Medina v. Kevorkian Cleaning Co.

• Decision Date: 17 March 2020
• Docket Number: Civil Action No. 18-1291 (JEB)
• Citation: 444 F.Supp.3d 204
• Parties: Wendy MEDINA, Plaintiff, v. KEVORKIAN CLEANING COMPANY, INC., et al., Defendants.
• Court: U.S. District Court — District of Columbia

444 F.Supp.3d 204

Wendy MEDINA, Plaintiff,

v.KEVORKIAN CLEANING COMPANY, INC., et al., Defendants.

Civil Action No. 18-1291 (JEB)

United States District Court, District of Columbia.

Signed March 17, 2020

Jillian Moo-Young, Gilbert Employment Law, P.C., Cori Morgan Cohen, Law Offices of Gary M. Gilbert & Associates, P.C., Silver Spring, MD, for Plaintiff.

Neil Stuart Hyman, Law Offices of Neil S. Hyman, LLC, Bethesda, MD, for Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

Like many others, this case substantially turns on the distinction between an employee and an independent contractor. Plaintiff Wendy Medina worked for Defendants Kevorkian Cleaning Company, Inc. and Chris Kevorkian — the Company's President and Secretary — during two separate stints in 2015 and 2016. She alleges in this suit that throughout these two periods, the Company paid her at below the minimum wage and denied her overtime pay in violation of the federal Fair Labor Standards Act, the D.C. Minimum Wage Revision Act, and the D.C. Wage Payment and Collection Law.

Defendants now move for summary judgment on all claims arguing, in part, that Medina did not qualify for the salaries guaranteed by the Acts because she worked as an independent contractor.

Plaintiff opposes that Motion and cross-moves for partial summary judgment herself. Both sides, however, have offered conflicting evidence on a variety of crucial factual issues, and the Court is not permitted to weigh this evidence and perform a credibility assessment at the summary-judgment stage. It will therefore almost entirely deny the Motions, but it will enter judgment in favor of Defendants on part of Plaintiff's FLSA claim, which is barred by the applicable statute of limitations.

I. Background

Given its foreshadowed ruling, the Court sets out the facts in the light most favorable to Plaintiff as to the one statute-of-limitations issue, but otherwise notes the disputes. See Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011). The Company provides janitorial and cleaning services to restaurants, office buildings, and other commercial properties in Maryland and the District of Columbia. See ECF No. 26 (Def. MSJ), Exh. 1 (Def. Statement of Material Facts), ¶ 1. To carry out these services, it relies on a mix of employees and independent contractors. Id., ¶¶ 6–7. This case may well ultimately hinge on whether Plaintiff should be considered the former or the latter. If she were Defendants' employee, they could be liable to her for the wages and overtime pay guaranteed by federal and state labor laws; conversely, they would not owe such sums to an independent contractor.

Plaintiff worked intermittently for the Company as a cleaner for a little over a year. Her "first stint," which lasted around two months, began in early 2015 when she was hired by Company employee Elias Ramirez to clean the dining rooms of the D.C. restaurants Oceanaire and Georgia Brown's. Id., ¶ 10; see also ECF No. 27 (Pl. MSJ), Exh. 6 (Deposition of Wendy Medina) at 7:15–21 (recounting that she started working for Elias at some time in 2015 but that she could not remember the exact month). The parties agree that this period of employment ended prior to May 31, 2015. Id. at 12:14–17.

At some point, although the sides have offered competing evidence as to when Eduardo Negrette (who Defendants claim is their independent contractor) hired Medina for a "second stint" with the Company. During this period, which lasted at a minimum from spring 2016 through July of that year, Medina cleaned a number of restaurants including Capital Grille, D.C. and Commissary. See Def. SMF, ¶¶ 26–28; see also Def. MSJ, Exh. 7 (Affidavit of Eduardo Negrette), ¶ 21 (stating that he hired Plaintiff around March 2016). The parties disagree — and have offered inconsistent accounts — as to whether Medina also worked for the Company during some or all of the interim period between May 31, 2015, and the spring of 2016. See Pl. SMF, ¶ 23 ("At some point following the first stint, Plaintiff returned to perform work for the benefit [of] Defendants.... At the latest, Defendants were aware that Plaintiff was performing work for their benefit as of March 2016."); Medina Depo. at 20:11–17 (stating tentative belief that Negrette hired her in July 2015); Def. SMF, ¶ 38 ("In or about April 2016, Defendants discovered that Mr. Negrette had hired Plaintiff to assist him with his cleaning responsibilities.").

On May 31, 2018, Plaintiff filed a Complaint against Defendants asserting three counts under the FLSA, 29 U.S.C. § 206(a)(1), DCMWRA, D.C. Code §§ 32-1001, et seq. , and DCWPCL, D.C. Code § 32-1301, respectively. See Compl., ¶¶ 63–83. Medina alleges that she was an employee during her time with Defendants but was not compensated in accordance with these federal and local laws. Despite the relatively small monetary gap separating their positions, the parties' efforts at mediation went nowhere. They proceeded through discovery and have now filed the present Cross-Motions for Summary Judgment.

II. Legal Standard

Summary judgment may be granted if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is "material" if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505 ; Holcomb, 433 F.3d at 895. A dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ; Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505 ; Holcomb, 433 F.3d at 895.

"A party asserting that a fact cannot be or is genuinely disputed must support the assertion" by "citing to particular parts of materials in the record" or "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). When a motion for summary judgment is under consideration, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [its] favor." Liberty Lobby, 477 U.S. at 255, 106 S.Ct. 2505 ; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006) ; Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc ).

III. Analysis

"The Fair Labor Standards Act guarantees all ‘employees’ a federal minimum wage" and overtime pay. Rhea Lana, Inc. v. United States, 925 F.3d 521, 522–23 (D.C. Cir. 2019) (quoting 29 U.S.C. § 206(a) ). Similarly, the DCWPCL requires every "employer" to "pay all wages earned to his employees at least twice during each calendar month," D.C. Code § 32-1302, and the DCMWRA sets the minimum wage "to be paid to any employee by any employer in the District of Columbia" while also providing for overtime pay. See D.C. Code § 32-1003(a), (c). "An employee may not recover for nonpayment of wages separately under the FLSA, the DCMWRA, and the DCWPCL since that would result in a double (or triple) recovery for unpaid wages." Perez v. C.R. Calderon Constr., Inc., 221 F. Supp. 3d 115, 139 (D.D.C. 2016).

Defendants argue that Plaintiff's claims brought under these statutes should be rejected for several reasons. First, they assert that Medina's counts as they relate to her initial stint with the Company are precluded by the relevant statutes of limitations. Second, they posit that all of her claims fail as a matter of law because she worked as an independent contractor, rather than an employee. Third, they argue that, in any event, they did pay Medina at a minimum-wage rate, but that she has overstated the number of hours that she worked. Plaintiff counters that the statutes of limitations should be tolled; that she qualified as an employee; that she was paid under the minimum wage (and denied overtime); and that Defendants are also liable to her under several alternative theories. The Court will take these arguments in turn.

A. Timeliness

The statute of limitations for the FLSA is two years, which is extended to three years for "willful" violations. See 29 U.S.C. § 255(a). The DCMWRA and DCWPCL have a statute of limitations of three years. See D.C. Code § 32-1308(c)(1). Plaintiff filed her Complaint on May 31, 2018, and both parties agree that her first period of employment began in early 2015 and ended prior to May of that year — viz. , outside the limitations periods even if extended to their furthest ranges. See Pl. MSJ at 29.

Plaintiff first attempts to salvage her DCMWRA claim — she does not press her DCWPCL claim regarding this period, likely given its duplicative nature, and the Court therefore considers it abandoned — by pointing to an exception relating to notice and posting requirements of the law. See Pl. MSJ at 29. The Act provides that employers

shall keep a copy or summary of this subchapter and any applicable regulation issued under this subchapter, in a form prescribed or approved by the Mayor, posted in a conspicuous and accessible place in or about the premises at which any employee covered by the regulation is employed. If an employer fails to comply with this requirement, the [running of the statute of limitations] shall not begin until the employer posts or provides the required notice.

D.C. Code § 32-1009.

The parties have offered conflicting evidence as to whether Defendants satisfied these notice requirements. Plaintiff notes that Kevorkian testified in his deposition that he only posted such notices at the Company's office, which is located inside his home. See Pl. MSJ, Exh. 1 (Deposition of Christopher Kevorkian) at 111:5–112:4. Yet Defendants counter with newly produced evidence that the establishments Plaintiff...