularly since 

workers must “follow the specific rules or directions on government jobs” to comply with certain 

federal construction specifications. Id. at 105–06. Workers generally treated Sanz as their 

supervisor and would ask or tell Sanz if they needed to take breaks or leave early. Id. at 109. 
23

Jacinto Cespedes also supervised the plaintiffs and acknowledged that, at a minimum, they were 

employees of JCI. Second Stips. ¶ 1. During the time JCI was engaged on the Project, Cespedes 

also had employees working on one or two other projects unrelated to its subcontracts with CRC. 

Id. at 488-92. 

Based on Whiting-Turner’s needs or requests, Enrique Sanz would determine how many 

workers were needed for the Project each day and arrange for the right number of individuals to 

come to the site, coordinating “most of the time” with Jacinto Cespedes. Id. at 112. When the 

workers were “slow” and Whiting-Turner “wasn’t happy,” Sanz spoke with Carlos Calderon to 

keep him informed and solicit his instructions for dealing with the issue. Id. at 137–39. “[A]t 

least six [or] . . . seven times,” when more workers were needed, Sanz also spoke to Carlos 

Calderon about it. Id. at 109, 112; see also id. at 101 (“[I]n this case, my office send to me [the 

workers] in order to just make . . . the work to be done.”). 

The plaintiffs testified that they were supervised and instructed on the Project by both 

Jacinto Cespedes and Enrique Sanz and considered both of them to be their bosses. Id. at 178–

79 (Luis Rocha Moya); 190 (Peter Soto); 217, 223 (Wilson Perez Zapata); 240–41 (Edgardo 

Pablo Terceros); 251–52 (Freddy Paz Perez); 261 (Juan Amurio Quiroz); 263 (Jose Lenin Rocha 

Quiroz); 273 (Mario Moya); 284–86 (Gerardo Moya); 293, 300 (Jose Rocha Cespedes); 302 

(Samuel Lopez). Both Sanz and Cespedes confirmed that they managed the plaintiffs on site, 

directing work on the site or coordinating who came to work and for what periods of time. Id. at 

105-106 (Sanz); 336 (Cespedes).

In addition to their supervisory roles, both Cespedes and Sanz were in charge of keeping 

various records related to work on the Project. Cespedes was required to provide regular 

certified payrolls to CRC and used Oropeza and Associates, an accounting firm that had 
24

represented his previous business venture, to handle this paperwork and accounting for his new 

company. Id. at 449.

12 Certified payroll records were prepared by Oropeza, in coordination with 

“Calderon’s accountant,” and Cespedes signed them. Id. at 344. Cespedes then delivered the 

payrolls to Edgar Butler, CRC’s accountant. Id. at 371. Cespedes also prepared daily contractor 

reports for the Project. J. Ex. 11 (Contractor’s Daily Reports) at 494-576. Both the certified 

payroll records and the Contractor’s Daily Reports classified the plaintiffs as “Carpenters,” 

except for (1) Certified Payrolls 25 and 26, which classified some plaintiffs at the “Skilled 

Labor” wage instead of the “Carpenter” wage, J. Ex. 10 (certified payroll records) at 118- 126; 

and (2) Contractor's Daily Reports for July 13, 2011 to July 29, 2011, which listed Mario and 

Gerardo Moya as "finishers" while the certified payrolls for that time classified them as 

"carpenters." Compare J. Ex. 10 at 89-92 (certified payrolls listing both Moyas as "Carpenters"), 

with J. Ex. 11 at 559-570 (daily reports listing both Moyas as "Finishers"). Finally, Cespedes 

kept various handwritten records listing the names of the workers and the number of hours they 

worked on the Project by date. Id. at 366–67; J. Ex. 12 (copy of Jacinto Cespedes’ handwritten 

records). 

Like Cespedes, Sanz kept written documentation of the time the plaintiffs worked on the 

Project and their tasks, id. at 95–96, including a “contractor’s daily report” documenting “the 

people that I have working with me” and “any change on the progress of the job . . . in order to . . 

. let my office [CRC] know what we doing,” id. at 101. Carlos Calderon instructed Sanz to 

record the number of hours that each worker worked on the daily reports, but did “[n]ot really” 

tell him to record the workers’ classifications because “[Carlos Calderon] just said I want to just 

 12 Prior to trial, the Court granted a motion to dismiss a third-party complaint filed by the defendant CRC 

against Oropeza, finding that the third-party complaint “fail[ed] to allege facts that would plausibly entitle [CRC] to 

indemnification from Oropeza.” Mem. & Order (Mar. 1, 2013) at 3, ECF No. 38.
25

send you carpenters, you know, to the job.” Id. at 101–02. Sanz provided the contractor’s daily 

reports, as well as a separate daily “timesheet” that he was required to complete, to CRC. Id. at 

102–03. Sometimes, however, Sanz would be too busy to complete the daily report, so he would 

photocopy a sign-in sheet kept in a binder by Whiting-Turner, documenting each worker’s daily 

sign-in, and send that to the CRC office instead of a daily report. Id. at 103, 121. 

In addition to the daily reports and timesheets, CRC required Sanz to complete work 

progress reports for CRC, approximately every two weeks, “about how many sheets of drywall 

or how many linear feet of the framing was done.” Id. at 115–16, 175. With respect to these 

reports, Ana Calderon, who was CRC’s bookkeeper, instructed Sanz to “take some amount out” 

and not report the “whole thing.” Id. at 116. For example, if 100 sheets of drywall were hung, 

Sanz was required “to report it as 80.” Id. Sanz informed Jacinto Cespedes of this arrangement, 

telling Jacinto Cespedes “that was the way they were doing it.” Id. This under-reporting enabled 

CRC to make lower progress payments to JCI. Id. at 175. Though Jacinto Cespedes complained 

to Sanz about the reduced amount of work reported, Ana Calderon, nonetheless, firmly instructed 

Sanz to “just keep for the company, like, 20 percent . . . .” Id. at 117. Sanz was under the 

impression that underreporting the progress of the work was “the rule of the company [CRC].” 

Id. at 174–75. 

D. The Second Subcontract 

In June 2011, Cespedes again met with Calderon and signed a second subcontract (“the 

Second Subcontract”). Trial Tr. at 398-401. Pursuant to the Second Subcontract, JCI agreed to 

perform finishing work on the Project that Cespedes believed was not included in the First 

Subcontract. Cespedes testified that, since the workers “had already started work finishing,” he

felt he “would have to sign.” Id. at 400–01. The Second Subcontract, which was written in 
26

English, required JCI to perform work for a fixed price of $39,400. J. Ex. 4 (Second 

Subcontract) at 1, 4-5. Again, Cespedes testified that he did not read or understand the Second 

Subcontract before signing it. Id. at 434-35.

E. Nonpayment of Wages Owed to Plaintiffs

Around this time, in June 2011, Jacinto Cespedes stopped paying the plaintiffs

consistently, Second Stips. at ¶ 4, a circumstance about which he informed Ana and Carlos 

Calderon. Trial Tr. at 347, 353. Cespedes testified that he would visit the CRC office to discuss 

these payment issues and Ana Calderon “would say, ‘Why don’t you pay them [the workers] a 

decreased rate?’” Id. On at least one occasion, in response to Cespedes’s complaints about not 

being paid sufficient funds to pay the workers their wages owed, Carlos Calderon echoed Ana 

Calderon and also suggested that Cespedes change the classification of the workers, though 

Cespedes inconsistently claimed not to understand worker classification. Id. at 344–45; see id. at 

346 (“When he couldn’t pay, Calderon suggested that I reduce them to skilled labor.”). 

Carlos Calderon also told Cespedes to hire workers who were in the country illegally, 

because he could pay them lower wages. Id. at 360-62. Cespedes hired four undocumented 

workers, who are not parties to this suit, and paid them less than the wages to which Cespedes 

himself believed they were legally entitled. Id. at 360, 362. Cespedes, with Sanz’s assistance

would sneak them into the site each day by using other employees’ work badges to gain access to 

the Project site. Id. at 360-364. Sanz would “use his badge, and he would get a visitor badge 

from the office” for the undocumented workers, “and [the workers] would go in with the badges 

and nobody would say anything,” id. at 414, effectively passing off the workers as individuals 

permitted to be on site.
27

In addition to hiring undocumented workers, Cespedes complied with the Calderons’

suggestion to change the wage rate classification for some of his workers from the amount that 

corresponded to “Carpenters” to a lower amount that corresponded to the classification for 

“Skilled Laborers” on the certified payrolls. Id. at 346. On September 30, 2011 and October 10, 

2011, Cespedes signed Certified Payrolls 25 and 26, showing the “Skilled Labor” wage rate 

instead of the “Carpenter” wage rate for some of the plaintiffs. J. Ex. 11 (Contractor’s Daily 

Reports) at CALD 118-122. On November 8, 2011, Edgar Butler sent a fax to Oropeza and 

Associates, asking JCI’s accountant to reclassify certain employees “per Jacinto Cespedes[‘s] 

request.” J. Ex. 15. Butler sent this fax after conferring with Carlos Calderon. FOF: Pls. v. 

CRC ¶ 87 (not disputed). Butler claims, however, not to remember what specifically was 

discussed with Carlos Calderon or the latter’s recommendations. Id. at 553. The resulting 

change in classification created certified payrolls with workers being paid at a lower rate than as 

carpenters. J. Ex.10 (Contractor’s Daily Reports) at CALD 122. As a result of this reduction in 

the payroll rate, Butler stopped submitting the certified payrolls to Whiting-Turner, id, at 551-52, 

and testified that to have knowingly done so would have constituted fraud in his mind, 

presumably due to the fact that the workers should have been paid at the carpenters’ rate. Id. at 

555. 

F. Plaintiffs and Jacinto Cespedes Quit

During the final three weeks that the plaintiffs worked on the Project, from October 29 to 

November 15, 2011, none of the plaintiffs were paid any wages. First Stips. ¶ 4(b). On multiple 

occasions, workers complained directly to Carlos Calderon about not being paid, but nothing 

came of their complaints. Trial Tr. at 122, 127-128, 150-151. After Cespedes complained to 

Whiting-Turner a number of times about not being paid by CRC, Whiting-Turner called a 
28

meeting among Cespedes, Carlos Calderon and “Jeff . . . the superintendent at Whiting-Turner.” 

Id. at 372. At this meeting, Carlos Calderon told everyone that he “was going to pay,” which 

Jacinto Cespedes understood to mean that CRC would pay JCI so that Cespedes could pay the 

workers, id. at 374, but no payments were forthcoming, id. at 376. 

Carlos Calderon subsequently had two meetings with the workers on the Project. Id. at 

117–22, 219, 231. At the first of these meetings, in response to the plaintiffs’ complaint that

they were not getting paid, Carlos Calderon urged the workers to keep working and assured them 

that he would “straighten everything out with Jacinto” as long as they kept working. Id. at 127. 

Carlos Calderon “agreed that he would pay . . . but without making any discounts or withdrawals 

from the paychecks,” at a rate of $26.38 per hour. Id. at 126-128, 193, 195, 201, 218-219, 374–

75. 

Carlos Calderon spoke to the workers a second time at the Project site, when Jacinto 

Cespedes was not present. Id. at 127. Carlos Calderon told the workers that he would “take care 

about the money that Jacinto owed them,” “try to straighten everything up” and “try to find out 

why” Jacinto Cespedes had not paid the workers. Id. at 127–28. At this second meeting, Carlos 

Calderon also mentioned paying the workers directly. Id. at 128. 

According to Jacinto Cespedes, after the second conversation between Calderon and the 

plaintiffs, Cespedes told the workers that “Calderon had said that he didn’t want to see me on the 

site anymore and I cannot continue to work like this,” and all the workers decided to leave the 

site with Cespedes that day. Id. at 377–78; see also id. at 226 (testimony of Wilson Perez Zapata

that Cespedes left the same day); id. at 262 (testimony of Juan Amurio Quiroz that he worked 

until November 15, 2011 and was “the last one to be working there”). Cespedes testified that, by 
29

this time, he had stopped reporting hours to his accountant, but that he continued to keep track of 

hours worked in a handwritten document. Id. at 468, 474-75. 

Sanz remained on the Project as the foreman after JCI and the plaintiffs stopped working. 

Id. at 132. Carlos Calderon sent other workers employed by CRC to complete the work on the 

Project under Sanz’s supervision. Id. When CRC sent its own employees to finish the job, the 

listed employees were classified as carpenters, not as skilled laborers. Id. at 133-34, 555. 

According to CRC “the cost to complete the work left to be finished was $200,879.96.” CRC’s 

COL at 10. 

G. Unpaid Wages

Discerning the precise amount of unpaid wages owed to the plaintiffs is challenging since 

the exhibits submitted by the parties reflect inconsistent reported times worked by each plaintiff, 

different amounts of overtime worked by each plaintiff, and different amounts of total 

compensation owed to each plaintiff.

13 The plaintiffs and JCI’s jointly-submitted Consolidated 

Summary Chart assists in synthesizing the disparate sources of documentation on this issue. The

Consolidated Summary Chart outlines for each plaintiff the weeks he worked, the hours he 

worked per week, the “straight” time and overtime he worked per week, the gross pay he 

received for each corresponding week, the total asserted proper pay per week, and the alleged 

amount remaining unpaid to each plaintiff, all with reference to checks that were entered into 

evidence, or reference to hours recorded by JCI or CRC. The plaintiffs, JCI and Jacinto 

Cespedes agree that the Consolidated Summary Chart is an accurate and complete summary of 

 13 Documentation underlying the claimed unpaid wages include: contractor’s daily work reports, J. Ex. 11; 

Jacinto Cespedes’s handwritten logs of employee work, J. Ex. 12; CRC’s certified payroll records, J. Ex. 10; Jacinto 

Cespedes’s handwritten logs of unpaid employees, Def.’s Ex. 11; Jacinto Cespedes’s handwritten records on the 

part of JCI as to overtime, Def. Ex. 12; and a summary of all checks issued by and returned to Jacinto Cespedes, Pl. 

Ex. 1.
30

the hours worked and the corresponding partial payments received by each plaintiff. Pls.’ and 

JCI’s Joint Mot. Admit Summ. Ex., ECF No. 124, at 1-2. 

While the CRC and Travelers defendants challenged the Consolidated Summary Chart as

incorrect or prejudicial, CRC Defs. & Travelers’ Joint Resp. Pls.’ Mot. Substitute Ex., ECF No. 

130, at 1-2, the Court made clear that “the onus is on them to persuade the Court of their 

position,” Evid. Op. & Order, at 2, 4. To contest the Consolidated Summary Chart, the 

defendants admitted, on the last day of trial, Defendants’ Exhibit No. 28. Trial Tr. at 503. In 

contrast to the comprehensive Consolidated Summary Chart, the Defendants’ Exhibit 28 is a 

single-page document titled “Straight Time,” listing each of the thirteen plaintiffs, and three 

columns providing reported hours for each plaintiff. The first column is titled “certified 

payrolls”; the second column is titled “Plaintiffs”; and the third column is titled “JCI Initial 

Answers.” Presumably, these total hours in each column per plaintiff reflects differing amounts 

reported for the plaintiffs’ hours from the three sources cited. The “Plaintiffs” column shows a 

“Total” number of hours worked for all the plaintiffs of 7886 hours, which corresponds to the 

hours on the Consolidated Summary Chart; the column “JCI Initial Answer” shows the highest 

total hours worked by plaintiffs of 8,207; and the “Certified Payrolls” column, presumably 

referring to the Certified Payrolls submitted to Whiting-Turner that all parties agree are incorrect 

in some respect, shows the lowest total hours worked of 7,826, which differs from the 

Consolidated Summary Chart by only 60 hours. 

All parties agree that the plaintiffs worked weeks and hours for which they were not paid,

First Stips. ¶ 4(c), and even agree on the weeks in which plaintiffs were not paid. Id. Given 

these concessions, the defendants’ identification of some inconsistencies in the record regarding 

the plaintiffs’ unpaid hours does not preclude the plaintiffs from recovering. See FOF – CRC v. 
31

Pls. ¶ 139-156. Indeed, despite some limited inconsistencies, the hours worked reflected in the

Consolidated Summary Chart are reasonably supported by evidence in the record and testimony 

at trial, and close to the number of hours reflected in the “Certified Payrolls” numbers proffered 

by the CRC and Travelers defendants. In accordance with this Court’s order, Minute Order, June 

24, 2015, the plaintiffs identified the specific sources for all of the information in the 

Consolidated Summary Chart, including copies of checks given to plaintiffs, Pls.’ Ex. 1, time 

sheets produced by CRC’s own foreman, Enrique Sanz, Pls.’ Ex. 4, copies of CRC’s Certified 

Payrolls, J. Ex. 10, contractor’s daily reports produced by Cespedes and Sanz, J. Ex. 11, 

Cespedes’s handwritten records, J. Ex. 12, and interrogatories from plaintiffs to JCI, J. Ex. 8. 

See Pls. & JCI’s Resp. June 24, 2015 Minute Order, ECF No. 133. The Court therefore finds

that the Consolidated Summary Chart sufficiently reflects the most accurate total number of 

hours worked without pay for each plaintiff, based on the comprehensive set of records on which 

it is based.

H. Credibility Assessments

Given this Court’s “opportunity to judge the witnesses’ credibility,” FED. R. CIV. P.

52(a)(6), the witnesses’ demeanor at trial informs the factual findings set out above, as well as 

the conclusions of law, infra. The majority of the witnesses were the twelve testifying plaintiffs, 

who each generally testified credibly in a straightforward and careful manner about their work on 

the Project and their frustration at not being paid for their labor. As one of the plaintiff’s 

summarized their collective view: “We all waited. We worked. We continued to work. All of 

us had no money. We were just nice. . . . We need our money. That money is owed to us for our 

sacrifice or work, and we're even not making -- we're not making any money because we have to 

be here.” Trial Tr. at 290 (testimony of Gerardo Moya). Enrique Sanz, who was CRC’s foreman 
32

on the Project and has since left CRC, Pls.’ Ex. 7 (Carlos Calderon Dep.) at 13, similarly 

provided credible testimony. 

By contrast, Edgar Butler, CRC’s accountant for over twelve years, testified in a manner 

designed to protect his business relationship with Carlos and Ana Calderon, such that his 

memory failed and he could not recall what he discussed with the Calderons about the 

classification changes for the plaintiffs, Trial Tr. at 557, incorrect payrolls, id. at 558-59, or any 

instructions he received regarding these matters, id. at 560. His testimony was of limited 

credibility.

The defendant Jacinto Cespedes provided testimony that was inconsistent, shifting and 

occasionally unresponsive. See, e.g., Trial Tr. at 467-69 (Jacinto Cespedes testifying that he had 

written a document, followed immediately by a refusal to admit whether the document was in his 

own handwriting, and finally his denial that he had written the document). Cespedes’ testimony 

regarding overtime work, which the workers performed on a number of Saturdays, was 

particularly confusing about whether any promises were made to him to pay for the overtime 

Saturday work and, if so, who made the promises. See id. at 337–42. He testified that he spoke 

to Enrique Sanz and he had spoken to Calderon, “who had said that Whiting-Turner needed us to 

work on Saturdays,” id. at 337, and agreed with a question posed to him by the Court that it was 

correct that “no one ever told you that they would cover the costs for Saturday work.” id. at 338. 

Yet, he then testified that Sanz had promised to pay for the overtime on Saturdays, id. at 340, and 

also that Sanz told him that “Whiting-Turner had to pay” for the Saturday overtime work, id. at 

340–41. Cespedes’ testimony is accepted principally only where bolstered by documentary 

evidence or his testimony amounts to statements against his own interest (e.g., his admissions 
33

that he reclassified workers to reduce labor costs and that he hired undocumented workers also to 

reduce labor costs).

Neither Ana nor Carlos Calderon testified at trial. Their deposition testimony is, at best, 

contradictory, and, at worst, strains credulity. Both Calderons claimed particularly poor 

memories related to the events giving rise to this lawsuit. For example, Ana Calderon testified 

that she signed the payroll documents, but that CRC’s accountant Butler was mainly responsible 

for their review, contrary to the testimony of Butler and Carlos Calderon. Pls.’ Ex. 6, at 14-15; 

cf. Trial Tr. at 544 (Butler testifying that Ana Calderon reviewed payroll records); Pls.’ Ex. 7, at 

10 (Carlos Calderon stating that Ana Calderon was in charge of accounting). When asked 

whether she understood that she signed the payroll forms subject to civil or criminal prosecution, 

Ana was evasive and ultimately answered that she could not recall if, at the time of signing, she 

understood that such penalties existed. Id. at 36-40. She confirmed that Jacinto Cespedes “came 

to the office very . . . frequently,” id. at 47, but denied knowledge of his exact reasons for 

visiting the office. Id. ("I normally wouldn't see him. But I believe he came in, and he would 

bring the payroll; if there were some bills, and he would pick up the release, if there were any 

checks"."). She also denied knowing for a fact if he was paid, despite her role in signing the 

payroll records. Id. at 47-48. 

Carlos Calderon testified that he understood that he was required to pay workers 

“consistent[] with the Department of Labor’s prevailing wages” at the time of the work, id. at 24, 

but denied (1) knowing how individuals were classified on the job, (2) discussing with Jacinto 

Cespedes how to classify the workers on the project, id. at 30-32, or (3) telling him to pay the 

workers at a lower scale, id. at 46. At the same time, he testified that, as far as he knew, the 

proper classification for workers on the Project was as carpenters. Id. at 32. Carlos Calderon 
34

also denied that he talked to Jacinto Cespedes about the number of workers needed on the job, 

despite multiple emails he received from Whiting-Turner directing him to add more workers to 

the job site. Id. at 53-61. 

In sum, the testimony by the individual defendants, either at trial by Jacinto Cespedes or 

in depositions by Ana and Carlos Calderon, was generally not credible. 

III. CONCLUSIONS OF LAW

In reaching conclusions of law, the Court evaluates the evidence to determine whether the 

plaintiffs and cross-claimants have established each element of their respective claims by a 

preponderance of the evidence. See Clark v. Feder Semo & Bard, P.C., 895 F. Supp. 2d 7, 29

(D.D.C. 2012) (“The Court reviews the evidence under the ‘default rule for civil cases,’ the 

‘preponderance of the evidence’ standard.”) (citing Cigna Corp. v. Amara, 563 U.S. 421, 443 

(2011)); see also Ascom Hasler Mailing Systems, Inc. v. United States Postal Service, 885 F. 

Supp. 2d 156, 181 (D.D.C. 2012). The plaintiffs’ claims are addressed first, before turning to the 

defendants’ cross-claims.

A. PLAINTIFFS’ CLAIMS

As noted, the plaintiffs assert claims under the FLSA, DCMWRA and DCWPCA. Each 

of these statutes is briefly reviewed, before assessing whether the plaintiffs have proven, by the 

requisite preponderance of the evidence, their claims against the defendants. 

1. Statutory Framework

The DCMWRA and the DCWPCA are construed consistently with the FLSA with 

respect to determining the liability of an employer. See Ventura v. Bebo Foods, Inc., 738 F. 

Supp. 2d 1, 5 n.2 (D.D.C. 2010); Del Villar v. Flynn Architectural Finishes, 664 F. Supp. 2d 94, 

96 (D.D.C. 2009); see also D.C. Code § 32–1002 (defining “employ,” “employer,” and 
35

“employee” with language very similar to FLSA). Thus, determinations of employer or 

employee status under the FLSA apply equally under the District of Columbia wage laws.

(a) Fair Labor Standards Act 

The FLSA provides that “[e]very employer shall pay to each of his employees . . . who 

in any workweek is engaged in commerce or in the production of goods for commerce . . . not 

less than the minimum wage,” 29 U.S.C. § 206(b), and to pay overtime compensation, “at a rate 

not less than one and one-half times the regular rate” at which an employee is usually paid, for 

time worked in excess of forty hours per week, id. at § 207(a)(1). See Cannon v. District of 

Columbia, 717 F.3d 200, 204 (D.C. Cir. 2013) (“An employee is entitled to the federal minimum 

wage and overtime unless specifically exempted by the FLSA.”); Robinson-Smith v. Gov't Emps. 

Ins. Co., 590 F.3d 886, 892 (D.C. Cir. 2010) (same). 

While the FLSA does not specify when wages must be paid, the Supreme Court has 

pointed to the liquidation damage provision of the FLSA as “congressional recognition that 

failure to pay the statutory minimum on time may be so detrimental to maintenance of the 

minimum standard of living necessary for health, efficiency and general well-being of workers 

and to the free flow of commerce, that double payment must be made in the event of delay in 

order to insure restoration of the worker to that minimum standard of well-being.” Brooklyn Sav.

Bank v. O'Neil, 324 U.S. 697, 707 (1945). The Court further stressed that “[t]he necessity of 

prompt payment to workers of wages has long been recognized by Congress as well as by state 

legislatures.” Id. at n.20. Following this lead, courts have found that the FLSA encompasses a 

requirement that wage payments due to employees must be paid promptly and at regular 

intervals. See Rogers v. City of Troy, N.Y., 148 F.3d 52, 55-56 (2d Cir. 1998); Biggs v. Wilson, 1 

F.3d 1537, 1541 (9th Cir. 1993) (“[T]he FLSA is violated unless the minimum wage is paid on 
36

the employee's regular payday”); U.S. v. Klinghoffer Bros. Realty Corp., 285 F.2d 487, 491 (2d 

Cir. 1960) (“[W]hile the FLSA does not expressly set forth a requirement of prompt payment, 

such a requirement is clearly established by the authorities.”). 

In addition to recovery of unpaid minimum wages or overtime compensation, an 

employee prevailing in an FLSA action is entitled to “an additional equal amount as liquidated 

damages.” Dove v. Coupe, 759 F.2d 167, 175 (D.C. Cir. 1985); see also Ayala v. Tito 

Contractors, Inc., 82 F. Supp. 3d 279, 285 (D.D.C. 2015) (“An FLSA violator is generally liable 

for all unpaid compensation as well as ‘an additional equal amount as liquidated damages.’” 

(citing 29 U.S.C. § 216(b))). “By authorizing liquidated damages, Congress sought to 

compensate the aggrieved employee for the employer's delay and to restore him to a position as 

if the employer had not failed in its obligation to pay in a timely manner that compensation to 

which he was entitled.” SSA, Baltimore v. FLRA, 201 F.3d 465, 469 (D.C. Cir. 2000).

(b) D.C. Wage Payment and Collection Act 

The DCWPCA requires every “employer” to “pay all wages earned to his employees at 

least twice during each calendar month, on regular paydays designated in advance by the 

employer,” and provides, in relevant part, “that an interval of not more than 10 working days 

may elapse between the end of the pay period covered and the regular payday designated by the 

employer.” D.C. Code § 32-1302 (2012); see Walker v. Thomas, 2015 U.S. Dist. LEXIS 

156849, *7-*8 (D.D.C. Nov. 20, 2015) (noting that DCWPCA “requires employers to pay any 

wages due to an employee, whether at the minimum rate, or at a higher rate, in regular 

intervals.”). The DCWPCA further provides that “[w]henever an employee,” without a written 

employment contract “quits or resigns, the employer shall pay the employee’s wages due upon 

the next regular payday or within 7 days from the date of quitting or resigning, whichever is 
37

earlier.” Id. § 32-1303(2). A plaintiff who proves that a defendant has violated § 32-1302 may 

recover unpaid wages, liquidated damages, attorneys’ fees and costs, id. § 32-1308, and, if a 

plaintiff proves that a defendant has violated § 32-1303, the plaintiff may additionally recover, 

“as liquidated damages, 10 per centum of the unpaid wages for each working day” the defendant 

fails to pay after the defendant was required to pay, “or an amount equal to the unpaid wages, 

whichever is smaller,” id. § 32-1303(4).

(c) D.C. Minimum Wage Revision Act

The DCMWRA sets the minimum wage “to be paid to any employee by any employer in 

the District of Columbia.” D.C. Code § 32-1003(a). In addition, the DCMRWA requires 

compensation at the rate of 1.5 times the employee’s normal wages for employees working more 

than 40 hours a week. § 32-1003(c). The DCMRWA provides that “[a]ny employer who pays 

any employee less than the wage to which that employee is entitled under [the DCMRWA] shall 

be liable to that employee in the amount of the unpaid wages, and an additional amount as 

liquidated damages.” D.C. Code Ann. § 32-1012 (1993).

14 

An employee may not recover for nonpayment of wages separately under the FLSA, the 

DCMWRA, and the DCWPCA since that would result in a double (or triple) recovery for unpaid 

wages. See Gen. Tel. Co. of the Nw. v. Equal Employment Opportunity Comm'n, 446 U.S. 318, 

333 (1980) (“[C]ourts can and should preclude double recovery by an individual.”); see also

Pleitez v. Carney, 594 F. Supp. 2d 47, 51 (D.D.C. 2009) (calculating recovery for plaintiff with 

claims under the FLSA, DCMWA and DCWPCA and granting only one sum equal to highest 

amount plaintiff could recover under any of the statutes for the same injury). Moreover, a

prevailing employee may not stack recovery of liquidated damages under each of the three 

 14 The DCMWRA has been revised since this action was commenced. All citations to the D.C. Code are to 

the Code in effect at the time this suit was filed, unless otherwise noted.
38

statutes, but is entitled only to the highest amount of liquidated damages permitted under any one 

of the three statutes. See Pleitez, 594 F. Supp. 2d at 51 (holding recovery under FLSA, 

DCMWA and DCWPCA was limited to a single award of liquidated damages equal to the total 

owed unpaid wages); see also Encinas v. J.J. Drywall Corp., 840 F. Supp. 2d 6, 8 (D.D.C. 2012) 

(same).

2. Liability

Plaintiffs claim that JCI, CRC, Jacinto Cespedes individually, and Carlos and Ana

Calderon individually, were their joint employers. While the parties all agree that the plaintiffs 

were “employees” within the meaning of the FLSA, PTC Tr. at 88-90, and that JCI was the 

plaintiffs’ employer, Cespedes and the CRC defendants dispute that they were plaintiffs’ joint 

employers under the FLSA, the DCMWPA, and the DCWPRA. As explained below, after 

review of the pertinent statutory definitions and caselaw and the record in this case, the Court 

concludes, first, that CRC and the individual defendants were joint employers of the plaintiffs, 

and, second, that Travelers’ liability under the surety bond is coextensive with that of CRC. 

(a) Determination of “Employer” Status

The FLSA defines several key terms for coverage under the statute: an “employee” is 

defined as “any individual employed by an employer,” 29 U.S.C. §§ 203(e)(1); an “employer,” is 

defined to “include[] any person acting directly or indirectly in the interest of an employer in 

relation to an employee . . . ,” id., § 203(d); and the term “employ” means “to suffer or permit to 

work,” id., § 203(g). These definitions have been described as “generally unhelpful,” Henthorn 

v. Department of Navy, 29 F.3d 682, 684-685 (D.C. Cir. 1994), and the definition of “employee,” 

in particular, as qualifying “as a mere ‘nominal definition’ that is ‘completely circular and 

explains nothing,’" Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440, 444 
39

(2003) (quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322 (1992)). Yet, at the same 

time, these definitions must be construed broadly to effectuate the remedial purposes of the 

statute. See Morrison v. Int'l Programs Consortium, Inc., 253 F.3d 5, 10 (D.C. Cir. 2001).

The Supreme Court has provided guidance “to fill the gap in the statutory text” by

looking to “ʻthe conventional master-servant relationship as understood by common-law agency 

doctrine,”" Wells, 538 U.S. at 444-445 (quoting Darden, 503 U.S. at 322-23), and “examining 

the “economic reality” of the relationship between the putative employee and employer, Tony & 

Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 300-301 (1985) (“The test of 

employment under the [FLSA] is one of ‘economic reality.’”); Goldberg v. Whitaker House 

Cooperative, Inc., 366 U.S. 28, 33 (1961) (noting that “ʻeconomic reality’ rather than ‘technical 

concepts’ is to be the test of employment”). The over-arching inquiry is whether the defendant is 

“the kind of person that the common law would consider an employer.” Wells, 538 U.S. at 445. 

The economic reality inquiry involves consideration of various factors, including "'the 

hiring party's right to control the manner and means by which the product is accomplished[;] ... 

the skill required; the source of the instrumentalities and tools; the location of the work; the 

duration of the relationship between the parties; whether the hiring party has the right to assign 

additional projects to the hired party; the extent of the hired party's discretion over when and 

how long to work; the method of payment; the hired party's role in hiring and paying assistants; 

whether the work is part of the regular business of the hiring party; whether the hiring party is in 

business; the provision of employee benefits; and the tax treatment of the hired party.'" Wells, 

538 U.S. at 445 n.5 (quoting Darden, 503 U.S. at 323-24 (quoting Cmty. Ctr. for Creative NonViolence v. Reid, 490 U.S. 730, 751-752 (1989), and citing Restatement (Second) of Agency § 

220(2) (1958)). Consistent with the Supreme Court’s articulation of the economic reality test, 
40

the D.C. Circuit has enumerated five specific factors relevant to identifying a defendant’s status 

as an “employer” under the FLSA: “(1) the degree of control exercised by the employer over the 

workers, (2) the workers’ opportunity for profit or loss and their investment in the business, (3) 

the degree of skill and independent initiative required to perform the work, (4) the permanence or 

duration of the working relationship and (5) the extent to which the work is an integral part of the 

employer's business.” Morrison, 253 F.3d at 11. “No one factor standing alone is dispositive.” 

Id. Instead, the totality of the circumstances of the relationship between the parties must be 

evaluated “to determine whether the putative employer has the power to hire and fire, supervise 

and control work schedules or conditions of employment, determine rate and method of pay, and 

maintain employment records.” Ventura, 738 F. Supp. 2d at 5 (quoting Del Villar v. Flynn 

Architectural Finishes, 664 F. Supp. 2d 94, 96 (D.D.C. 2009)). 

Notably, application of this test may show that more than one “employer” is liable for 

violations of the FLSA. Ventura, 738 F. Supp. 2d at 5. Moreover, an individual may be held 

personally liable, as the FLSA’s definition of employer is broad enough to “encompass an 

individual who, though lacking a possessory interest in the ‘employer’ corporation, effectively 

dominates its administration or otherwise acts, or has the power to act, on behalf of the 

corporation vis-a-vis its employees.” Reich v. Circle C. Invs. Inc., 998 F.2d 324, 329 (5th Cir. 

1993).

b) CRC’s Status as an Employer

CRC denies being the plaintiffs’ employer, but consideration of the totality of the 

circumstances shows otherwise. First, CRC had significant, if not absolute, control over the both 

timing and conduct of plaintiffs’ work. Enrique Sanz testified that he would typically spend “the 

whole day” supervising the workers on the Project, walking around each level of the building to 
41

“be sure that everybody is doing it the right way,” and complying with applicable rules for a 

federal construction project. Trial Tr. at 105–06. Carlos Calderon testified that Sanz, as CRC’s

foreman, was responsible for deciding who would come into work, regardless of the requests 

made by Whiting-Turner. Id. at 63-69.

15 Plaintiffs also testified that they performed their work 

on the Project under the daily supervision and instruction of both Jacinto Cespedes and Enrique 

Sanz, both of whom the plaintiffs considered to be their bosses. Id. at 178–79 (Luis Rocha 

Moya), 190 (Peter Soto), 217, 223 (Wilson Perez Zapata), 240–41 (Edgardo Pablo Terceros), 

251–52 (Freddy Paz Perez), 261 (Juan Amurio Quiroz), 263 (Jose Lenin Rocha Quiroz), 273 

(Mario Moya), 284–86 (Gerardo Moya), 293, 300 (Jose Rocha Cespedes), 302 (Samuel Lopez). 

Indeed, Sanz admitted that workers would ask or tell Sanz if they needed to take breaks or leave 

early. Id. at 109. 

Further, Sanz was responsible for ensuring that all the workers were equipped with the 

proper equipment, including ladders and scaffolding, which equipment was owned by CRC and 

needed for the workers on the Project. Id. at 100–01, 130–31, 171–72. Sanz was also 

responsible for conducting “safety meetings” with the workers, coordinating with the CRC office 

regarding materials needed for the work, coordinating with the general contractor regarding 

where work would start or continue, and directing the workers “where to go, what to do, what is 

the material.” Id. at 100–01, 131.

CRC points out that CRC could not terminate the plaintiffs’ relationship with JCI but 

only remove an employee from the Project work site, but that CRC never asked or told JCI to 

 15 CRC argues that because the hours during which plaintiffs could be on site were set by Whiting-Turner, 

CRC did not “establish the hours of work.” COL CRC v. Pls. at 7. Even if Whiting-Turner set the hours during 

which work could be done, Calderon emphasized in his deposition that CRC determined if and when plaintiffs came 

to the site, regardless of the schedule set by Whiting-Turner. Pls.’ Ex. 7 at 52; 59, 67. In other words, CRC decided, 

the hours and number of workers needed on the site each day.
42

fire an employee. COL Travelers’ at 5; COL CRC v. Pls. at 6-7. This ignores, however, the 

CRC foreman’s admission that CRC had the authority to “send . . . home” employees who 

violated safety rules, Trial Tr. at 170, and to fire a worker sent by JCI, id. at 169, making 

irrelevant that no such worker was actually fired from the job site. In addition, CRC, through 

Carlos Calderon, encouraged JCI to hire undocumented workers and to reclassify workers at 

lower wage rates, which JCI did. Trial Tr. at 346, 360-62. This significant amount of control 

over the plaintiffs’ work, in terms of schedules, wage rates, tools, and work performance, weighs 

heavily in favor of finding CRC to be plaintiffs’ joint employer under the “economic reality” 

test.

Second, the plaintiffs did not have independent opportunity for profit or loss based on the 

successes (or failures) of CRC and JCI. The contracts between CRC and JCI, as well as the 

contract between CRC and the general contractor, were for fixed prices, Trial Tr. at 323; J. Ex. 2 

at 4, J. Ex. 3 at 4, and, consequently, the plaintiffs’ pay would not change if the project were

completed faster or for less cost than otherwise anticipated. In short, the plaintiffs were not in a 

position to profit or invest in the business no matter how much effort they put into their work on 

the project. This factor also weighs in favor of finding that plaintiffs were employees of CRC.

Third, while the plaintiffs had pre-existing skills in the building trade to perform work as 

carpenters, their work required the input and direction of Enrique Sanz, who had the blueprints 

for the work and served as the liaison among Whiting-Turner, CRC and JCI. While coordination 

for the work of various subcontractors on a project is necessary, and providing such coordination 

does not automatically create an employer relationship under the FLSA, Sanz’s role on-site and 

CRC’s directions to JCI were far more significant than merely coordination, in part because CRC 

did not provide JCI or any of the plaintiffs with the plans for the job that would have allowed
43

them to work on the Project unsupervised. As such, there was no incentive or reward for the 

plaintiffs to take initiative and do work outside of the scope of their supervision by Sanz. While 

the work itself may have required a specialized level of training and knowledge, the specification 

of where, when and how to perform the work was controlled by CRC and Sanz. In this respect, 

Sanz’s level of supervision exceeded the bounds necessary merely to coordinate the various 

dynamic and evolving tasks on a construction site, and he played the role of a direct supervisor 

of plaintiffs, a responsibility he shared with Carlos Calderon and Jacinto Cespedes. This factor

weighs in favor of finding that CRC is plaintiffs’ employer.

Fourth, the more permanent the employment relationship, the more likely a court will 

find an employee/employer relationship. Thompson v. Linda And A., Inc., 779 F. Supp. 2d 139, 

150 (D.D.C. 2011). In this case, the plaintiffs did not have a long work history with either JCI or 

CRC, and as reflected in the payroll records, many of the plaintiffs did not work regular hours or 

consistent days on the project. See J. Ex. 11 (Daily Contractor Reports). These facts point to a 

transient working relationship between the plaintiffs and CRC, but “sometimes work[ing]

irregular hours ... does not preclude a finding” of an employment relationship “under the 

economic reality test.” Morrison, 253 F.3d at 12. In any event, even if a “factor tips against 

employee status . . . this single factor is certainly not dispositive.” Thompson, 779 F. Supp. 2d at 

150.

Finally, the plaintiffs performed an integral part of CRC’s work on the Project and, 

thereby, had a significant role in CRC’s business, given Carlos Calderon’s admission that most 

of the work necessary to fulfill the Prime Subcontract was performed by the JCI-affiliated

workers, including the plaintiffs. Pls.’ Ex. 7 (Carlos Calderon Dep.) at 59. This conclusion is 

reinforced by the fact that, after plaintiffs quit working, CRC was unable to complete its work on 
44

the project without bringing in workers who were admittedly its employees, whom CRC 

classified as carpenters on the Project. Trial Tr. at 555. CRC’s fulfillment of its contractual 

obligations depended on the labor the plaintiffs provided and this factor weighs in favor of 

finding CRC to be plaintiffs’ employer under the FLSA.

The totality of the circumstances shows that CRC’s foreman was the plaintiffs’ on-site 

supervisor in control of the plaintiffs’ schedules, tasks and equipment and, further, that Carlos 

Calderon was instrumental in having JCI reclassify workers at lower wage rates and hiring 

undocumented workers, whom both JCI and CRC believed could be underpaid because they 

were not in the country legally. Under the broad reading to be applied to the FLSA as a remedial 

statute, the Court concludes that CRC exercised a significant level of control over the plaintiffs’ 

working conditions and was one of the plaintiffs’ employers on the project. Morrison, 253 F.3d 

at 10.16

(c) Individual Liability of Cespedes and the Calderons

The individual defendants, Jacinto Cespedes and the Calderons, deny that they were the 

plaintiffs’ employers under the FLSA and the District of Columbia labor laws. Nevertheless, 

 16 This conclusion is bolstered by the DOL Settlement Agreement, in which CRC agreed to pay wages owed 

to the plaintiffs and others in a negotiated amount. This agreement expressly states that “[CRC] does not concede it 

employed five (5) of the employees included in Exhibit A,” even though “[t]he WHD continues to assert that these 

five individuals were employed by the Company [CRC] and will distribute back wages to them as owed.” Defs.’ 

Ex. 18 (DOL Settlement Agreement) ¶ 10. By expressly contesting the status as employees of the five named nonplaintiffs, CRC implicitly acknowledged that the remaining employees listed in Exhibit A, among whom are the 

thirteen plaintiffs in this suit, were employed by the Company. CRC disagrees that the DOL Settlement Agreement 

can be construed as an implicit concession that the plaintiffs were its employees because “[t]he issue between 

Whiting-Turner, [CRC] and DOL in regard to the five individuals in para. 10 of the DOL Settlement involved the 

position of [CRC] that these named individuals were subcontractors to [JCI], not employees of [JCI],” CRC’s Resp. 

Minute Order, ECF No. 138 at 3, and the Davis-Bacon Act “essentially creates strict liability for unpaid wages for 

any worker on the Project that is not paid the correct pay rate,” id. This opaque explanation begs the question of 

whether CRC acknowledged the plaintiffs as employees to whom the company owed back wages to resolve the 

WHD investigation, since it merely distinguishes the status of five other individuals. In the Court’s view, CRC’s 

explicit protest as to these five individuals may be construed as an implicit recognition of the company’s obligations 

as an employer to the plaintiffs.
45

“[t]he overwhelming weight of authority is that a corporate officer with operational control of a 

corporation's covered enterprise is an employer along with the corporation, jointly and severally 

liable under the FLSA for unpaid wages.” Ruffin v. New Destination, 800 F. Supp. 2d 262, 269 

(D.D.C. 2011) (citing Donovan v. Agnew, 712 F.2d 1509, 1511 (1st Cir. 1983)); see also Wilson 

v. Hunam Inn, Inc., 126 F. Supp. 3d 1, 5-6 (D.D.C. 2015) (same). In evaluating whether a 

corporate officer has the requisite operational control, the factors relevant to ascertaining 

employer status are relevant as well as the ownership interest of the corporate officer. Ventura,

738 F. Supp. 2d, at 5–6. This is because, first, a “company's profits . . . inure directly to an 

individual with an ownership interest, meaning that the individual “employs” the worker in a 

very concrete and literal sense.” Manning v. Boston Med. Ctr. Corp., 725 F.3d 34, 48 (1st Cir. 

2013); see also Dole v. Elliott Travel & Tours, Inc., 942 F.2d 962, 966 (6th Cir. 1991) (holding 

individual liable where “the evidence clearly demonstrates that [individual] was the ‘top man’ ... 

and the corporation functioned for his profit”). Second, a corporate officer with operational

control has in a very direct sense the ability to “caus[e] the corporation to undercompensate 

employees and to prefer the payment of other obligations and/or the retention of profits.”

Baystate Alternative Staffing, Inc. v. Herman, 163 F.3d 668 (1st Cir. 1998). 

i. The Calderons

Carlos and Ana Calderon, who are President and Vice President, respectively, and the 

sole owners of CRC, do not dispute that they have complete operational control over CRC. 

Second Stips. ¶¶ 4-6. This finding alone weighs heavily in favor of finding that, since CRC is a 

joint employer of the plaintiffs, so too are the Calderons. As the sole owners of CRC, the 

Calderons directly profited from the work performed by, and underpayment of, plaintiffs, and

their decisions regarding payments to JCI directly affected the non-payments to the plaintiffs. 
46

See Manning, 725 F.3d at 48. Moreover, the Calderons both supervised and controlled the 

Project: CRC’s foreman Enrique Sanz reported directly to the Calderons, and Carlos Calderon 

decided the number of workers on-site each day based on Sanz’ recommendation and 

communications from Whiting-Turner. See supra II.C; Pls.’ Ex. 7 (Carlos Calderon Dep.) at 65-

80. Jacinto Cespedes testified that both Carlos and Ana recommended that he lower wages for 

the workers in order to employ workers for more time and less money, Trial Tr. at 346-47, and 

that Carlos Calderon suggested that Cespedes hire undocumented workers to reduce the cost of 

labor for both JCI and CRC, see supra II.E; Trial Tr. at 360-364 (Cespedes testimony that he 

hired undocumented workers “at Calderon’s suggestion.”). 

In terms of their power over wages paid to the plaintiffs, the Calderons controlled the 

payments by CRC to JCI, instructing Enrique Sanz to under-report progress on the project 

resulting in lower payments to JCI. See supra II.E; Trial Tr. at 117. Further, when the plaintiffs

threatened to walk off the Project, Calderon himself met with plaintiffs on at least two occasions 

in an effort to persuade them to remain on the job site by promising to pay the wages owed to 

them for the work performed under CRC’s contract with Whiting-Turner. See supra II.F; Trial 

Tr. at 127-28. Given the Calderons’ strong financial interest in CRC and the significant level of 

control they exercised over plaintiffs’ pay rate, work schedule, on-site tasks, performance 

assessment and continued employment on the Project, either directly or through the Project 

Foreman, whom they directly supervised, the Calderons qualify as plaintiffs’ employers and are 

joint and severally liable for debts owed to the plaintiffs under the FLSA and DC wage laws. 

ii. Jacinto Cespedes

Jacinto Cespedes co-owned JCI with his wife and admits that JCI was the plaintiffs’ 

employer. Trial Tr. at 364; 445. Similar to the Calderons, JCI’s profit was entirely for 
47

Cespedes’s family’s benefit and any financial gains to JCI on the Project also inured to 

Cespedes’ benefit.

17 When Cespedes did not receive enough money to pay the workers and 

compensate himself and JCI, Cespedes chose to retain some of the money he had been paid for 

himself, rather than pay plaintiffs for their unpaid work. See J. Ex. 21 (showing checks to JCI 

from CRC that were cashed even after JCI stopped paying the plaintiffs). As evidenced by his 

admitted failure to pay plaintiffs their full wages at regular intervals, he had the ability “to 

undercompensate employees and to prefer the payment of other obligations and/or the retention 

of profits.” Baystate, 163 F.3d at 668. In addition, Cespedes controlled the hiring of the 

plaintiffs through JCI and participated in their supervision on-site at the Project. Trial Tr. at 246; 

Second Stips. ¶ 1. Cespedes’ role in hiring, supervising and deciding on payments to the 

plaintiffs, along with his ownership with his wife of JCI, a conceded employer of the plaintiffs, 

provides ample evidence that he was their employer and is individually jointly and severable 

liable to plaintiffs, in addition to the CRC defendants and JCI.18

(d) Travelers’ Liability

In pre-trial rulings denying Travelers’ motion to dismiss the claim against it, the Court 

held that the plaintiffs stated a plausible claim against Travelers since they were potential third 

party beneficiaries of the Payment Bond between Travelers and CRC, see Mem. and Order, July 

10, 2013 (“July 2013 Mem. & Order”), at 9, ECF No. 58, and that Travelers’s obligation under 

the bond would be triggered only if CRC “had an obligation to pay the plaintiffs for their work,” 

id. at 11. 19 In other words, “Travelers’ obligation under the payment bond is co-extensive with 

 17 JCI is no longer in existence. Trial Tr. at 394. 18 Cespedes makes the conclusory assertion that the plaintiffs have failed to prove by a preponderance of 

evidence his status as the plaintiffs’ employer under the FLSA. COL – JCI (re: Pls.) at 4-5. As the preceding 

discussion makes clear, the Court disagrees.

19 The Court likewise denied plaintiff’s cross-motion for partial summary judgment on the issue because 

“[a]lthough the Court [held] that the plaintiffs are potential third-party beneficiaries of the payment bond, that does 
48

Calderon’s obligation to pay ‘all persons supplying labor... in the performance of the said 

Contract.’” Id. (quoting J. Ex. 5, Travelers’ Payment Bond at 1). Shortly before trial, Travelers 

and the plaintiffs raised the issue whether Travelers would be liable under the surety bond for 

attorneys’ fees and liquidated damages. Travelers’ Resp. to June 29, 2015 Order, ECF No. 139 

at 4-6; Pls.’ Consol. Resp. to June 29, 2015 Order, ECF No. 145 at 16-18. As noted supra, in 

Part I.C.3, ruling on this issue was reserved until resolution was required by a finding that CRC 

was in fact liable as the plaintiff’s employer under the FLSA, thereby triggering Travelers’ 

obligation under the Payment Bond. Trial Tr. at 78. That time has come. 

Travelers argues that, even if CRC is liable to the plaintiffs as an employer, the surety 

bond between Travelers and CRC does not extend to cover any award of statutory liquidated 

damages or attorneys’ fees. COL Travelers 15-20. As support, Travelers emphasizes that the 

bond covers payments only for “labor,” so would cover only unpaid wages owed by CRC to the 

plaintiffs. COL Travelers at 17-18. This argument is simply not supported by the plain language 

in the Payment Bond and is contrary to binding caselaw. 

The Traveler’s Payment Bond provides surety for CRC in the amount of $929,639.00, 

which “shall inure to the benefit of all persons supplying labor...in the performance of the said 

Contract.” J. Ex. 5, Payment Bond at 2. The “CONDITION OF THIS OBLIGATION” is that 

“it shall remain in full force and effect” if CRC does not “promptly make payments to all persons 

supplying labor...in the performance of said Contract and any and all modifications of said 

Contract that may hereafter be made...” Id. at 1 (capitalization in original). A payment bond 

“must be measured by the conditions stated in the bond.” Goldberg, Marchesano, Kohlman, Inc. 

v. Old Republic Sur. Co., 727 A.2d 858, 860–61 (D.C. 1999); see United States Shipping Bd. 

 

not automatically render Travelers liable to the plaintiffs, regardless” of CRC’s liability. July 2013 Mem. & Order 

at 10.
49

Merchant Fleet Corp. v. Aetna Casualty & Surety Co., 98 F.2d 238, 241 (D.C. Cir. 1938)(“The 

terms of the policy constitute the measure of the insurer's liability . . . .”); accord Hunt Constr. 

Group, Inc. v. Nat'l Wrecking Corp., 587 F.3d 1119, 1120-21 (D.C. Cir. 2009) (applying District 

of Columbia law to interpretation of terms of performance bond). Nothing in Traveler’s 

Payment Bond’s operative language limits the surety’s obligation only to payments owed by 

CRC for “labor” but more broadly covers any payments owed to the “persons supplying labor.”

Certainly, no language in the Payment Bond expressly excludes awards for liquidated damages 

or attorneys’ fees that may otherwise be owed by CRC to beneficiaries such as the plaintiffs.20

The Supreme Court’s decision in United States ex rel. Sherman v. Carter, 353 U.S. 210 

(1957), is instructive, if not dispositive, on this issue, though this precedent was neither cited nor 

discussed by the parties. The Carter Court addressed “the extent of the liability of the surety on 

a payment bond furnished by a contractor, as required by the Miller Act, for the protection of 

persons supplying labor for the construction of federal public buildings,” 353 U.S. at 211, and, 

specifically, considered whether recovery on the bond was limited to “wages” or also covered 

the plaintiffs’ “claim for liquidated damages, attorneys' fees, court costs and other related 

expenses of this litigation,” id. at 220. In Carter, an insolvent contractor on a federal 

construction project failed to pay “required contributions to [a] health and pension fund,” 

 20 A finding that the language of the bond is ambiguous would not help Travelers. “[W]hen ambiguity in 

terms arises, the ‘rule [is] that the obligation is to be construed against the surety and in favor of the beneficiaries of 

the bond.’” A-J Marine, Inc. v. Corfu Contractors, Inc., 810 F. Supp. 2d 168, 188 (D.D.C. 2011) (quoting U.S. 

Plywood Corp. v. Cont'l Cas. Co., 157 A.2d 286, 288 (D.C.1960)); Revere Copper & Brass, Inc. v. Overseas Private 

Inv. Corp., 628 F.2d 81, 82-83 (D.C. Cir. 1980) (noting rule of construction contra proferentem "that ambiguities in 

insurance contracts are resolved favorably to the insured [,which rule] developed in recognition that insurance 

policies are usually written by the insurer, and the insurer ought not be allowed to benefit from any ambiguities in 

the language which it chose”). Thus, any ambiguity in the broad Payment Bond language would be construed to 

favor the plaintiffs and to cover all amounts owed by CRC to the plaintiffs, including unpaid wages, liquidated 

damages and attorneys’ fees.
50

prompting the plaintiffs, as trustees of the pension fund, to seek from the contractor’s surety “the 

balance due . . . plus liquidated damages, attorneys’ fees, court costs and expenses.” Id. at 212.

Using language very similar to that in the Travelers’ Payment Bond at issue here, the 

bond reviewed in Carter “insure[d] prompt payment ‘to all persons supplying labor and material 

in the prosecution of the work provided for in said contract,’" id. at 216 (quoting bond), and 

provided for the surety’s liability “at least coextensive with the obligations imposed by the 

[Miller] Act” for “the bond to have its intended effect” of “meet[ing] the statutory requirement of 

the Act,” id. at 215-16. Noting that “[t]he Miller Act ... is highly remedial in nature,” the 

Supreme Court explained this law “is entitled to a liberal construction and application in order 

properly to effectuate the Congressional intent to protect those whose labor and materials go into 

public projects,” and that the “essence of [the] policy is to provide a surety who. . . must make 

good the obligations of a defaulting contractor to his suppliers of labor and material.” Id. at 216-

217.21 Consequently, the Carter Court rejected the surety’s position that recovery under the 

bond was limited to “wages,” id. at 217, and instead held that the surety was required to 

compensate the employee for unpaid amounts of pension contributions, which were part of the 

workers’ “compensation for labor,” id. at 218. In addition, most pertinent here, the Carter Court 

found the plaintiffs’ claims for “liquidated damages, attorneys' fees, court costs and other related 

expenses of this litigation” to have “equal merit,” since these costs “form a part of the 

consideration which [the contractor] agreed to pay for services performed by his employees” and 

 21 The Carter Court highlighted the statutory obligation, under the Miller Act, 40 U.S.C. § 270a(a)(2), for a 

bond covering “the sum or sums justly due” suppliers of material or labor, as furthering the underlying policy to 

protect workers. 353 U.S. at 212. While the Miller Act does not apply to second tier subcontractors, such as JCI, see

J. W. Bateson Co. v. United States, 434 U.S. 586, 587 (1978) (interpreting the Miller Act, 40 U.S.C. § 270a(a)(2), 

requirement that a prime contractor on a federal construction project post a payment bond to protect those who have 

a direct contractual relationship with either the prime contractor or a "subcontractor," as not applying to a "subsubcontractor"), the FLSA is animated by the identical policy of protecting workers. 
51

“[i]f the employees are to be ‘paid in full’ ... these items must be included.” Id. at 220.22 The 

Court reasoned that the “[a]s long as [the contractor’s] obligations relating to compensation for 

labor have not been satisfied, his employees will not have been ‘paid in full’ and the Miller Act 

will not have served its purpose.” Id. at 218.23 In other words, the surety carries the same 

obligation as the contractor’s payment obligations to workers under applicable law and a bond 

broadly ensuring payments “to all persons supplying labor.” 

Similarly, in Overnight Motor Transp. Co. v. Missel, the Supreme Court held that 

liquidated damages for failure to pay under the FSLA are “compensation[,] not a penalty or 

punishment by the Government.” 316 U.S. 572, 583 (1942), superseded by statute on other 

grounds as recognized in Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 128 (1985). This 

is because “[t]he retention of a workman's pay may well result in damages too obscure and 

difficult of proof for estimate other than by liquidated damages.” Id. at 583–84. While 

Overnight Motor did not concern a surety bond, this decision reinforces the conclusion that 

liquidated damages do not represent a penalty falling outside the scope of the Payment Bond, but 

are part of the compensation owed to plaintiffs for their work on the Project. Exclusion of 

liquidated damages from the amounts plaintiffs may recover for their labor would defeat a key 

purpose of the FLSA, which is to make the plaintiffs whole and avoid the difficult calculation of 

how the nonpayment of wages damaged the plaintiffs. 

 22 The Supreme Court in F. D. Rich Co., Inc. v. United States, 417 U.S. 116, 130-31 (1974), held that an 

award of attorney fees under the Miller Act would ordinarily be an inappropriate abrogation of the American rule, 

and other courts have read F. D. Rich Co. as undermining the attorneys’ fees portion of the holding in Carter. See, 

e.g., Ragan v. Tri-County Excavating, 62 F.3d 501, 514 (3d Cir. 1995). By contrast to the Miller Act, however, the 

FLSA expressly entitles prevailing plaintiffs to recover reasonable attorneys’ fees and reflects the policy that such 

fees contribute to furthering of the statutory policies. See 29 U.S.C. § 216(b) ("The court . . . shall . . . allow a 

reasonable attorney's fee to be paid by the defendant" to a prevailing plaintiff). 23 Although the parties in Carter had expressly stipulated that liquidated damages and attorney fees were 

compensation for labor, 353 U.S. at 220, this was mentioned by the Supreme Court as only a factor, not the principle 

reason for its holding. 
52

This Supreme Court guidance provides strong support for construing the broad language 

in the Payment Bond to cover not only the plaintiffs’ unpaid wages, but also any amounts of 

liquidated damages and attorneys’ fees necessary to make them whole and further the remedial 

purposes of the FLSA. 

Despite this Supreme Court precedent, Travelers seizes on the word “labor” in the 

Payment Bond to argue that this word excludes from the scope of the payment bond any 

liquidated damages or attorneys’ fees that CRC may owe to plaintiffs. COL Travelers at 18

(arguing that “the term ‘labor’ as used in the context of a payment bond means wages for 

physical or manual labor...[and] would not include liquidated damages arising under the FLSA, 

DCWPCA, or DCMWRA.”). As support, Travelers relies heavily on A-J Marine, Inc. v. Corfu 

Contractors, Inc., 810 F. Supp. 2d 168 (D.D.C. 2011), but reliance on this case is misplaced for 

two significant reasons. COL Travelers at 18-19. First, by contrast to the instant case, the FLSA 

and its worker protection policies were not implicated or addressed in A-J Marine, and, 

consequently, interpretation of the bond at issue in that case was divorced from any 

consideration of the requirements in or policies underpinning the FLSA.

Second, the factual context in A-J Marine differs significantly from the case at bar. The 

plaintiff suing on the construction payment bond at issue in A-J Marine had performed no actual 

work on the project, other than mobilization and demobilization of equipment to and from the 

construction site, and the Court held that those costs would in fact have been covered by the 

bond. 810 F. Supp. 2d. at 189 (finding surety “would be liable..., if at all, in the amount of 

$10,000 for mobilization and demobilization’). The A-J Marine Court drew a line, however, and 

rejected the plaintiff’s effort to recover “lost profits deriving from the breach of contract claim 

and not from actual costs incurred,” id. at 187, reasoning, based on the precise language of the 
53

bond, which “contained no express or implied promise to pay breach-of-contract damages,” id. at 

188, that coverage was limited to only work performed and did not cover “work not done,” id. at 

189. In short, A-J Marine’s holding that, under the language of A-J Marine bond, the surety 

would be responsible for work performed but not lost profits on work not done, sheds little light 

here, where the plaintiffs are suing to recover for unpaid wages owed on work actually 

performed and are statutorily entitled to be made whole, through payment of liquidated damages 

and attorneys’ fees. 

Accordingly, Travelers is liable under the Payment Bond for all payments owed by CRC 

to the plaintiffs, who “suppl[ied] labor... in the performance of the said Contract,” and those 

payments include unpaid wages as well as liquidated damages and attorneys’ fees to which the 

plaintiffs’ are entitled. 

* * *

In sum, the evidence at trial proves by a preponderance of the evidence that the CRC 

defendants and the JCI defendants jointly operated as plaintiffs’ employers and are, therefore,

jointly and severally liable for the damages under the FLSA, the DCMWRA and DCWPCL. 

Ventura, 738 F. Supp. 2d at 35. Additionally, since Travelers’ obligation under the Payment 

Bond is co-extensive with CRC’s obligation to any of the plaintiffs, Travelers is liable up to the 

amount of the bond. 

3. Damages

Computation of the damages owed to the plaintiffs under the FLSA begins with the 

simple math of multiplying the hours worked on the Project by the applicable wage rate. See, 

e.g., Ventura, 738 F. Supp. at 23-35 (calculating damages for unpaid wages under the FLSA and 

DCWPCL). While JCI and Jacinto Cespedes admit that the plaintiffs were hired and worked as 
54

carpenters on the Project, FOF Table – Pls. v. JCI at ¶ 88, 125, the CRC defendants and 

Travelers contest the plaintiffs’ classification as “carpenters” and deny that they were entitled to 

Davis-Bacon rate wages for carpentry. See FOF – CRC v. Pls. ¶ 139-156. The Court concludes 

that no matter how DOL would classify the plaintiffs’ correct wage rate, they are entitled to the 

wage rate that they were promised upon being hired and that they reasonably expected applied 

over the duration of their work on the Project.24 The overwhelming evidence is that the

plaintiffs, with the exception of Gerardo Moya and Mario Moya, as discussed infra, had every 

reasonable expectation of being paid at the prevailing wages of a carpenter under the wage rates 

attached to the First Subcontract. Joint Ex. 3 (First Subcontract) at APPENDIX 4.

(a) Applicable Wage Rate 

Jose Cespedes testified that he was directed by Carlos Calderon to hire workers at the 

carpenter wage rate, Trial Tr. at 319; that he hired the plaintiffs at the prevailing wage of 

carpenters, id. at 342-43, 438; that he believed the proper wages for plaintiffs to be those for 

carpenters, id. at 343; and that he completed documentation for invoices showing the plaintiffs’ 

wage rate to be as carpenters, id. at 354-55. Enrique Sanz testified that the plaintiffs never did 

“skilled labor” work on the Project. Id. at 136 (stating “No” in response to question whether 

“[w]as there ever a time on the project whether they did work that you would call skilled labor 

 24 As noted supra, Part I.C.2, the Court deferred ruling on whether jurisdiction to determine the proper

classification of the plaintiffs under the Davis-Bacon Act is vested exclusively in the DOL, as the plaintiffs insist. 

See Pls.’ Mot. Ruling Ct. Jurisdiction, ECF No. 149. The CRC defendants posit that plaintiffs are estopped from 

challenging this Court’s jurisdiction over the worker classification issue. See Defs.’ Opp. To Pls. Mot. Ruling Ct. 

Jurisdiction at 1-2, ECF No. 151. The plaintiffs appear to have the better argument since Davis-Bacon Act sets out a 

comprehensive scheme for determining the rates at which employees are to be paid on “certain federal construction 

contracts,” Universities Research Ass'n, Inc. v. Coutu, 450 U.S. 754, 756 (1981), and requires that disputes over the 

appropriate wage rate classification be resolved administratively within DOL, see 29 C.F.R. § 5.13 (describing as 

“authoritative,” DOL’s final determinations with respect to wage rates, “including the classifications therein”); U.S. 

ex rel. Windsor v. DynCorp, Inc., 895 F. Supp. 844, 852 (E.D. Va. 1995) (holding that disputes about worker 

classifications “must be resolved by the Department of Labor”). Nevertheless, this Court need not resolve whether it 

has jurisdiction to determine the correctness of the plaintiffs’ classification as carpenters, since the prevailing wage 

rate for carpenters under the Davis-Bacon Act would nonetheless apply here. 
55

work?”). Sanz further testified that Carlos Calderon described the workers as carpenters to him. 

Id. at 102 (Carlos Calderon told Sanz “He just said I want to just send you carpenters, you know, 

to the job.”). Ten plaintiffs confirmed at trial, through live testimony and one plaintiff, who 

submitted testimony, that they were hired as carpenters and expected to be paid at that wage rate. 

Id. at 177–78 (testimony of Luis Rocha Moya); 215 (Wilson Perez Zapata), 260–61 (Juan 

Amurio Quiroz), 266 (Jose Lenin Rocha Quiroz), 306–08 (Javier Cespedes Becerra), 190, 195-

96 (Peter Soto) 239 (Edgardo Terceros), 250-51 (Freddy Paz Perez), 292 (Jose Rocha Cespedes), 

302-304 (Samuel Lopez), 575 (stipulation as to Jose Ramiro Perez). Two other plaintiffs, 

Gerardo and Mario Moya, testified that they did solely finishing work. Id. at 282-83 (testimony 

of Gerardo Moya); 273 (testimony of Mario Moya).25 Further, Calderon told the workers on two 

separate occasions that he would pay the workers and made no mention of paying the workers at 

less than the rate to which they believed they were entitled. Trial Tr. at 374 (testimony of Jose 

Cespedes); id. at 122, 126-128 (testimony of Enrique Sanz); id. at 278-281 (Mario Moya).

Indeed, after the plaintiffs left the Project site for nonpayment of their wages, CRC brought in 

substitute workers to do comparable work and those substitute workers were classified and paid 

as carpenters. Id. at 133-134.

In the face of this overwhelming evidence that the eleven carpenter plaintiffs reasonably 

expected to be paid at the prevailing wage for carpenters, the CRC defendants have offered no 

evidence that this belief was either incorrect or unreasonable, or that this valuation of plaintiffs’ 

labor was inconsistent with the value of the labor CRC and JCI actually received. 

 25 While there is some conflicting evidence in the record as to what work the Moyas performed, see, e.g.,

Trial Tr. at 124 (Sanz testifying that Moyas did carpentry at the beginning and then finishing work stating “They 

carpenters”), the direct testimony of the Moyas is most persuasive on this issue. See id. at 273 (Mario Moya 

responding “No” to being asked if he did “any other work” on the project other than finishing work); id. at 283 

(Gerardo Moya testifying that “me and my brother[‘s]” work “entails drywall finishing” and that he did “finishing 

the entire time on the D.C. courts project”).
56

In sum, the eleven carpenter plaintiffs are entitled to their expected wage of $33.88 per 

hour for their work, and $39.57 per hour for overtime work. The two plaintiffs who testified that 

they worked solely as finishers, however, are not entitled to carpenter wages because they neither 

expected to be paid as carpenters nor did they do work that would merit carpenter wages. They 

are, under the same logic, entitled to the rate at which a finisher would expect to be paid on the 

project, or $32.50 per hour and $36.96 per hour for overtime work. J. Ex. 3 at APPENDIX 4

(setting wage rate for “drywall finisher[s]”). Using these wages and the unpaid hours plaintiffs 

worked, the Court calculates that the total amount in wage-related damages owed to the plaintiffs 

is $307,613.88, comprised of $153,806.94 in unpaid regular and overtime hours and an equal 

amount, $153,806.94, in liquidated damages, less the amount paid to the plaintiffs as a result of 

the settlement agreement, $100,014.54, for a total of $207,599.34 in damages.

26 The 

computation of damages owed to each plaintiff is summarized below.

(b) Damages For Each Plaintiff

Based on the parties’ stipulations, see First Stips. ¶ 4, the findings of fact and the 

conclusions as to the applicable wage rates, the total unpaid wages and liquidated damages to 

which each plaintiff is entitled to recover from the defendants are summarized below.

i. Javier Cespedes

Plaintiff Javier Cespedes worked 403 straight time hours and no overtime hours, for a 

total of 403 hours, from April 23, 2011 to November 11, 2011. J. Ex. 10; J. Ex. 12. Multiplying 

the total hours by the wage rate of $33.38 per hour, Javier Cespedes should have been paid

 26 The FLSA also requires a court to grant attorneys’ fees to prevailing plaintiffs. 29 U.S.C.A. § 216 (“The 

court in [an FLSA] action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable 

attorney's fee to be paid by the defendant, and costs of the action.”). The parties are directed to submit to the Court a 

joint status report on whether agreement on the amount of attorneys’ fees has been reached and, if not, a proposed 

schedule for briefing on this issue.
57

$13,452.14. See Consolidated Summary Chart. Javier Cespedes was paid $9,258.92, leaving 

unpaid wages owed in the amount of $4,193.22. This plaintiff is also entitled to liquidated 

damages in an amount equal to compensatory damages, minus an offset for the $3,683.55 

already awarded to him under the DOL Settlement Agreement, resulting in a total amount owed 

to Javier Cespedes of $4,702.89.

ii. Jose Cespedes Rocha

Plaintiff Jose Cespedes Rocha worked 963 straight time hours and 48 overtime hours, for 

a total of 1011 hours, from May 7, 2011 to November 15, 2011. J. Ex. 10; J. Ex. 12. 

Multiplying the total hours by the wage rate of $33.38 per hour and $39.57 per hour for overtime 

work, Rocha should have been paid $34,044.30. See Consolidated Summary Chart. Rocha was 

paid $14,667.28, leaving unpaid wages owed in the amount of $19,377.02. This plaintiff is also 

entitled to liquidated damages in an amount equal to compensatory damages, minus an offset for 

the $13,963.30 already awarded to him under the DOL Settlement Agreement, resulting in a total 

amount owed to Cespedes Rocha of $24,790.74.

iii. Samuel Lopez

Plaintiff Samuel Lopez worked 270 straight time hours and 8 overtime hours, for a total 

of 278 hours, from August 12, 2011 to October 14, 2011. J. Ex. 10; J. Ex. 12. Multiplying the 

total hours by the wage rate of $33.38 per hour and $39.57 per hour of overtime work, Lopez 

should have been paid $9,329.16. See Consolidated Summary Chart. Lopez was paid $5,840.60, 

leaving unpaid wages owed in the amount of $3,488.56. This plaintiff is also entitled to 

liquidated damages in an amount equal to compensatory damages, minus an offset for the 

$2,042.67 already awarded to him under the DOL Settlement Agreement, resulting in a total 

amount owed to Lopez of $4,934.45.
58

iv. Gerardo Moya

Plaintiff Gerardo Moya worked 728 straight time hours and 96 overtime hours, for a total 

of 824 hours, from July 9, 2011 to November 15, 2011. J. Ex. 10; J. Ex. 12. Multiplying the 

total hours by the wage rate of $32.50 per hour and $36.96 per hour for overtime work, Gerardo 

Moya should have been paid $27,208.16. See Consolidated Summary Chart. Gerardo Moya was 

paid $10,235.44, leaving unpaid wages owed in the amount of $16,972.72. This plaintiff is also 

entitled to liquidated damages in an amount equal to compensatory damages, minus an offset for 

the $8,354.20 already awarded to him under the DOL Settlement Agreement, resulting in a total 

amount owed to Gerardo Moya of $25,591.24.

v. Luis Rocha

Plaintiff Luis Rocha worked 1055 straight time hours and no overtime hours, for a total 

of 1055 hours, from April 9, 2011 to October 21, 2011. J. Ex. 10; J. Ex. 12. Multiplying the 

total hours by the wage rate of $33.38 per hour and $39.57 per hour for overtime work, Luis 

Rocha should have been paid $35,215.90. See Consolidated Summary Chart. Luis Rocha was 

paid $24,228.88, leaving unpaid wages owed in the amount of $10,987.02. This plaintiff is also 

entitled to liquidated damages in an amount equal to compensatory damages, minus an offset for 

the $9,442.80 already awarded to him under the DOL Settlement Agreement, resulting in a total 

amount owed to Luis Rocha of $12,531.24.

vi. Mario Moya 

Plaintiff Mario Moya worked 736 straight time hours and 98 overtime hours, for a total of 

834 hours, from July 9, 2011 to November 18, 2011. J. Ex. 10; J. Ex. 12. Multiplying the total 

hours by the wage rate of $32.50 per hour and $36.96 per hour in overtime pay, Mario Moya 

should have been paid $27,542.08. See Consolidated Summary Chart. Mario Moya was paid 
59

$5,592.56, leaving unpaid wages owed in the amount of $21,949.52. This plaintiff is also 

entitled to liquidated damages in an amount equal to compensatory damages, minus an offset for 

the $13,917.41 already awarded to him under the DOL Settlement Agreement, resulting in a total 

amount owed to Mario Moya of $29,981.63.

vii. Freddy Paz Perez

Plaintiff Freddy Paz Perez worked 272 straight time hours and no overtime hours, for a 

total of 272 hours, from September 3, 2011 to October 21, 2011. J. Ex. 10; J. Ex. 12. 

Multiplying the total hours by the wage rate of $33.38 per hour and $39.57 per hour for overtime 

work, Paz Perez should have been paid $9,079.36. See Consolidated Summary Chart. Paz Perez

was paid $2,954.56, leaving unpaid wages owed in the amount of $6,124.80. This plaintiff is 

also entitled to liquidated damages in an amount equal to compensatory damages, minus an 

offset for the $3,056.37 already awarded to him under the DOL Settlement Agreement, resulting 

in a total amount owed to Paz Perez of $9,193.23.

viii. Jose Ramiro Perez

Plaintiff Jose Ramiro Perez worked 136 straight time hours and no overtime hours, for a 

total of 136 hours, from September 3, 2011 to October 21, 2011. J. Ex. 10; J. Ex. 12. 

Multiplying the total hours by the wage rate of $33.38 per hour, Ramiro Perez should have been 

paid $4,539.69. See Consolidated Summary Chart. Perez was paid $1,688.32, leaving unpaid 

wages owed in the amount of $2,851.36. This plaintiff is also entitled to liquidated damages in 

an amount equal to compensatory damages, minus an offset for the $1,523.78 already awarded to 

him under the DOL Settlement Agreement, resulting in a total amount owed to Ramiro Perez of 

$4,178.94.
60

ix. Wilson Perez-Zapata

Plaintiff Wilson Perez-Zapata worked 552 straight time hours and 30 overtime hours, for 

a total of 582 hours, from August 6, 2011 to November 15, 2011. J. Ex. 10; J. Ex. 12. 

Multiplying the total hours by the wage rate of $33.38 per hour and $39.57 per hour for overtime 

work, Perez-Zapata should have been paid $19,612.86. See Consolidated Summary Chart. 

Perez-Zapata was paid $1,688.32, leaving unpaid wages owed in the amount of $17,924.54. This 

plaintiff is also entitled to liquidated damages in an amount equal to compensatory damages, 

minus an offset for the $11,945.46 already awarded to him under the DOL Settlement 

Agreement, resulting in a total amount owed to Perez-Zapata of $23,903.62.

x. Jose Lenin Rocha

Plaintiff Jose Lenin Rocha worked 759 straight time hours and 8 overtime hours, for a 

total of 767 hours, from April 9, 2011 to November 15, 2011. J. Ex. 10; J. Ex. 12. Multiplying 

the total hours by the wage rate of $33.38 per hour and $39.57 per hour for overtime work, Lenin 

Rocha should have been paid $25,651.98. See Consolidated Summary Chart. Lenin Rocha was 

paid $16,406.44, leaving unpaid wages owed in the amount of $9,245.54. This plaintiff is also 

entitled to liquidated damages in an amount equal to compensatory damages, minus an offset for 

the $4,769.97 already awarded to him under the DOL Settlement Agreement, resulting in a total 

amount owed to Lenin Rocha of $13,721.11.

xi. Juan Amurrio Quiroz

Plaintiff Juan Amurrio Quiroz worked 1127 straight time hours and 8 overtime hours, for 

a total of 1135 hours, from April 9, 2011 to November 18, 2011. J. Ex. 10; J. Ex. 12. 

Multiplying the total hours by the wage rate of $33.38 per hour and $39.57 per hour for overtime 

work, Quiroz should have been paid $37,935.82. See Consolidated Summary Chart. Quiroz was 
61

paid $13,195.56, leaving unpaid wages owed in the amount of $24,740.26. This plaintiff is also 

entitled to liquidated damages in an amount equal to compensatory damages, minus an offset for 

the $16,064.48 already awarded to him under the DOL Settlement Agreement, resulting in a total 

amount owed to Quiroz of $33,416.04.

xii. Peter Soto

Plaintiff Peter Soto worked 623 straight time hours and 8 overtime hours, for a total of 

631 hours, from July 16, 2011 to November 15, 2011. J. Ex. 10; J. Ex. 12. Multiplying the total 

hours by the wage rate of $33.38 per hour and $39.57 per hour for overtime work, Soto should 

have been paid $21,112.30. See Consolidated Summary Chart. Soto was paid $8,547.12, 

leaving unpaid wages owed in the amount of $12,565.18. This plaintiff is also entitled to 

liquidated damages in an amount equal to compensatory damages, minus an offset for the 

$8,633.17 already awarded to him under the DOL Settlement Agreement, resulting in a total 

amount owed to Soto of $16,497.19

xiii. Edgardo Pablo Terceros

Plaintiff Edgardo Pablo Terceros worked 262 straight time hours and 8 overtime hours, 

for a total of 270 hours, from August 6, 2011 to October 14, 2011. J. Ex. 10; J. Ex. 12. 

Multiplying the total hours by the wage rate of $33.38 per hour and $39.57 per hour for overtime 

work, Terceros should have been paid $9,062.12. See Consolidated Summary Chart. Terceros 

was paid $5,674.92, leaving unpaid wages owed in the amount of $3,387.20. This plaintiff is 

also entitled to liquidated damages in an amount equal to compensatory damages, minus an 

offset for the $2,617.38 already awarded to him under the DOL Settlement Agreement, resulting 

in a total amount owed to Terceros of $4,157.02.
62

B. DEFENDANTS’ CROSS-CLAIMS

The JCI and CRC defendants raise various cross-claims against each other arising from 

alleged failures to provide payment or services under the First and Second Subcontract, including 

breach of contract, indemnification, and contribution claims. JCI further claims that the subsubcontracts are not enforceable because they are illegal, unconscionable, subject to a unilateral 

mistake, or were obtained by way of bad faith or fraud. The Court finds that the subcontracts 

between CRC and JCI are illegal and unenforceable as against public policy and that, as the 

parties are in pari delicto, the cross-claims should be denied as moot. 

While the two subcontracts appear to be facially valid, the circumstances under which 

they were executed and the manner in which they were implemented renders them void for 

illegality, as enforcement of the subcontracts would be against public policy. Illegal contracts 

will not be enforced, “not out of any regard for the defendant who sets it up, but only on account 

of the public interest." Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 77-78 (1982). When a 

contract “arises out of circumstances that would lead enforcement to offend” a fundamental 

purpose of a remedial statute “the inquiry must be whether the sanction of nonenforcement is 

consistent with and essential to effectuating the public policy embodied in” the statute. United 

States v. Mississippi Valley Generating Co., 364 U.S. 520, 562-563 (1961). 

Under District of Columbia law, which is applicable to the cross-claims between the 

defendants, “[i]t is a long-standing principle ... that when parties have entered into an illegal 

contract, such contract is unenforceable and, typically, we leave the parties where we find them.”

McMahon v. Anderson, Hibey & Blair, 728 A.2d 656, 658-659 (D.C. 1999) (collecting cases); 

see also Fields v. Hunter, 368 A.2d 1156, 1158-1159 (D.C. 1977) ("The general rule is that an 

illegal contract, made in violation of a statutory prohibition designed for police or regulatory 
63

purposes, is void and confers no right upon the wrongdoer." (quoting Hartman v. Lubar, 133 

F.2d 44, 45 (D.C. Cir. 1942)); accord Truitt v. Miller, 407 A.2d 1073, 1079-1080 (D.C. 

1979)(contracts “made in violation of a licensing statute designed to protect the public will 

usually be considered void and unenforceable”). This fate of illegal contracts applies even when 

the consideration proffered by each party is legal, but the means by which the parties intend to 

fulfill the contract is illegal. 15-89 Corbin on Contracts § 89.2 (“A bargain may be improper by 

reason of the wrongful purpose of one or both of the parties in making it. This is true even 

though the performances bargained for are not in themselves contrary to public policy and even 

though the bargain would be valid and enforceable in the absence of the improper purpose.”).

A party to an illegal contract may still be entitled to some form of relief, however, if that 

party is not in pari delicto, that is, where the party does not bear “substantial fault for his injury” 

as a result of “concurring in an illegal act.” Bateman Eichler, Hill Richards, Inc. v. Berner, 472 

U.S. 299, 307 (1985). In contrast, when neither party to an unenforceable contract is blameless

but similarly at fault, they are in pari delicto and neither is entitled to any recovery since these 

parties have forfeited their right to protection at law or in equity in the matter. United States v. 

Farrell, 606 F.2d 1341, 1348–49 (D.C. Cir. 1979) (noting under the doctrine of in pari delicto 

“[n]either party to an illegal contract will be aided by the court, whether to enforce it or set it 

aside. If the contract is illegal, affirmative relief against it will not be granted, at law or in equity 

. . .” (internal citation omitted)); see also Official Comm. of Unsecured Creditors of Allegheny 

Health Educ. & Research Found. v. PriceWaterhouseCoopers, LLP, 989 A.2d 313, 329 (Pa. 

2010) (holding the doctrine of in pari delicto “requires the plaintiff be an active, voluntary 

participant in the wrongful conduct or transaction(s) for which it seeks redress, and bear 

substantially equal or greater responsibility for the underlying illegality as compared to the 
64

defendant” (citation omitted)). This denial of relief is premised on two grounds: “first, that 

courts should not lend their good offices to mediating disputes among wrongdoers; and second, 

that denying judicial relief to an admitted wrongdoer is an effective means of deterring 

illegality.” Bateman Eichler, 472 U.S. at 306 (1985).

Three facts inform the Court’s holding that the subcontracts are illegal and that their 

enforcement would be contrary to public policy. First, the circumstances surrounding the 

formation of the subcontracts: Carlos Calderon sought out Jose Cespedes to be his subsubcontractor for the carpentry work on the Project, had him execute the First Subcontract 

without showing him the plans for the Project or the full scope of the work required, and 

encouraged him to execute the document written in English on the spot, even though Cespedes 

did not read or speak English and after Cespedes had already started work on the Project. Trial 

Tr. at 324, 435-36. Moreover, the evidence shows that Carlos Calderon intentionally tried to 

obfuscate the scope of the work required under the Subcontracts, going so far as to not show 

Jacinto Cespedes parts of the Project when offering him the job, Trial Tr. at 315, 383-84, and 

refusing to show Cespedes the plans for the Project, despite his requests, id. at 322 (“So then I 

asked him for the plans and he didn't want to give me the plans.); id. at 331 (“We had discussed 

this with Carlos Calderon already and he had said that he wasn't going to give us any of the 

plans... and there was more work to be done than anticipated.”). Nevertheless, the subcontracts 

required JCI to do almost all of CRC’s work on the Project while only paying JCI approximately 

one quarter of the amount CRC was to receive under the Prime Subcontract. Mem. & Order 

(Mar. 30, 2015) at 9, ECF No. 108. This huge discrepancy between the monies to be paid under 

the First Subcontract and the Prime Subcontract shows that at the outset of the subcontracting 

relationship between CRC and JCI, CRC was setting up a situation in which JCI would likely be 
65

unable to afford to pay for the labor to complete the full scope of the work. Indeed, CRC claims 

that the cost “to complete the work left to be finished” in November 15, 2011 was 

“$200,879.96,” CRC’s COL at 10, an amount that is more than the entire sum CRC promised 

JCI under the first contract, $191,099.10, J. Ex. 2 at 4, and barely less than the total CRC 

promised to JCI under both subcontracts, $230,409.10. J. Ex. 3 at 4. CRC does not explain why 

the cost of the remaining work on the project was almost equal to the total contract price

promised to JCI before the project began. 

Second, both CRC and JCI engaged in accounting practices that were intended to 

misrepresent work done in order to make CRC or JCI money. Ana Calderon directed employees 

to manipulate invoices and work progress orders with the intent to “keep for the company” 

twenty percent, id. at 117, and CRC sent these incorrect invoices to the general contractor for the 

purpose of underpaying its own subcontractor, id. at 116, 175 (Testimony of Enrique Sanz); id.

at 550 (Edgar Butler). With the encouragement of the Calderons, Jacinto Cespedes also 

reclassified his workers without any discussion with those employees of the work they did, id. at 

345-47, and did so in order to pay them less than the amount to which they were legally entitled, 

id. at 450-52. After attempting to reclassify his employees without their knowledge for the 

purpose of underpaying them, Cespedes then underpaid or failed to pay his workers for weeks of 

work on the Project. First Stips. ¶ 4 (parties stipulating as to which weeks Cespedes failed to pay 

workers). Even Edgar Butler feared that submission of the Certified Payrolls with incorrect 

classifications of the workers would amount to fraud. Trial Tr. at 555.

Third, with the encouragement of Carlos Calderon, Cespedes hired undocumented 

workers to perform some of JCI’s duties on the Project, which itself is illegal. 8 U.S.C. § 

1324a(a)(1)(A) (“It is unlawful for a person . . . to hire . . . an alien knowing the alien is an 
66

unauthorized alien . . . with respect to such employment.”). Cespedes hired these workers with 

the intent to underpay them, Trial Tr. at 360, 362, and, with CRC’s foreman’s help, used other 

employees’ badges to bypass screening mechanisms to sneak them onto the project site, id. at 

414. 

The multiple illegal means employed by both the JCI and CRC defendants, including 

underpayment and nonpayment of workers, altering information so that incorrect reports were 

submitted to the general contractor, unilateral re-classification of workers mid-job, hiring of 

undocumented workers, and sneaking unauthorized workers onto the Project site, all with the 

purpose of putting more money into their own pockets, brings the defendants’ cross-claims 

within the doctrine of illegal contracts. To enforce the provisions of the Subcontracts against 

either party would amount to sanctioning this conduct, thereby encouraging deception on the part 

of federal contractors, and rewarding the underpayment of workers and the hiring of 

undocumented workers on federal construction projects.

For the same reasons, it is clear that the JCI defendants and the CRC defendants are in 

pari delicto. Even assuming that CRC had superior bargaining power, expertise in federal 

contracting, and knowledge of the Project, the JCI and CRC defendants were equal participants

in the conduct that leads the Court to find the subcontracts unenforceable as against public 

policy. See Farrell, 606 F.2d 1348–49. These acts, which include among other things CRC’s 

tactics around the formation of the subcontracts; CRC’s intentional underpayment of JCI for its 

work; the JCI defendants’ unilateral and unjustified reclassification of its workers and the CRC 

defendants’ complicity in this action; the JCI defendants’ hiring, again with the CRC defendants’

complicity, of undocumented workers with the intent to underpay them; and JCI and CRC’s 

attempts to sneak unauthorized individuals onto the Project site, all provide ample evidence that 
67

the defendants were “voluntary participant[s] in the wrongful conduct” for which they seek 

redress, and that they “bear substantially equal . . . responsibility for the underlying illegality.” 

Allegheny Health Educ. & Research Found., 989 A.2d at 329. 

Both the JCI and CRC defendants engaged in acts against public policy to increase their 

gain from the project, at the expense of the workers on the project, and they specifically targeted

vulnerable individuals to exploit to save on labor costs. All of these actions were taken in 

furtherance of the construction required under the contract, and given both parties’ participation 

in these acts, the JCI and CRC defendants are in pari delicto and this Court will not lend its 

“good office[]” to “mediating disputes among [these] wrongdoers.” Bateman Eichler, 472 U.S. 

at 306 (1985).

27 

* * *

In sum, the Court holds that the First and Second Subcontracts between JCI and CRC are 

unenforceable, and because both parties are in pari delicto and are not entitled to relief at law or 

in equity from this Court, their cross-claims are denied as moot. Thus, the parties are left as the 

Court found them. McMahon, 728 A.2d at 658.

 27 A further reason to deny the defendants any equitable relief is the doctrine of “unclean hands,” which 

“closes the doors of a court of equity to one tainted with inequitableness or bad faith.” Precision Instrument Mfg. 

Co. v. Auto. Maint. Mach. Co., 324 U.S. 806, 814 (1945); see also Armenian Genocide Museum & Mem'l, Inc. v. 

Cafesjian Family Found., Inc., 691 F. Supp. 2d 132, 159 (D.D.C. 2010) (“Unclean hands is an equitable doctrine 

committed to the Court's discretion.”). “Courts have discretion to deny equitable relief where there is a direct link 

between plaintiffs' unethical behavior and the underlying obligation that formed the basis of the lawsuit.” 

Monument Realty LLC v. Washington Metro. Area Transit Auth., 540 F. Supp. 2d 66, 82 (D.D.C. 2008). The 

unethical behavior at issue here is directly related to the performance of the subcontracts and, therefore, for the 

same reasons that the Court finds the subcontracts are unenforceable as against public policy and that the defendants 

are in pari delicto, the Court finds that the defendants have unclean hands and declines to grant them any equitable 

relief. 
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IV. CONCLUSIONS

The foregoing findings of fact and conclusions of law entitle the plaintiffs to recover their 

unpaid wages, as well as statutory liquidated damages in an amount equal to their unpaid wages

and reasonable attorneys’ fees. Since the CRC and JCI defendants were plaintiffs’ joint 

employers, and Travelers’ liability is coextensive with that of CRC, all defendants are joint and 

severally liable for payment of the unpaid wages, liquidated damages and reasonable attorneys’ 

fees. The parties are directed to submit to the Court, by January 13, 2017, a joint status report on 

whether an agreement on the amount of attorneys’ fees has been reached and, if not, a proposed 

schedule for briefing on this issue.

The cross-claims between the JCI and CRC defendants are denied as moot since 

enforcement of the two subcontracts between the defendants would be contrary to public policy. 

Date: December 22, 2016

__________________________

BERYL A. HOWELL

Chief Judge