                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


                              )
DAVID DEL VILLAR              )
                              )
             Plaintiff,       )
                              )
       v.                     )                       Civil Action No. 09-1135 (RMC)
                              )
FLYNN ARCHITECTURAL FINISHES, )
INC., et al.                  )
                              )
             Defendants.      )
                              )


                                  MEMORANDUM OPINION

               In this action brought under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201

et seq, and the D.C. Minimum Wage Revision Act, D.C. Code § 32-1003(c), David Del Villar sues

both Flynn Architectural Finishes, Inc., his former employer, and Christopher R. Flynn, the owner

and President of Flynn Architectural Finishes, Inc. Mr. Flynn moves to dismiss the allegations

against him personally pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that the

Complaint fails to advance facts sufficient to have him included in the definition of Mr. Del Villar’s

“employer.” See Dkt. # 4. Mr. Del Villar opposes the motion. Dkt. # 6. For the reasons set forth

below, the Court will deny Mr. Flynn’s motion to dismiss.

                                             I. FACTS

               Mr. Del Villar worked for Flynn Architectural Finishes, Inc., as a highly skilled metal

finisher from March 2008 to July 2008. Compl. ¶ 2. He was assigned to work on several projects

for the federal government. Id. ¶ 3. Christopher Flynn is the owner and President of Flynn

Architectural Finishes, Inc. Id. ¶ 15. Although he worked more than 40 hours in a week, Mr. Del
Villar alleges that he was not paid any overtime pay. Id. ¶ 1.

               In early July 2008, Mr. Del Villar complained to the General Services Administration

worksite inspector that he was not properly paid. Id. ¶ 20. On the same day, Mr. Del Villar informed

Mr. Flynn that he had spoken to the GSA inspector and asked him to resolve the issue of Mr. Del

Villar’s wages, but Mr. Flynn allegedly just waved him away. Id. ¶¶ 21-22. On or about July 14,

2008, GSA’s inspector called Mr. Flynn, “informing him that [Mr. Del Villar] had complained to

him that [Mr. Flynn] was not paying him his proper wages.” Id. ¶ 23. “On July 17, 2008, [Mr.

Flynn] called [Mr. Del Villar] into his office, told him that he was ‘causing too much trouble’ and

terminated him.” Id. ¶ 24. Mr. Del Villar alleges that Mr. Flynn fired him in retaliation for his

complaint to the GSA inspector. Id. ¶ 31.

                                   II. LEGAL STANDARDS

               A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges

the adequacy of a complaint on its face, testing whether a plaintiff has properly stated a claim.

Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain statement

of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). A complaint must

be sufficient “to give a defendant fair notice of what the . . . claim is and the grounds upon which

it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted).

Although a complaint does not need detailed factual allegations, a plaintiff’s obligation to provide

the grounds of his entitlement to relief “requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Id. The facts alleged “must be enough

to raise a right to relief above the speculative level.” Id. Rule 8(a) requires an actual showing and

not just a blanket assertion of a right to relief. Id. at 555 n.3. “[A] complaint needs some


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information about the circumstances giving rise to the claims.” Aktieselskabet Af 21. Nov. 2001 v.

Fame Jeans, Inc., 525 F.3d 8, 16 n.4 (D.C. Cir. 2008) (emphasis in original).

               In deciding a motion under Rule 12(b)(6), a court may consider the facts alleged in

the complaint, documents attached to the complaint as exhibits or incorporated by reference, and

matters about which the court may take judicial notice. Abhe & Svoboda, Inc. v. Chao, 508 F.3d

1052, 1059 (D.C. Cir. 2007). To survive a motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim for relief that is “plausible on its face.” Twombly,

550 U.S. at 570. When a plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged, then the claim has facial

plausibility. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “The plausibility standard is not akin

to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted

unlawfully.” Id.

               A court must treat the complaint’s factual allegations as true, “even if doubtful in

fact.” Twombly, 550 U.S. at 555. But a court need not accept as true legal conclusions set forth in

a complaint. Iqbal, 129 S. Ct. at 1949. “Threadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Id. “While legal conclusions can provide

the framework of a complaint, they must be supported by factual allegations. When there are well-

pleaded factual allegations, a court should assume their veracity and then determine whether they

plausibly give rise to an entitlement to relief.” Id. at 1950.

                                          III. ANALYSIS

               The FLSA defines “employer” to include “any person acting directly or indirectly in

the interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). The D.C. Minimum


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Wage Revision Act contains almost identical language. See D.C. Code § 32-1002 (“The term

‘employer’ includes any individual, partnership, association, corporation, business trust, or any

person or group of persons acting directly or indirectly in the interest of an employer in relation to

an employee, but shall not include the United States or the District of Columbia.”). These two laws

are interpreted similarly. See Williams v. W. M. A. Transit Co., 472 F.2d 1258, 1261 (D.C. Cir.

1972) (finding that the D.C. Minimum Wage Act was modeled after the FLSA but drawing

distinctions between the two where the provisions contain explicit differences); Hicks v. Ass’n of Am.

Med. Colleges, 503 F. Supp. 2d 48, 51 (D.D.C. 2007) (finding that given the “nearly identical”

language of the anti-retaliation provisions in the two statutes, the same interpretation should be given

to both); Calles v. BPA Eastern US, Inc., Civ. No. 91-2298, 1991 U.S. Dist. LEXIS 17456, *1-2

(D.D.C. Dec. 6, 1991) (noting that legislative history suggests D.C. Minimum Wage Act is to be

construed consistently with FLSA).

               Although both laws are broadly stated, courts apply an “economic reality test” to

determine if an individual should bear potential liability as a statutory “employer.” That is, courts

consider the totality of the circumstances of the relationship between plaintiff/employee and

defendant/employer to determine whether the putative employer has the power to hire and fire,

supervise and control work schedules or conditions of employment, determine rate and method of

pay, and maintain employment records. See Morrison v. Int’l Programs Consortium, Inc., 253 F.3d

5, 11 (D.C. Cir. 2001).

               Mr. Flynn carefully does not argue that he does not have the power to hire and fire,

control work schedules and supervise employees, determine pay rates or maintain employment

records. He is, after all, the owner and President of Flynn Architectural Finishes, Inc., and his name


                                                  -4-
is Christopher R. Flynn. His argument is more lawerly: he attacks the sufficiency of the

Complaint’s allegations concerning his personal role and seeks dismissal on that basis. The Court

is unpersuaded.

               The Complaint states: the name of the corporation and the name of its owner and

president are identical; both Defendants assigned work to Mr. Del Villar; Mr. Flynn paid one or more

bonuses to Mr. Del Villar; and Mr. Flynn personally fired Mr. Del Villar. These allegations are more

than enough to alert Mr. Flynn to the nature of the complaint against him in order to prepare his

defense. See Twombly, 550 U.S. at 555. The law does not require a plaintiff to do more in his

complaint.

                                      IV. CONCLUSION

               The motion to dismiss [Dkt. # 4] filed by Christopher R. Flynn will be denied. A

memorializing order accompanies this memorandum opinion. Mr. Flynn shall file an answer or other

response to the Complaint no later than November 9, 2009.




Date: October 19, 2009                                             /s/
                                                 ROSEMARY M. COLLYER
                                                 United States District Judge




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