UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOSE ARMANDO ANDRADE ROMERO, et al.

Plaintiffs, Civ. Action No. 18-00179 (EGS)

v.

RBS CONSTRUCTION CORP., et al.,

Defendants.

MEMORANDUM OPINION

I. Introduction

Plaintiffs Jose Armando Andrade Romero and Victorino

Marroquin (collectively “Plaintiffs”) bring this case against

Defendants RBS Construction Corp., RBS Group Inc., RBS Group

Investments LLC, Albertino Silveira, and Ellen Lima

(collectively “Defendants”), alleging that Defendants failed to

properly compensate them for hours worked and for overtime

earned. See generally Compl., ECF No. 1. The case arises under

the Fair Labor Standards Act (“FLSA”),

; the

District of Columbia Payment and Collection of Wages Law

(“DCPCWL”),

; and the District of Columbia

Minimum Wage Revision Act (“DCMWRA”),

.

Defendants have filed a motion seeking summary judgment, see

Defs.’ Mem. of P. & A. in Supp. of Mot. for Summ. J. (“Defs.’

1 MSJ”), ECF No. 38; in response to which Plaintiffs have filed a

cross-motion for partial summary Judgment, see Pls.’ Cross-Mot.

for Partial Summ. J. (“Pls.’ XMSJ”), ECF No. 42. In addition,

Defendants move to strike exhibits filed by Plaintiffs in their

reply in support of their cross-motion. See Defs.’ Mot. to

Strike, ECF No. 48.

Upon consideration of the motions, responses, and the

replies thereto, the applicable law and regulations, the entire

record and the materials cited therein, the Court GRANTS IN PART

and DENIES IN PART the Defendants’ Motion for Summary Judgment,

ECF No. 38; GRANTS IN PART and DENIES IN PART Plaintiffs’ Cross-

Motion for Summary Judgment, ECF No. 42; and GRANTS IN PART and

DENIES IN PART the Motion to Strike, ECF No. 48.

II. Factual and Procedural Background

This case arises out of Defendants’ alleged failure to

properly compensate Plaintiffs for hours worked and for overtime

earned under the FLSA, DCPCWL, and DCMWRA. See generally Compl.

ECF No. 1. Defendant RBS provides remodeling and general

construction services to residential homeowners in Maryland and

the District of Columbia (“D.C.”). See

; Defs.’ Counter

Stmt. Of Material Facts (“DSMF”), ECF No. 44-1 ¶ 10. Plaintiffs

allege that Defendants Mr. Silveira and Ms. Lima are Officers,

Directors, and owners or RBS, and use RBS to perform

construction and remodeling services at properties in D.C. and

2 Maryland which they purchase, renovate and resell. See Compl.,

ECF No. 1 ¶¶ 4-5; DSMF, ECF No. 44-1 ¶¶ 6-12. Defendants admit

that Ms. Lima is listed as an owner and director of RBS Group

and RBS Construction Corp., and that she is officially the Vice

President of RBS Group, see

; however, they state

that Ms. Lima, the spouse of Defendant Silveira, is a full-time

real estate agent, and is not involved in Mr. Silveira’s

business, “except for occasionally writing a check for Defendant

Silveira or receiving work hours from workers.” Defs.’ MSJ, ECF

No. 38 at 7. 1

Plaintiffs allege that RBS, which in incorporated in

Maryland, meets the definition of “Enterprise Engaged in

Commerce” under

(s)(1), because: (1) it either

has employees engaged in commerce or the production of goods for

commerce or it has employees handling, selling, or otherwise

working on goods or materials that have been moved in or

produced for commerce; and (2) it has a gross volume of sales

made or business done of not less than $500,000.00 (exclusive or

excise taxes at the retail level that are separately stated).

Compl., ECF No. 1 ¶ 4. Defendants counter that the gross annual

1 When citing to electronic filings throughout this Memorandum Opinion, the Court generally cites to the ECF header page number, not the original page number of the filed document. The exception is deposition testimony, for which the citations are to the page of the deposition transcript.

3 revenue of RBS Group Corporation was $204,736.02 in 2016 and

$252,775.05 in 2017, excepting funds received from returned

checks and the sale of Defendants’ home. See Exhibit 1, Silveira

Decl., ECF No. 38-2 ¶ 5. Defendants state that they have never

had more than $500,000 per year in gross sales.

.

Plaintiff Andrade, a resident of D.C., and Plaintiff

Marroquin, a resident of Maryland, were both employed by

Defendants as laborers/carpenters. Compl., ECF No. 1 ¶¶ 7-8;

DSMF, ECF No. 44-1 ¶ 44. Plaintiffs allege they performed home

remodeling services for the Defendants including drywall and

simple carpentry, pouring concrete, and removing debris and old

drywall from properties.

Plaintiffs state that Mr. Andrade

was employed full-time from approximately June 2016 to January

2017, and part-time until December 2017, see DSMF, ECF No. 44-1

¶ 14; while Mr. Marroquin was employed from approximately July

2016 to October 2016,

. Defendants, however, contend

that as per Mr. Andrade’s own Answers to Interrogatories, he

worked from June 2016 to about January 1, 2017, and then between

October 2017 and December 2017. See DSMF, ECF No. 44-1 ¶ 14. As

to Mr. Marroquin, Defendants assert that he testified he did not

recall the exact date he began working between July 20, 2016 and

4 July 27, 2016. See Transcript of Victorino C. Marroquin

(“Marroquin Dep.”), ECF No. 44-3 at 47-48. 2

Mr. Andrade states he was paid an hourly rate of $13 for

his first two months of work, and then $14 per hour. See Exhibit

H, Pl. Jose Armando Andrade’s Answers and Amended Objections to

Defendant RBS Construction Corp.’s First Set of Interrogatories

(“Andrade Interrogatories”), ECF No. 42-9 at 15-16. However,

Defendant Silveira testified that Plaintiff Andrade started at

$12 per hour and then received a raise to $13 per hour.

Deposition of Albertino Assis Silveira (“Silveira Dep.”), ECF

No. 44-6 at 70; 187. Mr. Marroquin’s wage is similarly disputed,

with Plaintiffs arguing he was paid $14 per hour, see DSMF, ECF

No. 44-1 ¶ 106; and Defendants countering that he was paid $13

per hour. See Defs.’ Opp’n, ECF No. 44 at 28.

Plaintiffs allege that they spent more than half their time

working for the Defendants at sites located in D.C., and

consistently worked more than forty hours per week. Compl., ECF

No. 1 ¶¶ 7-8. They state that they worked between five and six

days per week, and twelve to fifteen hours per day, see DSMF,

ECF No. 44-1 ¶ 108; although Defendants dispute the evidence

Plaintiffs provide, see

Plaintiffs also assert that

Defendants would inform them each day about the location of the

2 This argument is splitting hairs, since July 24, 2016, the date used by Plaintiffs, is midway between July 20 and July 27.

5 day’s job site, provide them with a schedule of hours, and

instruct them on their specific duties. Compl., ECF No. 1 ¶ 10.

They state that Defendants provided them with the construction

materials needed or instructed them to pick up the materials and

transport them to the work site.

; see also DSMF, ECF

No. 44-1 ¶ 69. They add that Defendants would inspect the job

sites daily or ask Plaintiffs to send photos of the completed

work. See Compl., ECF No. 1 ¶ 11. They also state that

Defendants did not keep track of the hours that Plaintiffs

worked each day, which Defendants admit.

; DSMF, ECF No.

1 ¶ 48. The Defendants, however, refute Ms. Lima’s involvement

in managing or overseeing any of the work. See Defs.’ MSJ, ECF

No. 38 at 7.

Plaintiffs allege they were not paid on any fixed schedule,

nor paid in relation to the hourly work wage they were promised.

Compl., ECF No. 1 ¶ 13. Instead, Plaintiffs state they were paid

sporadically in cash and usually after having complained about

not being compensated for hours worked.

Defendants do not

dispute the cash payments. See Defs.’ MSJ, ECF No. 38 at 8;

DSMF, ECF No. 41-1 ¶¶ 56, 73. Plaintiffs allege that, based on

records Mr. Andrade kept in his notebook, he was paid

approximately $8,300 during the time period which is the subject

of this Complaint. See Compl., ECF No. 1 ¶¶ 14-15; DSMF, ECF No.

41-1 ¶ 59. Plaintiffs claim that Mr. Marroquin was paid

6 approximately $2,500, although they provide no written records

in support. See Compl., ECF No. 1 ¶¶ 14-15; DSMF, ECF No. 41-1 ¶

60. Defendants challenge the amount Plaintiffs state they were

paid, arguing that Plaintiffs do not present a valid basis for

their calculations. See DSMF, ECF No. 44-1 ¶ 59-60, 93. However,

defendants do not have any records of their own as to the

amounts paid. See generally

Plaintiffs allege that Defendants: (1) failed to compensate

them for all the regular hours they worked; (2) failed to pay

them at the promised rate for all hours worked; (3) failed to

pay any compensation at all for the hours worked in excess of 40

hours each work week; and (4) failed to comply with the

statutory record-keeping and notice requirements of the DCPCLW

and the DCMWRA. Compl., ECF No. 1 ¶ 8. Specifically, they allege

that Plaintiff Andrade worked approximately 550 hours of

straight time and 438 hours of overtime for which he was never

paid, and Plaintiff Marroquin worked approximately 340 hours of

regular hours and 283 hours of overtime for which he was never

paid.

; see also Exhibit T, Wage Calculation

Victorino Marroquin (“Marroquin Wage Calculation”), ECF No. 42-

21; Exhibit U, Jose Andrade Romero Wage Calculation (“Romero

Wage Calculation”), ECF No. 42-22. 3 Defendants, however, argue

3 The documents provided by Plaintiffs include their respective handwritten records of the hours and days worked for the

7 that Plaintiffs can only guess as to what their damages are and

what they were paid. See Defs.’ MSJ, ECF No. 38 at 8-11.

Plaintiffs brought suit in this Court on January 26, 2018.

Defendants subsequently filed a motion for summary judgment, see

Defs.’ MSJ, ECF No. 38; in response to which Plaintiffs filed a

cross-motion for partial summary judgment, see Pls.’ XMSJ, ECF

No. 42. Plaintiff also filed a brief opposing the Defendants’

motion. See Pls.’ Mem. of P. & A. in Opp’n to Defs.’ Mot. for

Partial Summ. J. and in Supp. of Pls.’ Cross-Mot. for Partial

Summ. J. (“Pls.’ Opp’n”), ECF No. 43. 4 Defendants then filed a

consolidated opposition and reply. See Defs.’ Consolidated Reply

to Pls.’ Opp’n to Defs.’ Mot. for Summ. J. and Defs.’ Opp’n to

Pls.’ Cross-Mot. for Partial Summ. J. (“Defs.’ Opp’n”), ECF No.

44. After Plaintiffs filed their own reply, see Pls.’ Reply in

Supp. of Cross-Mot. for Partial Summ. J. (“Pls.’ Reply”), ECF

No. 46; Defendants motioned to strike the exhibits submitted in

Plaintiff’s reply, see Defs.’ Mot. to Strike, ECF No. 48.

Plaintiffs opposed, see Pls.’ Opp’n to Mot. to Strike (“Pls.’

Defendants. See Marroquin Wage Calculation, ECF No. 42-21 at 6- 11; Andrade Wage Calculation, ECF No. 42-22 at 11-20. Mr. Romero also recorded the payments he received. See Exhibit U, ECF No. 42-22 at 20. Mr. Marroquin, however, provides no basis for the hours for which he was allegedly paid, other than his testimony. See DSMF, ECF No. 44-1 ¶ 60.

4 This brief is identical to the Plaintiffs’ cross motion for summary judgment, ECF No. 42.

8 Opp’n to MTS”), ECF No. 50; and Defendants replied, see Defs.’

Reply to Pls.’ Opp’n to Defs.’ Mot. to Strike (“Defs.’ Reply to

MTS”), ECF No. 51. The motions are ripe and ready for

adjudication.

III. Standard of Review

A. Summary Judgment Federal Rule of Civil Procedure 56 provides that summary

judgment motions must be granted if “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.,

(1986). The moving party

bears the initial burden “of informing the district court of the

basis for its motion, and identifying those portions of ‘the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any,’ which

it believes demonstrate the absence of a genuine issue of

material fact.” Celotex Corp. v. Catrett,

(1986); see also Fed. R. Civ. P. 56(c)(1). This burden “may be

discharged by ‘showing’ . . . that there is an absence of

evidence to support the nonmoving party’s case.” Celotex,

.

In evaluating a summary judgment motion, “[t]he evidence of

the non-movant is to be believed, and all justifiable inferences

are to be drawn in his favor.” Liberty Lobby,

9 (quoting Adickes v. S. H. Kress & Co.,

(1970)). Summary judgment turns on “whether the evidence

presents a sufficient disagreement to require submission to a

jury or whether it is so one-sided that one party must prevail

as a matter of law.”

. “[I]f the evidence is such

that a reasonable jury could return a verdict for the nonmoving

party”–and thus a “genuine” dispute over a material fact exists–

then summary judgment is not available.

.

For purposes of summary judgment, materiality is determined

by the substantive law of the action.

Accordingly, the

substantive law identifies “which facts are critical and which

facts are irrelevant,” and “[o]nly disputes over facts that

might affect the outcome of the suit under the governing law

will properly preclude the entry of summary judgment.”

Similarly, the applicable substantive evidentiary standards of

the action guide “whether a given factual dispute requires

submission to a jury.”

. The Court’s role at the

summary judgment stage “is not . . . to weigh the evidence and

determine the truth of the matter but to determine whether there

is a genuine issue for trial.”

.

1. Determining Employer Status Under the FLSA Courts in this District use a four-part test to determine

whether an individual is an employer under the FLSA: does the

putative employer “1) have hiring and firing authority, 2)

10 supervise and schedule employee work hours or conditions of

employment, 3) determine the rate and method of payment, and 4)

maintain employment records?” Saint-Jean v. District of Columbia

Public Schools Div. of Transp.,

(D.D.C.

2011) (citing Morrison v. Int'l Programs Consortium, Inc.,

(D.C. Cir. 2001)). “No one factor standing alone is

dispositive and courts are directed to look at the totality of

the circumstances and consider any relevant evidence.” Morrison,

. Corporate officers and owners are individually

liable under the FLSA (and therefore D.C. wage laws) when they

engage in a certain level of operational control. See Wilson v.

Hunam Inn, Inc.,

(D.D.C. 2015) (“Corporate

officers are liable as employers under the FLSA as long as the

officer acts, or has the power to act, on behalf of the

corporation vis-à-vis its employees.”). “To determine whether a

corporate officer has operational control, the [c]ourt looks at

the factors [of the economic reality test] plus the ownership

interest of the corporate officer.” Orellana v. NBSB Inc.,

(D.D.C. 2018). “A Defendant’s ownership

interest in an employer corporation, while not dispositive of

employer status under FLSA, certainly raises a plausible

inference that the individual possessed the requisite

“operational control” over the covered entity.” Wilson,

. Courts in other circuits have emphasized that

11 financial control over a corporation is a significant factor in

determining whether an individual meets the statutory definition

of an employer. See, e.g., Donovan v. Grim Hotel,

(5th Cir. 1984)(imposing liability on a majority shareholder

who “held [corporations'] purse strings and guided their

policies”); Dole v. Elliott Travel,

(6th Cir.

1991) (finding that the majority owner “controlled the purse

strings”); Manning v. Boston Medical Center Corp.,

(1st Cir. 2013)(internal citation and quotation marks

omitted)(“[T]he case law's emphasis on ownership and financial

control is sensible because these factors suggest a strong

degree of authority over the corporation's finances and, as a

corollary, the ability to caus[e] the corporation to

undercompensate employees and to prefer the payment of other

obligations and/or the retention of profits.”).

2. Determining Coverage Under the FLSA To claim relief under the FLSA, an employee must first

establish that that his employment relationship is subject to

coverage under the FLSA. Benton v. Laborers' Joint Training

Fund,

(D.D.C. 2015). Coverage can be

either: (1) enterprise coverage; or (2) individual coverage.

Tony & Susan Alamo Found., 471 U.S. at 295 n. 8 (1985). A given

employee may have coverage under either or both theories.

Benton,

. Plaintiffs bear the burden of

12 establishing FLSA coverage. See D.A. Schulte, Inc., v. Gangi,

(1946) (“The burden of proof that rests upon

employees to establish that they are engaged in the production

of goods for commerce must be met by evidence in the record.”).

For individual coverage to apply under the FLSA, the

Plaintiffs must provide evidence that they were: (1) engaged in

commerce; or (2) engaged in the production of goods for

commerce. Benton, 210 F. Supp. 3d at 106 (citing

(a)(1)). 5 A plaintiff may show they are “engaged in commerce”

by showing that they are employed in industries that “serve as

the actual instrumentalities and channels of interstate and

foreign commerce,” such as the telephone, transportation, or

shipping industries.

Alternately, a plaintiff may show that

are employed in a type of business that “regularly utilize[s]

the channels of interstate and foreign commerce in the course of

their operations,” such as the banking, insurance, or publishing

industries; or by showing that she directly participates in the

actual movement of people or goods in interstate commerce.”

(citing

). “The fact that all of [an

5 Since Plaintiffs claim individual coverage under the first prong, i.e., they allege that they were engaged in commerce, that is where the Court directs its attention. See Pls.’ XMSJ, ECF No. 42 at 31.

13 employer’s] business is not shown to have an interstate

character is not important. The applicability of the [FLSA] is

dependent on the character of the employees' work.” Walling v.

Jacksonville Paper Co.,

(1943) (citations

omitted). “The test under [the FLSA], to determine whether an

employee is engaged in commerce, is not whether the employee's

activities affect or indirectly relate to interstate commerce

but whether they are actually in or so closely related to the

movement of the commerce as to be a part of it.” McLeod v.

Threlkeld,

(1943). U.S. Department of Labor

regulations address the issue of employees who travel across

state lines for work as follows:

If the employee transports material or equipment or other persons across State lines or within a particular State as a part of an interstate movement, it is clear of course, that he is engaging in commerce. And as a general rule, employees who are regularly engaged in traveling across State lines in the performance of their duties (as distinguished from merely going to and from their homes or lodgings in commuting to a work place) are engaged in commerce and covered by the Act. On the other hand, it is equally plain that an employee who, in isolated or sporadic instances, happens to cross a State line in the course of his employment, which is otherwise intrastate in character, is not, for that sole reason, covered by the Act.

(footnotes omitted).

14 3. Calculating Damages Under the FLSA The employee has the burden of proving damages under FLSA.

Anderson v. Mt. Clemens Pottery Co.,

(1946),

superseded by statute on other grounds, Portal-to-Portal Act of

1947. “When the employer has kept proper and accurate records

the employee may easily discharge his burden by securing the

production of those records.”

However, “where the employer's

records are inaccurate or inadequate and the employee cannot

offer convincing substitutes,” a burden-shifting scheme applies.

Under this scheme, an employee carries his burden to prove

damages and makes out a prima facie case if: (a) “he proves that

he has in fact performed work for which he was improperly

compensated”; and (b) “he produces sufficient evidence to show

the amount and extent of that work as a matter of just and

reasonable inference.”

The burden then shifts to the

employer to produce “evidence of the precise amount of work

performed” or to negate “the reasonableness of the inference to

be drawn from the employee's evidence.”

. “If the

employer fails to produce such evidence, the court may then

award damages to the employee, even though the result be only

approximate.”

. A defendant employer is not entitled

to summary judgment on the issue of damages because they

challenge the sufficiency or reasonableness of a plaintiff’s

evidence; rather, such situations present a dispute of material

15 fact which require credibility determinations to resolve. See

Escamilla v. Nuyen,

(D.D.C. 2016)

(denying summary judgment where defendants presented evidence to

contest reasonableness of plaintiffs estimate of hours worked

per week.); Hunter v. Sprint Corp.,

(D.D.C. 2006) (holding that summary judgment is not the proper

vehicle to challenge the reasonableness of the employee’s

evidence about hours worked, because such disputes require

credibility determinations and are reserved for the trier of

fact); Zirintusa v. Whitaker,

(D.D.C. 2009)

(denying summary judgment where plaintiff produced evidence of

hours worked in the form of her affidavit testimony and a chart

of her estimated hours worked); Batres Guevara v. Ischia, Inc.,

, 27–28 (D.D.C. 2014) (denying summary judgment

where plaintiffs offered three depositions in support of their

overtime claim and defendant offered five affidavits against

it).

B. Motion to Strike It is well-established that new issues, arguments, and

evidence “may not be raised for the first time in a reply

brief.” Rollins Envtl. Servs. V. EPA,

, 652 n. 2

(D.C. Cir. 1991); see also McBride v. Merrell Dow and

Pharmaceuticals, Inc.,

(D.C. Cir. 1986) (“We

generally will not entertain arguments omitted from an

16 appellant’s opening brief and raised initially in his reply

brief.”); Provenz v. Miller,

(9th Cir. 1996)

(“[W]here new evidence is presented in a reply to a motion for

summary judgment, the district court should not consider the new

evidence without giving the non-movant an opportunity to

respond.”) (quoting Black v. TIC Inv. Corp.,

(7th Cir. 1990)); BMW of N. Am., LLC v. WIN.IT Am., Inc., No.

CV178826PSGMRWX,

, at *7 (C.D. Cal. Jan. 25, 2019)

(declining to consider certified translations of an agreement

produced with a reply brief without giving the opposing party an

opportunity to object or respond). If a court accepts a Reply

containing new evidence and the opposing party has no

opportunity to respond, that court cannot rely on the new

material in deciding a motion for summary judgment. See Beaird

v. Seagate Technology, Inc.,

(10th Cir.

1998) (“Having accepted the reply brief, the district court in

fact had two permissible courses of action. It could either have

permitted a surreply or, in granting summary judgment for the

movant, it could have refrained from relying on any new material

contained in the reply brief.”).

IV. Analysis

Defendants make a number of arguments in their motion for

summary judgment. First, they argue that Plaintiffs neither work

for a covered enterprise nor are individually covered under the

17 FLSA. See Defs.’ MSJ, ECF No. 38 at 13. Next, they argue that

Ms. Lima is not an employer under the FLSA. Id. at 17. Third,

they contend that Plaintiffs cannot establish their damages by a

just and reasonable inference. Id. at 20. Finally, they argue

that the Court should decline supplemental jurisdiction over any

remaining DC law claims. Id. at 25.

In their cross-motion for summary judgment, Plaintiffs

raise similar issues. First, they argue that Ms. Lima and Mr.

Silveira are individually liable as Plaintiff’s employers under

the FLSA and DC’s own wage laws. Pls.’ XMSJ, ECF No. 42 at 10.

Second, they argue that they have established their damages as a

matter of just and reasonable inference and defendants have no

evidence to dispute their inference. Id. at 23. Finally, they

argue that even if no FLSA claim survives, the Court should

exercise supplemental jurisdiction over the state law claims in

the interest of fairness and judicial economy. Id. at 37. In

their Motion to Strike, Defendants object to the affidavits

submitted by the respective Plaintiffs in their cross-motion for

summary judgment and their reply. See generally Defs.’ MTS, ECF

No. 48. Defendants seek to strike Plaintiffs’ entire Reply to

Defendants’ Counter-Statement of Material Facts (“RSMF”), ECF

No. 47; the Plaintiffs’ respective affidavits, ECF No. 46-1; and

the translator’s declaration as to the affidavits, ECF No. 46-2.

See Defs.’ MTS, ECF NO. 48 at 6. Given the overlapping nature of

18 the arguments in Defendants’ motion for summary judgment, and

Plaintiffs’ cross-motion, the Court considers the arguments

together, by each issue raised. First, however, the Court

considers evidentiary challenges posed by the defendants,

including their motion to strike.

A. Admissible Evidence In their cross-motion for summary judgment, Plaintiffs file

affidavits for Mr. Andrade and Mr. Marroquin respectively, see

ECF Nos. 42-19, 42-20; which defendants oppose as inadmissible

hearsay. See Defs.’ Opp’n, ECF No. 44 at 22. Defendants argue

that the declarations are unreliable because they are in

English, a language Plaintiffs do not speak, and lack an oath

from an interpreter as to the affidavits being translated for

Plaintiffs. Id. at 22-23. Defendants also argue that even if the

affidavits could be properly authenticated and translated, they

are inadmissible because they contradict prior sworn testimony.

Id. at 26. In response, Plaintiffs provide Spanish language

versions of the affidavits, and an affidavit from Ms. Aguilar,

an employee of Plaintiff’s counsel who speaks Spanish and

affirms she read the affidavits to Plaintiffs. See Exhibit A,

ECF No. 46-1; Exhibit B, Affidavit of Maria Aguilar (“Aguilar

Affidavit”), ECF No. 46-2. Plaintiffs also assert that the

affidavits are admissible even if they are hearsay because they

are based on Plaintiffs’ own testimony and are consistent with

19 prior testimony. Pls.’ XMSJ, ECF No. 42 at 15-16. Plaintiffs

also put forth a Reply to the Defendants’ Counter-Statement of

Material Facts, see RSMF, ECF No. 47, which contains alternate

citations to testimony in the record (in addition to the

affidavits), and argue that the Court should use the alternate

citations in the reply if it rejects the affidavits. Id. at 16.

Defendants move to strike Plaintiffs entire Reply to the

Defendants’ Counter-Statement of Material Facts, ECF No. 47; the

Plaintiffs’ respective affidavits, ECF No. 46-1; and Ms.

Aguilar’s declaration regarding translation, ECF No. 46-2. See

Defs.’ MTS, ECF No. 48 at 6. Defendants further challenge the

admissibility of Plaintiffs’ handwritten time records, and of

Plaintiffs’ reliance on their own answers to interrogatories to

support factual assertions. ECF No. 44-1 ¶ 2. The Court

considers each of the evidentiary challenges Defendants have

posed in turn.

1. Plaintiff’s Affidavits Are Admissible In their Motion to Strike, Defendants ask that the Court

strike Plaintiffs’ Spanish affidavits, Ms. Aguilar’s

declaration, and Plaintiffs’ Reply to Defendants’ Counter

Statement of Material Facts in Dispute. See Defs.’ MTS, ECF No.

48 at 5. Defendants challenge the affidavits in a variety of

ways. Defendants contend that because Plaintiffs’ declarations

appear for the first time in a Reply, they have had “no

20 opportunity to challenge the accuracy of the translations or the

qualifications of the translator.” Defs.’ MTS, ECF No. 48 at 4.

Plaintiffs also challenge Ms. Aguilar’s competence as a

translator, and thereby her declaration and the Plaintiffs’

declarations. Id. at 6. Defendants also directly challenge the

contents of the affidavit, arguing that they are inadmissible

because they implicate the sham-affidavit rule and conflict with

prior testimony. See Defs.’ Opp’n, ECF No. 44 at 25. 6 The Court

addresses each of these three objections in turn.

a. Defendants Have Had an Opportunity to Challenge the New Affidavits Defendants argue that because the Declarations appear for

the first time in a Reply, they have had no opportunity to

challenge either the accuracy of the translations or the

qualifications of the translator. See Defs.’ MTS, ECF No. 48 at

4. They add that “where Plaintiffs made factual assertions that

cited to the declarations in their statement of facts,

Defendants responded based only on the information on hand at

the time, which did not include these new declarations.” Id.

Defendants assert they have a right to respond to the new

6 Defendants had previously objected to the affidavits based on a violation of Federal Rule of Evidence 604, arguing that they are inadmissible hearsay translations. See Defs.’ Opp’n, ECF No. 44 at 23. However, Plaintiffs then submitted Spanish language translation along with a translator’s declaration, and defendants did not renew this argument. See generally Defs.’ MTS, ECF No. 48. The Court therefore finds this argument moot.

21 declarations and to supplement their Counter-Statement of Facts

to account for the evidence and new citations proffered by the

Plaintiffs. Id. at 5. They add that Plaintiffs have provided no

reason this new evidence was not produced with the initial

motion, and there is little reason to incorporate the new

evidence. Id. Plaintiffs respond that Defendants have failed to

articulate any prejudice they would suffer if the citations are

considered by the Court. See Pls.’ Opp’n to Defs.’ MTS, ECF No.

50 at 3. They state that the Spanish affidavits contain no new

information or facts from the English affidavits submitted in

the Plaintiffs’ cross-motion. Id. They add that the RSMF does

not include any “new evidence” that was not included in the

Plaintiffs’ Counter Statement of Disputed Facts, see ECF No. 48

at 3-4; and that Defendants do not identify any new evidence or

the prejudice it would lead to. The Court is persuaded by

Plaintiffs’ argument.

Where a party has an opportunity to respond to evidence

that may otherwise be objectionable, or does in fact respond,

there is no prejudice to that party and striking such evidence

is not proper. See Phillips v. Mabus,

(D.D.C.

2016) (declining to exercise authority to strike late filed

summary judgment motions because there was no prejudice to the

Defendants because they would have an opportunity to respond to

respond to late filed briefs); Campbell v. Natl. R.R. Passenger

22 Corp.,

(D.D.C. 2018) (denying motion to

strike part of reply brief where new arguments were sufficiently

addressed in the motion to strike itself); Parker v. D.C., Civ.

Act. No. 05-0188(RWR),

, at *2 (D.D.C. May 22,

2006) (denying motion to strike untimely reply brief because

there was no prejudice to other party). In the present case,

Defendants have had an opportunity to respond, and indeed, have

responded, in both their joint reply and opposition brief, see

ECF No. 44; and their motion to strike, see ECF No. 48. It is

disingenuous for the Defendants to argue that they have had “no

opportunity to challenge the accuracy of the translations or the

qualifications of the translator,” while proceeding to do

exactly that in their motion to strike. Defendants’ challenges

to the translator, and to the mode of translation, have been

sufficiently addressed in the motion to strike itself. See

infra; cf. Campbell,

. Defendants have

also challenged the contents of the new affidavits. See Defs.’

Opp’n, ECF No. 44 at 25.

Nor does the Court see a need for Defendants to either

strike Plaintiffs’ RSMF or to permit Defendants to supplement

their Counter-Statement of Facts for purposes of summary

judgment. The Defendants have already included citations to the

affidavits in their Counter-Statement. See DSMF, ECF No. 44-1 ¶

38. Defendants do not suggest that there are any new details

23 presented in the Spanish language versions of the affidavits,

attached to Plaintiff’s reply, see ECF No. 46-1; that would

require additional citations. As to Plaintiffs’ new citations in

their Reply to Defendants’ Counter-Statement, see ECF No. 47;

these citations are not to new evidence but to the existing

summary judgment record in case the Court rejected the

affidavits. The Plaintiffs had included citations for the

affidavits in their Statement of Material Facts Not in Dispute,

see ECF No. 44-28; which pre-dated the reply, see ECF No. 47.

Plaintiffs Reply to Defendants’ Counter-Statement, see ECF No.

47; supplements the affidavit citations with the existing record

in case the affidavits are rejected. As Plaintiffs point out,

the Defendants’ position on this point is particularly strange

given that Defendants do the same thing they accuse the

Plaintiffs of doing in their own reply. See ECF No. 44-2 at ¶¶

8, 10, 12, 17, 22-29, 33, 36, 56, 63, 69, 75 (including new

citations that were not in their original Statement of Material

Facts not in Dispute). The Court concludes that Defendants had

an opportunity to, and indeed did, challenge the affidavits, and

that there is no need to strike the Plaintiffs’ Reply to

Defendants’ Counter-Statement of Material Facts, ECF No. 47; on

the basis of its additional citations.

24 b. Ms. Aguilar’s Declaration is Admissible Defendants argue that the Court lacks sufficient evidence

to conclude that Ms. Aguilar is a “competent translator,” and

therefore should not rely on her declarations or accept the

Plaintiffs’ affidavits. Defs.’ MTS, ECF No. 48 at 6. The

Defendants add that Ms. Aguilar did not act as a translator in

the traditional sense because Google Translate was used to

provide the translation while Ms. Aguilar merely interpreted the

language for Plaintiffs.

Plaintiffs respond that Defendants

fail to point to any inaccuracies or inconsistencies in the two

translations and are free to submit them to the scrutiny of

their own interpreter. See Pls.’ Opp’n to Defs.’ MTS, ECF No. 50

at 9. Plaintiffs also state that the affidavits are not clearly

inconsistent with prior testimony. See Pls.’ XMSJ, ECF No. 42 at

16. The Court concludes that Ms. Aguilar’s declaration is

admissible.

Persuasive authority holds that “[i]f the declarant himself

does not speak and read English the party relying on his

English-language declaration must also submit documents

sufficient to establish that he understood what he was signing.”

Sicom S.P.A. v. TRS Inc.,

, 709 (S.D.N.Y. 2016).

Moreover, Federal Rule of Evidence 604 requires that “[a]n

interpreter must be qualified and must give an oath or

affirmation to make a true translation.” Jack v. Trans World

25 Airlines, Inc.,

, 659 n.4 (N.D. Cal. 1994)

(striking affidavits from a summary judgment briefing and

holding that “[w]itness testimony translated from a foreign

language must be properly authenticated and any interpretation

must be shown to be an accurate translation done by a competent

translator.” (citing Fed. R. Evid. 604 and 901)). Here, Ms.

Aguilar is a native Spanish speaker, and has stated in her

affidavit that she regularly interprets during client meetings

at Plaintiffs’ counsel’s Firm, even though she is not a

certified translator. See Exhibit B, Aguilar Affidavit, ECF No.

46-2. Plaintiffs have therefore shown she is qualified and have

submitted her affirmation of translation. See Trans World

Airlines,

n.4. The Defendants provide no

legal authority suggesting that the Court needs to be aware of

her education, and have more specifics of her background, to

find her a “competent translator.” Defs.’ MTS, ECF No. 48 at 6.

Nor do Defendants present any case law from within this District

that would prevent Ms. Aguilar’s affidavit from satisfying

Federal Rule of Evidence 604. See generally

It is true that other courts have been hesitant of the

reliability of Google Translate. See, e.g., Novelty Textile,

Inc. v. Windsor Fashions, Inc.,

at *3 (C.D.

Cal., Mar. 20, 2013) (“The court notes, first, that a

translation by Google Translate is not sufficiently reliable to

26 make it admissible.”). However, those cases are not applicable

here since Ms. Aguilar affirms that she reviewed the English and

Spanish versions of the affidavits to make sure the Google

translation was accurate and read the Spanish affidavits to

Plaintiffs before they were signed. See Exhibit B, Aff. Of Ms.

Aguilar, ECF No. 46-2. The Court therefore concludes that Ms.

Aguilar’s affidavit should not be struck from the record. The

Court cannot find that Plaintiffs’ affidavits are inadmissible

simply by virtue of being interpreted by Ms. Aguilar.

c. The Affidavits Do Not Violate the Sham Affidavit Rule The Court turns next to Defendants’ direct objections to

Plaintiffs’ affidavits. The Court addresses each of the alleged

inconsistencies between the affidavits and prior testimony,

which the defendants argue violate the sham affidavit rule. This

rule states that a deponent cannot file a “contradictory post-

deposition affidavit in an attempt to fabricate a material issue

of fact and thus preclude the granting of summary judgment.”

Jackson v. Teamsters Local Union, 922,

(D.D.C. 2015) (citing Pyramid Securities Ltd. v. IB Resolution,

Inc.,

(D.C. Cir. 1991) (“Where a party

emphatically and wittingly swears to a fact, it bears a heavy

burden–even in the summary judgment context–when it seeks to

jettison its sworn statement.”)). For the doctrine to apply,

“the affidavit must clearly contradict prior sworn testimony,

27 rather than clarify confusing or ambiguous testimony, and the

contradiction must lack credible explanation, such as new

evidence.” St. Paul Mercury Ins. Co. v. Capitol Sprinkler

Inspection, Inc.,

(D.D.C. 2008)

(quoting Hinch v. Lucy Webb Hayes Nat’l Training Sch.,

(D.C. 2003)). It is insufficient that a subsequent

affidavit elucidates on some “forgotten” fact; the contradiction

must be direct and clear. See Barrett v. Chreky,

(D.D.C. 2009).

Defendants first claim that Plaintiff Andrade’s affidavit

testimony about his hourly rate being $13, which he states was

later raised to $14, contradicts his deposition testimony that

the rate was $13 throughout. Defs.’ Opp’n, ECF No. 44 at 26-27.

However, as Plaintiffs point out, in deposition, Defendants

questioned Mr. Andrade about his meeting with Mr. Silveira when

he was first hired and asked if he was promised any specific

amount of money at this meeting, to which Mr. Andrade testified

to $13 per hour. See Transcript of Jose A. Andrade Romero

(“Andrade Dep.”), ECF No. 44-4 at 22-23. This is entirely

consistent with Mr. Andrade’s former testimony as to his

starting wage. Defendants counsel never asked Mr. Andrade if his

hourly rate changed from $13.00. See

Therefore, the sham

affidavit rule is not implicated. See St. Paul,

; see also Barrett,

(finding no

28 violation of the sham-affidavit rule because the plaintiff did

not “directly contradict herself” in her supplemental

affidavit). Defendants next argue that Mr. Andrade’s deposition

testimony that he received “about five” payments from Mr.

Silviera contradicts his hand-written notes that he received

only two payments: one of $2,100 from Mr. Zapata and one of

$6,200 from Mr. Cornego, for a total of $8,300. Defs.’ Opp’n,

ECF No. 44 at 27. The question for the Court, however, is not

whether Mr. Andrade’s deposition testimony contradicts his hand-

written notes, but instead whether his affidavit contradicts his

prior deposition testimony. Mr. Andrade’s deposition testimony

was that he was paid a total of $8,300, and that he received

individual payments on five separate occasions but could not

recall the precise dates or amount of each payment. ECF No. 42-

10 at 33-36, 56-60. Mr. Andrade’s affidavit similarly states

that he was paid $ 8,300. See Andrade Affidavit, ECF No. 42-19

¶ 2. There is thus no inconsistency between Mr. Andrade’s

affidavit and his deposition testimony as to the payments he

received. 7

7 As to the alleged discrepancy between the deposition testimony and the notebook, the Court is cognizant that Mr. Andrade never testified that he was paid on just two occasions. See Andrade Dep., ECF No. 44-4 at 58. Admittedly, Mr. Andrade’s notation in his handbook suggests he used two inputs to arrive at the total amount he was paid, i.e., $8,300, see ECF No. 42-22 at 20; and the Court agrees with Defendants that it is unclear how these

29 Next, Defendants turn to Mr. Marroquin, and claim that his

“damage calculations are in direct conflict with his testimony,”

because he “repeatedly changed the amount he believed he was

owed, originally stating that he was owed just $8,000, but later

changing it to $10,000.” Defs.’ Opp’n, ECF No. 44 at 28.

Defendants do not explain whether they mean the damage

calculations in Mr. Marroquon’s affidavit, or refer to the

affidavit at all, but the Court gives them the benefit of the

doubt and assumes they mean the $10,355.50 in unpaid wages Mr.

Marroquin references in his affidavit. See Marroquin Affidavit,

ECF No. 42-20 ¶ 4. By Defendant’s own admission, Mr. Marroquin

stated he was owed $10,000 in his deposition. Other than

providing a more precise figure, the Court is unable to see how

the $10,355.50 mentioned in the affidavit is at all inconsistent

with the $10,000 in the deposition. The Court concludes there is

no “direct and clear” contradiction. See Barrett,

. 8

two numbers align with the five payments Mr. Andrade states he received, and whose amounts he cannot recall. See Andrade Dep., ECF No. 44-4 at 57-60. However, the Court cannot assume that this handbook notation means those two inputs represent just two payments instead of an amalgamation of payments for specific job sites, for instance. The Court also observes that, contrary to Defendants’ assertion, see Defs.’ Opp’n, ECF No. 44 at 27; the notebook does not establish that Mr. Andrade was paid the listed amounts by Mr. Zapata and Mr. Cornego. See ECF No. 42-22 at 20.

8 Defendants further argue that Mr. Marroquin contradicted himself when he testified about his damages in deposition

30 Defendants also point to an inconsistency between the $14

hourly rate used in the affidavit and mentioned in Mr.

Marroquin’s deposition, in contrast to the $13 hourly rate

mentioned in Plaintiffs' statement of undisputed facts. Compare

Marroquin Dep., ECF No. 44-3 at 28 with Plaintiffs’ Statement of

Material Facts (“PSMF”), ECF No. 42-28, ¶ 45. Plaintiffs explain

this inconsistency as reflecting an error in the Plaintiff’s

Statement of Undisputed Facts, with the correct number being $14

per hour. See Pls.’ XMSJ, ECF No. 42 at 18. As defendants point

out, this in turn creates a conflict with Mr. Silveira’s

testimony that Mr. Marroquin’s hourly rate was $13. See Defs.’

Opp’n, ECF No. 44 at 28. Relevant here, regardless of the error,

there is no inconsistency between the affidavit and the

deposition that would lead to the affidavit being inadmissible.

Finally, defendants take issue with Mr. Marroquin’s damage

calculations, which they argue are inadmissible hearsay because

they rely exclusively on his own declaration and hand-written

notes to support his number of hours worked. See Defs.’ Opp’n,

because he could not provide details about how his damages were calculated, nor provide a “clear basis” for how he calculated how much he was paid by defendants. This argument has nothing to do with a contradiction between the affidavit and deposition testimony and is therefore not addressed here. The Court is cognizant, however, that the Mt. Clemens burden shifting standard applies, as discussed infra, since the employers did not record employee hours or payments.

31 ECF No. 44 at 29. Again, defendants provide no citation, but the

Court assumes they mean the damage calculations referred to in

Mr. Marroquin’s affidavit, see Marroquin Affidavit, ECF No. 42-

20 ¶ 4; and attached to the Plaintiff’s Cross-Motion, see id. at

3-7. The Court has already addressed the issue of whether these

documents are inadmissible hearsay because they are improperly

translated and authenticated. See supra. The Court focuses here

on the narrower allegation that Mr. Marroquin is using his

declaration to “correct” his previous testimony by providing new

details changing the amount he claimed he was paid. See Defs.’

Opp’n, ECF No. 44 at 29. Confusingly, no citation is provided as

to the new details, and Defendants then state that the hand-

written notes referred to in the declaration lack sufficient

detail because they do not list any actual times worked and only

include the total hours worked each day rounded to whole

numbers. Id. The Court’s best interpretation of Defendants’

argument on the narrow issue under consideration is that

Defendants contend Plaintiffs cannot introduce new details as to

the amount paid through the declaration. As the Court has

discussed already, Mr. Marroquin testified he was owed $10,000,

and his declaration states he is owed $10,355.50, a remarkably

similar number. See Marroquin Affidavit, ECF No. 42-20 ¶ 4;

Marroquin Dep., ECF No. 44-3 at 122. Both the calculations used

in Mr. Marroquin’s affidavit and Mr. Marroquin’s deposition

32 testimony establish a $14 hourly wage. See Marroquin Affidavit,

ECF No. 42-20 ¶ 4; Marroquin Dep., ECF No. 44-3 at 28. The only

correction Mr. Marroquin makes in his declaration is when he

states he was “mistaken when [he] testified in [his] deposition

that [he] wrote down how much [he] was paid in [his] notebook.”

Marroquin Affidavit, ECF No. 42-20 ¶ 9. This is undoubtedly a

reversal of his testimony that he noted down “the hours and how

much money” he was paid. Marroquin Dep., ECF No. 44-3 at 58-59.

The only explanation offered by the Plaintiffs is that Mr.

Marroquin was “mistaken” and “only wrote down the hours and days

[he] worked for the Defendants.” Marroquin Aff., ECF No. 42-20 ¶

9. The Court does not find this to be a credible explanation.

See St. Paul,

.

Since Defendants have identified no contradictions in Mr.

Andrade’s affidavit, or in the remainder of Mr. Marroquin’s, the

Court finds the two affidavits to be admissible, and orders

Plaintiffs to file an amended affidavit for Mr. Marroquin

excluding the one paragraph correcting his testimony. The Court

accordingly does not reach Plaintiffs’ argument that it should

consider equivalent testimony or evidence already in the record

in place of the affidavits. See Pls.’ XMSJ, ECF No. 42 at 16.

33 2. The Admissibility of Mr. Marroquin’s Hand- Written Notes is a Question for Trial

Defendants argue that Mr. Marroquin’s hand-written notes,

which he relies on in his damage calculations, lack sufficient

detail and are inadmissible hearsay. See Defs.’ Opp’n, ECF No.

44 at 29. Defendants take issue with the fact that Mr.

Marroquin’s notes do not list actual times worked and only

include the total hours worked each day.

Defendants also

object to the hours being rounded to whole numbers instead of

fractions, and state that Plaintiffs provide no explanation for

this pattern.

The Plaintiffs respond by providing several

theories under which the notes could be admitted at trial. See

Pls.’ Reply, ECF No. 46 at 19. At the outset, the Court notes

that because RBS, as the employer, failed to keep proper records

of employees’ hours worked, a burden shifting scheme applies and

the fact that the Mr. Marroquin’s evidence is merely an

approximation is not a bar to recovery. See Mt. Clemens, 382

U.S. at 687,

. Consequently, it is not significant

that Mr. Marroquin’s records do not list actual times worked

and are rounded instead of in fractions. The Court is also

cognizant that Mr. Marroquin’s damages are not exclusively

based on the hand-written records. As Mr. Marroquin states in

his affidavit, the damages are also based on his deposition

testimony. see Marroquin Affidavit, ECF No. 42-20 ¶ 4. The

34 notes therefore do not impact the damage calculations or Mr.

Marroquin’s affidavit, and the Court need not reach the

question of whether the notes are hearsay at summary judgment.

3. Defendants Have Not Presented a Valid Challenge to the Admissibility of Plaintiffs’ Interrogatory Answers Defendants also challenge Plaintiffs’ repeated reliance and

citation to their own answers to interrogatories to support

their response to Defendants’ factual assertions. See DSMF, ECF

No. 44-1 at 1-2. Plaintiffs respond that although the answers

are hearsay, they are admissible hearsay. Pls.’ Reply, ECF No.

46 at 20. The Court finds that it need not reach this issue

because Defendants have not presented a valid argument. Federal

Rule 56(e) enumerates “answers to interrogatories” as one of the

forms of evidence that a party may rely on to supports its

position on summary judgment. See Fed. R. Civ. P. 56(e). A party

may offer its own answers to interrogatories in opposition to a

motion for summary judgment if: (1) the answers are based on

personal knowledge of the person supplying the answers; (2) set

forth facts that would be admissible in evidence; and (3)

demonstrate that the person supplying the answers is competent.

Brand v. Westall, CIV. A. 94-0312 DAR,

, at *4

(D.D.C. 1995) (declining to consider interrogatory answers

because they were “nothing more than a recitation of theories

and conclusions” and not based on personal knowledge).

35 Defendants, citing to cases from other districts, state

that “[a]nswers to interrogatories cannot be relied upon to

support factual positions on summary judgment, as Courts have

held that a party’s own answers to interrogatories are

inadmissible hearsay.” DSMF, ECF No. 44-1 at 2. However,

Defendants then go on to acknowledge that in this District,

courts have held that a party’s own answers to interrogatories

are admissible so long as they “conform to the strict

requirements of Rule 56(c)(4) applied to affidavits and

declarations in support of a motion.”

(citing Houston v.

Sectek, Inc., No. CIV.A.04-2218,

, at *1 (D.D.C.

June 30, 2008)). As Plaintiffs emphasize, Defendants fail to

state which of the three foregoing requirements to admissibility

the Plaintiffs’ sworn answers violate. Nor do Defendants offer

any legal authority within this district for their assertion

that Plaintiffs need to identify a hearsay exception. See

generally DSMF, ECF No. 44-1 at 2. The Court therefore finds

that Defendants have failed to pose a valid challenge to

Plaintiffs’ citation of their interrogatory answers. 9

9 The Court also recognizes that Defendants’ interrogatory answers are based on their personal knowledge and contain no qualifier suggesting a lack of knowledge that would make them inadmissible. See Houston,

, at *1.

36 Having resolved all the evidentiary challenges posed by

Defendants, the Court turns to Defendants’ other arguments in

favor of their motion for summary judgment.

B. Ms. Lima is Plaintiffs’ Employer Defendants argue that Ms. Lima is not an employer under the

FLSA, since she did not hire Plaintiffs, direct their work, or

pay them for it. See Defs.’ MSJ, ECF No. 38 at 19. They suggest

that Plaintiffs are “hung up on [Ms.] Lima’s position and title,

focusing on her status as an officer, owner, incorporator and

director instead of what she was actually doing.” Defs.’ Opp’n,

ECF No. 44 at 17. They contend that Ms. Lima was “essentially

[Mr.] Silveira’s assistant on the occasion when he required her

assistance,” and would “perform tasks as instructed by Silveira,

including writing checks, typing up documents, and sending out

bills and invoices.”

. Plaintiffs respond that Ms. Lima

is an employer under the FLSA because she “helped form RBS

Corporation, serves as an Officer (the Vice President), and is

an owner, incorporator and director of RBS Construction

Corporation, Inc.” Pls.’ XMSJ, ECF No. 42 at 36; see also DSMF,

ECF No. 44-1 ¶¶ 1-2. They add that Ms. Lima was involved in the

day-to-day affairs of RBS and controlled corporate funds,

because she: (1) communicated with Plaintiffs’ foremen about

Plaintiffs’ hours, see Silveira Dep., ECF No. 42-2 at 73-75;

Marroquin Dep., ECF No. 44-3 at 148, 163; (2) prepared and gave

37 Plaintiff Andrade a 1099 Form for 2016, see Andrade Dep., ECF

No. 44-4 at 72-75; (3) on at least one occasion, instructed

Plaintiff Andrade in the performance of his work on a job site,

see

; (4) spent corporate funds and used them to pay

personal expenses that she did not reimburse the corporation

for, see Silveira Dep., ECF No. 42-2 at 206-13; Exhibit L, ECF

No. 42-13; Exhibit O, ECF No. 42-16; (5) wrote checks used to

pay Plaintiffs and other workers of RBS Construction Corp., see

Exhibit L, ECF No. 42-13 at 5, 12, 22; Exhibit N, ECF No. 42-15;

and (6) was aware that at least one Plaintiff (Mr. Andrade) was

owed money for work he had done, see Andrade Dep., ECF No. 44-4

at 108-09. Based on the record herein, the Court finds that Ms.

Lima is an employer.

This District uses a four-part test to determine whether an

individual is an employer under the FLSA, asking whether the

putative employer: (1) has hiring and firing authority; (2)

supervises and schedules employee work hours or conditions of

employment; (3) determines the rate and method of payment; and

(4) maintains employment records.” Saint-Jean,

(citing Morrison,

). “No one factor standing

alone is dispositive.” Morrison,

. Corporate

officers and owners are individually liable when they engage in

a certain level of operational control. See Wilson,

. “To determine whether a corporate officer has

38 operational control, the [c]ourt looks at the factors [of the

economic reality test] plus the ownership interest of the

corporate officer.” Orellana,

. In other

districts, financial control over a corporation has also been

deemed a significant factor in determining whether an individual

meets the statutory definition of an employer. See, e.g.,

Manning,

.

Here, applying the economic reality test, the record

reflects that Ms. Lima supervised employee work hours,

determined the method of payment, and maintained employment

records. See Orellana,

. As Plaintiffs

point out, Ms. Lima was involved in the day-to-day affairs of

RBS Construction Corp. and RBS Group Inc. Defendants themselves

concede she communicated with Plaintiff Marroquin’s supervisor

about the hours he worked, DSMF, ECF No. 44-1 ¶ 35; sent out

bills, id. ¶ 39; paid vendors and employees, id. ¶ 24; and on

one occasion showed up on a job site and instructed Plaintiff

Andrade in the performance of his work, id. ¶ 42. The “economic

reality” cannot be reconciled with Defendants’ contention that

Ms. Lima’s role was “marginal, at best.” Defs.’ Opp’n, ECF No.

44 at 18.

Defendants assert that Ms. Lima’s involvement is explained

by her acting on Mr. Silveira’s direction on every occasion, and

as his “transcriber and assistant.” Defs.’ Opp’n, ECF No. 44 at

39 18. This argument would be more persuasive if Ms. Lima was not

herself an owner of RBS Construction Corp. and RBS Group, with

the official title of Vice President. See DSMF, ECF No. 44-1 ¶¶

1-12. Defendants essentially argue that because Ms. Lima

allegedly wrote checks and performed tasks at her husband’s

direction, the Court should overlook her status as owner, her

access to and use of corporate funds for personal and business

reasons, and her involvement with the business. This argument is

unsustainable. Ms. Lima’s “ownership interest in [RBS], while

not dispositive of employer status under FLSA, certainly raises

a plausible inference that [she] possessed the requisite

operational control over the covered entity.” Wilson,

(internal quotation marks omitted). Combined

with her day-to-day involvement and use of corporate funds, the

record establishes her status as an employer. It is possible Ms.

Lima performed tasks at her husband’s direction, but that does

not change her status vis-à-vis the employees of RBS.

Defendants cite to several cases regarding whether spouses

of business owners are employers for purposes of FLSA. However,

these cases are easily distinguished. In Morataya, the spouse

was hired by her husband’s company as an administrative

assistant and did not have an ownership interest in the

business, unlike the present case. See Morataya v. Nancy's

Kitchen of Silver Spring, Inc., No. GJH-I3-0I888,

165305, at *2 (D. Md. Jan. 12, 2015). Similarly, in Marroquin,

the spouse in question had no ownership interest, had never been

to any of the company’s work sites, and had done nothing other

than write paychecks and wire money to her husband and son while

they were elsewhere. Marroquin v. Canales,

(D. Md. 2007). The Court concludes that Ms. Lima is an

employer for purposes of the FLSA.

C. Mr. Andrade Is Covered Under FLSA, While Mr. Marroquin’s Coverage Is a Question for The Jury

1. Enterprise Coverage The FLSA defines “an enterprise engaged in commerce or in

the production of goods for commerce” as one that “has employees

engaged in commerce” and “whose annual gross volume of sales

made or business done is not less than $500,000.”

(s)(1)(A)(i)-(ii). Defendants argue that “[b]ecause the

Plaintiffs cannot demonstrate that a genuine dispute of material

fact exists with respect to Defendants’ having gross sales of

$500,000.00 or more in 2016 and 2017, Plaintiffs cannot

establish an element of their overtime claim against Defendants

and summary judgment may be properly granted.” Defs.’ MSJ, ECF

No. 38 at 17.

Plaintiffs concede that they “cannot prove at this time

that Defendants exceeded the $500,000.00 threshold, given

Defendants’ shoddy and fraudulent bookkeeping practices as well

41 as their failure to file tax returns during the years in

question.” Pls.’ XMSJ, ECF No. 42 at 30. The Court therefore

grants summary judgment in favor of the Defendants. See Hopkins

v. Women’s Div., Gen. Bd. Of Global Ministries,

(D.D.C. 2003) (“It is well understood in this Circuit

that when a plaintiff files an opposition to a dispositive

motion and addresses only certain arguments raised by the

defendant, a court may treat those arguments that the plaintiff

failed to address as conceded.”).

2. Individual Coverage

a. The Court Cannot Grant Summary Judgment on Whether Plaintiff Marroquin is Individually Covered Under the FLSA For individual coverage to apply under the FLSA, the

Plaintiffs must provide evidence that they were “(1) engaged in

commerce or (2) engaged in the production of goods for

commerce.” Thorne v. All Restoration Services, Inc., et al.,

(11th Cir. 2006). “[F]or an employee to be

‘engaged in commerce’ under the FLSA, he must be directly

participating in the actual movement of persons or things in

interstate commerce by (i) working for an instrumentality of

interstate commerce, e.g., transportation or communication

industry employees, or (ii) by regularly using the

instrumentalities of interstate commerce in his work, e.g.,

42 regular and recurrent use of interstate telephone, telegraph,

mails or travel.”

10

The FLSA’s implementing regulations recognize that regular

travel across state lines by an employee establishes individual

commerce coverage under the FLSA. See

. An

employee working on a “traveling construction crew[]” may be

subject to individual coverage by virtue of his interstate

movement.

There is no bright-line rule for what amount of

interstate travel is sufficient to trigger the FLSA’s individual

coverage. Employees who are “regularly engaged in traveling

across State lines in the performance of their duties (as

distinguished from merely going to and from their homes or

lodgings in commuting to a work place) are engaged in commerce

and covered” but those who do so on “isolated or sporadic

instances” are not covered.

“Doubtful questions arising in

the area between the two extremes must be resolved on the basis

of the facts in each individual case.”

Plaintiffs argue that Mr. Marroquin is covered by the FLSA

because “at least three times a week, (with the exception of his

final week of work when he worked in Maryland) [Mr.] Marroquin

10Plaintiffs raise only one ground for concluding that they are covered by the FLSA: they allege that they were “engaged in commerce” while working for Defendants because they regularly engaged in interstate travel. See Pls.’ XMSJ, ECF No. 42 at 32, 34.

43 started his work day in Maryland and then crossed state lines

into Washington D.C. to continue working.” Pls.’ XMSJ, ECF No.

42 at 33. Specifically, Plaintiffs emphasize Mr. Marroquin’s

testimony that he would go with his foreman to pick up

construction materials “just about daily,” and “about three

times a week they would specifically do so from the Home Depot

in Hyattsville, Maryland” before driving to a construction site

in D.C. Id.; Marroquin Dep., ECF No. 44-3 at 37-43.

Defendants respond that Mr. Marroquin “cannot establish

that this activity represented a substantial part of his work,

and accordingly, [Mr.] Marroquin cannot establish that he was

“engaged in commerce.” Defs.’ Opp’n, ECF No. 44 at 7. First,

Defendants state that regardless of whether Mr. Marroquin’s time

in Home Depot was compensable, he has not shown that the

purchases placed him in the “channels of commerce.” See

. Second, they assert that Mr. Marroquin has not produced any

evidence that he actually went to Home Depot in Hyattsville

three times a week, and that the record only establishes he went

twice over the course of his employment. The Court finds that a

genuine issue of material fact exists on this issue and declines

to grant summary judgment to Defendants.

As a threshold matter, Plaintiffs are not required to show

that their work was “an essential part of the stream of

interstate commerce,” or how, without their work, interstate

44 commerce would be “impeded, impaired, or abated.” Defs.’ MSJ,

ECF No. 38 at 8-9. The relevant Regulations plainly state that

the FLSA’s individual coverage “applies to employees [working in

construction] who regularly travel across state lines in the

performance of their duties, even though the construction

project itself is not covered.”

. Plaintiffs

therefore need only show that they regularly traveled across

state lines for work.

Because how often Mr. Marroquin went to Maryland to pick up

material is a disputed material fact, the Court is unable to

establish whether he “regularly engaged in commerce” across

state lines and is covered by the FLSA.

.

Plaintiffs contend that Mr. Marroquin, per his own testimony,

picked up materials with his foreman Luis “just about daily” and

that three times a week they went to Home Depot in Hyattsville,

Maryland. Pls.’ Reply, ECF No. 46 at 6; Marroquin Dep., ECF No.

44-3 at 37-43. Although such testimony, standing alone, may be

considered a self-serving statement which does not give rise to

a triable issue of fact, see Toomer v. Mattis,

(D.D.C. 2017); Plaintiffs also offer support in the

form of Defendants’ bank account records to show the regularity

with which Defendants purchased material at the Home Depot in

Maryland. See Pls.’ XMSJ, ECF No. 42 at 32-33; Exhibit Q, ECF

No. 42-18.

45 Admittedly, as Defendants point out, “[f]rom late July 2016

to mid-October 2016, the bank statements reveal that Defendants

purchased goods from the Home Depot located in Hyattsville, MD

on a total of two dates during the time that [Mr.] Marroquin

worked for the Defendants.” Defs.’ Opp’n, ECF No. 44 at 44. But

the bank statements are just one piece of evidence that

Plaintiffs use to support Mr. Marroquin’s testimony; Plaintiffs

also emphasize Ms. Lima’s own testimony that she used her

personal card to pay for purchases at Home Depot. See Exhibit A,

ECF No. 42-2 at 62-66. Lacking access to Ms. Lima’s card

records, which she failed to keep despite using the card for

business transactions, the Plaintiffs cannot establish exactly

how many times Ms. Lima paid for purchases. 11 See

Nonetheless, taking Ms. Lima’s testimony alongside the bank

records and Mr. Marroquin’s testimony, the Court is persuaded

that there is a genuine dispute of fact. “Because the frequency

of travel is critical to establishing coverage, this dispute is

11Ms. Lima’s deposition testimony is contradictory and vague. She first states that she “let [Plaintiffs] use [her] credit card, because [her] husband did not have any credit cards. See Exhibit A, ECF No. 42-2 at 65:11-16. She adds that she used either a Bank of America or Capital One credit card but goes on to deny having either of those credit cards in 2016 or 2017. See id. at 65-67. She then asserts that she actually paid with a debit card and goes back and forth on whether it was a Bank of America card or not, before stating that she does not remember. See id. at 67-68. She concludes by saying that she did not keep any records of the card charges. Id. at 68:14.

46 material.” Benton, 210 F. Supp. 3d at 110. Moreover, whether Mr.

Marroquin can substantiate his factual claim depends on

assessing his credibility, which is within the province of the

jury. See id.

Accordingly, the Court declines to grant summary judgment

on the issue of whether Mr. Marroquin is covered by the FLSA.

b. Mr. Andrade Is Individually Covered Under the FLSA

Plaintiffs state that Mr. Andrade’s interstate travel

involved traveling between job sites in Maryland and D.C. in a

single workday and traveling from D.C. to Maryland to pick up

equipment and then returning to D.C. to perform work. Pls.’

XMSJ, ECF No. 42 at 35. Plaintiffs contend that Mr. Andrade is

individually covered because he undertook interstate travel on

average “every 34 days,” which “at the least creates a dispute

of material fact as to whether Andrade is individually covered.”

Id. at 35-36. The Plaintiffs highlight that “[Mr.] Andrade’s

monthly crossing of state lines in the performance of his duties

is certainly more frequent than the 15 instances over the course

of 36 months (or once every 2.4 months) that the court in the

Solano case concluded would be a ‘close call’ when denying

summary judgment for the Defendant on the issue of FLSA

coverage.” Id. at 36 (citing Solano v. A Navas Party Prod.,

Inc.,

(S.D. Fla. 2010)).

47 Defendants do not dispute the number of times Mr. Andrade

travelled inter-state but respond that Mr. Andrade’s travel was

“well shy of the bi-monthly standard articulated in Benton as

approaching the limits of the FLSA’s individual coverage reach.”

Defs.’ Opp’n, ECF No. 44 at 12 (citing Benton, 210 F. Supp. 3d

at 106-107 ([B]i-monthly travel approaches the limits of

coverage, and more infrequent travel amounting to only sporadic

trips each year are insufficient.”)). The Court concludes that

Mr. Andrade is individually covered.

As a threshold matter, the Court interprets the “bi-

monthly” standard articulated in Benton to mean once every two

months. Benton states that “[t]he cases that do exist suggest

that weekly or bi-weekly travel is almost certainly sufficient

to establish individual coverage, while bi-monthly travel

approaches the limits of coverage, and more infrequent travel

amounting to only sporadic trips each year are insufficient.”

Benton, 210 F. Supp. 3d at 107. The gradation in the text, from

most often (“weekly”), to least often (“sporadic trips each

year”), suggests that bi-weekly and bi-monthly are used to mean

once every two weeks and once every two months respectively,

rather than twice a week and twice a month. Moreover, the case

cited in support directly thereafter concludes that plaintiff

employees of an elderly care facility who traveled out of state

with facility residents weekly, or two to four times per month,

48 established individual coverage to survive summary judgment.

See Benton, 210 F. Supp. 3d at 107 (citing Bowrin v. Catholic

Guardian Soc'y ,

, 468–71 (S.D.N.Y. 2006)).

“[T]wo to four times per month” amounts to weekly to bi-weekly,

and Benton describes bi-weekly as “almost certainly sufficient

to establish individual coverage.”

Another case cited by

Benton and by Plaintiffs concluded that “two [interstate] trips

in thirty-six months would be ‘isolated or sporadic,’ and

Plaintiff would not qualify for individual coverage,” but it

would be a “closer call if Plaintiff can prove he traveled at

least fifteen times in connection with his employment.”

(citing Solano v. A. Navas Party Prod., Inc.,

(S.D. Fla. 2010)). Fifteen times over thirty-six

months is almost bi-monthly in the sense of once per two months,

which Benton describes as approaching the limits of coverage.

The standard articulated in Benton, to which the defendants

themselves refer the Court, see Defs.’ Opp’n, ECF No. 44 at 12;

makes clear that bi-monthly travel is approaching the limits of

coverage, but that it does not exceed them, see Benton, 210 F.

Supp. 3d at 107 (emphasis added). Further persuasive authority

comes from Solano, which describes travel fifteen times over

thirty-six months as “a closer call.” Solano,

. Fifteen times over thirty-six months is less frequent than

49 bi-monthly, and far less frequent than Plaintiff Andrade’s six

trips over seven months, or average of one occasion of

interstate travel every thirty-four days. The Court concludes

that Mr. Andrade is entitled to FLSA coverage. 12

D. The Question of Whether Plaintiffs Have Provided a Just and Reasonable Inference for Damages Is Inappropriate for Summary Judgment Defendants argue that Plaintiff’s testimony regarding

damages is “incomprehensible, inconsistent, and rife with

contradictions,” and offers no basis “for the Jury to enter a

judgment in their respective favor by a ‘just and reasonable’

inference.” Defs.’ MSJ, ECF No. 38 at 22. Defendants point out

that Plaintiff Marroquin cannot identify the payments he

received, but that he admits he received $200 to $300 “a lot of

times” from Defendant Silveira.

They add that because Mr.

Marroquin cannot testify as to what he was paid, he cannot

testify to what he is owed. Id. at 22-23. Defendants also

highlight shortcomings in Mr. Andrade's testimony, including the

fact that he admitted destroying a record of payments he

received from Mr. Silveira. See Andrade Dep., ECF No. 44-4 at

55, 58. Defendants emphasize that Mr. Andrade cannot testify to

how he added up the amount he claims he was paid, id. at 34-38;

12The Court therefore need not reach Plaintiff’s arguments that (1) it should exercise pendent jurisdiction over his D.C. law claims; and (2) it should exercise supplemental jurisdiction over the state law claims. See Pls.’ XMSJ, ECF No. 42 at 36-37.

50 cannot recall the how often he was paid, id. at 55, 58; has

testified that he is owed anywhere from $2,500 to $20,000, id.

at 63, 67-69; and admits that he is guessing, id. at 68.

Plaintiffs respond that Defendants have misrepresented

Plaintiffs’ deposition testimony and have not presented any

evidence that shows the Plaintiffs did not work the hours they

claimed or were paid more than they claimed. Pls.’ XMSJ, ECF No.

42 at 26-27. Plaintiffs assert that they, in contrast, have

“presented evidence to allow a jury to determine their damages

as matter of just and reasonable inference,” including (1) their

approximate damages, see SMF, ECF No. 42-28 ¶¶ 93, 97; the hours

they worked, id. ¶¶ 106, 108; what their rates of pay were id.

¶¶ 45, 106; and how much they were paid by Defendants, id. ¶¶

59, 60. Plaintiffs add that they produced in discovery

handwritten time records which contain precise information about

their damages, see Marroquin Wage Calculation, ECF No. 42-21 at

4-9; Romero Wage Calculation, ECF No. 42-22 at 7-16; and that

they have calculated their damages using these records. See

Marroquin Wage Calculation; ECF No. 42-21 at 1-3; Romero Wage

Calculation, ECF No. 42-22 at 1-6.

As a threshold matter, the Court is cognizant that a burden

shifting scheme applies. Where, as here, an employer’s records

are incomplete or inaccurate, an employee need only “alleg[e]

that he performed work for which he was not properly

51 compensated and then ‘produc[e] sufficient evidence to show the

amount and extent of that work as a matter of just and

reasonable inference’” in order to make a prima facie case for

overtime compensation. Hunter,

(quoting

Mt. Clemens,

,

). The employer must

then present its own evidence as to the amount of work the

employee actually performed or rebut the reasonableness of the

inference from the employee’s evidence. Id. at 58. The fact

that the employee’s evidence is merely an approximation is not

a bar to recovery. Mt. Clemens, 382 U.S. at 688,

.

Resolving disputes as to the hours of work actually performed

or as to the reasonableness of the inference often “requires an

assessment of credibility,” which is beyond the scope of

summary judgment. Hunter,

.

Here, Plaintiffs have made a prima facie case of

compensation, since both Plaintiffs have testified to and / or

provided records of the amount of hours worked per day, the

number of days worked per week, the amount of wages paid, and

their hourly rate. See Pls.’ XMSJ, ECF No. 42 at 26-27;

Marroquin Dep., ECF No. 44-3 at 66; Andrade Dep., ECF No. 44-4

at 18, 27-28; Marroquin Wage Calculation, ECF No. 42-21 at 6-11;

Andrade Wage Calculation, ECF No. 42-22 at 11-20. The Court

agrees with Plaintiffs that Defendants present no evidence that

shows the amount of work that Plaintiffs actually performed.

52 Instead, Defendants focus “on trying to negate the

reasonableness of the inference to be drawn from the employee’s

evidence.” Hunter,

(internal quotation

marks omitted). Such an inference on reasonableness is

inappropriate for summary judgment, and necessarily requires an

assessment of credibility. Hunter,

.

The Court therefore declines to grant summary judgment on

whether a just and reasonable inference on damages can be made.

53 V. Conclusion

For the foregoing reasons, the Defendants’ Motion for

Summary Judgement, ECF No. 38; is GRANTED IN PART and DENIED IN

PART; 13 and Plaintiffs’ Cross-Motion for Summary Judgment, ECF

No. 42; is GRANTED IN PART and DENIED IN PART; 14 and Defendants’

Motion to Strike, ECF No. 48, is GRANTED IN PART and DENIED IN

PART. 15 An appropriate Order accompanies this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge February 22, 2022

13Defendants are granted summary judgment on the lack of enterprise coverage under the FLSA for both Plaintiffs.

14Plaintiffs are granted summary judgment as to Ms. Lima’s status as an employer, and as to Mr. Andrade’s coverage under the FLSA. The Court also finds that Plaintiffs have made a prima facie case of violations under the FLSA, but the Court refrains from granting summary judgment on the reasonableness of Plaintiffs’ claimed damages.

15Defendants’ Motion to Strike, ECF No. 48, is denied except as to the Plaintiffs being ordered to submit a new affidavit for Mr. Marroquin that does not correct his deposition testimony. See ECF No. 42-20 ¶ 9.

54