                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

 DANIELLE FREEMAN, et al.,
      Plaintiffs
      v.                                                  Civil Action No. 14-628 (CKK)
 MEDSTAR HEALTH INC., et al.,
     Defendants

                          MEMORANDUM OPINION and ORDER
                                  (May 9, 2016)
       Plaintiffs are current and former hospital employees who bring claims against MedStar

Health, Inc. (“MedStar”) and against six MedStar hospitals. The hospital defendants are two

District of Columbia hospitals—Washington Hospital Center and Georgetown University

Hospital—and four Maryland hospitals—Franklin Square Hospital, Harbor Hospital, Union

Memorial Hospital, and Good Samaritan Hospital. As the Court explained previously,

essentially, Plaintiffs claim that they were not paid for work that they conducted during their

meal breaks. See Freeman v. MedStar Health Inc., 87 F. Supp. 3d 249, 252 (D.D.C. 2015). As the

case now stands, under Count I, Plaintiffs bring individual claims under the Fair Labor Standards

Act (“FLSA”) against each of the defendants and seek to bring collective action claims under the

FLSA with respect to four hospitals (Franklin Square, Harbor, Union Memorial, and Washington

Hospital Center). Under Count II, plaintiffs employed at the D.C. hospitals bring individual

claims pursuant to the District of Columbia Minimum Wage Act; Plaintiffs also seek to bring

collective action claims with respect to Washington Hospital Center. Finally, the plaintiffs




                                                 1
employed at the Maryland hospitals bring individual claims pursuant to the Maryland Wage and

Hour Law (Count III) and pursuant to the Maryland Wage Payment Collection Law (Count IV). 1

       Before the Court is Defendants’ [77] Motion for Partial Summary Judgment as to

Plaintiffs Melissa Gayle, Raina McCray, Lorraine Tyeryar, and Cherry Graziosi. Upon

consideration of the pleadings, 2 the relevant legal authorities, and the record as a whole, the

Court GRANTS-IN-PART and DENIES-IN-PART Defendants’ [77] Motion for Partial Summary

Judgment. As explained further below, the Court GRANTS the motion with respect to Gayle,

McCray, and Tyeryar, but DENIES the motion with respect to Graziosi.

                                        I. BACKGROUND

       Given the narrow scope of the issues presented in the motion now before the Court and

the absence of material factual disputes as to the issues the Court resolves today, the Court

reserves the presentation of the relevant facts for the discussion of the individual issues below.

                                     II. LEGAL STANDARD

       Summary judgment is appropriate where “the movant shows that 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). The mere existence of some factual dispute is insufficient on its own to bar



1
 Previously, this case included putative class action claims pursuant to Federal Rule of Civil
Procedure 23, with respect to the Maryland law claims. Those have been withdrawn. See Minute
Order dated June 22, 2015.
2
 The Court’s consideration has focused on the following documents:
    • Defs.’ Mot. for Motion for Partial Summary Judgment as to Plaintiffs Melissa Gayle,
        Raina McCray, Lorraine Tyeryar, and Cherry Graziosi (“Defs.’ Mot.”), ECF No. 77;
    • Pls.’ Mem. of Law in Opp’n to Defs.’ Mot. (“Pls.’ Opp’n”), ECF No. 81; and
    • Defs.’ Reply in Supp. of Mot. for Partial Summ. Judgment (“Defs.’ Reply”), ECF No. 84.
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).

                                                  2
summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[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.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to

the relevant facts; the dispute must be “genuine,” meaning that there must be sufficient

admissible evidence for a reasonable trier of fact to find for the non-movant. Id.

                                        III. DISCUSSION

       The pending motion presents three discrete issues. First, Defendants seek summary

judgment with respect to the overtime claims of Plaintiffs Gayle, McCray, and Tyeryar, arguing

that those claims fail because those Plaintiffs did not work more than 40 hours a week at the

relevant times and places of employment. Plaintiffs concede that they do not have overtime

claims. See Pls.’ Opp’n at 1. No more need be said regarding this argument, and the Court will

grant summary judgment to Defendants, as requested, regarding these claims. Second,

Defendants seek summary judgment with respect to these same three Plaintiffs on their minimum

wage claims under Counts I, II, and III. The parties’ dispute with respect to this argument is

purely legal, and the Court addresses it below. Third, Defendants seek summary judgment with

respect to Plaintiff Graziosi on the grounds of judicial estoppel, arguing that she should be

estopped from asserting her claims in this action in light of certain facts connected with a

bankruptcy petition filed last year (which was subsequently withdrawn). The Court discusses the

parties’ arguments regarding the minimum wage claims, followed by the parties’ arguments

regarding judicial estoppel.




                                                 3
A. Minimum Wage Claims
       Because Plaintiffs worked less 40 hours a week during the time periods and places of

employment relevant to this litigation, as the parties agree, it is necessary to determine the

“relevant unit for determining compliance with the minimum wage prescriptions of federal and

local law.” 3 Dove v. Coupe, 759 F.2d 167, 168 (D.C. Cir. 1985). Ultimately, the parties’

arguments about the viability of certain plaintiffs’ minimum wage claims amount to a legal

disagreement about the relevant unit for measuring compliance with the applicable statutory

provisions, or “measuring rod,” as explained further below. Because the Court agrees with

Defendants that the workweek is the appropriate “measuring rod,” and because there are no

material facts in dispute, the Court grants summary judgment to Defendants with respect to the

minimum wage claims at issue.

       As prefatory matter, the Court must address Plaintiffs’ argument that the legal standard

for minimum wage claims has previously been settled by the Court earlier in this litigation and

is, therefore, governed by the “law of the case.” Plaintiffs’ argument is wrong on the law and

wrong on the facts.

       The United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”)

has recently confirmed that the law of the case “doctrine holds that a ‘legal decision made at one

stage of litigation, unchallenged in a subsequent appeal when the opportunity to do so existed,

[governs] future stages of the same litigation, and the parties are deemed to have waived the right

to challenge that decision at a later time.’ ” United States v. Burroughs, 810 F.3d 833, 838 (D.C.

Cir. 2016) (quoting United States v. Thomas, 572 F.3d 945, 949 (D.C. Cir. 2009) (alteration in




3
 Generally speaking, if the plaintiffs had worked more than 40 hours a week, the overtime
provisions of the relevant statutes would be applicable and different issues would arise.

                                                  4
original). The doctrine also encompasses a bar on subsequent revisiting of issues previously

decided by an appellate court “explicitly or by necessary implication.” Crocker v. Piedmont

Aviation, Inc., 49 F.3d 735, 739 (D.C. Cir. 1995). Therefore, the law of the case doctrine is

clearly inapplicable in these circumstances for a simple reason: no party has thus far appealed

any decision of this Court to the D.C. Circuit.

       True, courts and litigants sometimes use “law of the case” to refer to the general principle

that “ ‘[w]here issues have been resolved at a prior state in the litigation, based upon principles

of judicial economy, courts generally decline to revisit [them].’ ” Pro-Football, Inc. v. Harjo, 567

F. Supp. 2d 46, 52 (D.D.C. 2008), aff’d in part, 565 F.3d 880 (D.C. Cir. 2009) (citation omitted).

But even that broader principle has no application to the issue before the Court. The Court never

previously decided, directly or by implication, the legal question regarding minimum wage

claims that is now before the Court: whether the “workweek measuring rod” or some other unit

of measurement is applicable to minimum wage claims. In their motion to dismiss, Defendants

never presented any argument related to the ones they present in the motion for partial summary

judgment now before the Court. 4 Therefore, Defendants never “waived” or “conceded” such an

argument by failing to respond to arguments in Plaintiff’s opposition to the motion to dismiss.

Concomitantly, the Court simply did not make any decisions at the motion to dismiss stage that




4
 In resolving the motion to dismiss, the Court described Defendants’ arguments regarding the
minimum wage claims as follows:
       With respect to the minimum wage claims, Defendants argue that the claims are
       deficiently pleaded because Plaintiffs have not pleaded information about the
       amount of time that they allegedly spent performing tasks during their meal
       breaks. Defendants further argue that Plaintiffs have not pleaded adequately that
       the amount of time was more than de minimis.
Freeman, 87 F. Supp. 3d at 257-58.


                                                  5
determined—explicitly or by implication—the legal standard for minimum wage claims.

Accordingly, the Court will turn to the substance of the parties’ arguments regarding the

minimum wage claims. 5

       Citing to the D.C. Circuit’s 1985 decision in Dove v. Coupe, Defendants argue that the

relevant measuring rod under the FLSA and under the D.C. Minimum Wage Act is the

“workweek.” 759 F.2d at 168. Importantly, the parties agree that, if the workweek is the

appropriate measuring rod, summary judgment for Defendants with respect to the specific claims

at issue in the pending motion is warranted. However, Plaintiffs essentially argue that Dove is

not binding on this Court and that, upon examining the relevant statutes, the Court should adopt

the “hourly measuring rod,” or, in the alternative, the “contract measuring rod.” 6 Plaintiffs




5
  Even if the Court had somehow previously decided this issue, the Court would not be barred
from revisiting it now as there is no binding “law of the case” on point.
6
 A brief example clarifies the meaning of these alternative methodologies. Suppose a person
works for a single employer 24 hours a week—eight hours a day, three days week. Suppose
further that the person is paid $50 for each of seven hours a day, but is required to work an eighth
hour without pay. Over the course of a week, therefore, such a person would be paid $1,050,
which would actually be $43.75 per hour of time worked.
Suppose also that the applicable minimum wage were $10 per hour. Using the “workweek
measuring rod,” there is a violation only if, averaged over the workweek, the hourly wage is less
than $10. There is no such violation in this example because $43.75 per hour is above $10 per
hour. By contrast, using the “hourly measuring rod,” a Court looks to whether a person was paid
the minimum wage for every individual hour worked. See Norceide v. Cambridge Health All.,
814 F. Supp. 2d 17, 23-24 (D. Mass. 2011). Pursuant to this methodology, there is a violation in
this example—because the employee is paid zero dollars for the eighth hour each day, for a total
of three “unpaid” hours over the course of a week.
Finally, under the “contract measuring rod,” a Court looks to the specific employment contract in
question to determine the scope of compensable work. See D’Arezzo v. Providence Ctr., Inc., No.
C.A. 15-120-M-LDA, 2015 WL 6673356, at *7 (D.R.I. Oct. 30, 2015). Applying this so-called
“measuring rod” requires an assessment of the specific facts of a case and is not necessary to
discuss further here. See id. at *7, n.15 (acknowledging that the “ ‘contract measuring rod’ is not
so much a measuring rod, as recognition that a measuring rod is not needed when an employee is
required to do uncompensated work not included in her contract”).

                                                  6
further argue that, if the Court adopts either of these measuring rods, the claims in question will

survive the pending motion for summary judgment.

       On this core legal question, the Court begins where it also, ultimately, must end: with the

pronouncement of the D.C. Circuit on the subject. The D.C. Circuit has explicitly held that,

under the FLSA and under the D.C. Minimum Wage Act, the “workweek measuring rod”

determines liability under the minimum wage provisions of those statutes. See Dove, 759 F.2d at

172. Moreover, the D.C. Circuit specifically concluded that a narrower unit of measurement,

such as an “hourly measuring rod,” did not apply under those statutes. See id. Notwithstanding

Plaintiffs’ suggestions to the contrary, no subsequent case law has cast doubt on these binding

holdings.

       With respect to the FLSA, the D.C. Circuit has never reversed course. Nor has the

Supreme Court held or even suggested that the “workweek measuring rod” is improper. Indeed,

the Court notes that five of the United States Courts of Appeals have adopted the “workweek

measuring rod,” eight have not taken a position, and none has come to a contrary conclusion. See

D’Arezzo, 2015 WL 6673356, at *4 (citing cases).

       Despite this definitive result, Plaintiffs argue that Dove has no precedential value in light

of subsequent legal development regarding the level of deference to give to administrative

agencies under Chevron, U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837

(1984). Plaintiffs’ argument gets no traction for two fundamental reasons. First, Plaintiffs

misconstrue Dove’s reliance on Chevron and, therefore, the impact of subsequent legal

development regarding Chevron deference. In Dove, the D.C. Circuit did not apply what has

become the standard two-step Chevron analysis—which is hardly surprising given that Dove was

issued less than 10 months after Chevron. The D.C. Circuit, instead, analyzed the statute, case



                                                 7
law from other Circuits, and pronouncements of the Department of Labor. See Dove, 759 F.2d at

170-72. Based on that analysis in its entirety, the court held that the “workweek measuring rod”

was proper. Id. at 172. Indeed, the court did not even mention Chevron until a footnote at the end

of the court’s discussion of the legal issue presented. See Dove, 759 F.2d at 172 n.9; see id. (“In

keeping with the view of our sister courts, and giving respectful consideration to the position of

the agency charged with administration of the Fair Labor Standards Act, we hold that the

magistrate erred in employing a period shorter than the workweek to measure compliance with

minimum wage law.”) (footnote citing Chevron omitted). In short, Plaintiffs’ argument that

subsequent case law expounding on Chevron vitiates Dove’s precedential status has no basis in

law or fact. Second, even if case law had cast doubt on Dove, it would be for the D.C. Circuit—

not this Court—to address any such doubts in the first instance. Unless and until the D.C. Circuit

does so, Dove remains binding on this Court. Therefore, the “workweek measuring rod” is the

appropriate methodology for determining compliance with the FLSA’s minimum wage

provisions. Accordingly, the Court grants summary judgment to Defendants with respect to the

FLSA minimum wage claims at issue in the pending motion.

       Turning to the D.C. Minimum Wage Act, the D.C. Circuit held that the “workweek

measuring rod” was applicable to this statute, as well, as explained above. The D.C. Circuit has

not reversed course on this matter, either. Nor has the District of Columbia Court of Appeals, the

final arbiter of District of Columbia law, suggested a contrary result. Indeed, Plaintiff argues that

the D.C. Minimum Wage Act “mirrors the FLSA.” Pls.’ Opp’n at 14; see also Dove, 759 F.2d at

170-73 (treating D.C. and federal minimum wage provisions as identical with respect to the

relevant “measuring rod”). For all of these reasons, the D.C. Circuit’s determination that the

“workweek measuring rod” applies to the D.C. Minimum Wage Act continues to bind this Court.



                                                  8
Accordingly, the Court grants summary judgment to Defendants with respect to the minimum

wage claims under the D.C. Minimum Wage Act that are at issue in the pending motion.

       Finally, the Court turns to Plaintiffs’ argument regarding the Maryland Wage and Hour

Law—an argument confined to a single footnote in Plaintiffs’ brief. Specifically, Plaintiffs’

argument is limited to their cursory suggestion that their arguments in favor of an “hourly

measuring rod” under the D.C. Minimum Wage Act, and in turn under the FLSA, are applicable

to minimum wage claims under the Maryland Wage and Hour Law. Indeed, Plaintiffs have

provided no authority or other basis for the Court to conclude that a different unit of

measurement is applicable under Maryland law as compared to D.C. or Federal law. Therefore,

just as the “workweek measuring rod” applies under the FLSA and under D.C. Minimum Wage

Act, so too, it applies under the Maryland Wage and Hour Law. For that reason, the Court grants

summary judgment to Defendants with respect to the minimum wage claims under the Maryland

Wage and Hour Law that are at issue in the pending motion, as well.

       In sum, the Court grants summary judgment to Defendants with respect to Plaintiffs

Gayle, McCray, and Tyeryar on their minimum wage claims under the FLSA, the D.C. Minimum

Wage Act, and the Maryland Wage and Hour Law. Because those claims are clearly legally

foreclosed, the Court need not address Defendants’ argument that Plaintiffs have not properly

asserted minimum wage claims, in the first instance. Given this conclusion and given Plaintiffs’

concession that these individuals cannot assert overtime claims under these statutes, the Court

grants summary judgment to Defendants with respect to Plaintiffs Gayle and Tyeryar as to

Counts I, II, and III. The only claims of those two plaintiffs that survive summary judgment are

their individual claims under the Maryland Wage Payment Collection Law (Count IV). The




                                                 9
Court grants summary judgment to Defendants with respect to Plaintiff McCray as to all of her

claims, and she is dismissed as a party.


B. Judicial Estoppel
       Defendants argue that Plaintiff Cherry Graziosi’s claims are barred by the doctrine of

judicial estoppel because Graziosi failed to disclose her claims in a bankruptcy petition filed on

November 9, 2015. Defendants also argue that judicial estoppel is warranted because Graziosi

indicated in her November 10, 2015, deposition for this case that she had never filed for

bankruptcy. Graziosi responds that judicial estoppel would not be appropriate because she was

unaware of the filing of the petition by her attorney and, moreover, she moved to dismiss the

petition voluntarily soon after she learned it was filed. Therefore, she argues she has not—and

will not—derive any unfair advantage from the representations in these parallel proceedings. The

Court agrees with Graziosi that judicial estoppel is not warranted in these circumstances.

       As the D.C. Circuit has recognized, the “Supreme Court has indicated that judicial

estoppel ‘is an equitable doctrine invoked by a court at its discretion.’ ” Moses v. Howard Univ.

Hosp., 606 F.3d 789, 797 (D.C. Cir. 2010) (quoting New Hampshire v. Maine, 532 U.S. 742, 750-

51 (2001)). For that reason, a majority of the Circuits apply an abuse of discretion standard to

reviewing a district court’s application of judicial estoppel—although the D.C. Circuit has not

yet decided that question. See id. (citing cases). To guide a district court’s exercise of that

discretion, the Supreme Court has identified “several factors [that] typically inform the decision

whether to apply the doctrine in a particular case” while noting that these factors are not

“inflexible prerequisites or an exhaustive formula.” New Hampshire, 532 U.S. at 250, 251. The

D.C. Circuit has distilled that inquiry as follows:

       There are at least three questions that a court should answer in deciding whether
       to apply judicial estoppel: (1) Is a party’s later position clearly inconsistent with

                                                  10
       its earlier position? (2) Has the party succeeded in persuading a court to accept
       that party’s earlier position, so that judicial acceptance of an inconsistent position
       in a later proceeding would create the perception that either the first or the second
       court was misled? (3) Will the party seeking to assert an inconsistent position
       derive an unfair advantage or impose an unfair detriment on the opposing party if
       not estopped?

Moses, 606 F.3d at 798 (citing New Hampshire, 532 U.S. at 750-501). Moreover, the D.C.

Circuit has clarified that “a court may not invoke judicial estoppel against a party who has

engaged in misconduct in a separate proceeding if that proceeding is unrelated to the current

proceeding.” Id. at 799.

       Defendants emphasize that Plaintiff Graziosi authorized the bankruptcy petition, despite

her representation to the contrary in responding to the pending motion and in testimony before

the bankruptcy court. However, this Court need not delve further into the circumstances

surrounding the filing of that petition. As Graziosi states, she never convinced the bankruptcy

court to adopt any position inconsistent with the ones taken in this proceeding. Indeed, once she

learned of the petition—she says—she moved to withdraw the petition and to convince the

bankruptcy court that she never authorized the filing. The bankruptcy judge then granted that

request. Importantly, Defendants have identified no way in which Graziosi would “derive an

unfair advantage or impose an unfair detriment on” them if her claims are allowed to go forward

in this action. Id. at 798. Specifically, Defendants never identify any way in which either they

have been prejudiced by these alleged inconsistent filings or that these proceedings have been

compromised by Graziosi’s representations. Graziosi’s bankruptcy petition was voluntarily

dismissed on February 8, 2016, and is no longer pending. See Docket, In re: Graziosi (D. Md.

Bankr. 15-25568). Therefore, the Court concludes that none of the identified contradictory

representations provide a basis for judicial estoppel.




                                                 11
        Regardless of the precise circumstances of the 2015 bankruptcy filing, the Court

concludes that neither the filing itself nor Plaintiff’s representation in this action that no such

filing had been made justify the application of judicial estoppel. Therefore, Plaintiff Graziosi’s

claims are not barred, and the Court denies Defendants’ motion for summary judgment with

respect to this plaintiff.

                                 IV. CONCLUSION AND ORDER

        For the foregoing reasons, it is hereby ORDERED that Defendants’ [77] Motion for

Partial Summary Judgment as to Plaintiffs Melissa Gayle, Raina McCray, Lorraine Tyeryar, and

Cherry Graziosi is GRANTED-IN-PART and DENIED-IN-PART. The Court GRANTS

Defendants’ motion with respect to Gayle, McCray, and Tyeryar, and DENIES the motion with

respect to Graziosi.

        It is further ORDERED that summary judgment is GRANTED to Defendants with

respect to Plaintiff Gayle as to Counts I, II, and III.

        It is further ORDERED that summary judgment is GRANTED to Defendants with

respect to Plaintiff McCray as to all claims. McCray is hereby DISMISSED as a party.

        It is further ORDERED that summary judgment is GRANTED to Defendants with

respect to Plaintiff Tyeryar as to Counts I, II, and III.

        The Court will separately resolve the pending motion for conditional certification.

Dated: May 9, 2016
                                                             /s/
                                                          COLLEEN KOLLAR-KOTELLY
                                                          United States District Judge




                                                   12
