ENCINAS et al v. J.J. DRYWALL CORPORATION et al

Filing 55

MEMORANDUM OPINION. Signed by Judge Richard W. Roberts on 1/3/2012. (lcrwr1)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_____________________________
)
FELIX ENCINAS et al.,
)
)
Plaintiffs,
)
)
v.
)
Civil Action No. 08-1156 (RWR)
)
)
J.J. DRYWALL CORP. et al.,
)
Defendants.
)
_____________________________ )
MEMORANDUM OPINION
Plaintiffs Felix Encinas, Gabriel Encinas, and Silvano
Carbajal brought claims against defendants J.J. Drywall Corp. and
Jose Luis Jimenez for unpaid overtime compensation, other unpaid
wages, costs, and attorneys’ fees on their own behalf and on
behalf of all others similarly situated under the Fair Labor
Standards Act, 29 U.S.C. §§ 201-219 (“FLSA”); the District of
Columbia Minimum Wage Act Revision Act (“DCMWA”), D.C. Code § 321001 et seq.; the District of Columbia Wage Payment and Wage
Collection Law (“DCWPCL”), D.C. Code § 32-1301 et seq.; the
Maryland Wage Payment and Collection Law (“MWPCL”), Md. Code Ann.
Lab. & Empl. § 3-501 et seq.; and theories of unjust enrichment.
Plaintiffs allege that the defendants have a policy of not paying
drywall workers for overtime hours worked and of illegally
deducting and retaining ten percent of its drywall employees’
gross wages.

Following entry of default judgments against the

defendants, plaintiffs moved for an award of damages, fees and

- 2 costs to which the defendants did not respond.

Because the

plaintiffs have shown sufficiently their entitlement to relief,
their unopposed motion will be granted.
BACKGROUND
J.J. Drywall Corp. failed to respond to the plaintiffs’
complaint and default judgment was entered against it.

The order

of default judgment found J.J. Drywall Corp. liable for every
count in the complaint and approved formulae for calculating
wages owed.

The plaintiffs’ motion for class certification under

Federal Rule of Civil Procedure 23 and for conditional
certification of the collective class under section 216(b) of the
FLSA also was granted.

Jimenez filed an answer to the complaint,

but failed to appear at the initial scheduling conference.

He

also failed to respond to an order to show cause why sanctions
should be not imposed, which warned him that failure to respond
might result in an entry of default judgment against him.
Jimenez failed to respond and default judgment was entered
against him.
Plaintiffs stated in their motion for default judgment that
the precise calculation of damages owed to all class members
would not be possible until the number of members of the
respective classes was established.

At present, only plaintiffs

Gabriel Encinas, Felix Encinas, and Silvano Carbajal, along with
Miguel Linares, have opted in to the FLSA action.

The defendants

- 3 failed to comply with the order that they post notices to inform
potential class members of this litigation.

(Pls.’ Supp. Mem. in

Support of Mot. for Order of Enlargement of Time Relating to
Class Notice Issues.)

J.J. Drywall Corp. was also ordered to

submit to an audit and review of its payroll and other relevant
records to determine the amount of wages paid and owed.

Because

the defendants have not maintained any employee records (Pls.’
Mot. for Damages, Ex. 7, Jimenez deposition excerpts at 34-40),
which violates section 211(c) of the FLSA, no audit was possible.
Plaintiffs have submitted affidavits regarding their hours worked
for defendants, overtime hours worked for defendants, unpaid
wages owed, and unpaid overtime compensation owed, as well as
affidavits regarding outstanding attorneys’ fees.
DISCUSSION
The employee bringing suit “has the burden of proving that
he performed work for which he was not properly compensated.”
Arias v. U.S. Serv. Indus., Inc., 80 F.3d 509, 511 (D.C. Cir.
1996) (internal quotations omitted).

However, “where the

employer’s records are inaccurate or inadequate . . . an employee
has carried out his burden if he proves that he has in fact
performed work for which he was improperly compensated and if he
produces sufficient evidence to show the amount and extent of
that work as a matter of just and reasonable inference.”
511-512 (emphasis in original).

Id. at

Here, the defendants have failed

- 4 to “come forward with evidence of the precise amount of work
performed or with evidence to negative the reasonableness of the
inference to be drawn from the employee’s evidence.”

Id. at 512.

Thus, “the court may . . . award damages to the employee, even
though the result be only approximate.”

Id.

Plaintiffs’

affidavits and supporting evidence establish the amount and
extent of work as a matter of just and reasonable inference for
each of the claims below.
I.

FLSA (FIRST CLAIM)
Plaintiffs’ first claim seeks to recover under the FLSA

unpaid overtime wages.1

Linares worked 8.5 hours of overtime for

which he was paid at his hourly rate of $17 per hour rather than
at a time-and-a-half rate.

(Pls.’ Mot. for Class Certification,

Decl. of Linares (“Linares Decl.”) ¶¶ 8, 12-13, 19.)

Thus,

defendants owe Linares $72.252 in overtime pay plus $72.25 in

1

Although plaintiffs Gabriel Encinas, Felix Encinas, and
Silvano Carbajal opted in to the action, they are not seeking
damages for unpaid overtime compensation because the pay stubs do
not adequately reflect the overtime work of Gabriel Encinas and
Felix Encinas, and because Silvano Carbajal elected not to work
overtime. (Pls.’ Corrected Mem. in Support of Pls.’ Mot. for
Award of Damages (“Pls.’ Mem.”) at 10 n.8.)
2

There is a discrepancy between the unpaid overtime wages
claimed by Linares and the actual wages owed. Plaintiffs assert
that Linares is entitled to $93.50 for 5.5 of the 8.5 hours of
overtime detailed. However, they also noted that Linares was
paid for the overtime hours at regular or straight time, that is,
at $17 per hour (excepting the unlawful 10% deduction discussed
separately). (Pls.’ Mem. at 9.) Linares is therefore entitled
to $46.75 for those 5.5 hours, which represents the extra 50% of
his hourly wage that he was promised beyond the regular wage that

- 5 liquidated damages to which he is entitled under the FLSA, 29
U.S.C. § 216(b), for a total of $144.50 in damages.3
II.

DCMWA (SECOND CLAIM)
As does the FLSA, District of Columbia law makes an employer

liable for unpaid overtime wages and an additional amount in
liquidated damages.

D.C. Code § 32-1012(a).

Linares, then, is

entitled under his second claim to the same $144.50 in damages as
was calculated above, although he may not collect twice for the
same unpaid overtime compensation.
III. DCWPCL (THIRD CLAIM) AND UNJUST ENRICHMENT (FOURTH CLAIM)
The Washington, D.C. sub-class certified under Rule 23 was
awarded judgment on the third claim for relief, that is, that the
defendants unlawfully deducted 10% of gross wages from the wages
of the members of the sub-class, in violation of the DCWPCL.
This sub-class also was awarded judgment on the fourth claim for
the unlawfully deducted wages under a theory of unjust

he stated he was paid for the applicable hours. Plaintiffs
correctly calculated Linares’ entitlement, $25.50, for the other
3 hours of overtime. (Id.)
3

Because the defendants failed to provide employee
information to the plaintiffs and failed to post notices at job
sites and other places where potential class members might see
them, the period for potential class members to receive notice
and consent to join the action will be extended until June 4,
2012. Within 90 days of the first additional class member timely
opting in, plaintiffs’ counsel shall file a memorandum proposing
candidates for appointment and compensation (if appropriate) of a
special master or claims administrator to determine additional
claimants’ eligibility for damages payments, and proposing
procedures for making those determinations.

- 6 enrichment.

The plaintiffs’ affidavit evidence establishes the

approximate number of employees and amount of work completed at
the various job sites by the Washington, D.C. sub-class.
Approximately 15 to 20 employees similarly situated to plaintiffs
worked at the 505 9th Street, N.W. job site for a duration of at
least 7 months.

They were promised an average of $15 per hour

and worked an average of 8 hours per day, five days per week.
(Pls.’ Mot. for Class Certification, Decl. of Gabriel Encinas
(“Encinas Decl.”) ¶ 18; Linares Decl. ¶ 11.)

The amount owed,

then, is between a minimum of $25,200 (15 employees multiplied by
$15 per hour, multiplied by 8 hours per day, multiplied by 140
days, totaling $252,000, 10% of which is $25,200) and a maximum
of $33,600 (20 employees multiplied by $15 per hour, multiplied
by 8 hours per day, multiplied by 140 days, totaling $336,000,
10% of which is $33,600).4

The average, which shall be awarded,

is $29,400.
Approximately 20 employees similarly situated to the
plaintiffs worked for defendants at the 1101 New York Avenue,
N.W. job site.

4

They worked for an average expected pay of $14

There is a discrepancy between the unpaid wages that
plaintiffs claim for the Washington, D.C. sub-class and the
actual unpaid wages owed. Plaintiffs asserted that the members
of the sub-class worked five days per week for a period of at
least 7 months, but they then calculated the proposed award
assuming a period of 210 days. (Pls.’ Mem. at 13.) With a fiveday work week, the appropriate number of days is 140 for a sevenmonth period.

- 7 per hour for an average of approximately 8 hours per day for
approximately 6 days.

(Encinas Decl. ¶¶ 9, 13, 15.)

Therefore,

the amount owed which shall be awarded is $1,344 (20 employees
multiplied by $14 per hour, multiplied by 8 hours per day,
multiplied by 6 days, totaling $13,440, 10% of which is $1,344).5
Approximately 12 to 15 employees similarly situated to
plaintiffs worked at the job site located at 5th and K Streets,
N.W., Washington, D.C.

The members of the sub-class worked for a

duration of approximately 2 to 3 months for 8 hours a day, 5 days
per week, for an estimated average pay of $15 per hour.
Decl. ¶¶ 17, 18.)

(Linares

Accordingly, the members of the sub-class are

owed between a minimum of $5,760 (12 employees multiplied by $15
per hour, multiplied by 8 hours a day, multiplied by 40 days,
totaling $57,600, 10% of which is $5,760) and up to at least
$10,800 (15 employees multiplied by $15 per hour, multiplied by 8
hours per day, multiplied by 60 days, totaling $108,000, 10% of
which is $10,800).6

The average to be awarded is $8,280.

5

The plaintiffs’ proposed math incorrectly calculated the
amount owed as $168. (Pls.’ Mem. at 14.)
6

There is a discrepancy between the unpaid wages that
plaintiffs claim for the Washington, D.C. sub-class and the
actual unpaid wages owed. Plaintiffs asserted that the members
of the sub-class worked five days per week for a period of
approximately 2 to 3 months, but they then calculated the
proposed minimum and maximum award assuming periods of 60 and 90
days, respectively. (Pls.’ Mem. at 14.) With a five-day work
week, the appropriate minimum and maximum number of days for a 2
to 3 month period is 40 and 60, respectively.

- 8 -

The members of the Washington, D.C. subclass thus are owed
$39,024 total in unlawful wage deductions for the three sites.
IV.

MWPCL (FIFTH CLAIM) AND UNJUST ENRICHMENT (SIXTH CLAIM)
The Maryland Sub-Class certified under Rule 23 was awarded

judgment on the fifth claim for relief, that is, that the
defendants unlawfully deducted 10% of gross wages from the wages
of the members of the sub-class, in violation of the MWPCL.

This

sub-class was also awarded judgment on the sixth claim for the
unlawfully deducted wages under a theory of unjust enrichment.
The plaintiffs’ affidavit evidence establishes the approximate
number of employees and amount of work completed at a job site
for the Maryland sub-class.

Approximately 15 employees similarly

situated to the plaintiffs worked for defendants at 2200 Research
Boulevard in Maryland for a duration of 1 to 2 months, at least
approximately 8 hours a day, 5 days per week, for approximately
$17 per hour.

(Linares Decl. ¶¶ 13, 16.)

Thus, the members of

the subclass are owed between a minimum of $4,080 (15 employees
multiplied by $17 per hour, multiplied by 8 hours a day,
multiplied by 20 days, totaling $40,800, 10% of which is $4,080)
and up to at least $10,800 (15 employees multiplied by $17 per
hour, multiplied by 8 hours per day, multiplied by 40 days,

- 9 totaling $81,600, 10% of which is $8,160).7
shall be awarded, is $6,120.

The average, which

In addition, under the Maryland

Wage Payment and Collection Law, the members of the subclass are
entitled to three times the unlawfully withheld wages, totaling
$18,360, in liquidated damages.

Md. Code Ann. Lab. & Empl. § 3-

507.2(b).
V.

ATTORNEYS’ FEES
The FLSA, DCMWA, DCWPCL, and MWPCL authorize awarding

attorneys’ fees to employees whose rights are violated under
those respective statutes.

29 U.S.C. § 216(b); D.C. Code §§ 32-

1012(c), 32-1308(b); Md. Code Ann. Lab. & Empl. § 3-507.2(b).
“The initial estimate of a reasonable attorney’s fee is properly
calculated by multiplying the number of hours reasonably expended
on the litigation times a reasonable hourly rate.”
Stenson, 465 U.S. 886, 888 (1984).

Blum v.

“An attorney’s regular

billing rate is presumptively reasonable as long as it
‘reflect[s], among other things, the level of skill necessary to

7

There is a discrepancy between the unpaid wages that
plaintiffs claim for the Maryland sub-class and the actual unpaid
wages owed. Plaintiffs asserted that the members of the subclass worked five days per week for a period of approximately 1
to 2 months, but they then calculated the proposed minimum and
maximum award assuming periods of 30 and 60 days, respectively.
They also state an approximate number of employees of 15, but
then calculate the minimum award based on 15 employees and the
maximum based on 20 employees. (Pls.’ Mem. at 16.) With a fiveday work week, the appropriate minimum and maximum number of days
for a 1 to 2 month period is 20 and 40, respectively. In
addition, the approximate number of employees, 15, is being used
as the base for calculating both the minimum and maximum award.

- 10 conduct the case and the attorney’s reputation.”

Pleitez v.

Carney, 594 F. Supp. 2d 47, 53 (D.D.C. 2009) (quoting Nat’l Ass’n
of Concerned Veterans v. Sec’y of Defense, 675 F.2d 1319, 1326
(D.C. Cir. 1982) (alterations in original).
Plaintiffs’ counsel at the law firms of DeCarlo, Connor &
Shanley and O’Donoghue & O’Donoghue have filed declarations with
attached exhibits setting forth the normal billings rates,
experience, and qualifications of the lawyers involved in this
litigation.

Both declarations state that the firms have reviewed

the time records for work on this litigation and have removed
entries found excessive, redundant, or otherwise unnecessary.
The declaration of Catherine R. Fayette, an associate at
O’Donoghue & O’Donoghue, provides support for a reasonable fee
award of $44,297.75.

The declaration of Brian F. Quinn, a member

at DeCarlo, Connor & Shanley, provides support for a reasonable
fee award of $4,367.51.

These fees encompass an amount of

$11,372.76 incurred in the action against J.J. Drywall after the
fees awarded to the plaintiffs in the Order [Docket #44] entered
on August 25, 2010, and an amount of $37,292.50 incurred in the
action against Jimenez from the beginning of the action through
January 2011.

In addition, the plaintiffs provide support for

- 11 $1,446.55 in costs.

(Fayette Decl., Ex. 3.)

Thus, the award

will total $48,665.26 in fees and $1,446.55 in costs.8
CONCLUSION
Plaintiffs have substantiated their request for an award of
damages, costs and fees.

Their motion will be granted.

A

separate order accompanies this memorandum opinion.
SIGNED this 3rd day of January, 2012.
/s/
RICHARD W. ROBERTS
United States District Judge

8

Defendant Jose Luis Jimenez remains liable to the
plaintiffs for an amount of $336.00 in court-ordered sanctions
for failure to appear at the mandatory initial scheduling
conference and an amount of $591.25 in court-ordered sanctions
for failure to appear at the mandatory post-discovery scheduling
conference held. (Orders, Docket ##43, 49.)