UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) LUIS ALEXANDER VASQUEZ ) ) Plaintiff, ) ) v. ) Case No. 15-cv-2106 (GMH) ) GRUNLEY CONSTRUCTION CO., ) INC. et al. ) ) Defendants. ) ____________________________________)

MEMORANDUM OPINION

This case was referred to this Court for all purposes. Currently ripe is Plaintiff’s motion

for conditional class certification. After reviewing the entire record, 1 the Court will grant in part

and deny in part the motion.

BACKGROUND

Plaintiff is a carpenter who worked on a large-scale renovation project at the Watergate

hotel in Washington, D.C. Plaintiff’s Amended Complaint [Dkt. 1] ¶ 20. Defendant Grunley

Construction Co. was the general contractor on the project. Id. ¶ 22. Defendant C.R. Calderon

Construction was a carpentry subcontractor hired by Grunley. Id. ¶ 1. Defendant Garfias

Drywall & Finish, which has not appeared in this action and is in default, see Clerk’s Entry of

Default [Dkt. 34], was an unlicensed labor recruiter. Plaintiff’s Amended Complaint [Dkt. 1] ¶¶

1, 12. Garfias allegedly recruited Plaintiff and several other carpenters to work for Calderon on

1 The relevant docket entries for purposes of this Memorandum Opinion are: (1) Plaintiff’s Memorandum in Support of his Motion for Conditional Certification of Collective Action [Dkt. 26-1] (“Mot.”); (2) Defendants’ Opposition to Plaintiff’s Motion for Conditional Certification of Collective Action [Dkt. 31] (“Opp.”); and (3) Plaintiff’s Reply in Support of His Motion for Conditional Certification of Collective Action [Dkt. 36] (“Reply”). the Watergate project. Id. ¶ 23. These carpenters, including Plaintiff, were not supervised by

Garfias at the project; instead, Calderon directly supervised them. Id. ¶¶ 25–31. The Watergate

project involved long workdays – Plaintiff alleges twelve hours each weekday and ten hours each

Saturday – and lasted for ten weeks, beginning in August 2015. Id. ¶¶ 26, 34. Garfias promised

that Plaintiff and his coworkers would be paid for their work, but Plaintiff alleges that neither

Garfias, Calderon, nor Grunley ever paid. Id. ¶¶ 24, 34.

As a result, Plaintiff brings the instant claims against all Defendants under: (1) the Fair

Labor Standards Act (“FLSA”),

et seq.; (2) the District of Columbia Minimum

Wage Act Revision Act (“DCMWRA”),

et seq.; (3) the District of

Columbia Wage Payment and Collection Law (“DCWPCL”),

et seq.; and

(4) the District of Columbia Wage Theft Prevention Amendment Act (“DCWTPAA”),

, 32-1301-11.

¶¶ 44–62. Plaintiff seeks to bring his claims on behalf of

himself and others similarly situated as a collective action under the FLSA,

(b),

and the DCMWRA,

. Mot. at 1.

DISCUSSION

In his motion, Plaintiff asks the Court to conditionally certify the following class:

all non-exempt employees who performed construction duties for the Defendants at the Watergate Hotel renovation project at 2650 Virginia Avenue, N.W., Washington, D.C. from on or about August 3, 2015 to the final disposition of this action.

Mot. at 1. Plaintiff requests conditional certification under both the FLSA and the DCMWRA.

See

at 1–2. Because the standards governing each are (or at least may) be different, the Court

will treat each separately below.

2 A. Collective Action Under the FLSA

The FLSA requires employers to pay their workers the minimum wage and, if the

employee works more than forty hours in a workweek, overtime compensation.

(a)(1). The FLSA empowers employees to bring actions on their own behalf and on behalf of

“other employees similarly situated” in a collective action.

§ 216(b). A collective-action

class is formed only by potential members opting into it. Id.; Castillo v. P & R Enterprises, Inc.,

(D.D.C. 2007). A collective action is a “unique cause of action . . . not

subject to the numerosity, commonality, and typicality rules of a class action under Rule 23.”

Hunter v. Sprint Corp.,

(D.D.C. 2004).

Courts in this Circuit and others have implemented a two-stage inquiry for determining

when a collective action is appropriate. Dinkel v. MedStar Health, Inc.,

(D.D.C. 2012). The first stage, referred to as “conditional certification,” requires the Court to

determine whether it is appropriate “‘to send notice to potential opt-in plaintiffs who may be

‘similarly situated’ to the named plaintiffs with respect to whether [an] FLSA violation has

occurred.’”

at 52–53 (quoting Myers v. Hertz Corp.,

(2d Cir. 2010)). At

the second stage, defendants may move at the close of discovery to “decertify the conditional

class if the record establishes that the plaintiffs are not, in fact, similarly situated.” Ayala v. Tito

Contractors,

(D.D.C. 2014).

At issue here is the first stage – conditional certification. This initial stage requires only

that the plaintiff “make a ‘modest factual showing sufficient to demonstrate that [he] and

potential plaintiffs together were victims of a common policy or plan that violated the law.’”

Castillo,

(quoting Chase v. AIMCO Props.,

(D.D.C. 2005)). The bar at this stage is quite low. Ayala,

(collecting

3 cases). The plaintiff must present, through the allegations in his pleadings and any affidavits

submitted with his motion, “‘some evidence, ‘beyond pure speculation,’ of a factual nexus

between the manner in which the employer’s alleged policy affected [the plaintiff] and the

manner in which it affected other employees.’”

(quoting Symczyk v. Genesis HealthCare

Corp.,

(3d Cir. 2011)). At this early juncture, the Court accepts as true the

plaintiff’s factual allegations set forth in his complaint. See id. at 169; see also In re Lorazepam

& Clorazepate Antitrust Litig.,

(D.D.C. 2001) (plaintiff’s allegations are

accepted as true on a motion for class certification under Rule 23). Conversely, “[d]uring the

second stage, a court’s inquiry is typically more searching.” Ayala,

.

Plaintiff argues that he is similarly situated to potential class members. Mot. at 3.

Plaintiff submitted an affidavit in connection with his motion in which he avers that he worked

as a carpenter for Garfias and Calderon at the Watergate project from early August 2015 to the

end of October 2015. Declaration of Luis Alexander Vasquez [Dkt. 26-2] ¶ 1. He claims that

approximately six other carpenters worked with him on the same tasks during that timeframe.

Id. ¶ 2. All seven of them were recruited by Garfias, but Calderon employees, not Garfias

employees, supervised their work on-site. Id. ¶¶ 4–6. Additionally, the tools and equipment

they used were furnished by Calderon. Id. ¶ 6. Finally, Plaintiff avers that although Garfias

promised him $18.00 per hour and that he regularly worked significant overtime hours, neither

he nor his coworkers were ever paid. Id. ¶¶ 3, 7; Plaintiff’s Amended Complaint [Dkt. 1] ¶¶ 33,

34 (alleging that Plaintiff and his coworkers worked significant overtime hours and were never

paid for their work at Watergate).

Based on these sworn statements and the allegations in his pleadings, Plaintiff contends

that he is similarly situated to the potential class members in two key respects. First, their work

4 was controlled by all three Defendants because they were recruited by Garfias and received

orders from Calderon foremen throughout their time working at the Watergate project. Mot. at 3.

Second, Plaintiff and the other potential class members all suffered the same non-payment of

wages or overtime compensation in violation of the FLSA and D.C. law. Id. at 3–4.

In its response, Grunley argues that Plaintiff’s proposed class is overly broad. Opp. at 5. 2

Despite the limited nature of Plaintiff’s work as a carpenter recruited by Garfias for a ten-week

period in late 2015, Grunley contends, he now proposes “an expansive class definition that

would turn a single second-tier subcontractor’s purported failure to pay wages to a small handful

of carpenters for twelve weeks into a collective action that would encompass every single

individual who performed any construction-related work whatsoever on the Project over the

course of perhaps a year or more.” Id. at 5–6. In Grunley’s view, Plaintiff has at most shown

that he is similarly situated to “the few carpenters hired by Garfias to perform carpentry work

between August 2015 and October 2015.” Id. at 6.

At the request of the Court, Plaintiff filed a reply in support of his motion. See Apr. 12,

2016 Minute Order. The Court asked that Plaintiff propose a more limited class definition in

light of Defendants’ overbreadth concerns. Id. Without conceding that Defendants’ concerns

have merit, Plaintiff proposed the following alternative class definition:

All non-exempt employees who performed carpentry work at the Watergate hotel renovation at 2650 Virginia Avenue, N.W., Washington, D.C., for Garfias Drywall & Finish, LLC and C.R. Calderon Construction, Inc., from August, 2015, until the final disposition of this action.

Reply at 2.

2 Calderon joined in Grunley’s opposition and offered no separate arguments. See Calderon’s Opposition to Plaintiff’s Motion for Conditional Certification of Collective Action [Dkt. 35].

5 The Court finds that Plaintiff has made the modest showing required of him for

conditional certification of the more limited class he proposed in his reply. Under that narrower

definition, Plaintiff has shown by his pleadings and declaration that the potential class members:

(1) were all recruited by the same company, Garfias; (2) were all assigned to work together on

similar carpentry tasks at the Watergate project; (3) were all supervised by Calderon and

supplied with tools and equipment by Calderon; (4) were all required to work overtime; and (5)

were all paid nothing for their work. Thus, the nature of Plaintiff’s work was the same as those

of the other class members and Defendants’ violations of the FLSA and D.C. law were identical

with respect to each class member. While these facts do not necessarily establish that the

potential class members were treated uniformly, “uniformity is not a prerequisite” to conditional

class certification under the FLSA. Ayala,

. Rather, Plaintiff need only

show that his position and the FLSA violations he suffered are similar to that of putative class

members, and he has made that showing here.

(conditionally certifying class of construction

laborers who worked for the same company, were required to work overtime but were not paid

for it). Indeed, this case presents a putative class more uniform than others conditionally

approved in this District. See Castillo,

(conditionally certifying class of

janitorial workers allegedly not paid for overtime although, among other differences, they

worked in different locations and had different job titles).

Plaintiff’s original class definition, by contrast, is overbroad. That definition purports to

cover all employees of all Defendants at the Watergate project. Mot. at 1. Because Grunley, the

general contractor for the project, is one defendant in this case, the class definition therefore

contemplates every employee working for any subcontractor or sub-subcontractor anywhere on

the project site during the relevant period. But Plaintiff’s complaint and declaration are devoid

6 of any allegation that Watergate workers outside the group recruited by Garfias had similar job

duties, worked overtime, or were promised and denied payment by their respective supervisors

or recruiters. See Dinkel,

(excluding from class definition putative

members who worked in different units, with different shifts and schedules, under different

supervisors, performing different functions, for varying levels of pay). While Plaintiff has

shown that he is similarly situated to his fellow carpenters recruited by Garfias, he has failed to

come forward with colorable evidence of a larger wage and overtime problem at the Watergate.

See Castillo,

(conditionally certifying class composed of all employees of

a company, not just a particular division, where plaintiffs demonstrated that the company had a

uniform policy of refusing to pay any overtime).

Accordingly, the Court will conditionally certify Plaintiff’s proposed FLSA class action

using the more limited definition proposed in Plaintiff’s reply.

B. Class Action Under the DCMWRA

Like the FLSA, the DCMWRA requires employers to pay minimum wage and overtime

compensation. See

. The DCMWRA also permits actions on a class basis.

§ 32–1308(a)(1); see also D.C. Code § 32–1012(a) (“A civil action [under the DCMWRA]

may be commenced according to § 32–1308.”). The DCMWRA used to mirror the language of

the FLSA in requiring that collective actions could be maintained strictly on an opt-in basis. See

Eley v. Stadium Grp., LLC, Civil Action No. 14–cv–1594 (KBJ),

, at *4

(D.D.C. Sept. 22, 2015); Rivera v. Power Design, Inc., Civil Action No. 15-cv-0975 (TSC),

(D.D.C. Mar. 28, 2016); D.C. Code § 32–1012(b) (2001) (“No employee

shall be a party plaintiff . . . unless the employee gives written consent to become a party and the

written consent is filed in the court in which the action is brought.”). The statute was amended in

7 early 2015 and now provides that a DCMWRA class action “may be maintained by one or more

employees who may designate an agent or representative to maintain such action for and on

behalf of themselves or on behalf of all employees similarly situated.” D.C. Code § 32–

1308(a)(1). This amendment removed the opt-in and written-consent procedures previously

required to maintain a DCMWRA collective action. See Eley,

, at *4.

Only two Courts in this District have addressed a motion for conditional class

certification under the amended DCMWRA. Eley,

, at *4; Rivera,

. Both have denied the motion, finding that “[w]ithout opt-in and written-consent

procedures that restrict the right of recovery to those who affirmatively file consents to

participate in the suit, group claims brought under the new [DCMWRA] are likely to resemble

class actions, rather than collective actions.” Eley,

, at *4 (quotation,

citations, and alterations omitted); Rivera,

. As a result, Plaintiff’s

prospective DCMWRA class action “would presumably be governed by Federal Rule of Civil

Procedure 23.” Rivera,

; Eley,

, at *4. Both Courts

concluded that “it may well be that Plaintiffs here cannot proceed on their [DCMWRA] claims

utilizing the procedures applicable to the FLSA, and instead, they may be required to seek class

certification under Rule 23.” Eley,

, at *4; Rivera,

.

While acknowledging that it is unclear whether Rule 23 certification is required for DCMWRA

class actions, neither Court would grant conditional certification under the FLSA’s collective-

action procedures without further briefing on the issue. Eley,

, at *4; Rivera,

.

The circumstances here are identical to Eley and Rivera. Plaintiff seeks conditional

certification of his proposed class pursuant to the DCMWRA. Mot. at 1. Yet he devotes no

8 argument, or even passing mention, to whether a collective action is still available under the

amended DCMWRA.

Indeed, Plaintiff cites the former version of the DCMWRA to the

Court in his brief.

at 1–2. Like the Courts in Eley and Rivera, this Court is hesitant to

conclude that Plaintiff may obtain conditional class certification under the DCMWRA despite

the 2015 amendments to the statute. Because Plaintiff has failed to address this issue in any way,

the Court will deny conditional certification under the DCMWRA at this time. Plaintiff may, if

he chooses, move for conditional certification of his class under that statute at a later time.

C. Notice and Opt-In Period

The final issue to be decided is how to provide notice to the potential class members and

how long any potential class member should have to opt in to the instant suit. At a scheduling

conference held on April 12, 2016, Calderon represented that it anticipates that the class as

defined in Plaintiff’s reply would comprise no more than eight to ten individuals. However,

Plaintiff and Defendants agreed that providing notice to these individuals may be difficult

because they may not speak English as a first language, did not provide addresses or phone

numbers to any Defendant (except perhaps Garfias, but it has not appeared), and may have used

false names when applying for employment. Because providing notice may be time-consuming,

the Court concurs in the parties’ recommendation that the opt-in period in this case should be

sixty days.

As for the contents and transmission of the notice itself, the Court directs the parties to

meet and confer regarding what should be contained in the notice and how it should be sent to

putative class members. The parties will thereafter file a joint status report with a joint proposed

notice attached. If disputes regarding these issues cannot be reconciled by the parties informally,

9 the parties will briefly set forth in the joint report the nature of any dispute and the parties’

respective positions.

CONCLUSION

For the foregoing reasons, Plaintiff’s Motion for Conditional Certification of Collective

Action [Dkt. 26] is GRANTED IN PART and DENIED IN PART. An Order consistent with

this Memorandum Opinion will be filed contemporaneously herewith.

Date: April 18, 2016 ___________________________________ G. MICHAEL HARVEY UNITED STATES MAGISTRATE JUDGE

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