RODRIGUEZ v. ADAMS RESTAURANT GROUP, INC. et al
Filing
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ORDER granting in part and denying in part defendants' 27 Motion for Summary Judgment. The parties shall appear for a status conference on May 1, 2018 at 10:00 a.m. in Courtroom 12. See text of order for further details. Signed by Judge Dabney L. Friedrich on April 23, 2018. (MJS) Modified on 4/24/2018, document type changed (jl).
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANASTACIO SALVADOR RODRIGUEZ,
Plaintiff,
v.
Civil Action No. 16-0977 (DLF)
ADAMS RESTAURANT GROUP, et al.,
Defendants.
MEMORANDUM OPINION & ORDER
This suit concerns whether Adams Restaurant Group unlawfully classified former
employee Anastacio Rodriguez as an executive rather than as the nonmanagerial laborer he says
he was. Rodriguez sued the restaurant and its executive chef under the Fair Labor Standards Act,
the District of Columbia Minimum Wage Act, and the District of Columbia Wage Payment and
Wage Collection Law. Dkt. 1. Before the Court is the defendants’ motion for summary
judgment. Dkt. 27. For the reasons that follow, the motion will be granted in part and denied in
part.
I. BACKGROUND
The Fair Labor Standards Act requires employers to pay overtime compensation (at least
150 percent of the rate of regular compensation) to a covered employee working more than forty
hours in a week. 29 U.S.C. § 207(a). The Act exempts certain employees from that requirement,
however, including those who work “in a bona fide executive . . . capacity.” Id. § 213(a). The
D.C. Minimum Wage Act mirrors these provisions. D.C. Code §§ 32-1003(c), 32-1004(a). The
D.C. Payment and Wage Collection Law sets timing requirements for payment of wages and
defines wages to include overtime premiums. Id. §§ 32-1301 et seq.
Plaintiff Anastacio Rodriguez alleges that defendants Adams Restaurant and executive
chef Claudia Rivas’s classification of him as a bona fide executive—and their corresponding
decision not to pay him overtime—violated those laws. During discovery, Rodriguez and his
former superiors gave very different accounts of his role with the company, both sides serving
their own narrative. The restaurant’s witnesses recalled Rodriguez regularly exercising
managerial power, while Rodriguez described his work as manual-labor intensive and without
administrative input or leadership.
The restaurant initially hired Rodriguez as a part-time “line cook” in June 2015, paying
him $14 an hour to prepare ingredients and cook food. Rivas Dep. at 72:12–15, Dkt. 27-3. An
immigrant from Mexico with only a high school education, Rodriguez had nineteen years of
culinary experience but no formal culinary education. Rodriguez Dep. at 16:19–20, 19:13–20,
Dkt. 28-1; Rivas Dep. at 212:4–13; 228:18-229:15, Dkt. 27-3. In September 2015, the restaurant
promoted him to sous chef with a $55,000 annual salary and classified him as exempt from the
overtime requirement. Adams Restaurant Answers to Pl.’s First Set of Interrogs., Answer to
Interrog. No. 9, at 10–11, Dkt. 27-4. According to Rodriguez, his hours per week jumped from
about forty to about seventy. Rodriguez Dep. at 44:6–8, Dkt. 28-1; Rodriguez Answers to Defs.’
Interrog. Answer No. 3 at 4–5. Dkt. 28-1, Ex. B.
At first, another sous chef, Louis Benitez, also worked at the restaurant. See Rodriguez
Dep. at 48:14–18, Dkt. 28-1. Rodriguez testified that he and Benitez both worked full days
during their overlapping time as sous chefs, with Benitez supervising him. Rodriguez Dep. at
49:1–5, 52:7–19, Dkt. 28-1. The restaurant, on the other hand, claims that one of the sous chefs
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was responsible for the day shift while the other was responsible for the night shift. Adams Dep.
at 160:18–161:7, Dkt. 27-6. In any event, Benitez left the restaurant after a month or two and
Rodriguez became the only sous chef. See Rodriguez Dep. at 49:15–17, Dkt. 28-1, Ex. A; id. at
63:12–20, Dkt. 27-5. After about half a year, Rodriguez was fired in March 2016. Adams
Restaurant Answers to Pl.’s First Set of Interrogs., Answer to Interrog. No. 9, at 10–11.
During Rodriguez’s tenure, Rivas lived in Florida and visited the restaurant only two to
five times per month. Rivas Dep. at 31:2–3, Dkt. 27-3. According to Rodriguez, however, she
monitored employees daily through surveillance video, regularly informed them that she was
watching them, and often provided corrective instruction and reprimands. Rodriguez Dep. at
118:11–119:15, Dkt. 28-1; Rodriguez Decl. ¶ 6, Dkt. 28-1, Ex. C. Rodriguez also claimed that
Rivas “fired a lot of people” in the kitchen while Rodriguez was sous chef (and that he did not
fire anyone himself). Rodriguez Dep. at 50:2–10, 59:3–5, Dkt. 28-1. Rodriguez testified that he
was supervised by both Rivas and a restaurant manager (and Benitez at first), though Rivas
disputed that. Rodriguez Decl. ¶ 5; Rivas Dep. at 372:6–7 (“[Rodriguez] didn’t have someone
supervising him, he was a supervisor.”). Rivas testified that Rodriguez supervised line cooks,
but Rodriguez recounted that he offered the line cooks very little instruction beyond some
informal training during three line cooks’ first day on the job. Rivas Dep. at 174:14–17; Dkt. 273; Rodriguez Dep. at 86:16–20, 88:2–17, 89:8–16, 90:21–91:9, Dkt. 28-1. Rodriguez conducted
approximately three interviews of prospective hires, but he says that his questions were limited
to “Where have you worked?” and “What do you know how to do?,” and he simply relayed the
answers to the restaurant manager, who made the hiring decision without his input. Rodriguez
Dep. at 59:6–61:20, Dkt. 28-1. But see Adams Restaurant Answers to Pl.’s First Set of
Interrogs., Answer to Interrog. No. 2, at 4 (“[Rodriguez] possessed the independent authority to
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hire and fire other employees.”). According to the restaurant, Rodriguez’s primary duty was
managing the restaurant’s kitchen operations and staff, but according to Rodriguez, his daily
schedule generally consisted of preparing food and cooking. Adams Restaurant Answers to Pl.’s
First Set of Interrogs., Answer to Interrog. No. 2, at 4; Dkt. 28-1, Ex. B, Pl.’s Interrog. Answer
No. 2, at 4.
After being fired, Rodriguez sued Adams Restaurant and Rivas (collectively, the
restaurant) under the Fair Labor Standards Act, the District of Columbia Minimum Wage Act,
and the District of Columbia Wage Payment and Wage Collection Law. See Compl. at 4–7;
29 U.S.C. §§ 201 et seq.; D.C. Code §§ 32-1001 et seq.; D.C. Code §§ 32-1301 et seq. After
discovery, the restaurant moved for summary judgment. Adams Restaurant Mot. Summ. J.,
Dkt. 27. The case was reassigned to the undersigned judge on December 4, 2017.
II. LEGAL STANDARD
A court grants summary judgment if the moving party “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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A
“material” fact is one with potential to change the substantive outcome of the litigation. See
Liberty Lobby, 477 U.S. at 248; Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A
dispute is “genuine” if a reasonable jury could determine that the evidence warrants a verdict for
the nonmoving party. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. “If there
are no genuine issues of material fact, the moving party is entitled to judgment as a matter of law
if the nonmoving party ‘fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at
trial.’” Holcomb, 433 at 895 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
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In reviewing the record, the court “must draw all reasonable inferences in favor of the
nonmoving party, and it may not make credibility determinations or weigh the evidence.”
Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000). “Thus, although the court
should review the record as a whole, it must disregard all evidence favorable to the moving party
that the jury is not required to believe,” id. at 151, and it “is . . . to believe[]” “[t]he evidence of
the non-movant,” Liberty Lobby, 477 U.S. at 255.
At the same time, to win at summary judgment a defendant “need only identify the ways
in which the plaintiff has failed to come forward with sufficient evidence to [allow] a reasonable
jury to find in her favor on one or more essential elements of her claim.” Grimes v. District of
Columbia, 794 F.3d 83, 93 (D.C. Cir. 2015); see also Celotex, 477 U.S. at 323–325. And while
the defendant bears this burden of establishing that the plaintiff lacks sufficient evidence, the
defendant need not produce any evidence of its own. The plaintiff, meanwhile, “cannot rely on
the allegations of her own complaint in response to a summary judgment motion, but must
substantiate them with . . . evidence that a reasonable jury could credit in support of each
essential element of her claims.” Grimes, 794 F.3d at 94. The plaintiff “must do more than
simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), and must establish that the evidence
is not “so one-sided that reasonable men and women must find” for the defendant. Radtke v.
Lifecare Mgmt. Partners, 795 F.3d 159, 166 (D.C. Cir. 2015).
Summary judgment is appropriate, in sum, when “the parties agree about the facts—what
happened—and the court accepts the movant’s view of the legal implications of those facts,
or . . . when a putatively disputed body of evidentiary material could not, even assuming a
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sympathetic factfinder, reasonably support a finding crucial to the nonmoving party’s legal
position.” Johnson v. Perez, 823 F.3d 701, 705 (D.C. Cir. 2016).
More specific to this case, “[w]hen the underlying facts are in dispute, the exemption
question under the FLSA is a mixed question of law and fact.” Radtke v. Lifecare Mgmt.
Partners, 795 F.3d 159, 165 (D.C. Cir. 2015) (internal quotation marks and alteration omitted).
“The question of how the [employees] spent their working time . . . is a question of fact. The
question whether their particular activities excluded them from the overtime benefits of the
FLSA is a question of law.” Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986).
III. ANALYSIS
The Wage Payment and Wage Collection Law claim cannot proceed because the
Minimum Wage Act “is the sole remedy for . . . overtime violations” under D.C. law. Columbia
Thompson v. Digicon Corp., 107 F. Supp. 3d 49, 52 (D.D.C. 2015). The legal standards for the
overtime provisions of the Federal Labor Standards Act and the D.C. Minimum Wage Act are
essentially identical, so the Court will analyze the claims together. Cf. Villar v. Flynn
Architectural Finishes, Inc., 664 F. Supp. 2d 94, 96 (D.D.C. 2009).
A.
The restaurant did not waive the executive exemption defense.
Rodriguez first argues that the executive exemption is an affirmative defense that the
restaurant waived by failing to raise it in its answer. Rodriguez Opp. Mem. at 4–5, Dkt. 28; see
also Fed. R. Civ. P. 8(c) (“In responding to a pleading, a party must affirmatively state any
avoidance or affirmative defense.”); Harris v. U.S. Dep’t of Veterans Affairs, 126 F.3d 339, 343
(D.C. Cir. 1997) (“[I]t is well-settled that a party’s failure to plead an affirmative defense . . .
generally results in the waiver of that defense and its exclusion from the case.” (internal
quotation marks and alteration omitted)); Corning Glass Works v. Brennan, 417 U.S. 188, 196–
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97 (1974) (“[T]he application of an exemption under the Fair Labor Standards Act is a matter of
affirmative defense on which the employer has the burden of proof.”). Rodriguez’s argument
fails because the defendants provided sufficient notice of the defense in their answer. See
Daingerfield Island Protective Soc’y v. Babbitt, 40 F.3d 442, 444 (D.C. Cir. 1994) (“The purpose
of [Rule 8(c)] is to put opposing parties on notice of affirmative defenses and to afford them the
opportunity to respond to the defenses.”). The answer asserted that “as an overtime exempt
position, Plaintiff was not entitled to compensation for hours worked over 40 in a workweek.”
Answer ¶ 13, Dkt. 4. The answer also admitted that Adams Restaurant “paid Plaintiff as if he
was overtime exempt” because “Plaintiff was not entitled to additional pay for ‘overtime hours’
worked.” Id. ¶¶ 15, 16. This was more than enough to place Rodriguez on notice of the
restaurant’s intention to invoke the executive-exemption defense. Indeed, the complaint
anticipated the defense and both sides’ discovery was aimed at addressing the defense. See, e.g.,
Compl. ¶ 15. Because Rodriguez “had notice of the [defense], conducted discovery on the issue,
and had ample opportunity to respond,” the defense was adequately raised. FEC v. NRA, 254
F.3d 173, 189 (D.C. Cir. 2001); see also 1443 Chapin St., LP v. PNC Bank, 810 F. Supp. 2d 209,
220 (D.D.C. 2011) (observing that the defendant in FEC v. NRA raised an affirmative defense by
filing an “informal ‘notice of related decision’”).
B.
Genuine disputes of fact preclude summary judgment.
On the merits of the executive-exemption defense, however, Rodriguez has the better
argument at this stage. The Department of Labor has “promulgated detailed regulations
outlining the criteria for the application of the FLSA exemptions,” 29 C.F.R. §§ 541.100 et seq.,
and these regulations “are entitled to judicial deference and are the primary source of guidance
for determining the scope of exemptions to the FLSA,” McKinney v. United Stor-All Centers
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LLC, 656 F. Supp. 2d 114, 121 (D.D.C. 2009) (quoting Clements v. Serco, Inc., 530 F.3d 1224,
1227 (10th Cir. 2008)). A Department of Labor regulation establishes that an employee qualifies
for the executive exemption when: (1) the employee is compensated on a salary basis at a rate of
at least $455 per week; (2) the employee’s “primary duty is management of the enterprise in
which the employee is employed or of a customarily recognized department or subdivision
thereof”; (3) the employee “customarily and regularly directs the work of two or more other
employees”; and (4) the employee “has the authority to hire or fire other employees or whose
suggestions and recommendations as to the hiring, firing, advancement, promotion or any other
change of status of other employees are given particular weight.” 29 C.F.R. § 541.100. The
regulation defines the term “primary duty” as “the principal, main, major, or most important duty
that the employee performs.” 29 C.F.R. 541.700(a). The regulation lists several factors to
consider when determining an employee’s primary duty: (1) “the relative importance of the
exempt duties as compared with other types of duties”; (2) “the amount of time spent performing
exempt work”; (3) “the employee’s relative freedom from direct supervision”; and (4) “the
relationship between the employee’s salary and the wages paid to other employees for the kind
of nonexempt work performed by the employee.” Id.1
Until recently, courts interpreted the Federal Labor Standards Act “liberally to apply to the
furthest reaches consistent with congressional direction.” Tony & Susan Alamo Found. v. Sec’y
of Labor, 471 U.S. 290, 296 (1985) (quotation marks omitted). Exemptions were “narrowly
construed against the employers seeking to assert them and their application limited to those
[cases] plainly and unmistakably within their terms and spirit.” Arnold v. Ben Kanowsky, Inc.,
361 U.S. 388, 392 (1960). In some circuits, employers bore the burden of establishing that an
employee fell within an exemption by clear and convincing evidence. Corning Glass Works, 417
U.S. at 196–97 & n.12; Smith v. Gov’t Emps. Ins. Co., 590 F.3d 886, 891 & n.5 (D.C. Cir. 2010)
(reporting varying levels of proof required in other circuits).
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The United States Supreme Court recently rejected these principles, however, concluding that
“[b]ecause the FLSA gives no textual indication that its exemptions should be construed
narrowly, there is no reason to give them anything other than a fair (rather than a narrow)
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Rodriguez concedes that the restaurant paid him more than $455 per week but contends
that he did not meet the other requirements for exemption. See Rodriguez Opp. Mem. at 6 n.3,
Dkt. 28. On Rodriguez’s telling, his primary duty was not management but cooking and food
preparation, as apparent from the time he spent cooking and prepping rather than supervising; his
supervision by Rivas, the restaurant manager, and Benitez; and his pay per hour compared to that
of non-exempt kitchen staff. See, e.g., Rodriguez Decl. ¶ 5; Rodriguez Dep. at 86:16–20, 88:2–
17, 89:8–16, 90:21–91:9, Dkt. 28-1; Dkt. 28-1, Ex. B, Rodriguez Interrog. Answer No. 2 at 4;
Dkt. 28-1, Ex. I, Hourly Pay Rates of Non-Exempt Kitchen Staff; Rodriguez Opp. Mem. at 7–13.
Neither did Rodriguez, on his account, customarily direct the work of other employees. As he
tells it, the line cooks were autonomous and received no or little oversight from him. Rodriguez
Dep. at 86:16–20, 88:2–17, 89:8–16, 90:21–91:9, Dkt. 28-1; Rodriguez Opp. Mem. at 12.
Finally, according to Rodriguez, he did not hire or fire existing employees—Rivas and the
restaurant manager made those calls. See Rodriguez Dep. 50:2–10, 59:3–5, Dkt. 28-1;
Rodriguez Opp. Mem. at 12–13. Rodriguez claims that he interviewed about three prospective
workers but that he simply relayed information about their experience to the restaurant manager
and had no input in the hiring decisions. Rodriguez Dep. at 59:6–61:20, Dkt. 28-1.
A jury could reasonably conclude that Rodriguez’s testimony is credible. The restaurant
argues that summary judgment should be granted because Rodriguez’s allegations are based
“solely upon [his] uncorroborated, self-serving assertions . . . , which are not supported by any
credible evidence in the record.” Adams Restaurant Mot. Summ. J. at 1, Dkt. 27. But unless a
self-serving assertion is conclusory or “so undermined as to be incredible,” it makes “no
interpretation.” Encino Motorcars, LLC v. Navarro, 138 S.Ct. 1134, 1142 (2018) (internal
quotation marks and alteration omitted). The exemptions, in short, “are as much a part of the
FLSA’s purpose as the overtime-pay requirement.” Id.
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difference that [a] plaintiff’s testimony is uncorroborated.” Robinson v. Pezzat, 818 F.3d 1, 9, 10
(D.C. Cir. 2016). “After all, evidence a party proffers in support of its cause will usually, in
some sense, be ‘self-serving.’” Perez, 823 F.3d at 710. Whether self-serving or not, the parties
“are legally competent to give material testimony” and in many cases are “the key, or even sole,
witnesses.” Id. “To the extent the testimony of a witness who is also a party may be impaired by
party self-interest, it is ordinarily the role of the jury—not the court on summary judgment—to
discount it accordingly.” Id.
The exception to that rule for conclusory or incredible assertions does not apply here.
Rodriguez’s testimony is far from conclusory—he explained in detail the conditions of his work,
how he spent his time, the extent to which he supervised others, and the extent to which others
supervised him. Compare Rodriguez Dep., and Rodriguez Decl., with Greene v. Dalton, 164
F.3d 671, 675 (D.C. Cir. 1999) (concluding with respect to a retaliation claim that the plaintiff’s
testimony was conclusory because she asserted only that she “applied for summer jobs in 1996
and 1997 and was not hired although ‘another student, who had less experience and education
was hired’”). And there are only “narrow circumstances” in which a court may put aside selfserving testimony as incredible, such as when the testimony is both uncorroborated and
undermined by “other credible evidence, physical impossibility or other persuasive evidence that
the plaintiff has deliberately committed perjury.” United States v. Seventeen Thousand Nine
Hundred Dollars, 859 F.3d 1085, 1093 (D.C. Cir. 2017) (some quotation marks omitted); see
also Chenari v. George Washington Univ., 847 F.3d 740, 747–48 (D.C. Cir. 2017) (noting that
“evidence sufficient to dismiss a plaintiff’s uncorroborated, self-serving testimony . . . is rare”
and providing as examples a “quite clear videotape” and the testimony of “multiple disinterested
witnesses” (citing Scott v. Harris, 550 U.S. 372, 378 (2007)) (internal quotation marks and
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alterations omitted)). Rodriguez’s testimony does not fall into this category because it is
internally consistent, plausible, and contradicted only by other self-serving testimony. Rule 56
thus precludes the Court from concluding that “[the restaurant’s] story is truthful and
[Rodriguez’s] story is a fabrication.” Arrington v. United States, 473 F.3d 329, 338 (D.C. Cir.
2006); see also, e.g., id. at 333 (“[A]lthough a jury might ultimately decide to credit the version
of the events described by the defendants over that offered by the plaintiff, this is not a basis
upon which a court may rest in granting a motion for summary judgment.”); Pezzat, 818 F.3d at
8 (“[T]he summary judgment standard requires us to credit the plaintiff’s version of events, even
if ‘directly contradictory’ to other testimony.” (quoting Tolan v. Cotton, 134 S. Ct. 1861, 1867
(2014))); Chenari, 847 F.3d at 747–48 (describing contradicting testimony between the plaintiff
and another witness as “a classic genuine dispute of material fact” (internal quotation marks
omitted)); Harris, 776 F.3d at 914–15 (similar); Ayissi–Etoh v. Fannie Mae, 712 F.3d 572, 576
(D.C. Cir. 2013) (similar); Johnson v. District of Columbia, 528 F.3d 969, 977 (D.C. Cir. 2008)
(similar). In this case, “[c]orroboration goes to credibility, a question for the jury, not the district
court.” Pezzat, 818 F.3d at 9.
The conflicting accounts of Rodriguez’s role with the restaurant present numerous
disputes of material fact that could determine the legal conclusion whether the restaurant
misclassified him. The jury could reasonably resolve these disputes in Rodriguez’s favor, and
that precludes summary judgment.2
The restaurant invokes the Act’s statute of limitations, which bars suits not commenced within
two years after the cause of action accrued “except that a cause of action arising out of a willful
violation may be commenced within three years after the cause of action accrued.” 29 U.S.C.
§ 255(a); see Adams Restaurant Mot. Summ. J. at 14–16. Because Rodriguez sued well within
the two-year period, this provision is inapplicable.
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CONCLUSION
For the foregoing reasons, it is
ORDERED that the defendants’ Motion for Summary Judgment, Dkt. 27, is GRANTED
IN PART and DENIED IN PART. Specifically, the motion is granted with respect to the claim
under the D.C. Wage Payment and Wage Collection Law and is otherwise denied. It is further
ORDERED that a status conference is scheduled for May 1, 2018 at 10:00 a.m. in Courtroom 12
to discuss further proceedings.
SO ORDERED.
________________________
DABNEY L. FRIEDRICH
United States District Judge
Date: April 23, 2018
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