                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

__________________________________________
                                          )
DAVID MORALES,                            )
                                          )
            Plaintiff,                    )
                                          )
      v.                                  )                 Civil Action No. 08-1463 (PLF)
                                          )
LANDIS CONSTRUCTION CORP., et al.,        )
                                          )
            Defendants.                   )
__________________________________________)


                                  MEMORANDUM OPINION

               The plaintiff, David Morales, alleges that defendants, Landis Construction

Coporation, Ethan Landis, and Christopher Landis, violated the Fair Labor Standards Act, the

District of Columbia Minimum Wage Revision Act, and the District of Columbia Wage Payment

and Collection law by failing to pay plaintiff time-and-one-half for overtime work. This matter

currently is before the Court on plaintiff’s motion for summary judgment, plaintiff’s motion for

in camera inspection of documents, defendant’s motion for leave to file an amended answer, and

defendant’s motion to strike plaintiff’s reply in support of his motion for summary judgment.


                                      I. BACKGROUND

               Plaintiff worked for defendants from either March or May 2005 through

November 2007, although, according to defendants’ payroll records, plaintiff was not employed

by defendant from September 2005 through March 2006. See Plaintiff’s Motion for Summary

Judgment (“Mot.”), Statement of Undisputed Material Facts (“Pl. Facts”) ¶ 1; Defendants’

Opposition to Plaintiff’s Motion for Summary Judgment (“Opp.”), Response to Plaintiff’s
Statement of Material Facts (“Def. Facts”) ¶ 1.1 Plaintiff states that he typically was scheduled to

work between eight and ten hours per day, five to six days per week. See Pl. Facts ¶ 3.

Defendant Ethan Landis submitted a declaration stating that plaintiff’s regular schedule was eight

hours per day, five days per week. See Opp., Declaration of Ethan Landis (“Landis Decl.”) ¶ 3.

Plaintiff’s work shifts were recorded on time sheets. See Pl. Facts ¶ 4; Landis Decl. ¶ 4.

Defendants paid plaintiff on an hourly basis, and his weekly pay depended on the number of

hours he worked. See Pl. Facts ¶¶ 11-12; Def. Facts ¶¶ 11-12. Plaintiff’s final hourly wage from

defendants was $19 per hour, although the parties disagree about the hourly wage he received

earlier in his employment. See Pl. Facts ¶ 13; Def. Facts ¶ 13.

               Defendants agree that they failed to pay plaintiff time-and-one-half for a total of

25 hours of overtime over the course of his employment. See Def. Facts. ¶ 14. Plaintiff asserts

that the total number of unpaid overtime hours is 150.5 (although he does not include this total

amount in his filings anywhere other than in an exhibit to his reply brief in support of his motion

for summary judgment). See Reply to Defendants’ Opposition to Plaintiff’s Motion for

Summary Judgment (“Rep.”), Ex. 1. The parties agree that their dispute is about the total amount

of overtime pay that defendants owe to plaintiff.


                                  II. STANDARD OF REVIEW

               Summary judgment may be granted if “the pleadings, the discovery and disclosure

materials on file, and any affidavits [or declarations] show that there is no genuine issue as to any



       1
              In their proposed amended answer, defendants say plaintiff’s dates of employment
were from May 19, 2005 to September 5, 2005, and again from March 19, 2006 to November 23,
2007. See infra at 8.

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material fact and that the movant is entitled to judgment as a matter of law.” FED . R. CIV . P.

56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.

Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). “A fact is ‘material’ if a dispute over it might affect

the outcome of a suit under the governing law; factual disputes that are ‘irrelevant or

unnecessary’ do not affect the summary judgment determination.” Holcomb v. Powell, 433 F.3d

at 895 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). An issue is “genuine” if the

evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott

v. Harris, 550 U.S. 372, 380 (2007); Anderson v. Liberty Lobby, Inc., 477 U.S. at 248; Holcomb

v. Powell, 433 F.3d at 895. When a motion for summary judgment is under consideration, “the

evidence of the non-movant[s] is to be believed, and all justifiable inferences are to be drawn in

[their] favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 255; see also Mastro v. Potomac

Electric Power Co., 447 F.3d 843, 849-50 (D.C. Cir. 2006); Aka v. Washington Hospital Center,

156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc); Washington Post Co. v. U.S. Dep’t of Health

and Human Services, 865 F.2d 320, 325 (D.C. Cir. 1989). On a motion for summary judgment,

the Court must “eschew making credibility determinations or weighing the evidence.” Czekalski

v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).

               The nonmoving party’s opposition, however, must consist of more than mere

unsupported allegations or denials and must be supported by affidavits, declarations or other

competent evidence, setting forth specific facts showing that there is a genuine issue for trial.

FED . R. CIV . P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). They are required to

provide evidence that would permit a reasonable jury to find in their favor. Laningham v. United

States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the nonmovants’ evidence is “merely


                                                  3
colorable” or “not significantly probative,” summary judgment may be granted. Anderson v.

Liberty Lobby, Inc., 477 U.S. at 249-50; see Scott v. Harris, 550 U.S. at 380 (“[W]here the record

taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is

‘no genuine issue for trial.’”) (quoting Matsushita Electric Industrial Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986)).


                                         III. DISCUSSION

                                      A. Summary Judgment2

               Plaintiff’s three statutory claims all arise from defendants’ alleged failure to pay

him adequate compensation for the hours of overtime that he worked. The Fair Labor Standards

Act (“FLSA”) requires, among other things, that employers pay any employee who is covered by

the FLSA “not less than one and one-half times the regular rate at which he is employed” for all

hours worked in excess of forty in a week. 29 U.S.C. § 207(a)(1). See also Hunter v. Sprint

Corp., 453 F. Supp. 2d 44, 50 (D.D.C. 2006). The District of Columbia Minimum Wage

Revision Act has similar requirements. See D.C. Code § 32-1003(c) (“No employer shall

employ any employee for a workweek that is longer than 40 hours, unless the employee receives

compensation for employment in excess of 40 hours at a rate not less than 1 1/2 times the regular

rate at which the employee is employed.”). The District of Columbia Wage Payment and

Collection Law requires that an employer pay the outstanding wages of an employee who has

been discharged or who has resigned within four days of the date of discharge or resignation.


       2
               Resolution of defendants’ motion for leave to file an amended answer does not
affect the Court’s analysis of plaintiff’s motion for summary judgment. Accordingly, the Court
will address the motion for leave to file an amended answer after resolution of the motion for
summary judgment.

                                                  4
D.C. Code § 32-1303(1). The parties agree that defendants owe plaintiff some amount of

overtime pay. Defendants assert that they owe plaintiff for a total of 25 hours of unpaid

overtime. See Def. Facts ¶ 14. Plaintiff asserts that defendants owe him compensation for 150.5

hours of unpaid overtime as well as liquidated damages. See Rep., Ex. 1.

               Although plaintiff acknowledges that a genuine dispute exists regarding the

amount of overtime owed, he argues that he is entitled to a presumption that his calculation of

unpaid overtime hours is correct because defendants’ records are inadequate. See Anderson v.

Mt. Clemens Pottery Co., 328 U.S. 680, 687-88 (1946) (using such a presumption); Arias v.

United States Serv. Indus., 80 F.3d 509, 511-12 (D.C. Cir. 1996) (same). In support of his

argument that defendants’ time records are inadequate or inaccurate, plaintiff asserts that some of

the time sheets produced in discovery reflect jobs that plaintiff did not work or do not reflect

projects on which he worked. In addition, plaintiff asserts that defendants “falsified” his time

sheets because the time sheets he reviewed do not all have the project manager’s signature on

them. See Pl. Facts ¶ 10; Mot., Affidavit of Nathan Lindell ¶ 11. Plaintiff also argues that the

reliability of defendants’ time sheets is in doubt because he believes that they do not always

include his original signature, but rather they include a photocopy of his signature or lack his

signature completely. See Mot., Memorandum in Support at 4.

               In response to plaintiff’s argument that the time records are unreliable, defendants

rely on the declaration of Ethan Landis, in which Mr. Landis denies that the time sheets are

inadequate. In particular, he states that time sheets are not always required to have the project

manager’s signature, and when no such signature exists, the company verifies the hours worked

by phone prior to issuing a paycheck. See Landis Decl. ¶ 4. He also states that none of the


                                                 5
signatures on the time sheets has been altered or forged and that the time sheets were not falsified

in any way. See id. ¶¶ 4, 10.3 He states that it is not true that the time sheets fail to reflect certain

work actually performed by plaintiff. See id. ¶ 9. Taking all of Mr. Landis’s statements as

accurate, as the Court must at this stage, there is no basis to determine as a matter of fact or law

that defendants’ time sheets are inaccurate or unreliable. The Court therefore cannot afford

plaintiff’s calculation of overtime hours the presumption of accuracy that he seeks. The cases he

cites do not require the Court to do so in circumstances like those presented here. See, e.g.,

Anderson v. Mt. Clemens Pottery Co., 328 U.S. at 687-88. A genuine issue of material fact

exists as to how many overtime hours plaintiff worked for the relevant time period.4 The Court

therefore cannot grant summary judgment for plaintiff.

                In his reply brief, plaintiff suggests that the parties be referred to mediation for the

purpose of resolving the amount of unpaid compensation owed to plaintiff. See Rep. at 4. The

Court agrees that doing so would be prudent, and will order the parties to file a joint statement

regarding whether they prefer to be referred to the court-sponsored mediation program or

randomly to a magistrate judge for settlement discussions.



        3
              Plaintiff’s Motion for an In Camera Inspection of Documents seeks to have the
Court review these time sheets in order to determine whether Mr. Morales’s signature is
authentic. Such a resolution of a disputed issue of fact is inappropriate on a motion for summary
judgment. Accordingly, the Court will deny the motion.
        4
                Defendants move to strike the section of the reply brief and accompanying exhibit
in which plaintiff identifies for the first time the specific dates and hours when he allegedly
worked more than 40 hours per week. See Defendants’ Motion to Strike Plaintiff’s Reply to
Defendants’ Opposition to Plaintiff’s Motion for Summary Judgment or for Leave to Sur-Reply
at 1. In its analysis of plaintiff’s motion for summary judgment, the Court did not, however, rely
on the specific number of hours for which plaintiff asserts he is due overtime. Defendants’
motion therefore will be denied as moot.

                                                   6
                  B. Defendants’ Motion for Leave to File an Amended Answer

               Defendants move for leave to file an amended answer to plaintiff’s first amended

complaint. Rule 15(a) of the Federal Rules of Civil Procedure allows for liberal amendment of

pleadings, “when justice so requires.” FED . R. CIV . P. 15(a); see, e.g., Howard v. Gutierrez, 237

F.R.D. 310, 312 (D.D.C. 2006) (quoting Davis v. Liberty Mutual Insurace Co., 871 F.2d 1134,

1136-37 (D.C. Cir. 1989) (“It is common ground that Rule 15 embodies a generally favorable

policy toward amendments.”) (citations omitted)). The presumption runs in favor of permitting

defendants to amend their answer “[i]n the absence of any apparent or declared reason — such as

undue delay, bad faith or dilatory motive on the part of the [defendant], repeated failure to cure

deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue

of allowance of the amendment, futility of the amendment, etc.” Foman v. Davis, 371 U.S. 178,

182 (1962).

               Defendants explain that they wish to amend their answer because “[i]n their

original answer, defendants admitted plaintiff’s approximate dates of employment and his hourly

rate. Upon re-examination of plaintiff’s payroll records for defendants’ opposition to plaintiff’s

motion for summary judgment, defendants discovered that the dates of employment and hourly

rates” were different than the ones they originally admitted. See Defendants’ Motion for Leave

to File an Amended Answer at 1. Defendants now deny that plaintiff worked for them from

March 2005 to November 2007. Instead they state that plaintiff’s dates of employments were

May 19, 2005 to September 5, 2005, and March 19, 2006 to November 23, 2007. See id., Ex. 1

(“Amended Answer to First Amended Complaint”) ¶ 9. They also deny that plaintiff’s hourly




                                                 7
wage was $19 per hour, and instead to answer that plaintiff’s “hourly rate was $16.50 for 2005,

$18.00 for 2006 and $19.00 for 2007.” Id. ¶ 19.

               Plaintiff opposes the motion on the ground that defendants’ proposed amendments

are prejudicial and futile. As to prejudice, plaintiff argues that because he did not learn that

defendants disagreed with his stated hourly wage until after the completion of discovery, he was

not able to take discovery on this discrepancy. In order to ameliorate any such prejudice, the

Court will permit plaintiff to take additional limited discovery regarding plaintiff’s hourly wage.

Plaintiff may move to do so — and the Court will grant such a motion — if he feels that it is

necessary. But the Court does not agree that any resulting prejudice is a reason to bind

defendants to what they now believe is a factually incorrect answer.

               As to futility, plaintiff argues that the statute of limitations bars any recovery for

unpaid overtime accrued more than three years prior to the commencement of litigation. The

lawsuit was filed on August 22, 2008. According to plaintiff, therefore, it does not matter

whether he began his employment with defendants in March 2005 or in May 2005, because any

recovery for hours worked prior to August 22, 2005 would be barred. Plaintiff ignores the fact,

however, that defendants also seek to amend their answer to state that plaintiff did not work for

them for a time period from September 2005 through March 2006, a time period which would

not be barred by the statute of limitations. The Court concludes that the proposed amendment is

not futile. It will grant defendants’ motion.




                                                  8
                                      IV. CONCLUSION

               For the reasons stated above, the Court will deny plaintiff’s motion for summary

judgment, will grant defendants’ motion for leave to file an amended answer, will deny plaintiff’s

motion for an in camera review of documents, and will deny as moot defendants’ motion to

strike. An Order consistent with this Memorandum Opinion will issue this same day.


                                                    /s/_________________________
                                                    PAUL L. FRIEDMAN
                                                    United States District Judge
DATE: June 4, 2010




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