UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

____________________________________ ) J ESUS VENTURA, et al. , ) ) Plaintiffs, )

) v. ) Civil Action No. 08-621 ( RCL ) ) BEB O FO ODS, I

NC., et al. , ) ) Def endants. ) ____________________________________) MEMORAN DUM OP INION On J uly 6, 2010, this Court held a hear ing in this matter to addr ess two issues: (1) whether defe ndant Roberto Donna (“D onna”) may

be per sonally

liable for minimum wag e and overtime violations of the F air L abor Standa rds Act ( “F L SA”) a

nd the D.C. Wag e Pay

ment and Collection L aw ( “DCWPC L ”); a nd (2) damag es, if any , as to the cor porate defe ndants. For

the
rea sons set forth below, the Court concludes that Donna is persona lly liable for minimum wag e and over time violations under FL SA and the DCWPC L . The Court, howe ver, w ill defer r uling on plaintiffs’ dama g es at this time. Accor dingly , plaintiffs’ motion [ 42] for summary judgme nt with respec t to Donna’s per sonal liability is GRANTED and pla intiffs’ motion [ 48] for damag es is DEFERRED pendinga fur ther e videntiary

hear ing on da

mag es, includingdamag es ag ainst Donna individually

. I. BACK GR OUND Plaintiffs are busse rs J esus Ventur a and Rosa Rivas, se rver s Mohammed Douah, Arturo Ramos, Biser a Romic, Carlos Sosay a, Dor de Milojevic, I g or Vuc kovic, and Ma rijana B osnijak, floor mana g er H icham el Ha llou, and persona l assistant/marketing& public r elations coordinatorEliz abeth Scott. They broug ht this sui t ag ainst defe ndants Roberto Donna , Be bo Foods, Inc., and RD Trattoria, I

nc., alleg ing that defe ndants failed to pa y minimum and over

time wag es in violation of the FL SA and DCWP CLduringtheir employ ment at def

endants’ r estaura

nts, Galileo Restaura nt (“Ga lileo”) a

nd Be bo Trattoria

Resturant (“ Be bo Trattoria ”). In addition, plaintiffs 1 alleg e that fe male busser s were denied e qual pay to that of male busser s in violation of the Equal Pay Act (“ EPA”). Donna is a c hef a

nd restaur anteur

in the g reater Washing ton, D.C. metropolitan are a. He was the ma

jority owner of Ga lileo, which he ope rate d in Washington, D.C. from 1984 until 2006. (Donna Dep. 33:7-8, O ct. 12, 2009.) Af ter Ga lileo closed, Donna opened B ebo Trattoria. He operated B ebo Tra

ttoria throug h RD Trattoria, a corpor ation of which he was the sole owner a nd president, until it closed in 2009. ( Id. at 29:16-17.) Curr ently , Donna tea ches c ooking c lasses throug h Be bo Foods, Inc., a c ompany of which he is the sole owner and pre sident. (

Id. at 18:3- 20:11.) As either the majority or sole owne r of the c orporate def endants, Donna

had g reat control over B ebo F oods, Be bo Trattoria , and Ga lileo. For e x ample, he tr ansfe rre d many of his employ ees f

rom Galileo to B ebo Trattoria when G alileo closed. ( Pls.’ Opp’n [12] to Defs.’ Mot. to Dismiss Ex . 2.) In addition, he had the pow er to de termine wor k assig nments and fire and hire employ ees. (

Id. ; Donna De p. 54:5-7.) He also approve d wag e pay ments and wa s involved with
The Complaint orig inally named Ga lileo Restaurant a nd Be bo Trattoria

Restaura nt as 1 defe ndants. Galileo Restaur ant and B ebo Trattoria, howeve r, ar e tra de name s, not jurisdictional entities capa

ble of be ing sue d. As a re sult, thi s Court dismi ssed Galileo a nd Be bo Trattoria Restaura nt and g rante d plaintiffs leave to amend their c omplaint caption to refle ct the prope r leg al entities ca

pable of beingsued— i.e. , SER, I nc. d/b/a Ga lileo Restaurant a nd RD Trattoria, Inc. d/b/a B eboTra

ttoria Restaura

nt. (Mem. Op. [14] at 4-5 (F eb. 2, 2009).)

2defe ndant cor porations’ c ompensation prac tices. ( See, e .g. , Ventura Aff. ¶ ¶ 7-9; Scott Aff. ¶

¶ 13, 20; Vuckovic Af

f ¶¶ 5, 8-9, 11-12.) Plaintiffs worked f

or def endants for

various periods betwee n 1992 and 2008. (Pls.’ Mot. [42] for Summ. J . at 2-4.) D uringplaintiffs’ employ ment, defe ndants often f

ailed to meet the wag e and r ecor d keepingrequire ments of FL SA and DCWP CL . For example, defe ndants improperly

maintained pay

roll rec ords, and a s a re sult, they either did not provide pa y stubs or provided inac curate pay

stubs to plainti ffs. ( See, e .g. , Ventura Aff. ¶ 5; Douah Af

f. ¶ 6.) In addition, defe ndants failed to tra ck plaintiffs’ ove rtime hours, eve n though pla intiffs regularly worke d more than f

orty hours a we ek. ( See, e .g. , Ventura Aff. ¶ ¶ 3, 5; Scott Aff. ¶ 7.) Consequently , plaintiffs wer e ofte n not paid overtime. ( Id. ) F urthermor e, def

endants fa iled regularly to pay the minimum wage for tipped e mploy ees. ( See, e .g. , Douah Af f. ¶ 6; Vuc kovic Aff. ¶ 4.) Plaintiffs’ paychec ks were sometimes for zero dollars, w ere post-dated a nd would bounce, or

wer e unsig ned. (

Id. ; see also Pls.’ Mot. for Summ J . Ex . B.) On other oc casions, plaintiffs did not even re ceive their paychec ks. (Scott Aff. ¶ 13.) More over, de fenda

nts withheld plaintiffs’ tips. ( See, e .g. , Vuckovic A ff. ¶ 5; Douah Af

f. ¶ 5; Ramos Aff

. ¶ 10.) De fenda

nts also paid plaintiff Rosa Rivas $3.35 an hour while her male counte rpar

t, plaintiff J esus Ventur a, wa s paid $8 an hour

to perfor m the same job. (Rivas Af f. ¶ 4.) Plaintiffs complained to Donna a bout their wag es on seve ral oc casions. In response , he either pr omised to pay

plaintiffs their wa g es, or he told them that he was una ble to pay them beca use of B ebo Trattoria’s debts and bills. ( See, e .g. , Ventura Aff. ¶ 7; Romi c Af

f. ¶ 10.) I f he did pay them, he ofte n paid only

a portion of their

unpaid wag es. (

Id. ) On J une 4, 2010, this Court held a hea ringin this m atter. The Court gr anted attorney 3Phili p Z ipin’s motion t o withdraw a s counsel for defe ndants. (Or der [46] at 1.) Be cause defe ndant cor

porations, B ebo F oods and RD Tra ttoria, wer e no long er r epre sented by counsel, the Court g rante d plaintiffs’ motion for summary judgme nt with respec t to the corporate defe ndants. (

Id. at 2.) The Court allowed Donna to proce ed in this matter pro se and oppose plaintiffs’ motion for summary judgme nt with respec t to his personal liability . ( Id. ) On J uly 6, 2010, the Court held an a dditional hearingin this m atter to a ddress two issues: (1) whe ther Donna

may be per sonally

liable for minimum wag e and ove rtime violations of the FL SA and DCWP CL ; and (2) the amount of dama g es, if any , for whic h the cor porate defe ndants
are liable. II. LEGAL STANDARD The Court will g rant summary judgme nt when “the pleading s, the discover y and disclosure mate rials on file, a nd any aff idavits show that there is no g enuine issue a s to any materia l fac t and that the movant is entitled to judgme nt as a matter of law.” Fe d. R. Civ. P

. 56(c) . The burde n is on the moving pa rty to demonstrate that ther e is an “ absenc e of a g enuine issue of mater ial fac t” in dispute. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). In decidinga motion for summary judgme nt, the Court must draw all re asonable infere nces f rom the re cord in the non- moving pa rty ’s favor and a cce pt the non-movingparty ’s evidenc e as true . Anderson v. Liberty Lobby, I nc. , 477 U.S. 242, 255 (1986). It is not enough, how ever , for the non-moving party

to show that there is “some fac tual dispute.” Id. at 247. “Only disputes over fac ts that might aff

ect the outc ome of the suit under the g overninglaw will proper ly prec lude the entry of summary

judgme nt.” Id. at 248.

4III. ANALYSIS

Dra wingall rea sonable infe renc es in Donna’ s favor , the Court finds that there is no g enuine issue of

materia l fac t as to whether Donna is per sonally

liable for F L SA and DCWP CL violations. According ly , the Court will gr ant plaintiffs’ motion for summary judgme nt with respe ct to Donna’ s persona l liabilit y . The Court, howe ver, w ill defer r uling on plaintiffs’ motion for da mag es pendinga fur

ther e videntiary

hear ing on da

mag es, includingdamag es as to Donna individually

. A. P ersonal Liabi lity of Don na The Court conc ludes that Donna is per sonally liable under

the FL SA and DCWP CLfor minimum wag e, over

time, and equa l pay

violations because he is an e mploy er unde r both the FL SA and DCWP CL
. To be liable f or violations of the F L SA, the defe ndant must be an 2 “employ er.” 29 U.S.C. §§ 206-207 (2010). The FL SA defines “ employ er” to include “a ny person a ctingdirec tly

or indirec tly

in the interest of a

n employ er in re lation to an employ ee.” 29 U.S.C. § 203(d). This definition is broadly construed to se rve the reme dial purposes of the act. Morrison v. Int’l Programs Consortium, Inc. , 253 F.3d 5, 10 ( D.C. Cir. 2001). Thus, courts look to the “ec onomic rea lity ” ra ther than te chnica l common law conc epts of ag ency to determine whether a def endant is an e mploy er. Id. at 11; see also Donov an v. Agne w , 712 F.2d 1509, 1510 (1st Cir. 1983). In applying the economic r eality test, the Court considers “ the totality of the
Be cause the DCWP CLand F L SA contain nea rly identical provisions with respe ct to 2 employ ers liability , the DCWP CLis to be construed c onsistently with the FL SA. See D el Villar v. Flynn Arc hitectural Finishes , 664 F. Supp. 2d 94, 96 (D.D .C. 2009) (explaining that the F L SA and DCWPC Lare “interpr eted similarly”). A ccor dingly , the discussion of the Donna ’ liability under F L SA in this section also applies to Donna ’s liability under the DCWP CL
. 5circ umstances of the re lationship between the plaintiff/employ ee a nd defe ndant/employ er to deter mine whether

the putative employ er ha s the power to hire and f

ire, super vise and c ontrol work sche dules or conditions of employ ment, deter

mine rate and method of pa y , and maintain employ ment rec ords.” Del Villar v. Flynn Arc hitectural Finishes , 664 F. Supp. 2d 94, 96 (D.D .C. 2009) (c iting Morrison , 253 F. 3d at 11). This test may show that more than one “employ er” is liable for violations of the F L SA. Dep’ t of Labor v. Cole Enterprises, Inc

. , 62 F.3d 775, 778 ( 6th Cir. 1995). As a r esult, a cor porate office r may

qualify as an e mploy er a long w ith the corpor ation under the FL SA if the offic er ha s opera tional control of a c orporation’s cover ed enter prise. Agnew , 712 F.2d at 1511. To determine whether a cor porate office r has ope rational control, the Court looks at the fa ctors above plus the ownership intere st of the cor porate office r. See Cole Ente rprises , 62 F.3d at 778 (explaining that an individual has ope ration control if he or she is a hig h level executive, ha s a sig nificant owne rship interest, contr ols significa nt functions of the business, and de termines sala ries and makes hiringdecisions). Her e, plaintiffs have demonstrated that Donna is a n “employ er” under the FL SA beca use he has ope rational c ontrol over the c orporate def endants. F irst, Donna is an e x ecutive w ith signific ant owner ship interest in the corpor ate de fenda nts. He is the pre sident and sole owne r of Be bo Foods a

nd was the pr esident and sole owner of RD Trattoria. ( Donna De p. at 18:3-20:11, 29:16-17.) He also owned e ighty perc ent of Ga lileo. (

Id. at 33:7-8.) Sec ond, Donna ha d the power to hire and f

ire, c ontrol work sche dules and super vise employ ees, de termine pa y rate s, and maintain employ

ment rec ords. For

example, Donna tra

nsfer red e mploy ees f

rom Galileo to B ebo Trattoria when Ga lileo closed in 2006, and he took part in the hiringof other e mploy ees. ( Pls.’ Opp’n [12] to Defs.’ Mot. to Dismi ss Ex . 2; Donna De p. 54:5-7.) More over, at the evidentiar y 6hear ing, se vera l plaintiffs testified that Donna supe rvised plaintiffs on the f loor of his resta

urants. He a lso approved w ag e pay ments to plaintiffs, including the issuanc e of post-dated or unsig ned chec ks, the pay

ment of par

tial wag es, and the withholding of a ny pay ment. ( See, e .g. , Ventura Aff. ¶ ¶ 7-9; Vuc kovic Aff

¶ 4.) F urthermor e, whe n plaintiffs complained a bout defe ndants’ pay ment prac tices, he infor

med them that he withheld wa g e pay ments—either in full or in part—fr om plaintiffs in order to pa y Be bo Trattoria ’s past debts for which he w as behind in pay ment. ( See, e .g. , Ventura Aff. ¶ 7; Romi c Af

f. ¶ 10.) Indeed, pla intiffs’ evidenc e demonstrates that Donna exerted ope rational c ontrol over the c orporate def endants. Acc ording ly , Donna is an “ employ er” under the FL SA and is persona lly liable for the corpor ate de fenda

nts’ wag e, over

time, and equa l pay

violations. S imilarly , beca use the DCWP CLis construed c onsistently with the FL SA, Donna is an “ employ er” under the DCWP CL and is liable for

the cor porate defe ndants’ violations of its wag e and ove rtime provisions. B. Dam ages Plaintiffs have the bur den of pr oving the ir damag es as a result of de fenda

nts’ FL SA and DCWP CLviolations. Arias v. U.S. Serv ice I ndus., Inc. , 80 F.3d 509, 511 ( D.C. Cir. 1996). I f defe ndants fail to kee p acc urate employ ment rec ords, plaintiffs ca n satisfy this burden by

proving that they have in f act pe rfor med work f

or which the y

wer e improper ly

compensated and producing“suff

icient evidenc e to show the amount and extent of that work as a matter of just and reasonable inferenc e .” Id. at 511-12 (quoting Anderson v. M t. Clemens Pottery Co. , 328 U.S. 680, 687-88 (1946). The burden the n shifts to the defenda nt to show the exact amount of work pe rfor

med by plaintiffs or to neg ate the r easona bleness of the infere nce de rived fr om plaintiffs’ evide nce. Id. at 512 (quoting Anderson , 328 U.S. at 687-688). I f def endants fa il to
7produce evidenc e to re but plaintiffs, the Court may awa rd dama g es, eve n if the aw ard is only approximate. Id. (quoting Anderson , 328 U.S. at 687-688). Plaintiffs have de monstrated that def endants did not kee p acc urate rec ords. See 29 U.S.C. § 211(c) (r equiringemployers to kee p acc urate employ ment rec ords); D.C. Code 32- 1008(b) ( same). D efe ndants improperly maintained their pa

y roll rec ords. ( See, e .g. , Ventura Aff. ¶ 5; Douah Af

f. ¶ 6.) As a re sult, they

either did not provide pa y stubs or provided inacc urate pay

stubs to plainti ffs. (

Id. ) In addition, defe ndants failed to tra ck plaintiffs’ ove rtime hours. ( See, e .g. , Ventura Aff. ¶ ¶ 3, 5; Scott Aff. ¶ 7.) Plaintiffs have a lso demonstrated that they perf ormed wor

k for whic h they

wer e improperly

compensated due to def

endants’ violations of the minimum wag e, over time, and equal pa y provisions of the FL SA and DCWP CL
. See 29 U.S.C. §§ 206-207 (requir ing employ ers to pay

a minimum wag e, settingforth an ove rtime wag e for hours worke d beyond forty hours a we ek, and pr ohibiting pay differ entials based on se x wher e employees of the opposite sex perform “e qual work” ); D.C. Code §§ 32-1003 (se tting for th minim um and overtime wa g e re quirements for employers in the District of Columbi a). D efe ndants reg ularly failed to pa

y the minimum wage for tipped e mploy ees. ( See, e .g. , Douah Af f. ¶ 6; Vuc kovic Aff

. ¶ 4.) The y

also regularly

failed to pa

y time and a ha lf for ove rtime hours. ( See, e .g. , Ventura Aff. ¶ ¶ 3, 5; Scott Aff. ¶ 7.) In addition, defe ndants paid Rosa Rivas less than her male counter part, Jesus Ventura. ( Rivas Aff. ¶ 4.) Fur thermore , plaintiffs, throug h sworn af fidavits, have pr oduced suf ficient e vidence to show the amount and e x tent of that work a s a matter of just and rea sonable infe renc e. Arias , 80 F.3d at 511-12. Def

endants ha

ve not y et re futed the hour estimates of plaintiffs or

neg ated the
8rea sonablene ss of any infere nce that the Court might dra w from plaintiffs’ evidenc e. B eca use the corpor ate de fenda

nts have fa iled to rebut plaintiffs’ e vidence , the Court may awa rd plaintiffs damag es. Id. at 512. Donna must also be g iven an oppor tunity individually

to counter pla intiffs’ damag es. Plaintiffs’ curr ent claims ar e appr ox imations that assume that they did not rece ive any compensation during the ir entire employ ment with defe ndants. ( See Mem. on Dama g es, Ex. 1.) This approxim ation is not supported in the rec ord. Indeed, not one aff idavit of the plaintiffs states that a plaintiff did not re ceive any wag es duringtheir entire employ ment. To make a
rea sonable a

pproxi mation of their dama g es, plaintiffs must acc ount for the wa g es which the y
wer e paid. Plaintiffs ca

n acc ount for their pa st wag es through bank re cords, pa y stubs, pay chec ks, or supplemental a ffidavits. See P leitez v. Carney , 594 F. Supp. 2d 47, 49-53 (D .D.C. 2009) (usingbank re cords, r eturne d pay chec ks, and af

fidavits to calculate damag es for FL SA violations) (Ba

tes, J .). Acc ording ly , the Court will hold a second damag es hea ring . At the hea

ring , plaintiffs must present an a

pproxi mation of the dama g es that take s into account the w ag es which the y
rec eived. De fenda

nt Donna may

counter plaintiffs’ dama g es cla ims, including plaintiffs’ approximations of hours worked, a nd may rebut plaintiffs’ approximation of damag es with
rec ords that demonstrate when plaintiffs w ere paid, and in what amounts. IV. CONCLUSION For the re asons set for

th above, the Court will GRANT plaintiffs’ motion for summary judgme nt as to Donna’s pe rsonal liability . The Court will DEFE R ruling on plaintiffs’ damag es at this tim e and w ill hold a second hea ringon damag es at a

date to be de termined. A se parate 9order

shall issue this date. Signed by Roy ce C. L amber

th, Chief J udg e, on Jul y

27, 2010.

10