FREDDYGONZ AL ES ARENCI BIA, et al. ,

Plaintiffs,

v. 2401 RESTAURANT CORPORATI ON d/b/a MARCEL ’S RESTAURANT, et al. , Def endants. UNITED STAT ES DIS TRICT COURT

F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 09–165 (CKK)

MEMORAN DUM OP INION (Mar ch 31, 2010) Plaintiffs Fre ddy

Gonzales Are ncibia, F arzad C. Pazawak, Hamid Guer ch, Kha lid 1 Chabar, a nd Carlos Parra

(collec tively , “Plaintiffs”) br ing this ac tion on behalf of the mselves and all simil arly

situated employ ees a g ainst Defe ndants 2401 Restaura nt Corporation d/b/a Marc el’s Restaura nt (“Mar cel’ s”) a

nd Robert Weidmaier for violations of various labor a nd employ

ment discrimination laws. Specifica lly , Plaintiffs alleg e in their Ame nded Complaint that Defe ndants violated the F air L abor Standa rds Act, 29 U.S.C. §§ 201 et seq. (“F L SA”), the D .C. Minim um Wage Act Revision Act, D.C. Code §§ 32-1001 et seq. (“D CMW A”) , the D.C. Wag e Pay ment and Collection L aw, D.C. Code §§ 32- 1301 et seq. (“D CW PCL ”), a nd the D.C. Human Rig hts Act, D.C. Code §§ 2-1401.01 et seq. (“D CHRA”). Prese ntly pendingbefor e the Court is Def endants’ pa

rtial [12] Motion to Dism iss. Defe ndants move to dismiss P laintiffs’ DCHRA claims as bar

red by the statute of limitations and for fa ilure to state a c laim upon which re lief ca n be g rante d. Def

endants a lso move to dismi ss Plainti ffs’ D CW PCLclaims ag ainst Defe ndant
Def endants a ssert that Plaintiff Pazawak’s na me should be spelled “ Pazhwak.” See 1 Def s.’ Mem. at 4.Wiedmaier on the ground that Plaintiffs have f ailed to alleg e any

basis for holdinghim individually

liable under

the DCWP CL . After

considering

the par ties’ filing s, the applica

ble authorities, and the r ecor d as a whole, the Court finds that all Plaintiffs except Parra and Chaba

r have f ailed to state a

claim for r elief unde r the DCHRA, a nd undisputed fac ts in the recor d show that any claims by

Plaintiffs Parra a

nd Chabar a

re ba rre d by the statute of limitations. I n addition, the Court finds that Plainti ffs’ D CW PCLclaims must be dismiss ed ag ainst Defe ndant Wiedmaier bec ause Plaintiffs have not alleg ed that Wiedmaier w as their e mploy er a s defined by the statute. Ac cording ly , the Court shall GRANT De fenda nts’ partial motion to dismi ss and partially conver t the motion int o one for

summary judgme nt and g rant it, dismissi ngPlaintiffs’ DCHRA claims and dismissing Plaintiffs’ DCWPC Lclaims ag ainst Defe ndant Wiedmaier. I. BACKG ROUND The followingfac ts are ta ken fr om the Amended Complaint and must be ac cepte d as true for pur poses of a motion to di smiss. P laintiffs are curr ent or for mer e mploy ees of

Def endants at Marc el’s, a f

ine dining r estaura

nt in W ashing ton, D.C. Am. Compl . ¶ 19. De fenda nt Robert Wiedmaier is an off

icer of 2401 Restaura

nt and owner

of Mar cel’ s. Id. ¶ 20. Wiedmaier wa s the chef who direc ted the wor

k of seve ral of the Plaintiffs and was r esponsible for the supervisory staff who direc ted the wor k of seve ral Plaintiffs. Id. Duringthe three y ear s leadingup to the filing of the Amende d Complaint, Marcel’s use d a tip pooling a

rra ng ement for

its wait staff. Am. Compl. ¶ 24. Participatingin the tip pool were six full time server s, six full time back ser vers, two f

ood runner s, one bar

tender , and a ma

nag er. Id. At the end of

eac h night, the se rver s’ tips would be pooled and a llocated a s follows: 3% of the total is subtracted f

or cr edit car d char g es, then 70% of the re mainder is divided equa lly
2amongthe serve rs and mana g er, w ith the other 30% divided among the back se rver s and food

runner s. Id. ¶ 26. In order for a n employee to know how much money

was e arne d eac h night, he would have to stay

at the re staurant until all the serve rs ra n their nig htly

ear nings r eport a

nd then calc ulate his share of the tip pool. Id. ¶ 27. Eac h employ ee w ould then deter mine his weekly paychec k by

addingthe amounts ea

rned e ach night that week. Id. Employ ees w ere paid with an envelope of ca sh eac h Fr iday based on the previous we ek’s pa y period (Sunday

throug h Saturday ). Id. ¶ 28. The pa

y envelope did not indicate how many day s the employ ee w orked or ref lect how much of

the tip-pool money

was be ing r emitted to the employ ee a nd for what shifts. Id. ¶ 29. Ever

y two wee ks, employ ees r ece ived a pa y stub indicating howmuch money was taken out for

taxes, how many

hours had be en wor

ked, and how

much ca sh had bee n ear

ned in the two-we ek per iod. Id. ¶ 30. This sy stem of ca sh envelope s and pay stubs made it impossi ble for e mploy ees to c ompare the ca sh rec eived with the state ment on the pay stub. Id. ¶ 32. Plaintiffs alleg e that De fenda nts did not keep rec ords of the tips collec ted. Am. Compl. ¶ 33. They

further alleg e that the pa

y ment sy stem was put in place to make it nearly impossibl e to track the serve rs’ tips. Id. ¶ 34. Plaintiff Fr eddy Gonzales Are ncibia questioned the tip calc ulations throughout his employ ment and wa s provided limited documentation to verify his wag es. Id. ¶ 35. Plaintiffs alleg e that De fenda nts’ tip-pooling a

rra ng ement violated f

eder al regulations and that Plaintiffs were entitled to overtime pay

. Id. ¶¶ 37, 66- 69. Plaintiff Arenc ibia alleg es that he a

nd others we re te rminated due to their attempt to enfor ce the ir rig hts under the Fa ir L abor Standa

rds Act. Id. ¶ 36. Plaintiffs Khalid Chabar a nd Carlos Parra , as a pa

rt of a subc lass of plaintiffs, alleg e that they wer e unlawf

ully terminated a fter se ekingto take time off w ork in order to attend re ligious
3service s or pra y . See Am. Compl. ¶¶ 38-47. Plaintiff Parra soug ht time off to worship at Christmas Eve midnight mass, and Plaintiff Chaba r soug ht time off to pray

duringRamadan. Id. ¶¶ 39- 40. Despite a sking f or time off w ell in advanc e, Parr a and Cha bar w ere intimi dated by

one of Mar cel’ s manag ers, Adna ne Ke bair, who told them that “your re ligion is work” and that “this restaur ant is y our plac e of w orship.” Id. ¶¶ 41- 43. Parra and Chaba

r, as we ll as other member s of the subcla ss, were terminated f rom Marc el’s due to their relig ious observanc e or constructively

discharg ed by

the hostile environment. Id. ¶¶ 46- 47. Plaintiff Arenc ibia, as par t of a subcla ss of plaintiffs, often spoke Spanish during the day with his co-worke rs in order to the expedite communications and be more eff icient in his job. Am. Compl. ¶¶ 48-49. Def endant Wiedmaier

told employ ees that they

could not speak Spanish while at wor

k and thre atene d their jobs if he ove rhea rd them speaking Spanish. Id. ¶ 50. Plaintiff Arenc ibia alleg es that he w as fire d immediately by Wiedmaier for

speaking Spanish at work. Id. ¶ 50. II. LEGAL STANDARD The F eder al Rules of Civil P roce dure r equire that a complaint conta in “‘a short and plain statement of the c laim showing that the pleade r is entitled to relief,’ in order to ‘ g ive the defe ndant fa ir notice of what the . . . cla im is and the g rounds upon which it re sts.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. G ibson , 355 U.S. 41, 47 (1957)); accord Eric kson v. Pardus , 551 U.S. 89, 93 (2007) (pe r cur iam). Althoug h “deta iled fac tual alleg ations” ar e not nec essar y to withstand a Rule 12(b)( 6) motion to dism iss, to provide the “g rounds” of

“entitle[ment] to relief,” a plaintiff must furnish “mor e than labe ls and conc lusions” or “a formulaic r ecitation of the elements of a cause of ac tion.” Twombly , 550 U.S. at 555; see 4also Papasan v. Allain , 478 U.S. 265, 286 (1986). Instead, a complaint must contain sufficient fac tual matter, a cce pted as true , to “state a claim to relief

that is plausible on its face.” Twombly , 550 U.S. at 570. “A c laim has fac ial plausibilit y when the pla intiff pleads fa ctual conte nt that allows the cour

t to draw the r easona

ble infer ence that the def

endant is liable for

the misconduct alleg ed.” Ashcroft v. Iqbal , __ U.S. __, 129 S. C t. 1937, 1949 (2009) (c iting Twombly , 550 U.S. at 556). In evaluating a

Rule 12(b)(6) motion to di smiss for failure to state a c laim, the court must construe the complaint in a light most favor able to the plaintiff a nd must acce pt as true a ll

rea sonable fa ctual infe renc es dra wn from we ll-pleade d fac tual alleg ations. In re United M ine W orkers of Am. Em

ployeeBene

fit Plans L itig. , 854 F. Supp. 914, 915 (D.D .C. 1994); see also Schuler v . United States , 617 F.2d 605, 608 ( D.C. Cir. 1979) (“The complaint must be ‘libera lly construed in f

avor of the plaintiff,’ who must be g rante d the bene fit of all infer ence s that can be derive d from the f

acts a lleg ed.”) . Howeve r, as the Supre me Court rec ently made c lear , a plaintiff must provide more than just “a sheer possibili ty

that a def endant ha s acte d unlawfully .” Iqbal , 129 S. Ct . at 1950. Where the well-plea ded fa cts set forth in the c omplaint do not permit a court, draw ing on its judicial experienc e and c ommon sense, to infer mor e than the “ mere possibili ty of misconduct,” the c omplaint has not shown that the pleade r is entitled to relief. Id. at 1950. In evaluating a

motion to di smiss under Rule 12(b)(6) , the Court is lim ited to considering the fa cts alleg ed in the complaint, any documents attac hed to or incor porate d in the complaint, matters of which the cour t may take judicial notice , and matter s of public re cord. See E EOC v. St. Francis Xavier Paroc hial Sch. , 117 F.3d 621, 624 ( D.C. Cir. 1997); see also Vanov er v. Hantman , 77 F. Supp. 2d 91, 98 (D.D .C. 1999), aff’d , 38 F. App’ x 4 (D.C. Cir. 2002) (“ [W ]here
5a docume nt is refe rre d to in the complaint and is centra l to plaintiff’s claim, such a document attache d to the motion papers may be conside red w ithout convertingthe motion to one for summary judgme nt.”) (c iting Gree nberg v. The Life Ins. Co. of Va. , 177 F.3d 507, 514 ( 6th Cir. 1999)). III. DISCUSS ION Def endants move to dismiss Pl aintiffs’ DCHRA c laims in whole and DCWPC Lclaims in part for failure to state a c laim upon which re lief ca n be grante d under F eder al Rule of Civil Procedur e 12(b) (6). Specifica lly , Def endants a rgue that Plaintiffs’ DCHRA cla ims are time- 2 barr ed and that Plainti ffs have fa iled to plead suff icient fa cts to support them. Defe ndants also argue that Plaintiffs’ DCWPC Lclaims ag ainst Robert Wiedmaier must be dismissed beca use he was not Plaintiffs’ “e mploy er” as def ined by the statute. The Court sha ll consider ea ch of the se claims in turn. A. Plaintif

fs’ DCHRA Claims In their Amende d Complaint, P laintiffs alleg e that De fenda nt violated the D.C. Human Rights Act by

unlawfully

discriminating a g ainst cer tain Plaintiffs on the basis of their re ligion and/or national orig in. The DCHRA make s it unlawful for e mploy ers to discriminate a g ainst individuals on the basis of rac e, color , relig ion, national orig in, sex , ag e, mar ital status, personal appea ranc e, sexual orientation, g ender identity or expression, family

responsibilities, ge netic information, disability , matriculation, or political af filiation. See D.C. Code § 2-1402.11(a ). The

Def endants c hara cter ize their motion t o dismiss on statute of limitations grounds a s a 2 motion to di smiss for lack of subje ct matter jurisdiction. Howe ver, be cause the Court exercises supplemental jurisdiction over Plaintiffs’ DCHRA c laims pursuant to 28 U.S.C. § 1367, the statute of limitations i s nonjurisdictional. 6DCHRA also specif ically obligates employ ers to make rea sonable a ccommodations for an employ ee’ s relig ious observanc e. See id. § 2-1402.11(c ). Plaintiffs alleg e that De fenda nts violated the DCHRA by

intimi datingemploy ees ba sed on their r elig ious observanc e, cr eatinga hostile work environme nt, and ac tually terminatingemploy ees who took time off for r elig ious observa nce. See Am. Compl. ¶ 88-91. Plainti ffs a lso alleg e that De fenda nts violated the DCHRA’s ban on r elig ious or national orig in discrimination by intimi datingworke rs who spoke Spanish at work. See id. ¶¶ 10, 88, 90- 93. Def endants move to dismiss these claims on seve ral grounds. Fir st, Defe ndants argue that Plaintiffs have fa iled to meet the plea ding r equire ments of Fe dera l Rule of Civil Procedur e 8(a) by failingto plead any

fac ts relatingto when the a lleg ed incidents of disc rimination occurr ed or the identities of the individuals involved. Second, De fenda nts argue that any

DCHRA claims

are time-barr ed bec ause the violations necessa rily occur red more than one year

befor e this action was filed. T hird, Def

endants a rgue that the Ame nded Complaint fails to state a cla im of relig ious or national orig in discrimination ag ainst any individuals whose claims may be timely . Be cause Def endants pre sent fac ts outside the pleading s in support of their statute of limitations argument, the Court shall addre ss that issue last.

1. Fa ilure to State a Claim upon Which Relief Can Be Gra nted Def endants a rgue that Plaintiffs have failed to satisfy the minimum requirements of Rule 8 beca use their Ame nded Complaint does not specifica lly identify the dates or

times when the alleg edly discriminatory

events oc curr ed, and the ref ore D efe ndants ca

nnot possibly

deter mine whether or not Plaintiffs’ claims ar e timely

. See Def .’s Mem. at 7-8. H oweve r, Rule 8 re quires only that the complaint contain a “short and pla in statement of the c laim showing tha t the pleade r
7is entitled to relief.” Fe d. R. Civ. P . 8(a) (2). The purpose of this Rul e is to “g ive the def endant fair notice of wha

t the . . . claim is and the grounds upon which it re sts.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007) (c itation omit ted). The re is no re quirement that a plaintiff plead time and pla ce w ith particularity . Her e, the Ame nded Complaint contains alleg ations that Plaintiffs Chabar a

nd Parra wer e ter minated due to their r elig ious observanc e of Rama dan and Christmas Eve, respe ctively , duringtheir tenure as employees at Marce l’s. I t also contains alleg ations that Plainti ff Ar encibia w as fire d for spe akingSpanish. Def endants c an be 3

rea sonably

expected to know appr ox imately when these employ ees w ere terminated. Acc ording ly , these a lleg ations are specific enough to give Def endants fa ir notice of the DCHRA claims beingasser

ted by these thre e individual Plaintiffs. Howeve r, the Ame nded Complaint is completely devoid of a lleg ations that Defe ndants discriminated ag ainst Plainti ffs Gue rch a nd Pazawak, and Plaintiffs’ g ener alized alleg ations of wrong doing a

re too c onclusory

to constitute the basis for a claim. See, e .g. , Am. Compl. ¶ 46 (“O ne or more members of the sub-cla ss were terminated f rom Marc el’s due to his re ligious observa nce.” ); id. ¶ (“ One or

more membe rs of the sub- class we re c onstructively discharg e [ sic ] by decidingto observe his re ligion and not r eturn to Mar cels[ sic ].”) Plaintiffs must provide “more than labels a

nd conclusions, and a

formulaic r ecitation of the elements of a cause of ac tion will not do.” Twombly , 550 U.S. at 555. Acc ording ly , the Court finds that Plaintiffs have fa iled to meet the minimum st andar ds require d by Rule 8 with respec t to any DCHRA claims asser

ted on behalf of Plaintiffs Guer ch and Pazawa k.

Plaintiff Arenc ibia also alleg es that he w as fire d for se ekingto enforc e his rig hts under 3 the Fa ir L abor Standa

rds Act. See Am. Compl. ¶¶ 36, 72-73. 8Def endants a lso move to dismi ss Plainti ff Ar encibia’ s DCHRA claim on the g round that the DCHRA does not provide a cause of ac tion for discrimination based on spe akingSpanish. In the Amende d Complaint, P laintiffs asser t that Defe ndants’ discrimination ag ainst the use of Spanish constitutes unlawful discrimination based on re ligion in violation of the DCHRA. See Am. Compl. ¶ 88. However , Plaintiffs have fa iled to plead any fac ts sugg estingthat Are ncibia’s use of Spanish wa s connec ted to his relig ion. Plainti ffs a lso appea r to claim that De fenda

nts’ conduct c onstitut es unlawf ul discrimination based on national orig in. See id. ¶ 10. Howe ver, there are no fac ts pled in the Amended Complaint that sug g est that discrimination based on Spanish languag e wa s a proxy for discr imination based on national orig in. Plainti ffs do not alleg e any fac ts relatingto Arenc ibia’s national orig in or Def endants’ know ledg e or be liefs about Are ncibia’s national orig in. Thus, Arenc ibia has fa iled to plead a c laim for re lief under the DCHRA. The Court also notes that Plaintiffs fa iled to addre ss this argument in their opposition to Defe ndants’ motion to dism iss. See Pls.’ Opp’n at 4 (a rguing only

that Plaintiffs Parra, Guer ch, Chaba

r, and Pazawa

k have D CHRA claims). Ther efor e, alter natively , the Court may treat this argument as conc eded. See H opkins v. W

omen’ s Div., Ge n. Bd. of Global Ministri es , 284 F. Supp. 2d 15, 25 (D.D .C. 2003), aff’d , 98 F. App’ x 8 (D.C. Cir. 2004) (“ I t is well understood in this Circuit that when a plaintiff f iles an opposition to a disposit ive motion and addre sses only

cer tain arguments raised by

the def endant, a court may

treat those arguments that the plaintiff fa iled to addre ss as conc eded.” ) To the e x tent that Plaintiffs seek to asser t simi lar claims on beha lf of unname d class member s who wer e discriminated a g ainst for spea king Spanish, their claims also fa il. Ba sed upon a r eview of

the Amende d Complaint, t he Court finds that Plaintiffs have

9failed to state a claim for r elief unde r the DCHRA e x cept a s to Pl aintiffs Parr a and Cha bar. 2. Statute of L imitations Def endants ne x t argue that any claims asser

ted by Plaintiffs Parra a

nd Chabar a

re ba rre d by the one- y ear

statute of limitations i n the DCHRA. See D.C. Code § 2-1403.16(a ). De fenda nts argue that Plaintiffs’ cla ims are ba rre d beca use their c auses of

action nec essar ily

acc rued no la

ter than the date s they

wer e ter minated from Ma

rce l’s, which occ urre d in Dece mber 2007. Def endants support this contention with a dec laration from L aure n Nellig an, the of fice manag er for Ma rce l’s. See Def

.’s Mem., Ex. 1 (Decl. of L aure n Nellig an). A ccor ding to Ms. Ne lligan, Plaintiff Parra w as employed by Marc el’s fr om October

4, 2007 until Decembe r 23, 2007, and Plaintiff Chabar wa s employ ed by Marc el’s fr om October

13, 2007 until Decembe r 19, 2007. See id. ¶¶ 3- 4. Be cause Def endants re ly

on fac ts outside the pleading s, the Court may not 4 consider the se fa cts without treatingDef endants’ motion as one for summary judgme nt under Rule 56. See Fe d. R. Civ. P . 12(d). 5 In their opposition, Pl aintiffs do not dispute that they wer e ter minated from Ma

rce l’s in 2007, more than a

y ear befor e they

filed this action. Rather, the y argue that their c laims are not time-barr ed bec ause the y

did not realize that discrimination based on r elig ion was unlawf ul until
Ms. Nelliga

n also dec lare s that Plainti ffs Pazawak and Gue rch e nded their e mploy ment 4 with Marce l’s on November 3, 2007 and Oc tober 11, 2007, re spectively

. See Nellig an De cl. ¶¶ 5- 6. There fore , the statute of limitations may provide a n alternative g round for

dismiss ing a

ny DCHRA claims by

Plaintiffs Paz awa

k and Gue rch. Def endants c ontend that the Court may consider the se fa cts outside the pleading s as par t 5 of a motion to dismis s for lac k of subject matter jurisdiction under Rule 12(b)( 1). Howe ver, a s explained supra note 1, the Court exercises suppleme ntal jurisdiction over Plaintiffs’ DCHRA claims, so the statute of limitations cannot impose a re straint on this Court’s subject matter jurisdiction. 10they

org anized in November

2008. See Pls.’ Opp’n at 3-4. Plaintiffs thus argue that they did not “discove r” the unlawful discr iminatory act until afte r they

wer e ter minated and that their

claims

are timely beca use they wer e filed w ithin a y ear

of this discovery . Fur

thermore , Plaintiffs argue that the exact time of discover y is a question of fa ct that ca nnot be re solved without discovery

. Plaintiffs are c orre ct that the DCHRA re quires only that actions be br ought within a y ear of the time whe n an unlawf ul discriminatory

act is discover ed. See D.C. Code § 2-1403.16(a) (“Aprivate c ause of

action pursua

nt to this chapte r shall be f iled in a cour

t of compete nt jurisdiction within one y ear of the unlaw ful discriminatory act, or the discover

y there of . . . .”) Howeve r, Plaintiffs are mistaken in their belief that a plaintiff doe s not “discover ” a discriminatory

act until the plaintiff lea

rns that the ac t is unlawful. The D.C. Court of Appe als has explained that the discover y rule in the DCHRA

conce rns situations wher e the fact of an injury is not rea dily appar ent, and establishes the accrua l date for l imi t at i o n s purposes as the t ime when a plaintiff di scover ed or should have discove red all of t he essential elements of a potential cause of ac tion. Thus, for a cause of action to acc rue wher e the discovery rule is applicable , one must know or by the exercise of rea sonable diligenc e should know (1) of the injury , (2) its cause in fac t, and (3) some evidenc e of wrong doing. The disc overy rule does not apply to circ umstances
. . . wher e the plaintiff has failed to discover the rele vant law even though the exist ence of an injury is appare nt. East v. Graphic Arts Industry J oint Pension Trust , 718 A.2d 153, 157 (D.C. 1998) ( internal citations and quotation marks omitted). He re, the alleg ations in the Amended Complaint clea rly establish that Plaintiffs’ injuries wer e sustained e ither duringtheir employ ment with Marce l’s or when they

wer e ter minated or c onstructively terminated f

rom that employ

ment. Be cause Plaintiffs alleg e that they

wer e har assed a

nd threatened ba sed on their r elig ion duringtheir employ ment, they

cannot c laim for purpose s of the discove ry rule that they

wer e unaw are of that

11discrimination until after they wer e ter minated. Ther efor e, base d on the undisputed fac ts before the Court, the Court finds that the DCHRA claims asse rted by Plaintiffs Parra a

nd Chabar a

re barr ed by the one- y ear

statute of limitations. According ly , the Court shall treat De fenda nts’ motion to di smiss as a motion for summary judgme nt and enter

judgme nt in favor of

Def endants as to these c laims. Be cause all of the named plaintiffs’ DCHRA c laims shall be dismiss ed and no c lass has been c ertified, the Court need not addr ess any claims asser

ted on beha lf of similarly situated individuals. The Court notes, howeve r, that it is not even clea r fr om the Amended Complaint whether Plaintiffs are a ssertingany relig ious discrimination claims on behalf of unna med class members. In para g raph 38 of the Amende d Complaint, P laintiffs define the discrimination subclass as Kha lid Chabar and Ca rlos Parra , and in subsequent pa ragraphs, Plaintiffs alleg e fa cts perta ining solely

to Chabar a

nd Parra

. See Am. Compl. ¶¶ 38-41, 45. Moreove r, in the par t of the Amende d Complaint captioned “Collective Ac tion Allega tions,” there a

re no r efe renc es to any alleg ed discriminatory

acts or violations of the D CHRA. See id. ¶¶ 56- 63. And in their opposition, P laintiffs argue only that the named pla intiffs have c laims under the DCHRA. See Pls.’ Opp’n at 4. F or the re asons stated a bove, howe ver, the named plaintiffs ha ve fa iled to state claims under the DCHRA, and ther efor e the Court shall dismiss all of Pl aintiffs’ DCHRA c laims from the Ame nded Complaint. B. Dismissal of the DCW PCL C laim Against Defendant W iedmaier Plaintiffs alleg e a c ause of action under

the D.C. Wag e Pay

ment and Collection L aw to
rec over unpa id wag es, liquidated dama g es, and r easona ble attorne y s’ fe es and c osts. See Am. Compl. ¶ 84. The DCWP CLobligates “e mploy ers” to pay employ ees’ wag es shortly afte r they
12resig n or ar e discha rg ed and ma

kes employers liable f

or wa g es that ar e not paid promptly

. See D.C. Code § 32-1303. De fenda nt Wi edmaier

argues that he c annot be he ld liable under the DCWP CLbeca

use he is not an “ employ er” as def ined by the statute. The D CW PCLdefine s “employer” as “e very

individual, partnership, fir m, association, cor

poration . . . or suc cessor

of an individual, partne rship, firm, association, or corpor ation, employing a ny person in the District of Columbia.” D.C. Code § 32-1303. Wiedmaier a rgues that the a lleg ations in the Amended Complaint clearly

show that Plaintiffs were employ ed by Marc el’s and not by

Wiedmaier. Plaintiffs alleg e in their Ame nded Complaint that they “wor ked for Marc els [ sic ]” and that Def endant Wiedmaier

“is an off icer of 2401 Restaura

nt Corporation and owne r of Ma rce l’s Restaura nt.” See Am. Compl. ¶¶ 2, 20. I t is not sufficient to alleg e that Weidmaier owned Marc el’s, howe ver, if Plaintiffs we re a ctually employed by

the cor porate entity

opera ting the restaur ant. In Sanchez v . Magafan , 892 A.2d 1130 (D.C. 2006), the D.C. Court of Appea ls

reve rsed the tr ial court’s e ntry of summary

judgme nt for a r estaurateur, Mag afa n, who claimed that the plaintiff, Sanche z, was employ ed by a cor poration that ra

n the re staurant r ather

than by Mag afa n persona lly

. Id. at 1132-34. The court found that summary judgme nt was inappropr iate beca use there was e vidence in the rec ord that Mag afa n had per sonally

hired Sanc hez independe ntly

of the re staurant a

nd had take n persona l responsibility for pa y ing Sanc hez’s salary

. Id. at 1133. Plaintiffs interpre t Sanchez as holdingthat Wiedmaier may be liable f

or violations of the DCWP CLif he wa s involved in the employ ment and ar gue that his liability is a question of fac t. See Pls.’ Opp’n at 3. Howe ver, the Sanchez court e x plained that “the issue of whe ther Mag afa n employ ed Sanche z personally or through a (non- defe ndant) c orporation is uncomplicated,” 892 A.2d at 1134, sug g estingthat the owner of a c orporation will notbe liable
13under the DCWP CLif the plaintiff wa s actua lly employ ed by

the cor poration. Plaintiffs argue that they have pr offe red “ fac ts assertingWiedmaier’s knowle dg e of the restaur ants’s fa ilure to proper ly pay its employ ees” and that Wiedmaier “participated or sanc tioned the violation of the tip-pooling e x ception to FL SA’s overtime.” See Pls.’ Opp’n at 3. Reg ardle ss of the leve l of Wiedmaier’s involvement, he is not li able unless he was the a ctual employer, a nd there are no alleg ations in the Amended Complaint that the Plaintiffs were employ ed by Wiedmaier as opposed to (or in a ddition to) 2401 Restaurant Corporation, doing business as Ma rce l’s Restaura nt. There fore , the Court shall grant De fenda nt Wi edmaier ’s motion to dis miss Plaintiffs’ DCWP CL

claims ag ainst him.

IV. CONCLUSION The Court finds that all Plaintiffs except Parra and Chaba

r have failed to plea d sufficie nt fac ts to state a claim for

relief under the DCHRA. The Court finds that Plaintiff Are ncibia has failed to state a

DCHRA claim bec ause his use of Spanish languag e in the wor kplace is not

connec ted to his relig ion or national orig in or any other c lassification protec ted under the statute. The Court also finds, base d on undisputed fac ts in the recor d, that any DCHRA claims asser

ted by Plaintiffs Parra a

nd Chabar a ccr

ued more than one year

befor e this action wa s filed and a re there fore time- barr ed. Ac cording ly , Plaintiffs’ DCHRA claims shall be dismissed. Finally , the Court finds that Plainti ffs’ D CW PCLclaims must be dismiss ed ag ainst Defe ndant Wiedmaier beca use Plaintiffs have not a lleg ed that Wiedmaier w as their e mploy er a s defined by the statute. For the fore g oing r easons, the Court sha ll GRANT Def endants’ pa

rtial [12] Motion to Dismiss, partially

conver ting the motion to a motion for summary judgme nt under Rule 56 and GRANTI NG summary

judgme nt to Defe ndants with respe ct to any DCHRA claims asser

ted by
14Plaintiffs Parra a nd Chabar. T he Court shall hold an initial schedulingconfe renc e with the parties to set a

schedule for pr ocee ding w ith discovery . An appr opriate O rder acc ompanies this Memorandum Opinion.

Date: Marc h 31, 2010 /s/ COL L EEN KOL LAR-KOTELLY United States District J udg e

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