1

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

JOSE ARMANDO ANDRADE 

ROMERO, et al. 

 Plaintiffs, 

 

v. 

RBS CONSTRUCTION CORP., et 

al., 

 Defendants.

Civ. Action No. 18-00179 (EGS) 

MEMORANDUM OPINION

I. Introduction 

Plaintiffs Jose Armando Andrade Romero and Victorino 

Marroquin (collectively “Plaintiffs”) bring this case against 

Defendants RBS Construction Corp., RBS Group Inc., RBS Group 

Investments LLC, Albertino Silveira, and Ellen Lima 

(collectively “Defendants”), alleging that Defendants failed to 

properly compensate them for hours worked and for overtime 

earned. See generally Compl., ECF No. 1. The case arises under 

the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201; the 

District of Columbia Payment and Collection of Wages Law 

(“DCPCWL”), D.C. Code § 32-1301; and the District of Columbia 

Minimum Wage Revision Act (“DCMWRA”), D.C. Code § 32-1001. 

Defendants have filed a motion seeking summary judgment, see 

Defs.’ Mem. of P. & A. in Supp. of Mot. for Summ. J. (“Defs.’ 
2

MSJ”), ECF No. 38; in response to which Plaintiffs have filed a 

cross-motion for partial summary Judgment, see Pls.’ Cross-Mot. 

for Partial Summ. J. (“Pls.’ XMSJ”), ECF No. 42. In addition, 

Defendants move to strike exhibits filed by Plaintiffs in their 

reply in support of their cross-motion. See Defs.’ Mot. to 

Strike, ECF No. 48. 

Upon consideration of the motions, responses, and the 

replies thereto, the applicable law and regulations, the entire 

record and the materials cited therein, the Court GRANTS IN PART

and DENIES IN PART the Defendants’ Motion for Summary Judgment, 

ECF No. 38; GRANTS IN PART and DENIES IN PART Plaintiffs’ CrossMotion for Summary Judgment, ECF No. 42; and GRANTS IN PART and 

DENIES IN PART the Motion to Strike, ECF No. 48. 

II. Factual and Procedural Background 

This case arises out of Defendants’ alleged failure to 

properly compensate Plaintiffs for hours worked and for overtime 

earned under the FLSA, DCPCWL, and DCMWRA. See generally Compl. 

ECF No. 1. Defendant RBS provides remodeling and general 

construction services to residential homeowners in Maryland and 

the District of Columbia (“D.C.”). See id. ¶ 4; Defs.’ Counter 

Stmt. Of Material Facts (“DSMF”), ECF No. 44-1 ¶ 10. Plaintiffs 

allege that Defendants Mr. Silveira and Ms. Lima are Officers, 

Directors, and owners or RBS, and use RBS to perform 

construction and remodeling services at properties in D.C. and 
3

Maryland which they purchase, renovate and resell. See Compl., 

ECF No. 1 ¶¶ 4-5; DSMF, ECF No. 44-1 ¶¶ 6-12. Defendants admit 

that Ms. Lima is listed as an owner and director of RBS Group 

and RBS Construction Corp., and that she is officially the Vice 

President of RBS Group, see id. ¶¶ 1, 3, 11; however, they state 

that Ms. Lima, the spouse of Defendant Silveira, is a full-time 

real estate agent, and is not involved in Mr. Silveira’s 

business, “except for occasionally writing a check for Defendant 

Silveira or receiving work hours from workers.” Defs.’ MSJ, ECF 

No. 38 at 7.1 

Plaintiffs allege that RBS, which in incorporated in 

Maryland, meets the definition of “Enterprise Engaged in 

Commerce” under 29 U.S.C. § 203 (s)(1), because: (1) it either 

has employees engaged in commerce or the production of goods for 

commerce or it has employees handling, selling, or otherwise 

working on goods or materials that have been moved in or 

produced for commerce; and (2) it has a gross volume of sales 

made or business done of not less than $500,000.00 (exclusive or 

excise taxes at the retail level that are separately stated). 

Compl., ECF No. 1 ¶ 4. Defendants counter that the gross annual 

1 When citing to electronic filings throughout this Memorandum 

Opinion, the Court generally cites to the ECF header page 

number, not the original page number of the filed document. The 

exception is deposition testimony, for which the citations are 

to the page of the deposition transcript. 
4

revenue of RBS Group Corporation was $204,736.02 in 2016 and 

$252,775.05 in 2017, excepting funds received from returned 

checks and the sale of Defendants’ home. See Exhibit 1, Silveira 

Decl., ECF No. 38-2 ¶ 5. Defendants state that they have never 

had more than $500,000 per year in gross sales. Id. ¶ 6. 

Plaintiff Andrade, a resident of D.C., and Plaintiff 

Marroquin, a resident of Maryland, were both employed by 

Defendants as laborers/carpenters. Compl., ECF No. 1 ¶¶ 7-8; 

DSMF, ECF No. 44-1 ¶ 44. Plaintiffs allege they performed home 

remodeling services for the Defendants including drywall and 

simple carpentry, pouring concrete, and removing debris and old 

drywall from properties. Id. Plaintiffs state that Mr. Andrade 

was employed full-time from approximately June 2016 to January 

2017, and part-time until December 2017, see DSMF, ECF No. 44-1 

¶ 14; while Mr. Marroquin was employed from approximately July 

2016 to October 2016, id. ¶ 12. Defendants, however, contend 

that as per Mr. Andrade’s own Answers to Interrogatories, he 

worked from June 2016 to about January 1, 2017, and then between 

October 2017 and December 2017. See DSMF, ECF No. 44-1 ¶ 14. As 

to Mr. Marroquin, Defendants assert that he testified he did not 

recall the exact date he began working between July 20, 2016 and 
5

July 27, 2016. See Transcript of Victorino C. Marroquin 

(“Marroquin Dep.”), ECF No. 44-3 at 47-48.2 

Mr. Andrade states he was paid an hourly rate of $13 for 

his first two months of work, and then $14 per hour. See Exhibit 

H, Pl. Jose Armando Andrade’s Answers and Amended Objections to 

Defendant RBS Construction Corp.’s First Set of Interrogatories 

(“Andrade Interrogatories”), ECF No. 42-9 at 15-16. However, 

Defendant Silveira testified that Plaintiff Andrade started at 

$12 per hour and then received a raise to $13 per hour. 

Deposition of Albertino Assis Silveira (“Silveira Dep.”), ECF 

No. 44-6 at 70; 187. Mr. Marroquin’s wage is similarly disputed, 

with Plaintiffs arguing he was paid $14 per hour, see DSMF, ECF 

No. 44-1 ¶ 106; and Defendants countering that he was paid $13 

per hour. See Defs.’ Opp’n, ECF No. 44 at 28. 

Plaintiffs allege that they spent more than half their time 

working for the Defendants at sites located in D.C., and 

consistently worked more than forty hours per week. Compl., ECF 

No. 1 ¶¶ 7-8. They state that they worked between five and six 

days per week, and twelve to fifteen hours per day, see DSMF, 

ECF No. 44-1 ¶ 108; although Defendants dispute the evidence 

Plaintiffs provide, see id. Plaintiffs also assert that 

Defendants would inform them each day about the location of the 

2 This argument is splitting hairs, since July 24, 2016, the date 

used by Plaintiffs, is midway between July 20 and July 27. 
6

day’s job site, provide them with a schedule of hours, and 

instruct them on their specific duties. Compl., ECF No. 1 ¶ 10. 

They state that Defendants provided them with the construction 

materials needed or instructed them to pick up the materials and 

transport them to the work site. Id. ¶ 11; see also DSMF, ECF 

No. 44-1 ¶ 69. They add that Defendants would inspect the job 

sites daily or ask Plaintiffs to send photos of the completed 

work. See Compl., ECF No. 1 ¶ 11. They also state that 

Defendants did not keep track of the hours that Plaintiffs 

worked each day, which Defendants admit. Id. ¶ 12; DSMF, ECF No. 

1 ¶ 48. The Defendants, however, refute Ms. Lima’s involvement 

in managing or overseeing any of the work. See Defs.’ MSJ, ECF 

No. 38 at 7. 

Plaintiffs allege they were not paid on any fixed schedule, 

nor paid in relation to the hourly work wage they were promised. 

Compl., ECF No. 1 ¶ 13. Instead, Plaintiffs state they were paid 

sporadically in cash and usually after having complained about 

not being compensated for hours worked. Id. Defendants do not 

dispute the cash payments. See Defs.’ MSJ, ECF No. 38 at 8; 

DSMF, ECF No. 41-1 ¶¶ 56, 73. Plaintiffs allege that, based on 

records Mr. Andrade kept in his notebook, he was paid 

approximately $8,300 during the time period which is the subject 

of this Complaint. See Compl., ECF No. 1 ¶¶ 14-15; DSMF, ECF No. 

41-1 ¶ 59. Plaintiffs claim that Mr. Marroquin was paid 
7

approximately $2,500, although they provide no written records 

in support. See Compl., ECF No. 1 ¶¶ 14-15; DSMF, ECF No. 41-1 ¶ 

60. Defendants challenge the amount Plaintiffs state they were 

paid, arguing that Plaintiffs do not present a valid basis for 

their calculations. See DSMF, ECF No. 44-1 ¶ 59-60, 93. However, 

defendants do not have any records of their own as to the 

amounts paid. See generally id.

Plaintiffs allege that Defendants: (1) failed to compensate 

them for all the regular hours they worked; (2) failed to pay 

them at the promised rate for all hours worked; (3) failed to 

pay any compensation at all for the hours worked in excess of 40 

hours each work week; and (4) failed to comply with the 

statutory record-keeping and notice requirements of the DCPCLW 

and the DCMWRA. Compl., ECF No. 1 ¶ 8. Specifically, they allege 

that Plaintiff Andrade worked approximately 550 hours of 

straight time and 438 hours of overtime for which he was never 

paid, and Plaintiff Marroquin worked approximately 340 hours of 

regular hours and 283 hours of overtime for which he was never 

paid. Id. ¶ 16-17; see also Exhibit T, Wage Calculation 

Victorino Marroquin (“Marroquin Wage Calculation”), ECF No. 42-

21; Exhibit U, Jose Andrade Romero Wage Calculation (“Romero 

Wage Calculation”), ECF No. 42-22.3 Defendants, however, argue 

3 The documents provided by Plaintiffs include their respective 

handwritten records of the hours and days worked for the 
8

that Plaintiffs can only guess as to what their damages are and 

what they were paid. See Defs.’ MSJ, ECF No. 38 at 8-11. 

Plaintiffs brought suit in this Court on January 26, 2018. 

Defendants subsequently filed a motion for summary judgment, see 

Defs.’ MSJ, ECF No. 38; in response to which Plaintiffs filed a 

cross-motion for partial summary judgment, see Pls.’ XMSJ, ECF 

No. 42. Plaintiff also filed a brief opposing the Defendants’ 

motion. See Pls.’ Mem. of P. & A. in Opp’n to Defs.’ Mot. for 

Partial Summ. J. and in Supp. of Pls.’ Cross-Mot. for Partial 

Summ. J. (“Pls.’ Opp’n”), ECF No. 43.4 Defendants then filed a 

consolidated opposition and reply. See Defs.’ Consolidated Reply 

to Pls.’ Opp’n to Defs.’ Mot. for Summ. J. and Defs.’ Opp’n to 

Pls.’ Cross-Mot. for Partial Summ. J. (“Defs.’ Opp’n”), ECF No. 

44. After Plaintiffs filed their own reply, see Pls.’ Reply in 

Supp. of Cross-Mot. for Partial Summ. J. (“Pls.’ Reply”), ECF 

No. 46; Defendants motioned to strike the exhibits submitted in 

Plaintiff’s reply, see Defs.’ Mot. to Strike, ECF No. 48. 

Plaintiffs opposed, see Pls.’ Opp’n to Mot. to Strike (“Pls.’ 

Defendants. See Marroquin Wage Calculation, ECF No. 42-21 at 6-

11; Andrade Wage Calculation, ECF No. 42-22 at 11-20. Mr. Romero 

also recorded the payments he received. See Exhibit U, ECF No. 

42-22 at 20. Mr. Marroquin, however, provides no basis for the 

hours for which he was allegedly paid, other than his testimony. 

See DSMF, ECF No. 44-1 ¶ 60. 

4 This brief is identical to the Plaintiffs’ cross motion for 

summary judgment, ECF No. 42. 
9

Opp’n to MTS”), ECF No. 50; and Defendants replied, see Defs.’ 

Reply to Pls.’ Opp’n to Defs.’ Mot. to Strike (“Defs.’ Reply to 

MTS”), ECF No. 51. The motions are ripe and ready for 

adjudication. 

III. Standard of Review 

A. Summary Judgment 

Federal Rule of Civil Procedure 56 provides that summary 

judgment motions must be granted if “there is no genuine dispute 

as to any material fact and the movant is entitled to judgment 

as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The moving party 

bears the initial burden “of informing the district court of the 

basis for its motion, and identifying those portions of ‘the 

pleadings, depositions, answers to interrogatories, and 

admissions on file, together with the affidavits, if any,’ which 

it believes demonstrate the absence of a genuine issue of 

material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 

(1986); see also Fed. R. Civ. P. 56(c)(1). This burden “may be 

discharged by ‘showing’ . . . that there is an absence of 

evidence to support the nonmoving party’s case.” Celotex, 477 

U.S. at 325. 

In evaluating a summary judgment motion, “[t]he evidence of 

the non-movant is to be believed, and all justifiable inferences 

are to be drawn in his favor.” Liberty Lobby, 477 U.S. at 255 
10

(quoting Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59 

(1970)). Summary judgment turns on “whether the evidence 

presents a sufficient disagreement to require submission to a 

jury or whether it is so one-sided that one party must prevail 

as a matter of law.” Id. at 251-52. “[I]f the evidence is such 

that a reasonable jury could return a verdict for the nonmoving 

party”–and thus a “genuine” dispute over a material fact exists–

then summary judgment is not available. Id. at 248. 

For purposes of summary judgment, materiality is determined 

by the substantive law of the action. Id. Accordingly, the 

substantive law identifies “which facts are critical and which 

facts are irrelevant,” and “[o]nly disputes over facts that 

might affect the outcome of the suit under the governing law 

will properly preclude the entry of summary judgment.” Id. 

Similarly, the applicable substantive evidentiary standards of 

the action guide “whether a given factual dispute requires 

submission to a jury.” Id. at 255. The Court’s role at the 

summary judgment stage “is not . . . to weigh the evidence and 

determine the truth of the matter but to determine whether there 

is a genuine issue for trial.” Id. at 249. 

1. Determining Employer Status Under the FLSA 

 Courts in this District use a four-part test to determine 

whether an individual is an employer under the FLSA: does the 

putative employer “1) have hiring and firing authority, 2) 
11

supervise and schedule employee work hours or conditions of 

employment, 3) determine the rate and method of payment, and 4) 

maintain employment records?” Saint-Jean v. District of Columbia 

Public Schools Div. of Transp., 815 F. Supp. 2d 1, 4 (D.D.C. 

2011) (citing Morrison v. Int'l Programs Consortium, Inc., 253 

F.3d 5, 11 (D.C. Cir. 2001)). “No one factor standing alone is 

dispositive and courts are directed to look at the totality of 

the circumstances and consider any relevant evidence.” Morrison, 

253 F.3d at 11. Corporate officers and owners are individually 

liable under the FLSA (and therefore D.C. wage laws) when they 

engage in a certain level of operational control. See Wilson v. 

Hunam Inn, Inc., 126 F. Supp. 3d 1, 6 (D.D.C. 2015) (“Corporate 

officers are liable as employers under the FLSA as long as the 

officer acts, or has the power to act, on behalf of the 

corporation vis-à-vis its employees.”). “To determine whether a 

corporate officer has operational control, the [c]ourt looks at 

the factors [of the economic reality test] plus the ownership 

interest of the corporate officer.” Orellana v. NBSB Inc., 332 

F. Supp. 3d 252, 263 (D.D.C. 2018). “A Defendant’s ownership 

interest in an employer corporation, while not dispositive of 

employer status under FLSA, certainly raises a plausible 

inference that the individual possessed the requisite 

“operational control” over the covered entity.” Wilson, 126 F. 

Supp. 3d at 7-8. Courts in other circuits have emphasized that 
12

financial control over a corporation is a significant factor in 

determining whether an individual meets the statutory definition 

of an employer. See, e.g., Donovan v. Grim Hotel, 747 F.2d 966, 

972 (5th Cir. 1984)(imposing liability on a majority shareholder 

who “held [corporations'] purse strings and guided their 

policies”); Dole v. Elliott Travel, 942 F.2d 962, 966 (6th Cir. 

1991) (finding that the majority owner “controlled the purse 

strings”); Manning v. Boston Medical Center Corp., 725 F.3d 34, 

48 (1st Cir. 2013)(internal citation and quotation marks 

omitted)(“[T]he case law's emphasis on ownership and financial 

control is sensible because these factors suggest a strong 

degree of authority over the corporation's finances and, as a 

corollary, the ability to caus[e] the corporation to 

undercompensate employees and to prefer the payment of other 

obligations and/or the retention of profits.”). 

2. Determining Coverage Under the FLSA 

To claim relief under the FLSA, an employee must first 

establish that that his employment relationship is subject to 

coverage under the FLSA. Benton v. Laborers' Joint Training 

Fund, 121 F. Supp. 3d 41, 49 (D.D.C. 2015). Coverage can be 

either: (1) enterprise coverage; or (2) individual coverage. 

Tony & Susan Alamo Found., 471 U.S. at 295 n. 8 (1985). A given 

employee may have coverage under either or both theories. 

Benton, 121 F. Supp. 3d at 49. Plaintiffs bear the burden of 
13

establishing FLSA coverage. See D.A. Schulte, Inc., v. Gangi, 

328 U.S. 108, 120 (1946) (“The burden of proof that rests upon 

employees to establish that they are engaged in the production 

of goods for commerce must be met by evidence in the record.”). 

For individual coverage to apply under the FLSA, the 

Plaintiffs must provide evidence that they were: (1) engaged in 

commerce; or (2) engaged in the production of goods for 

commerce. Benton, 210 F. Supp. 3d at 106 (citing 29 U.S.C. § 

207(a)(1)).5 A plaintiff may show they are “engaged in commerce” 

by showing that they are employed in industries that “serve as 

the actual instrumentalities and channels of interstate and 

foreign commerce,” such as the telephone, transportation, or 

shipping industries. Id. Alternately, a plaintiff may show that 

are employed in a type of business that “regularly utilize[s] 

the channels of interstate and foreign commerce in the course of 

their operations,” such as the banking, insurance, or publishing 

industries; or by showing that she directly participates in the 

actual movement of people or goods in interstate commerce.” Id. 

(citing 29 C.F.R. § 776.10). “The fact that all of [an 

5 Since Plaintiffs claim individual coverage under the first 

prong, i.e., they allege that they were engaged in commerce, 

that is where the Court directs its attention. See Pls.’ XMSJ, 

ECF No. 42 at 31. 
14

employer’s] business is not shown to have an interstate 

character is not important. The applicability of the [FLSA] is 

dependent on the character of the employees' work.” Walling v. 

Jacksonville Paper Co., 317 U.S. 564, 571-72 (1943) (citations 

omitted). “The test under [the FLSA], to determine whether an 

employee is engaged in commerce, is not whether the employee's 

activities affect or indirectly relate to interstate commerce 

but whether they are actually in or so closely related to the 

movement of the commerce as to be a part of it.” McLeod v. 

Threlkeld, 319 U.S. 491, 497 (1943). U.S. Department of Labor 

regulations address the issue of employees who travel across 

state lines for work as follows: 

If the employee transports material or 

equipment or other persons across State lines 

or within a particular State as a part of an 

interstate movement, it is clear of course, 

that he is engaging in commerce. And as a 

general rule, employees who are regularly 

engaged in traveling across State lines in the 

performance of their duties (as distinguished 

from merely going to and from their homes or 

lodgings in commuting to a work place) are 

engaged in commerce and covered by the Act. On 

the other hand, it is equally plain that 

an employee who, in isolated or sporadic 

instances, happens to cross a State line in the 

course of his employment, which is otherwise 

intrastate in character, is not, for that sole 

reason, covered by the Act. 

29 C.F.R. § 776.12 (footnotes omitted). 
15

3. Calculating Damages Under the FLSA 

The employee has the burden of proving damages under FLSA. 

Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946), 

superseded by statute on other grounds, Portal-to-Portal Act of 

1947. “When the employer has kept proper and accurate records 

the employee may easily discharge his burden by securing the 

production of those records.” Id. However, “where the employer's 

records are inaccurate or inadequate and the employee cannot 

offer convincing substitutes,” a burden-shifting scheme applies. 

Id. Under this scheme, an employee carries his burden to prove 

damages and makes out a prima facie case if: (a) “he proves that 

he has in fact performed work for which he was improperly 

compensated”; and (b) “he produces sufficient evidence to show 

the amount and extent of that work as a matter of just and 

reasonable inference.” Id. The burden then shifts to the 

employer to produce “evidence of the precise amount of work 

performed” or to negate “the reasonableness of the inference to 

be drawn from the employee's evidence.” Id. at 687-688. “If the 

employer fails to produce such evidence, the court may then 

award damages to the employee, even though the result be only 

approximate.” Id. at 688. A defendant employer is not entitled 

to summary judgment on the issue of damages because they 

challenge the sufficiency or reasonableness of a plaintiff’s 

evidence; rather, such situations present a dispute of material 
16

fact which require credibility determinations to resolve. See 

Escamilla v. Nuyen, 200 F. Supp. 3d 114, 123 (D.D.C. 2016) 

(denying summary judgment where defendants presented evidence to 

contest reasonableness of plaintiffs estimate of hours worked 

per week.); Hunter v. Sprint Corp., 453 F. Supp. 2d 44, 53 

(D.D.C. 2006) (holding that summary judgment is not the proper 

vehicle to challenge the reasonableness of the employee’s 

evidence about hours worked, because such disputes require 

credibility determinations and are reserved for the trier of 

fact); Zirintusa v. Whitaker, 674 F. Supp. 2d 1, 6 (D.D.C. 2009) 

(denying summary judgment where plaintiff produced evidence of 

hours worked in the form of her affidavit testimony and a chart 

of her estimated hours worked); Batres Guevara v. Ischia, Inc., 

47 F. Supp. 3d 23, 27–28 (D.D.C. 2014) (denying summary judgment 

where plaintiffs offered three depositions in support of their 

overtime claim and defendant offered five affidavits against 

it). 

B. Motion to Strike 

It is well-established that new issues, arguments, and 

evidence “may not be raised for the first time in a reply 

brief.” Rollins Envtl. Servs. V. EPA, 937 F.2d 649, 652 n. 2 

(D.C. Cir. 1991); see also McBride v. Merrell Dow and 

Pharmaceuticals, Inc., 800 F.2d 1208, 1210 (D.C. Cir. 1986) (“We 

generally will not entertain arguments omitted from an 
17

appellant’s opening brief and raised initially in his reply 

brief.”); Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) 

(“[W]here new evidence is presented in a reply to a motion for 

summary judgment, the district court should not consider the new 

evidence without giving the non-movant an opportunity to 

respond.”) (quoting Black v. TIC Inv. Corp., 900 F.2d 112, 116 

(7th Cir. 1990)); BMW of N. Am., LLC v. WIN.IT Am., Inc., No. 

CV178826PSGMRWX, 2019 WL 926326, at *7 (C.D. Cal. Jan. 25, 2019) 

(declining to consider certified translations of an agreement 

produced with a reply brief without giving the opposing party an 

opportunity to object or respond). If a court accepts a Reply 

containing new evidence and the opposing party has no 

opportunity to respond, that court cannot rely on the new 

material in deciding a motion for summary judgment. See Beaird 

v. Seagate Technology, Inc., 145 F.3d 1159, 1164 (10th Cir. 

1998) (“Having accepted the reply brief, the district court in 

fact had two permissible courses of action. It could either have 

permitted a surreply or, in granting summary judgment for the 

movant, it could have refrained from relying on any new material 

contained in the reply brief.”). 

IV. Analysis 

Defendants make a number of arguments in their motion for 

summary judgment. First, they argue that Plaintiffs neither work 

for a covered enterprise nor are individually covered under the 
18

FLSA. See Defs.’ MSJ, ECF No. 38 at 13. Next, they argue that 

Ms. Lima is not an employer under the FLSA. Id. at 17. Third, 

they contend that Plaintiffs cannot establish their damages by a 

just and reasonable inference. Id. at 20. Finally, they argue 

that the Court should decline supplemental jurisdiction over any 

remaining DC law claims. Id. at 25. 

In their cross-motion for summary judgment, Plaintiffs 

raise similar issues. First, they argue that Ms. Lima and Mr. 

Silveira are individually liable as Plaintiff’s employers under 

the FLSA and DC’s own wage laws. Pls.’ XMSJ, ECF No. 42 at 10. 

Second, they argue that they have established their damages as a 

matter of just and reasonable inference and defendants have no 

evidence to dispute their inference. Id. at 23. Finally, they 

argue that even if no FLSA claim survives, the Court should 

exercise supplemental jurisdiction over the state law claims in 

the interest of fairness and judicial economy. Id. at 37. In 

their Motion to Strike, Defendants object to the affidavits 

submitted by the respective Plaintiffs in their cross-motion for 

summary judgment and their reply. See generally Defs.’ MTS, ECF 

No. 48. Defendants seek to strike Plaintiffs’ entire Reply to 

Defendants’ Counter-Statement of Material Facts (“RSMF”), ECF 

No. 47; the Plaintiffs’ respective affidavits, ECF No. 46-1; and 

the translator’s declaration as to the affidavits, ECF No. 46-2. 

See Defs.’ MTS, ECF NO. 48 at 6. Given the overlapping nature of 
19

the arguments in Defendants’ motion for summary judgment, and 

Plaintiffs’ cross-motion, the Court considers the arguments 

together, by each issue raised. First, however, the Court 

considers evidentiary challenges posed by the defendants, 

including their motion to strike. 

A. Admissible Evidence 

In their cross-motion for summary judgment, Plaintiffs file 

affidavits for Mr. Andrade and Mr. Marroquin respectively, see 

ECF Nos. 42-19, 42-20; which defendants oppose as inadmissible 

hearsay. See Defs.’ Opp’n, ECF No. 44 at 22. Defendants argue 

that the declarations are unreliable because they are in 

English, a language Plaintiffs do not speak, and lack an oath 

from an interpreter as to the affidavits being translated for 

Plaintiffs. Id. at 22-23. Defendants also argue that even if the 

affidavits could be properly authenticated and translated, they 

are inadmissible because they contradict prior sworn testimony. 

Id. at 26. In response, Plaintiffs provide Spanish language 

versions of the affidavits, and an affidavit from Ms. Aguilar, 

an employee of Plaintiff’s counsel who speaks Spanish and 

affirms she read the affidavits to Plaintiffs. See Exhibit A, 

ECF No. 46-1; Exhibit B, Affidavit of Maria Aguilar (“Aguilar 

Affidavit”), ECF No. 46-2. Plaintiffs also assert that the 

affidavits are admissible even if they are hearsay because they 

are based on Plaintiffs’ own testimony and are consistent with 
20

prior testimony. Pls.’ XMSJ, ECF No. 42 at 15-16. Plaintiffs 

also put forth a Reply to the Defendants’ Counter-Statement of 

Material Facts, see RSMF, ECF No. 47, which contains alternate 

citations to testimony in the record (in addition to the 

affidavits), and argue that the Court should use the alternate 

citations in the reply if it rejects the affidavits. Id. at 16. 

Defendants move to strike Plaintiffs entire Reply to the 

Defendants’ Counter-Statement of Material Facts, ECF No. 47; the 

Plaintiffs’ respective affidavits, ECF No. 46-1; and Ms. 

Aguilar’s declaration regarding translation, ECF No. 46-2. See 

Defs.’ MTS, ECF No. 48 at 6. Defendants further challenge the 

admissibility of Plaintiffs’ handwritten time records, and of 

Plaintiffs’ reliance on their own answers to interrogatories to 

support factual assertions. ECF No. 44-1 ¶ 2. The Court 

considers each of the evidentiary challenges Defendants have 

posed in turn. 

1. Plaintiff’s Affidavits Are Admissible 

In their Motion to Strike, Defendants ask that the Court 

strike Plaintiffs’ Spanish affidavits, Ms. Aguilar’s 

declaration, and Plaintiffs’ Reply to Defendants’ Counter 

Statement of Material Facts in Dispute. See Defs.’ MTS, ECF No. 

48 at 5. Defendants challenge the affidavits in a variety of 

ways. Defendants contend that because Plaintiffs’ declarations 

appear for the first time in a Reply, they have had “no 
21

opportunity to challenge the accuracy of the translations or the 

qualifications of the translator.” Defs.’ MTS, ECF No. 48 at 4. 

Plaintiffs also challenge Ms. Aguilar’s competence as a 

translator, and thereby her declaration and the Plaintiffs’ 

declarations. Id. at 6. Defendants also directly challenge the 

contents of the affidavit, arguing that they are inadmissible 

because they implicate the sham-affidavit rule and conflict with 

prior testimony. See Defs.’ Opp’n, ECF No. 44 at 25.6 The Court 

addresses each of these three objections in turn. 

a. Defendants Have Had an Opportunity to 

Challenge the New Affidavits 

Defendants argue that because the Declarations appear for 

the first time in a Reply, they have had no opportunity to 

challenge either the accuracy of the translations or the 

qualifications of the translator. See Defs.’ MTS, ECF No. 48 at 

4. They add that “where Plaintiffs made factual assertions that 

cited to the declarations in their statement of facts, 

Defendants responded based only on the information on hand at 

the time, which did not include these new declarations.” Id. 

Defendants assert they have a right to respond to the new 

6 Defendants had previously objected to the affidavits based on a 

violation of Federal Rule of Evidence 604, arguing that they are 

inadmissible hearsay translations. See Defs.’ Opp’n, ECF No. 44 

at 23. However, Plaintiffs then submitted Spanish language 

translation along with a translator’s declaration, and 

defendants did not renew this argument. See generally Defs.’ 

MTS, ECF No. 48. The Court therefore finds this argument moot. 
22

declarations and to supplement their Counter-Statement of Facts 

to account for the evidence and new citations proffered by the 

Plaintiffs. Id. at 5. They add that Plaintiffs have provided no 

reason this new evidence was not produced with the initial 

motion, and there is little reason to incorporate the new 

evidence. Id. Plaintiffs respond that Defendants have failed to 

articulate any prejudice they would suffer if the citations are 

considered by the Court. See Pls.’ Opp’n to Defs.’ MTS, ECF No. 

50 at 3. They state that the Spanish affidavits contain no new 

information or facts from the English affidavits submitted in 

the Plaintiffs’ cross-motion. Id. They add that the RSMF does 

not include any “new evidence” that was not included in the 

Plaintiffs’ Counter Statement of Disputed Facts, see ECF No. 48 

at 3-4; and that Defendants do not identify any new evidence or 

the prejudice it would lead to. The Court is persuaded by 

Plaintiffs’ argument. 

Where a party has an opportunity to respond to evidence 

that may otherwise be objectionable, or does in fact respond, 

there is no prejudice to that party and striking such evidence 

is not proper. See Phillips v. Mabus, 319 F.R.D. 36, 38 (D.D.C. 

2016) (declining to exercise authority to strike late filed 

summary judgment motions because there was no prejudice to the 

Defendants because they would have an opportunity to respond to 

respond to late filed briefs); Campbell v. Natl. R.R. Passenger 
23

Corp., 311 F. Supp. 3d 281, 318 (D.D.C. 2018) (denying motion to 

strike part of reply brief where new arguments were sufficiently 

addressed in the motion to strike itself); Parker v. D.C., Civ. 

Act. No. 05-0188(RWR), 2006 WL 1442383, at *2 (D.D.C. May 22, 

2006) (denying motion to strike untimely reply brief because 

there was no prejudice to other party). In the present case, 

Defendants have had an opportunity to respond, and indeed, have 

responded, in both their joint reply and opposition brief, see 

ECF No. 44; and their motion to strike, see ECF No. 48. It is 

disingenuous for the Defendants to argue that they have had “no 

opportunity to challenge the accuracy of the translations or the 

qualifications of the translator,” while proceeding to do 

exactly that in their motion to strike. Defendants’ challenges 

to the translator, and to the mode of translation, have been 

sufficiently addressed in the motion to strike itself. See 

infra; cf. Campbell, 311 F. Supp. 3d at 318. Defendants have 

also challenged the contents of the new affidavits. See Defs.’ 

Opp’n, ECF No. 44 at 25. 

Nor does the Court see a need for Defendants to either 

strike Plaintiffs’ RSMF or to permit Defendants to supplement 

their Counter-Statement of Facts for purposes of summary 

judgment. The Defendants have already included citations to the 

affidavits in their Counter-Statement. See DSMF, ECF No. 44-1 ¶ 

38. Defendants do not suggest that there are any new details 
24

presented in the Spanish language versions of the affidavits, 

attached to Plaintiff’s reply, see ECF No. 46-1; that would 

require additional citations. As to Plaintiffs’ new citations in 

their Reply to Defendants’ Counter-Statement, see ECF No. 47; 

these citations are not to new evidence but to the existing 

summary judgment record in case the Court rejected the 

affidavits. The Plaintiffs had included citations for the 

affidavits in their Statement of Material Facts Not in Dispute, 

see ECF No. 44-28; which pre-dated the reply, see ECF No. 47. 

Plaintiffs Reply to Defendants’ Counter-Statement, see ECF No. 

47; supplements the affidavit citations with the existing record 

in case the affidavits are rejected. As Plaintiffs point out, 

the Defendants’ position on this point is particularly strange 

given that Defendants do the same thing they accuse the 

Plaintiffs of doing in their own reply. See ECF No. 44-2 at ¶¶ 

8, 10, 12, 17, 22-29, 33, 36, 56, 63, 69, 75 (including new 

citations that were not in their original Statement of Material 

Facts not in Dispute). The Court concludes that Defendants had 

an opportunity to, and indeed did, challenge the affidavits, and 

that there is no need to strike the Plaintiffs’ Reply to 

Defendants’ Counter-Statement of Material Facts, ECF No. 47; on 

the basis of its additional citations. 
25

b. Ms. Aguilar’s Declaration is Admissible 

Defendants argue that the Court lacks sufficient evidence 

to conclude that Ms. Aguilar is a “competent translator,” and 

therefore should not rely on her declarations or accept the 

Plaintiffs’ affidavits. Defs.’ MTS, ECF No. 48 at 6. The 

Defendants add that Ms. Aguilar did not act as a translator in 

the traditional sense because Google Translate was used to 

provide the translation while Ms. Aguilar merely interpreted the 

language for Plaintiffs. Id. Plaintiffs respond that Defendants 

fail to point to any inaccuracies or inconsistencies in the two 

translations and are free to submit them to the scrutiny of 

their own interpreter. See Pls.’ Opp’n to Defs.’ MTS, ECF No. 50 

at 9. Plaintiffs also state that the affidavits are not clearly 

inconsistent with prior testimony. See Pls.’ XMSJ, ECF No. 42 at 

16. The Court concludes that Ms. Aguilar’s declaration is 

admissible. 

Persuasive authority holds that “[i]f the declarant himself 

does not speak and read English the party relying on his 

English-language declaration must also submit documents 

sufficient to establish that he understood what he was signing.” 

Sicom S.P.A. v. TRS Inc., 168 F. Supp. 698, 709 (S.D.N.Y. 2016). 

Moreover, Federal Rule of Evidence 604 requires that “[a]n 

interpreter must be qualified and must give an oath or 

affirmation to make a true translation.” Jack v. Trans World 
26

Airlines, Inc., 854 F.Supp. 654, 659 n.4 (N.D. Cal. 1994) 

(striking affidavits from a summary judgment briefing and 

holding that “[w]itness testimony translated from a foreign 

language must be properly authenticated and any interpretation 

must be shown to be an accurate translation done by a competent 

translator.” (citing Fed. R. Evid. 604 and 901)). Here, Ms. 

Aguilar is a native Spanish speaker, and has stated in her 

affidavit that she regularly interprets during client meetings 

at Plaintiffs’ counsel’s Firm, even though she is not a 

certified translator. See Exhibit B, Aguilar Affidavit, ECF No. 

46-2. Plaintiffs have therefore shown she is qualified and have 

submitted her affirmation of translation. See Trans World 

Airlines, 854 F.Supp. at 659 n.4. The Defendants provide no 

legal authority suggesting that the Court needs to be aware of 

her education, and have more specifics of her background, to 

find her a “competent translator.” Defs.’ MTS, ECF No. 48 at 6. 

Nor do Defendants present any case law from within this District 

that would prevent Ms. Aguilar’s affidavit from satisfying 

Federal Rule of Evidence 604. See generally id. 

It is true that other courts have been hesitant of the 

reliability of Google Translate. See, e.g., Novelty Textile, 

Inc. v. Windsor Fashions, Inc., 2013 WL 1164065 at *3 (C.D. 

Cal., Mar. 20, 2013) (“The court notes, first, that a 

translation by Google Translate is not sufficiently reliable to 
27

make it admissible.”). However, those cases are not applicable 

here since Ms. Aguilar affirms that she reviewed the English and 

Spanish versions of the affidavits to make sure the Google 

translation was accurate and read the Spanish affidavits to 

Plaintiffs before they were signed. See Exhibit B, Aff. Of Ms. 

Aguilar, ECF No. 46-2. The Court therefore concludes that Ms. 

Aguilar’s affidavit should not be struck from the record. The 

Court cannot find that Plaintiffs’ affidavits are inadmissible 

simply by virtue of being interpreted by Ms. Aguilar.

c. The Affidavits Do Not Violate the Sham 

Affidavit Rule 

The Court turns next to Defendants’ direct objections to 

Plaintiffs’ affidavits. The Court addresses each of the alleged 

inconsistencies between the affidavits and prior testimony, 

which the defendants argue violate the sham affidavit rule. This 

rule states that a deponent cannot file a “contradictory postdeposition affidavit in an attempt to fabricate a material issue 

of fact and thus preclude the granting of summary judgment.” 

Jackson v. Teamsters Local Union, 922, 310 F.R.D. 179, 181 

(D.D.C. 2015) (citing Pyramid Securities Ltd. v. IB Resolution, 

Inc., 924 F.2d 1114, 1123 (D.C. Cir. 1991) (“Where a party 

emphatically and wittingly swears to a fact, it bears a heavy 

burden–even in the summary judgment context–when it seeks to 

jettison its sworn statement.”)). For the doctrine to apply, 

“the affidavit must clearly contradict prior sworn testimony, 
28

rather than clarify confusing or ambiguous testimony, and the 

contradiction must lack credible explanation, such as new 

evidence.” St. Paul Mercury Ins. Co. v. Capitol Sprinkler 

Inspection, Inc., 573 F. Supp. 2d 152, 160-61 (D.D.C. 2008) 

(quoting Hinch v. Lucy Webb Hayes Nat’l Training Sch., 814 A.2d 

926, 930 (D.C. 2003)). It is insufficient that a subsequent 

affidavit elucidates on some “forgotten” fact; the contradiction 

must be direct and clear. See Barrett v. Chreky, 634 F. Supp. 2d 

33, 37 (D.D.C. 2009). 

Defendants first claim that Plaintiff Andrade’s affidavit 

testimony about his hourly rate being $13, which he states was 

later raised to $14, contradicts his deposition testimony that 

the rate was $13 throughout. Defs.’ Opp’n, ECF No. 44 at 26-27. 

However, as Plaintiffs point out, in deposition, Defendants 

questioned Mr. Andrade about his meeting with Mr. Silveira when 

he was first hired and asked if he was promised any specific 

amount of money at this meeting, to which Mr. Andrade testified 

to $13 per hour. See Transcript of Jose A. Andrade Romero 

(“Andrade Dep.”), ECF No. 44-4 at 22-23. This is entirely 

consistent with Mr. Andrade’s former testimony as to his 

starting wage. Defendants counsel never asked Mr. Andrade if his 

hourly rate changed from $13.00. See id. Therefore, the sham 

affidavit rule is not implicated. See St. Paul, 573 F. Supp. 2d 

at 160-61; see also Barrett, 634 F. Supp. 2d at 37 (finding no 
29

violation of the sham-affidavit rule because the plaintiff did 

not “directly contradict herself” in her supplemental 

affidavit). Defendants next argue that Mr. Andrade’s deposition 

testimony that he received “about five” payments from Mr. 

Silviera contradicts his hand-written notes that he received 

only two payments: one of $2,100 from Mr. Zapata and one of 

$6,200 from Mr. Cornego, for a total of $8,300. Defs.’ Opp’n, 

ECF No. 44 at 27. The question for the Court, however, is not 

whether Mr. Andrade’s deposition testimony contradicts his handwritten notes, but instead whether his affidavit contradicts his 

prior deposition testimony. Mr. Andrade’s deposition testimony 

was that he was paid a total of $8,300, and that he received 

individual payments on five separate occasions but could not 

recall the precise dates or amount of each payment. ECF No. 42-

10 at 33-36, 56-60. Mr. Andrade’s affidavit similarly states 

that he was paid $ 8,300. See Andrade Affidavit, ECF No. 42-19 

¶ 2. There is thus no inconsistency between Mr. Andrade’s 

affidavit and his deposition testimony as to the payments he 

received.7 

7 As to the alleged discrepancy between the deposition testimony 

and the notebook, the Court is cognizant that Mr. Andrade never 

testified that he was paid on just two occasions. See Andrade 

Dep., ECF No. 44-4 at 58. Admittedly, Mr. Andrade’s notation in 

his handbook suggests he used two inputs to arrive at the total 

amount he was paid, i.e., $8,300, see ECF No. 42-22 at 20; and 

the Court agrees with Defendants that it is unclear how these 
30

Next, Defendants turn to Mr. Marroquin, and claim that his 

“damage calculations are in direct conflict with his testimony,” 

because he “repeatedly changed the amount he believed he was 

owed, originally stating that he was owed just $8,000, but later 

changing it to $10,000.” Defs.’ Opp’n, ECF No. 44 at 28. 

Defendants do not explain whether they mean the damage 

calculations in Mr. Marroquon’s affidavit, or refer to the 

affidavit at all, but the Court gives them the benefit of the 

doubt and assumes they mean the $10,355.50 in unpaid wages Mr. 

Marroquin references in his affidavit. See Marroquin Affidavit, 

ECF No. 42-20 ¶ 4. By Defendant’s own admission, Mr. Marroquin 

stated he was owed $10,000 in his deposition. Other than 

providing a more precise figure, the Court is unable to see how 

the $10,355.50 mentioned in the affidavit is at all inconsistent 

with the $10,000 in the deposition. The Court concludes there is 

no “direct and clear” contradiction. See Barrett, 634 F. Supp. 

2d at 37.8 

two numbers align with the five payments Mr. Andrade states he 

received, and whose amounts he cannot recall. See Andrade Dep., 

ECF No. 44-4 at 57-60. However, the Court cannot assume that 

this handbook notation means those two inputs represent just two 

payments instead of an amalgamation of payments for specific job 

sites, for instance. The Court also observes that, contrary to 

Defendants’ assertion, see Defs.’ Opp’n, ECF No. 44 at 27; the 

notebook does not establish that Mr. Andrade was paid the listed 

amounts by Mr. Zapata and Mr. Cornego. See ECF No. 42-22 at 20. 

8 Defendants further argue that Mr. Marroquin contradicted 

himself when he testified about his damages in deposition 
31

Defendants also point to an inconsistency between the $14 

hourly rate used in the affidavit and mentioned in Mr. 

Marroquin’s deposition, in contrast to the $13 hourly rate 

mentioned in Plaintiffs' statement of undisputed facts. Compare 

Marroquin Dep., ECF No. 44-3 at 28 with Plaintiffs’ Statement of 

Material Facts (“PSMF”), ECF No. 42-28, ¶ 45. Plaintiffs explain 

this inconsistency as reflecting an error in the Plaintiff’s 

Statement of Undisputed Facts, with the correct number being $14 

per hour. See Pls.’ XMSJ, ECF No. 42 at 18. As defendants point 

out, this in turn creates a conflict with Mr. Silveira’s 

testimony that Mr. Marroquin’s hourly rate was $13. See Defs.’ 

Opp’n, ECF No. 44 at 28. Relevant here, regardless of the error, 

there is no inconsistency between the affidavit and the 

deposition that would lead to the affidavit being inadmissible. 

Finally, defendants take issue with Mr. Marroquin’s damage 

calculations, which they argue are inadmissible hearsay because 

they rely exclusively on his own declaration and hand-written 

notes to support his number of hours worked. See Defs.’ Opp’n, 

because he could not provide details about how his damages were 

calculated, nor provide a “clear basis” for how he calculated 

how much he was paid by defendants. This argument has nothing to 

do with a contradiction between the affidavit and deposition 

testimony and is therefore not addressed here. The Court is 

cognizant, however, that the Mt. Clemens burden shifting 

standard applies, as discussed infra, since the employers did 

not record employee hours or payments. 
32

ECF No. 44 at 29. Again, defendants provide no citation, but the 

Court assumes they mean the damage calculations referred to in 

Mr. Marroquin’s affidavit, see Marroquin Affidavit, ECF No. 42-

20 ¶ 4; and attached to the Plaintiff’s Cross-Motion, see id. at 

3-7. The Court has already addressed the issue of whether these 

documents are inadmissible hearsay because they are improperly 

translated and authenticated. See supra. The Court focuses here 

on the narrower allegation that Mr. Marroquin is using his 

declaration to “correct” his previous testimony by providing new 

details changing the amount he claimed he was paid. See Defs.’ 

Opp’n, ECF No. 44 at 29. Confusingly, no citation is provided as 

to the new details, and Defendants then state that the handwritten notes referred to in the declaration lack sufficient 

detail because they do not list any actual times worked and only 

include the total hours worked each day rounded to whole 

numbers. Id. The Court’s best interpretation of Defendants’ 

argument on the narrow issue under consideration is that 

Defendants contend Plaintiffs cannot introduce new details as to 

the amount paid through the declaration. As the Court has 

discussed already, Mr. Marroquin testified he was owed $10,000, 

and his declaration states he is owed $10,355.50, a remarkably 

similar number. See Marroquin Affidavit, ECF No. 42-20 ¶ 4; 

Marroquin Dep., ECF No. 44-3 at 122. Both the calculations used 

in Mr. Marroquin’s affidavit and Mr. Marroquin’s deposition 
33

testimony establish a $14 hourly wage. See Marroquin Affidavit, 

ECF No. 42-20 ¶ 4; Marroquin Dep., ECF No. 44-3 at 28. The only 

correction Mr. Marroquin makes in his declaration is when he 

states he was “mistaken when [he] testified in [his] deposition 

that [he] wrote down how much [he] was paid in [his] notebook.”

Marroquin Affidavit, ECF No. 42-20 ¶ 9. This is undoubtedly a 

reversal of his testimony that he noted down “the hours and how 

much money” he was paid. Marroquin Dep., ECF No. 44-3 at 58-59. 

The only explanation offered by the Plaintiffs is that Mr. 

Marroquin was “mistaken” and “only wrote down the hours and days 

[he] worked for the Defendants.” Marroquin Aff., ECF No. 42-20 ¶ 

9. The Court does not find this to be a credible explanation.

See St. Paul, 573 F. Supp. 2d at 160-61. 

Since Defendants have identified no contradictions in Mr. 

Andrade’s affidavit, or in the remainder of Mr. Marroquin’s, the 

Court finds the two affidavits to be admissible, and orders 

Plaintiffs to file an amended affidavit for Mr. Marroquin 

excluding the one paragraph correcting his testimony. The Court 

accordingly does not reach Plaintiffs’ argument that it should 

consider equivalent testimony or evidence already in the record 

in place of the affidavits. See Pls.’ XMSJ, ECF No. 42 at 16. 
34

2. The Admissibility of Mr. Marroquin’s HandWritten Notes is a Question for Trial 

Defendants argue that Mr. Marroquin’s hand-written notes, 

which he relies on in his damage calculations, lack sufficient 

detail and are inadmissible hearsay. See Defs.’ Opp’n, ECF No. 

44 at 29. Defendants take issue with the fact that Mr. 

Marroquin’s notes do not list actual times worked and only 

include the total hours worked each day. Id. Defendants also 

object to the hours being rounded to whole numbers instead of 

fractions, and state that Plaintiffs provide no explanation for 

this pattern. Id. The Plaintiffs respond by providing several 

theories under which the notes could be admitted at trial. See 

Pls.’ Reply, ECF No. 46 at 19. At the outset, the Court notes 

that because RBS, as the employer, failed to keep proper records 

of employees’ hours worked, a burden shifting scheme applies and 

the fact that the Mr. Marroquin’s evidence is merely an 

approximation is not a bar to recovery. See Mt. Clemens, 382 

U.S. at 687, 66 S.Ct 1187. Consequently, it is not significant 

that Mr. Marroquin’s records do not list actual times worked 

and are rounded instead of in fractions. The Court is also 

cognizant that Mr. Marroquin’s damages are not exclusively 

based on the hand-written records. As Mr. Marroquin states in 

his affidavit, the damages are also based on his deposition 

testimony. see Marroquin Affidavit, ECF No. 42-20 ¶ 4. The 
35

notes therefore do not impact the damage calculations or Mr. 

Marroquin’s affidavit, and the Court need not reach the 

question of whether the notes are hearsay at summary judgment. 

3. Defendants Have Not Presented a Valid Challenge 

to the Admissibility of Plaintiffs’ 

Interrogatory Answers 

Defendants also challenge Plaintiffs’ repeated reliance and 

citation to their own answers to interrogatories to support 

their response to Defendants’ factual assertions. See DSMF, ECF 

No. 44-1 at 1-2. Plaintiffs respond that although the answers 

are hearsay, they are admissible hearsay. Pls.’ Reply, ECF No. 

46 at 20. The Court finds that it need not reach this issue 

because Defendants have not presented a valid argument. Federal 

Rule 56(e) enumerates “answers to interrogatories” as one of the 

forms of evidence that a party may rely on to supports its 

position on summary judgment. See Fed. R. Civ. P. 56(e). A party 

may offer its own answers to interrogatories in opposition to a 

motion for summary judgment if: (1) the answers are based on 

personal knowledge of the person supplying the answers; (2) set 

forth facts that would be admissible in evidence; and (3) 

demonstrate that the person supplying the answers is competent. 

Brand v. Westall, CIV. A. 94-0312 DAR, 1995 WL 235579, at *4 

(D.D.C. 1995) (declining to consider interrogatory answers 

because they were “nothing more than a recitation of theories 

and conclusions” and not based on personal knowledge). 
36

Defendants, citing to cases from other districts, state 

that “[a]nswers to interrogatories cannot be relied upon to 

support factual positions on summary judgment, as Courts have 

held that a party’s own answers to interrogatories are 

inadmissible hearsay.” DSMF, ECF No. 44-1 at 2. However, 

Defendants then go on to acknowledge that in this District, 

courts have held that a party’s own answers to interrogatories 

are admissible so long as they “conform to the strict 

requirements of Rule 56(c)(4) applied to affidavits and 

declarations in support of a motion.” Id. (citing Houston v. 

Sectek, Inc., No. CIV.A.04-2218, 2008 WL 2599832, at *1 (D.D.C. 

June 30, 2008)). As Plaintiffs emphasize, Defendants fail to 

state which of the three foregoing requirements to admissibility 

the Plaintiffs’ sworn answers violate. Nor do Defendants offer 

any legal authority within this district for their assertion 

that Plaintiffs need to identify a hearsay exception. See 

generally DSMF, ECF No. 44-1 at 2. The Court therefore finds 

that Defendants have failed to pose a valid challenge to 

Plaintiffs’ citation of their interrogatory answers.9 

9 The Court also recognizes that Defendants’ interrogatory 

answers are based on their personal knowledge and contain no 

qualifier suggesting a lack of knowledge that would make them 

inadmissible. See Houston, 2008 WL 2599832, at *1. 
37

Having resolved all the evidentiary challenges posed by 

Defendants, the Court turns to Defendants’ other arguments in 

favor of their motion for summary judgment. 

B. Ms. Lima is Plaintiffs’ Employer 

Defendants argue that Ms. Lima is not an employer under the 

FLSA, since she did not hire Plaintiffs, direct their work, or 

pay them for it. See Defs.’ MSJ, ECF No. 38 at 19. They suggest 

that Plaintiffs are “hung up on [Ms.] Lima’s position and title, 

focusing on her status as an officer, owner, incorporator and 

director instead of what she was actually doing.” Defs.’ Opp’n, 

ECF No. 44 at 17. They contend that Ms. Lima was “essentially 

[Mr.] Silveira’s assistant on the occasion when he required her 

assistance,” and would “perform tasks as instructed by Silveira, 

including writing checks, typing up documents, and sending out 

bills and invoices.” Id. at 18. Plaintiffs respond that Ms. Lima 

is an employer under the FLSA because she “helped form RBS 

Corporation, serves as an Officer (the Vice President), and is 

an owner, incorporator and director of RBS Construction 

Corporation, Inc.” Pls.’ XMSJ, ECF No. 42 at 36; see also DSMF, 

ECF No. 44-1 ¶¶ 1-2. They add that Ms. Lima was involved in the 

day-to-day affairs of RBS and controlled corporate funds, 

because she: (1) communicated with Plaintiffs’ foremen about 

Plaintiffs’ hours, see Silveira Dep., ECF No. 42-2 at 73-75; 

Marroquin Dep., ECF No. 44-3 at 148, 163; (2) prepared and gave 
38

Plaintiff Andrade a 1099 Form for 2016, see Andrade Dep., ECF 

No. 44-4 at 72-75; (3) on at least one occasion, instructed 

Plaintiff Andrade in the performance of his work on a job site, 

see id. at 111; (4) spent corporate funds and used them to pay 

personal expenses that she did not reimburse the corporation 

for, see Silveira Dep., ECF No. 42-2 at 206-13; Exhibit L, ECF 

No. 42-13; Exhibit O, ECF No. 42-16; (5) wrote checks used to 

pay Plaintiffs and other workers of RBS Construction Corp., see 

Exhibit L, ECF No. 42-13 at 5, 12, 22; Exhibit N, ECF No. 42-15; 

and (6) was aware that at least one Plaintiff (Mr. Andrade) was 

owed money for work he had done, see Andrade Dep., ECF No. 44-4 

at 108-09. Based on the record herein, the Court finds that Ms. 

Lima is an employer. 

This District uses a four-part test to determine whether an 

individual is an employer under the FLSA, asking whether the 

putative employer: (1) has hiring and firing authority; (2) 

supervises and schedules employee work hours or conditions of 

employment; (3) determines the rate and method of payment; and 

(4) maintains employment records.” Saint-Jean, 815 F. Supp. 2d 

at 4 (citing Morrison, 253 F.3d at 11). “No one factor standing 

alone is dispositive.” Morrison, 253 F.3d at 11. Corporate 

officers and owners are individually liable when they engage in 

a certain level of operational control. See Wilson, 126 F. Supp. 

3d at 6. “To determine whether a corporate officer has 
39

operational control, the [c]ourt looks at the factors [of the 

economic reality test] plus the ownership interest of the 

corporate officer.” Orellana, 332 F. Supp. 3d at 263. In other 

districts, financial control over a corporation has also been 

deemed a significant factor in determining whether an individual 

meets the statutory definition of an employer. See, e.g.,

Manning, 725 F.3d at 48. 

Here, applying the economic reality test, the record 

reflects that Ms. Lima supervised employee work hours, 

determined the method of payment, and maintained employment 

records. See Orellana, 332 F. Supp. 3d at 263. As Plaintiffs 

point out, Ms. Lima was involved in the day-to-day affairs of 

RBS Construction Corp. and RBS Group Inc. Defendants themselves 

concede she communicated with Plaintiff Marroquin’s supervisor 

about the hours he worked, DSMF, ECF No. 44-1 ¶ 35; sent out 

bills, id. ¶ 39; paid vendors and employees, id. ¶ 24; and on 

one occasion showed up on a job site and instructed Plaintiff 

Andrade in the performance of his work, id. ¶ 42. The “economic 

reality” cannot be reconciled with Defendants’ contention that 

Ms. Lima’s role was “marginal, at best.” Defs.’ Opp’n, ECF No. 

44 at 18. 

Defendants assert that Ms. Lima’s involvement is explained 

by her acting on Mr. Silveira’s direction on every occasion, and 

as his “transcriber and assistant.” Defs.’ Opp’n, ECF No. 44 at 
40

18. This argument would be more persuasive if Ms. Lima was not 

herself an owner of RBS Construction Corp. and RBS Group, with 

the official title of Vice President. See DSMF, ECF No. 44-1 ¶¶ 

1-12. Defendants essentially argue that because Ms. Lima 

allegedly wrote checks and performed tasks at her husband’s 

direction, the Court should overlook her status as owner, her 

access to and use of corporate funds for personal and business 

reasons, and her involvement with the business. This argument is 

unsustainable. Ms. Lima’s “ownership interest in [RBS], while 

not dispositive of employer status under FLSA, certainly raises 

a plausible inference that [she] possessed the requisite 

operational control over the covered entity.” Wilson, 126 F. 

Supp. 3d at 7-8 (internal quotation marks omitted). Combined 

with her day-to-day involvement and use of corporate funds, the 

record establishes her status as an employer. It is possible Ms. 

Lima performed tasks at her husband’s direction, but that does 

not change her status vis-à-vis the employees of RBS. 

Defendants cite to several cases regarding whether spouses 

of business owners are employers for purposes of FLSA. However, 

these cases are easily distinguished. In Morataya, the spouse 

was hired by her husband’s company as an administrative 

assistant and did not have an ownership interest in the 

business, unlike the present case. See Morataya v. Nancy's 

Kitchen of Silver Spring, Inc., No. GJH-I3-0I888, 2015 WL 
41

165305, at *2 (D. Md. Jan. 12, 2015). Similarly, in Marroquin, 

the spouse in question had no ownership interest, had never been 

to any of the company’s work sites, and had done nothing other 

than write paychecks and wire money to her husband and son while 

they were elsewhere. Marroquin v. Canales, 505 F. Supp. 2d 283, 

298 (D. Md. 2007). The Court concludes that Ms. Lima is an 

employer for purposes of the FLSA. 

C. Mr. Andrade Is Covered Under FLSA, While Mr. 

Marroquin’s Coverage Is a Question for The Jury 

1. Enterprise Coverage 

The FLSA defines “an enterprise engaged in commerce or in 

the production of goods for commerce” as one that “has employees 

engaged in commerce” and “whose annual gross volume of sales 

made or business done is not less than $500,000.” 29 U.S.C. § 

203(s)(1)(A)(i)-(ii). Defendants argue that “[b]ecause the 

Plaintiffs cannot demonstrate that a genuine dispute of material 

fact exists with respect to Defendants’ having gross sales of 

$500,000.00 or more in 2016 and 2017, Plaintiffs cannot 

establish an element of their overtime claim against Defendants 

and summary judgment may be properly granted.” Defs.’ MSJ, ECF 

No. 38 at 17. 

Plaintiffs concede that they “cannot prove at this time 

that Defendants exceeded the $500,000.00 threshold, given 

Defendants’ shoddy and fraudulent bookkeeping practices as well 
42

as their failure to file tax returns during the years in 

question.” Pls.’ XMSJ, ECF No. 42 at 30. The Court therefore 

grants summary judgment in favor of the Defendants. See Hopkins 

v. Women’s Div., Gen. Bd. Of Global Ministries, 284 F. Supp. 2d 

15, 25 (D.D.C. 2003) (“It is well understood in this Circuit 

that when a plaintiff files an opposition to a dispositive 

motion and addresses only certain arguments raised by the 

defendant, a court may treat those arguments that the plaintiff 

failed to address as conceded.”). 

2. Individual Coverage 

a. The Court Cannot Grant Summary Judgment on 

Whether Plaintiff Marroquin is Individually 

Covered Under the FLSA 

For individual coverage to apply under the FLSA, the 

Plaintiffs must provide evidence that they were “(1) engaged in 

commerce or (2) engaged in the production of goods for 

commerce.” Thorne v. All Restoration Services, Inc., et al., 448 

F.3d 1264, 1266 (11th Cir. 2006). “[F]or an employee to be 

‘engaged in commerce’ under the FLSA, he must be directly 

participating in the actual movement of persons or things in 

interstate commerce by (i) working for an instrumentality of 

interstate commerce, e.g., transportation or communication 

industry employees, or (ii) by regularly using the 

instrumentalities of interstate commerce in his work, e.g., 
43

regular and recurrent use of interstate telephone, telegraph, 

mails or travel.” Id.10 

The FLSA’s implementing regulations recognize that regular 

travel across state lines by an employee establishes individual 

commerce coverage under the FLSA. See 29 C.F.R. § 776.12. An 

employee working on a “traveling construction crew[]” may be 

subject to individual coverage by virtue of his interstate 

movement. Id. There is no bright-line rule for what amount of 

interstate travel is sufficient to trigger the FLSA’s individual 

coverage. Employees who are “regularly engaged in traveling 

across State lines in the performance of their duties (as 

distinguished from merely going to and from their homes or 

lodgings in commuting to a work place) are engaged in commerce 

and covered” but those who do so on “isolated or sporadic 

instances” are not covered. Id. “Doubtful questions arising in 

the area between the two extremes must be resolved on the basis 

of the facts in each individual case.” Id. 

Plaintiffs argue that Mr. Marroquin is covered by the FLSA 

because “at least three times a week, (with the exception of his 

final week of work when he worked in Maryland) [Mr.] Marroquin 

10 Plaintiffs raise only one ground for concluding that they are 

covered by the FLSA: they allege that they were “engaged in 

commerce” while working for Defendants because they regularly 

engaged in interstate travel. See Pls.’ XMSJ, ECF No. 42 at 32, 

34.
44

started his work day in Maryland and then crossed state lines 

into Washington D.C. to continue working.” Pls.’ XMSJ, ECF No. 

42 at 33. Specifically, Plaintiffs emphasize Mr. Marroquin’s 

testimony that he would go with his foreman to pick up 

construction materials “just about daily,” and “about three 

times a week they would specifically do so from the Home Depot 

in Hyattsville, Maryland” before driving to a construction site 

in D.C. Id.; Marroquin Dep., ECF No. 44-3 at 37-43.

Defendants respond that Mr. Marroquin “cannot establish 

that this activity represented a substantial part of his work, 

and accordingly, [Mr.] Marroquin cannot establish that he was 

“engaged in commerce.” Defs.’ Opp’n, ECF No. 44 at 7. First, 

Defendants state that regardless of whether Mr. Marroquin’s time 

in Home Depot was compensable, he has not shown that the 

purchases placed him in the “channels of commerce.” See id. at 

8-9. Second, they assert that Mr. Marroquin has not produced any 

evidence that he actually went to Home Depot in Hyattsville 

three times a week, and that the record only establishes he went 

twice over the course of his employment. The Court finds that a 

genuine issue of material fact exists on this issue and declines 

to grant summary judgment to Defendants. 

As a threshold matter, Plaintiffs are not required to show 

that their work was “an essential part of the stream of 

interstate commerce,” or how, without their work, interstate 
45

commerce would be “impeded, impaired, or abated.” Defs.’ MSJ, 

ECF No. 38 at 8-9. The relevant Regulations plainly state that 

the FLSA’s individual coverage “applies to employees [working in 

construction] who regularly travel across state lines in the 

performance of their duties, even though the construction 

project itself is not covered.” 29 C.F.R. § 776.24. Plaintiffs 

therefore need only show that they regularly traveled across 

state lines for work. 

Because how often Mr. Marroquin went to Maryland to pick up 

material is a disputed material fact, the Court is unable to 

establish whether he “regularly engaged in commerce” across 

state lines and is covered by the FLSA. 29 C.F.R. § 776.12. 

Plaintiffs contend that Mr. Marroquin, per his own testimony, 

picked up materials with his foreman Luis “just about daily” and 

that three times a week they went to Home Depot in Hyattsville, 

Maryland. Pls.’ Reply, ECF No. 46 at 6; Marroquin Dep., ECF No. 

44-3 at 37-43. Although such testimony, standing alone, may be 

considered a self-serving statement which does not give rise to 

a triable issue of fact, see Toomer v. Mattis, 266 F. Supp. 2d 

184, 200 (D.D.C. 2017); Plaintiffs also offer support in the 

form of Defendants’ bank account records to show the regularity 

with which Defendants purchased material at the Home Depot in 

Maryland. See Pls.’ XMSJ, ECF No. 42 at 32-33; Exhibit Q, ECF 

No. 42-18. 
46

Admittedly, as Defendants point out, “[f]rom late July 2016 

to mid-October 2016, the bank statements reveal that Defendants 

purchased goods from the Home Depot located in Hyattsville, MD 

on a total of two dates during the time that [Mr.] Marroquin 

worked for the Defendants.” Defs.’ Opp’n, ECF No. 44 at 44. But 

the bank statements are just one piece of evidence that 

Plaintiffs use to support Mr. Marroquin’s testimony; Plaintiffs 

also emphasize Ms. Lima’s own testimony that she used her 

personal card to pay for purchases at Home Depot. See Exhibit A, 

ECF No. 42-2 at 62-66. Lacking access to Ms. Lima’s card 

records, which she failed to keep despite using the card for 

business transactions, the Plaintiffs cannot establish exactly 

how many times Ms. Lima paid for purchases.11 See id. 

Nonetheless, taking Ms. Lima’s testimony alongside the bank 

records and Mr. Marroquin’s testimony, the Court is persuaded 

that there is a genuine dispute of fact. “Because the frequency 

of travel is critical to establishing coverage, this dispute is 

11 Ms. Lima’s deposition testimony is contradictory and vague. 

She first states that she “let [Plaintiffs] use [her] credit 

card, because [her] husband did not have any credit cards. See 

Exhibit A, ECF No. 42-2 at 65:11-16. She adds that she used 

either a Bank of America or Capital One credit card but goes on 

to deny having either of those credit cards in 2016 or 2017. See 

id. at 65-67. She then asserts that she actually paid with a 

debit card and goes back and forth on whether it was a Bank of 

America card or not, before stating that she does not remember. 

See id. at 67-68. She concludes by saying that she did not keep 

any records of the card charges. Id. at 68:14. 
47

material.” Benton, 210 F. Supp. 3d at 110. Moreover, whether Mr. 

Marroquin can substantiate his factual claim depends on 

assessing his credibility, which is within the province of the 

jury. See id. 

Accordingly, the Court declines to grant summary judgment 

on the issue of whether Mr. Marroquin is covered by the FLSA. 

b. Mr. Andrade Is Individually Covered Under 

the FLSA 

Plaintiffs state that Mr. Andrade’s interstate travel 

involved traveling between job sites in Maryland and D.C. in a 

single workday and traveling from D.C. to Maryland to pick up 

equipment and then returning to D.C. to perform work. Pls.’ 

XMSJ, ECF No. 42 at 35. Plaintiffs contend that Mr. Andrade is 

individually covered because he undertook interstate travel on 

average “every 34 days,” which “at the least creates a dispute 

of material fact as to whether Andrade is individually covered.” 

Id. at 35-36. The Plaintiffs highlight that “[Mr.] Andrade’s 

monthly crossing of state lines in the performance of his duties 

is certainly more frequent than the 15 instances over the course 

of 36 months (or once every 2.4 months) that the court in the 

Solano case concluded would be a ‘close call’ when denying 

summary judgment for the Defendant on the issue of FLSA 

coverage.” Id. at 36 (citing Solano v. A Navas Party Prod., 

Inc., 728 F. Supp. 2d 1334, 1346 (S.D. Fla. 2010)). 
48

Defendants do not dispute the number of times Mr. Andrade 

travelled inter-state but respond that Mr. Andrade’s travel was 

“well shy of the bi-monthly standard articulated in Benton as 

approaching the limits of the FLSA’s individual coverage reach.” 

Defs.’ Opp’n, ECF No. 44 at 12 (citing Benton, 210 F. Supp. 3d 

at 106-107 ([B]i-monthly travel approaches the limits of 

coverage, and more infrequent travel amounting to only sporadic 

trips each year are insufficient.”)). The Court concludes that 

Mr. Andrade is individually covered. 

As a threshold matter, the Court interprets the “bimonthly” standard articulated in Benton to mean once every two 

months. Benton states that “[t]he cases that do exist suggest 

that weekly or bi-weekly travel is almost certainly sufficient 

to establish individual coverage, while bi-monthly travel 

approaches the limits of coverage, and more infrequent travel 

amounting to only sporadic trips each year are insufficient.” 

Benton, 210 F. Supp. 3d at 107. The gradation in the text, from 

most often (“weekly”), to least often (“sporadic trips each 

year”), suggests that bi-weekly and bi-monthly are used to mean 

once every two weeks and once every two months respectively, 

rather than twice a week and twice a month. Moreover, the case 

cited in support directly thereafter concludes that plaintiff 

employees of an elderly care facility who traveled out of state 

with facility residents weekly, or two to four times per month, 
49

established individual coverage to survive summary judgment. 

See Benton, 210 F. Supp. 3d at 107 (citing Bowrin v. Catholic 

Guardian Soc'y , 417 F. Supp. 2d 449, 468–71 (S.D.N.Y.2006)). 

“[T]wo to four times per month” amounts to weekly to bi-weekly, 

and Benton describes bi-weekly as “almost certainly sufficient 

to establish individual coverage.” Id. Another case cited by 

Benton and by Plaintiffs concluded that “two [interstate] trips 

in thirty-six months would be ‘isolated or sporadic,’ and 

Plaintiff would not qualify for individual coverage,” but it 

would be a “closer call if Plaintiff can prove he traveled at 

least fifteen times in connection with his employment.” Id. 

(citing Solano v. A. Navas Party Prod., Inc., 728 F. Supp. 2d 

1334, 1346 (S.D. Fla. 2010)). Fifteen times over thirty-six 

months is almost bi-monthly in the sense of once per two months, 

which Benton describes as approaching the limits of coverage. 

Id.

The standard articulated in Benton, to which the defendants 

themselves refer the Court, see Defs.’ Opp’n, ECF No. 44 at 12;

makes clear that bi-monthly travel is approaching the limits of 

coverage, but that it does not exceed them, see Benton, 210 F. 

Supp. 3d at 107 (emphasis added). Further persuasive authority 

comes from Solano, which describes travel fifteen times over 

thirty-six months as “a closer call.” Solano, 728 F. Supp. 2d at 

1346. Fifteen times over thirty-six months is less frequent than 
50

bi-monthly, and far less frequent than Plaintiff Andrade’s six 

trips over seven months, or average of one occasion of 

interstate travel every thirty-four days. The Court concludes 

that Mr. Andrade is entitled to FLSA coverage. 12 

D. The Question of Whether Plaintiffs Have Provided a 

Just and Reasonable Inference for Damages Is 

Inappropriate for Summary Judgment 

Defendants argue that Plaintiff’s testimony regarding 

damages is “incomprehensible, inconsistent, and rife with 

contradictions,” and offers no basis “for the Jury to enter a 

judgment in their respective favor by a ‘just and reasonable’ 

inference.” Defs.’ MSJ, ECF No. 38 at 22. Defendants point out 

that Plaintiff Marroquin cannot identify the payments he 

received, but that he admits he received $200 to $300 “a lot of 

times” from Defendant Silveira. Id. They add that because Mr. 

Marroquin cannot testify as to what he was paid, he cannot 

testify to what he is owed. Id. at 22-23. Defendants also 

highlight shortcomings in Mr. Andrade's testimony, including the 

fact that he admitted destroying a record of payments he 

received from Mr. Silveira. See Andrade Dep., ECF No. 44-4 at 

55, 58. Defendants emphasize that Mr. Andrade cannot testify to 

how he added up the amount he claims he was paid, id. at 34-38; 

12 The Court therefore need not reach Plaintiff’s arguments that 

(1) it should exercise pendent jurisdiction over his D.C. law 

claims; and (2) it should exercise supplemental jurisdiction 

over the state law claims. See Pls.’ XMSJ, ECF No. 42 at 36-37. 
51

cannot recall the how often he was paid, id. at 55, 58; has 

testified that he is owed anywhere from $2,500 to $20,000, id. 

at 63, 67-69; and admits that he is guessing, id. at 68. 

Plaintiffs respond that Defendants have misrepresented 

Plaintiffs’ deposition testimony and have not presented any 

evidence that shows the Plaintiffs did not work the hours they 

claimed or were paid more than they claimed. Pls.’ XMSJ, ECF No. 

42 at 26-27. Plaintiffs assert that they, in contrast, have 

“presented evidence to allow a jury to determine their damages 

as matter of just and reasonable inference,” including (1) their 

approximate damages, see SMF, ECF No. 42-28 ¶¶ 93, 97; the hours 

they worked, id. ¶¶ 106, 108; what their rates of pay were id. 

¶¶ 45, 106; and how much they were paid by Defendants, id. ¶¶ 

59, 60. Plaintiffs add that they produced in discovery 

handwritten time records which contain precise information about 

their damages, see Marroquin Wage Calculation, ECF No. 42-21 at 

4-9; Romero Wage Calculation, ECF No. 42-22 at 7-16; and that 

they have calculated their damages using these records. See

Marroquin Wage Calculation; ECF No. 42-21 at 1-3; Romero Wage 

Calculation, ECF No. 42-22 at 1-6. 

As a threshold matter, the Court is cognizant that a burden 

shifting scheme applies. Where, as here, an employer’s records 

are incomplete or inaccurate, an employee need only “alleg[e] 

that he performed work for which he was not properly 
52

compensated and then ‘produc[e] sufficient evidence to show the 

amount and extent of that work as a matter of just and 

reasonable inference’” in order to make a prima facie case for 

overtime compensation. Hunter, 453 F. Supp. 2d at 52 (quoting

Mt. Clemens, 328 U.S. at 687, 66 S.Ct. 1187). The employer must 

then present its own evidence as to the amount of work the 

employee actually performed or rebut the reasonableness of the 

inference from the employee’s evidence. Id. at 58. The fact 

that the employee’s evidence is merely an approximation is not 

a bar to recovery. Mt. Clemens, 382 U.S. at 688, 66 S.Ct 1187.

Resolving disputes as to the hours of work actually performed 

or as to the reasonableness of the inference often “requires an 

assessment of credibility,” which is beyond the scope of 

summary judgment. Hunter, 453 F. Supp. 2d at 53.

Here, Plaintiffs have made a prima facie case of 

compensation, since both Plaintiffs have testified to and / or 

provided records of the amount of hours worked per day, the 

number of days worked per week, the amount of wages paid, and 

their hourly rate. See Pls.’ XMSJ, ECF No. 42 at 26-27; 

Marroquin Dep., ECF No. 44-3 at 66; Andrade Dep., ECF No. 44-4 

at 18, 27-28; Marroquin Wage Calculation, ECF No. 42-21 at 6-11; 

Andrade Wage Calculation, ECF No. 42-22 at 11-20. The Court 

agrees with Plaintiffs that Defendants present no evidence that 

shows the amount of work that Plaintiffs actually performed. 
53

Instead, Defendants focus “on trying to negate the 

reasonableness of the inference to be drawn from the employee’s 

evidence.” Hunter, 453 F. Supp. 2d at 44 (internal quotation 

marks omitted). Such an inference on reasonableness is 

inappropriate for summary judgment, and necessarily requires an 

assessment of credibility. Hunter, 453 F. Supp. 2d at 53.

The Court therefore declines to grant summary judgment on 

whether a just and reasonable inference on damages can be made.
54

V. Conclusion 

For the foregoing reasons, the Defendants’ Motion for 

Summary Judgement, ECF No. 38; is GRANTED IN PART and DENIED IN 

PART;13 and Plaintiffs’ Cross-Motion for Summary Judgment, ECF 

No. 42; is GRANTED IN PART and DENIED IN PART;14 and Defendants’ 

Motion to Strike, ECF No. 48, is GRANTED IN PART and DENIED IN 

PART.15 An appropriate Order accompanies this Memorandum Opinion. 

SO ORDERED. 

Signed: Emmet G. Sullivan 

 United States District Judge 

 February 22, 2022 

13 Defendants are granted summary judgment on the lack of 

enterprise coverage under the FLSA for both Plaintiffs. 

14 Plaintiffs are granted summary judgment as to Ms. Lima’s 

status as an employer, and as to Mr. Andrade’s coverage under 

the FLSA. The Court also finds that Plaintiffs have made a prima 

facie case of violations under the FLSA, but the Court refrains 

from granting summary judgment on the reasonableness of 

Plaintiffs’ claimed damages. 

15 Defendants’ Motion to Strike, ECF No. 48, is denied except as 

to the Plaintiffs being ordered to submit a new affidavit for 

Mr. Marroquin that does not correct his deposition testimony. 

See ECF No. 42-20 ¶ 9.