District of Columbia v. Bongam ( 2022 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 18-CV-187 & 18-CV-360
DISTRICT OF COLUMBIA, APPELLANT/CROSS-APPELLEE,
v.
ISAIAH BONGAM, APPELLEE/CROSS-APPELLANT
AND
DYNAMIC VISIONS, INC., APPELLEE.
Appeals from the Superior Court of the
District of Columbia
(CAB-5472-07 & CAB-8516-12)
(Hon. Todd E. Edelman, Trial Judge)
(Argued June 3, 2020 Decided March 31, 2022)
Lucy E. Pittman, Assistant Attorney General, with whom Karl A. Racine,
Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General
at the time of argument, and Caroline S. Van Zile, Deputy Solicitor General, were
on the brief, for appellant/cross-appellee.
Isaiah Bongam, pro se.
C. Jude Iweanoge for appellee Dynamic Visions, Inc.
2
Before BLACKBURNE-RIGSBY, Chief Judge, and RUIZ, and THOMPSON * Senior
Judges.
BLACKBURNE-RIGSBY, Chief Judge: Following a bench trial, the trial court
ruled that Dynamic Visions, Inc. and its Chief Executive Officer Isaiah Bongam
violated the District of Columbia Wage Payment & Collection Law (“DCWPCL”),
D.C. Code §§ 32-1301 to -1312 (2019 Repl.), by failing to pay former employees
earned wages. The trial court limited liability and damages to forty-nine former
employees who testified at trial, excluding from the judgment eighty-seven putative
former non-testifying employees on the basis that no competent evidence was
presented proving these individuals were employees and were not compensated for
work performed. Both the District of Columbia Office of the Attorney General (the
“District”) and Mr. Bongam appealed, but Dynamic Visions did not. For the reasons
discussed, we affirm.
I. Factual and Procedural History
*
Senior Judge Thompson was an Associate Judge of the court at the time of
argument. On October 4, 2021, she was appointed as a Senior Judge but she
continued to serve as an Associate Judge until February 17, 2022. See D.C. Code §
11-1502 & 1504(b)(3) (2012 Repl.). On February 18, 2022, she began her service
as a Senior Judge. See D.C. Code § 11-1504.
3
Dynamic Visions, a defunct Maryland corporation, and its Chief Executive
Officer (“CEO”) Isaiah Bongam 1 (collectively “Dynamic Visions”), provided home
health services in the District of Columbia up until 2012. One hundred and thirty-
six of Dynamic Visions’ former home health employees filed complaints between
2005 and 2010 with the District of Columbia Department of Employment Services
Office of Wage-Hour Compliance (“OWH”), alleging that Dynamic Visions was
their employer and owed them unpaid wages. OWH investigated the allegations,
gave Dynamic Visions notice and an opportunity to respond, and held at least one
“fact-finding conference.” During OWH’s investigation, Dynamic Visions failed to
provide OWH with any payroll or employment records; instead, it contended that
1
Mr. Bongam argues that the trial court erred in finding him an “employer”
under D.C. Code § 32-1301 et seq., as he maintains that he was merely an employee.
We agree with the trial court’s determination that Mr. Bongam was an employer
pursuant to the definition provided in D.C. Code § 32-1301 (1B), where Mr. Bongam
(1) was the CEO, (2) was a majority shareholder and registered agent, (3) known by
the claimants as “boss,” “owner,” or “director,” (4) controlled almost all aspects of
the business, and (5) and as some employees testified, was personally involved in
resolving wage payment issues by compensating them in cash. D.C. Code § 32-
1301 (1B) (defining “employer” as “every individual, partnership, firm, general
contractor, subcontractor, association, corporation, the legal representative of a
deceased individual, or the receiver, trustee, or successor of an individual, firm,
partnership, general contractor, subcontractor, association, or corporation,
employing any person in the District of Columbia”); see Ventura v. Bebo Foods,
Inc., 738 F. Supp. 2d 1, 5-6 (D.D.C. 2010) (construing broadly the definition of
“employer” to serve the remedial purpose of the DCWPCL; holding that under the
totality of the circumstances, a corporate officer can be an “employer” if they have
operational control over the corporation).
4
the 136 complainants did not work for Dynamic Visions, and denied that it failed to
pay them. OWH concluded its investigation and assigned the case to the Attorney
General for the District of Columbia for enforcement, pursuant to D.C. Code
§ 32-1306 (2019 Repl.). See D.C. Code § 32-1308 (a)(1)(C)(vii) (authorizing
actions by one or more employees to designate a representative to maintain the
action, which permits designation of the Attorney General for the District of
Columbia as the representative). The District filed two separate actions in Superior
Court, which were later consolidated, asserting DCWPCL wage violations for
breach of contract on behalf of the 136 complainants, jointly and severally against
Dynamic Visions and Mr. Bongam.
The evidence at the 2017 bench trial included testimony from OWH
Compliance Program Specialist Yvonne Hood; the 136 wage complaint forms; an
adverse inference for missing evidence against Dynamic Visions; and testimony
from forty-nine complainants. The trial court found that Dynamic Visions provided
“only a small amount of materials related to payroll,” and none of it was “for the
relevant period” in question.
Ms. Hood testified about OWH’s wage-theft investigative process. According
to Ms. Hood, wage-theft complaints filed with OWH are typically accompanied by
5
documents — such as “pay stubs or pay statements, timesheets, policies, [and]
handbooks” — though supporting documents are not required. Individuals without
supporting documents “state on the complaint forms the hours that they worked” and
specify “the time periods [for which] that they had not been paid”; it is then the
OWH’s job to “investigate the merits” of their complaints. 2 The trial court prevented
the District from eliciting testimony from Ms. Hood regarding OWH’s
administrative conclusions and factual findings on the 136 complaints filed against
Dynamic Visions regarding whether the employees worked and the amount worked.
The trial court stated it could not “defer to the District’s conclusions,” and had to
instead “make [its] own conclusions” concerning the complainants claimed
uncompensated work.
Following the trial court’s preliminary ruling that the OWH complaint forms
and other documents pertaining to the non-testifying complainants would be
admitted only to show that the claims were filed with OWH, the District filed a
motion to introduce the eighty-seven non-testifying complainants’ sworn complaint
2
As part of the investigation, OWH contacts employers to give notice of and
an opportunity to respond to the complaint(s) filed by individual(s); contacts
employees and witnesses; and most importantly, reviews the documents received
from the complainant(s) and/or the employer. Ms. Hood stated that based on her
experience, OWH did not pursue complaints that it could not substantiate.
6
forms for lost wages for the truth of the matters asserted therein. 3 Alternatively, the
District requested that the trial court impose an adverse inference against Dynamic
Visions for missing evidence and discovery violations, arguing that Dynamic
Visions failed to maintain and produce payroll records that would either corroborate
or contradict the veracity of the matters asserted in the 136 complaint forms.
Dynamic Visions opposed the motion, asserting: (1) it provided a small amount of
materials related to payroll to the District because the FBI had seized all of its
business records; 4 (2) it was not obligated to maintain payroll records for more than
three years, unless it was placed on notice to do so, per the DCWPCL; and (3) such
3
The District argued: (1) “that the documents should be admitted under the
exception to the hearsay rule for documents affecting an interest in property,”
pursuant to Federal Rules of Evidence 803(15); and (2) “that policies underlying the
. . . DCWPCL support admission of the documents.” The District has not sought our
review of the trial court’s rejection of the argument that the excluded OWH
documents should be admitted under the property interest hearsay exception. The
District also neither asserted to the trial court nor on appeal that the documents
attached to the complaint forms were separately admissible under other hearsay
exceptions. The DCWPCL policy argument, however, is relevant to our conclusion.
4
The trial court found that even though the FBI seized business records from
Dynamic Visions’ office and Mr. Bongam’s home in December of 2008, they
subsequently provided him with digital copies of many of those records.
Additionally, Dynamic Visions should have been in possession of business records
created after 2008, which is the timeframe when most of the complaints were filed
with the OWH.
7
notice by the OWH only came several years after the relevant time period, by which
point virtually all of the records sought by the District would have been destroyed.
Following a hearing, the trial court ruled that Dynamic Visions’ production of
payroll records was insufficient because the materials were not for the relevant time
period. Furthermore, it ruled that Dynamic Visions was in fact on notice to maintain
the records because, as Ms. Hood testified, once the complaints were lodged, the
employer was notified that a dispute existed and that it had been referred to the
District for resolution and for potential prosecution. 5 Thus, the trial court found that
the evidence that would elucidate the transaction was “peculiarly available to
Dynamic Visions,” such that its failure to maintain that evidence subjected it to the
adverse inference requested by the District.
The court determined that it would apply an adverse inference as to damages
or the specific calculation of the damages, and, with respect to the testifying
employees, as a missing evidence inference for the employment records not
produced by Dynamic Visions. The trial court went on to express concern regarding
“whether this inference alone could provide sufficient evidence of what the District
of Columbia needs to show for the non-testifying claimants;” i.e., “[i]s it enough to
5
The evidentiary record places the initial notice at around August of 2005.
8
demonstrate by a preponderance of the evidence that these [non-testifying] workers
did the work and were not [compensated]?” Thus, the trial court declined to admit
the complaint forms and documents on behalf of the eighty-seven non-testifying
complainants as substantive evidence. The trial court concluded that (1) the contents
of the OWH complaints were inadmissible hearsay despite Dynamic Visions’
discovery violations; 6 and (2) that the complaints did not qualify under a hearsay
exception or for the statutory purposes of the DCWPCL because the contents were
not wholly trustworthy, the complaints being requests or claims for money and not
prepared for other legal purposes.
The forty-nine testifying complainants stated that they were employees of
Dynamic Visions who worked and were not paid wages. They provided details of
6
Based on its consideration of the Anderson v. Mt. Clemens, 328 U.S. 680(1946), precedent, as well as Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442 (2016),
and Ventura, 738 F. Supp. 2d at 6-8, the trial court opined that:
“[N]one of these cases stand for the proposition that the
remedial purposes of the DCWPCL allowed the [c]ourt to
rely on hearsay evidence to establish the entirety of the
complainant’s claim as opposed to the details of his
damages. Here I would have to be relying on these
documents even for proof that the non-testifying
employees worked for Dynamic Visions at all, much less
that these employees did not get paid. . . . But, I find that
by itself, that certainly does not justify considering these
documents for the proof of the matter asserted therein.”
9
Dynamic Visions’ hiring and payroll processes, and outlined requirements for
employees to submit timesheets and pick up paychecks from the company’s office.
They testified that, during their employment, Dynamic Visions unilaterally made
improper deductions from their paychecks, issued paychecks that were returned for
insufficient funds, and, in some cases, stopped issuing paychecks altogether. Some
complainants testified that their paychecks did not always list Dynamic Visions, but
instead listed other entities: Care First Network, LLC; Alpha Home Health Care,
LLC; or Alpha Health Care, Inc. (“sham companies”). Some complainants also
testified that Dynamic Visions’ wage deduction practices required them to agree to
payroll deductions, which were explained as withholdings to pay future taxes;
however, those who agreed to such withholdings never received refunds.
Based on the forty-nine complainants’ testimony, and Dynamic Visions’
failure to comply with production of evidence, the District argued relying on Mt.
Clemens, 328 U.S. 680, that the trial court should accept the prima facie case of wage
theft established by the forty-nine testifying complainants as a “representative
sample” of wage theft for the entire group of 136 complainants. 7
7
The District argued that if the trial court concluded that the District
established a prima facie case of wage theft against the employer on the basis of
some of the complainants’ testimony (that they were employees who performed
work and were not compensated), then the District is entitled to use that evidence as
proof of a prima facie case for all complainants.
10
The trial court declined to adopt the District’s representative sample
argument. The trial court explained that other than the adverse inference “no
competent evidence was presented at trial as to any element of the DCWPCL claim”
with respect to the non-testifying witnesses. The trial court stated that the District’s
argument that the adverse inference can fill in the missing proof “would be a
different and much more significant use of the missing evidence inference or adverse
inference than employed for the testifying witnesses.” 8 It was the trial court’s
position that
[T]he District can choose to call as many or as few
witnesses as it chooses. Ultimately, the District bears the
burden of proof. Without hearing evidence, the [c]ourt is
not in a position to rule on whether any particular
employee is “similarly situated” to any other employee
. . . . Only after the District has presented, at trial, its
evidence as to those employees it claims are similarly
situated to other employees would it be appropriate to ask
the [c]ourt to rule on whether the employees are similarly
situated.
8
See supra, note 3. The District did not argue and the trial court did not
consider the evidentiary impact of appellees’ statement that none of the
complainants were employed by them or, once the trial court found otherwise based
on the evidence presented by the complainants who testified, whether any inference
favorable to the non-testifying complainants could be drawn from the appellees’
misrepresentation concerning their employment status.
11
First, the trial court ruled that the forty-nine testifying complainants were
credible and were indeed former employees of Dynamic Visions who worked during
the period covered by their claims. As for liability against Mr. Bongam, the court
found that “the evidence overwhelmingly and really undisputedly demonstrate[d]
that Mr. Bongam qualified as an employer.” See D.C. Code § 32-1301(1B). Further,
it found that the companies that were sometimes listed on the complainants’
paychecks “simply acted as sham companies or alter egos of Dynamic Visions.”
Finally, the trial court applied an adverse inference for missing evidence, finding
that Dynamic Visions’ employment documents, had they been produced, would have
been favorable to the forty-nine complainants’ assertions that they worked for
Dynamic Visions. It explained, however, that it did not give significant evidentiary
weight to the adverse inference, because its conclusion was based solely on the
evidence presented by the District, and would have come out the same with or
without the missing evidence inference.
The trial court also credited the “overwhelming majority” of testimony from
the forty-nine complainants that Dynamic Visions failed to pay earned wages — the
“witnesses remembered most of the central details of what happened, and readily
acknowledged what they could not [remember];” many of them “also submitted
other pieces of supporting documentation in support of their damage.” As to the
12
amount of damages due, the trial court held that the District easily proved that
Dynamic Visions failed to pay wages to the testifying employees within the period
required by statute, crediting the employees’ testimony that “no payment was [paid]
timely or at all.”
Regarding the eighty-seven non-testifying complainants, the trial court
concluded that the District did not present competent evidence establishing they
were employees who were not compensated for work performed, and therefore, the
court could not impose liability based on the adverse inference alone. The court
reiterated that the complaint forms and supporting documents were “hearsay and not
admissible for the truth of the matters asserted on the documents”; the documents
were admitted “to show that these individuals filed [] complaint[s] at the OWH, and
that [their] supporting documents were included in the complaint files.” On this
point, the trial court found that “no competent evidence was presented at trial” with
respect to the eighty-seven non-testifying complainants:
[T]he District is, essentially, asking the court to permit the
adverse inference to substitute for the evidence that it
would need to prove its case. In other words, the District
is asking for the court to rule that, while there was no
competent evidence produced in support of the claims of
these [complainants], because the court has employed the
adverse inference, it will, nonetheless, sustain those
claims. And that is not a step that the court is willing to
take.
13
Thus, with respect to the eighty-seven non-testifying complainants, the court
ruled against the District, finding that it did not prove by a preponderance of the
evidence that Dynamic Visions violated the DCWPCL. However, the trial court
ruled in favor of the District with respect to the group of forty-nine testifying
employees, that Dynamic Visions and Mr. Bongam were jointly and severally liable
in the amount of $314,861.86 — that is, $157,430.93 in unpaid wages pursuant to
D.C. Code § 32-1306(a)(2)(A)(iii)(I), as well as $157,430.93 in liquidated damages
pursuant to D.C. Code § 32-1303(4). The trial court further broke down the award
for the group of forty-nine employees in the following manner. Thirty-eight
employees recovered the full amount of damages requested. Eight employees were
awarded a reduced amount of the damages requested, because the court found that
there was “some error in the amount that [these employees] had originally claimed,”
or that they “made damages claims that were undermined, in part, by the documents
that were provided” by the employees themselves. Three employees were denied
recovery entirely, because the court “found more significant problems” with their
testimony due to the “level of imprecision about the amount of damages.” The
District and Mr. Bongam appealed. We now review these consolidated appeals.
II. Discussion
14
In an appeal from a bench trial, we review the trial court’s legal conclusions
de novo and factual findings for clear error. See, e.g., Ballard v. Dornic, 140 A.3d
1147, 1150 (D.C. 2016); D.C. Code § 17-305(a) (2012 Repl.). Likewise, “[w]e
review the factual findings underlying the trial court’s evidentiary ruling for clear
error and the decision whether to admit or exclude the proffered statement based on
those factual findings for abuse of discretion, recognizing that it is necessarily such
an abuse for the trial court to employ incorrect legal standards.” Holmon v. State,
202 A.3d 512, 517 (D.C. 2019) (citation and internal quotation marks omitted).
The DCWPCL provides that “a person aggrieved by a violation of this chapter
. . . may bring a civil action . . . against the employer,” D.C. Code § 32-
1308(a)(1)(A), “on behalf of all employees similarly situated.” D.C. Code § 32-
1308(a)(1)(C)(vii). 9 The District “acting in the public interest, including the need to
deter future violations,” may bring the civil action on behalf of the employees. D.C.
Code § 32-1306(a)(2)(A)(i-iii). In bringing a wage theft action it is the District’s
burden to prove (1) the complainants were employees of the employer, (2) who
9
Subsection (vii) provides that such actions may be brought “[b]y the
Attorney General for the District of Columbia pursuant to § 32-1306.” D.C. Code §
32-1308(a)(1)(C)(vii).
15
performed work for the employer, (3) were not compensated or timely compensated
for their work, and (4) the measure of damages due to the employees. See Mt.
Clemens, 328 U.S. at 687-88. Should the Attorney General prevail they “shall be
entitled to”:
(i) Reasonable attorneys’ fees and costs;
(ii) Statutory penalties equal to any administrative
penalties provided by law; and
(iii) On behalf of an aggrieved employee:
(I) The payment of back wages unlawfully
withheld;
(II) Additional liquidated damages equal to treble
the back wages unlawfully withheld; and
(III) Equitable relief as may be appropriate.
D.C. Code § 32-1306(a)(2)(A)(i-iii).10 Where there are multiple aggrieved
employees, the District may establish its case through a representative sample of the
group of employees, after demonstrating the group is “similarly situated.” D.C.
Code § 32-1306(a)(2)(A) and -1308; Sec’y of Labor v. DeSisto, 929 F.2d 789, 793
(1st Cir. 1991).
10
At the time the OWH complaints were filed the statute permitted liquidated
damages in the amount equal to actual damages. D.C. Code § 32-1303(4) (2012
Repl.). The statute was amended in 2017, permitting the trebling of unpaid wages
as an alternative to liquidated damages for the unlawful withholding of payment. 64
D.C Reg. 3987 (April 28, 2017). The District sought an amount of liquidated
damages that was permitted at the time the OWH complaints were filed.
16
On appeal, the District contends that, in light of the testifying representative
group and adverse inference, the trial court erred in determining that testimony from
the representative group was insufficient to impose liability on Dynamic Visions for
the entire group of aggrieved employees. The District proposes that, due to the lack
of employment records maintained and provided by appellees, we should apply a
minimal burden to the employees as found in the burden-shifting framework
announced in Mt. Clemens. We disagree and hold that the District failed to establish
by a preponderance of the evidence that the eighty-seven non-testifying
complainants were former uncompensated employees.
The Court in Mt. Clemens does not explicitly state that employee status is an
element of a prima facie case, but we think that it is implied, as the District must
prove an employer’s liability to the employees. Therefore, we take this opportunity
to clarify our construction of the DCWPCL, and hold that the question of employee
status is part of the complainants’ burden in establishing a prima facie case under
the DCWPCL.
The minimal burden discussed by the Supreme Court in Mt. Clemens is not as
expansive as the District suggests. In Mt. Clemens, factory employees sought
compensation pursuant to § 16(b) of the FLSA, for time spent either onsite or doing
17
preliminary activities before beginning their shifts. 328 U.S. at 682-84. The Court
determined that the Circuit Court imposed an impractical standard of proof on the
employees regarding the number of uncompensated hours worked which would
impair the remedial nature of the FLSA in awarding benefits. Id. at 686-87. The
framework announced in Mt. Clemens is specific to evidentiary considerations
regarding the amount and extent of work performed by employees as part of
calculating damages. Mt. Clemens, 328 U.S. at 687. The initial burden falls on the
employees to produce “sufficient evidence to show the amount and extent of that
work as a matter of just and reasonable inference.” Id. “[T]he burden [then] shifts
to the [employer] to produce evidence refuting the [employees’] claim[s].” Ventura,
738 F. Supp 2d at 14. “When the employer has kept proper and accurate records,”
the District, acting on behalf of the “employee[s,] may easily discharge [its] burden
by securing the production of those records.” Mt. Clemens, 328 U.S. at 687.
However, if the employer fails to discharge its burden of producing accurate or
adequate records, the court must calculate and award damages, even if only an
approximation. 11 Id. at 688.
11
“The employer cannot be heard to complain that the damages lack the
exactness and precision of measurement that would be possible had [it] kept records
in accordance with the [statutory] requirements.” Id. at 688. Likewise, “having
received the benefits of such work, [the employer] cannot object to the payment for
the work on the most accurate basis possible under the circumstances.” Id. Notably,
“the rule that precludes the recovery of uncertain and speculative damages . . .
18
Mt. Clemens does not support the District’s position that appellees’ failure to
maintain or produce employment records vastly minimizes the complainants’ burden
of proof to establish they were employees who performed uncompensated work. In
Mt. Clemens, the Supreme Court neither stated nor implied that deficient records
also lessened an employee’s burden of proving they were in fact employees and
performed work. Instead, the Court explained that “[i]n such a situation we hold
that an employee has carried out his burden if he proves that he has in fact performed
work for which he was improperly compensated and if he produces sufficient
evidence to show the amount and extent of that work as a matter of just and
reasonable inference.” Id. at 687 (emphasis added). The Court expressly held that
an employee maintains their separate burden of proving work performed. Therefore,
a complainant must still prove he or she, in fact, was an employee who performed
work without appropriate compensation. The “just and reasonable inference”
holding of Mt. Clemens is specific to the approach for calculating damages where
applies only to situations where the fact of damage (harm) is itself uncertain.” Id.In other words, when damage is certain — meaning that the District proved that the
employees who worked were not compensated — “[t]he uncertainty lies only in the
amount of damages arising from the statutory violation by the employer.” Id. “In
such a case ‘it would be a perversion of fundamental principles of justice to deny all
relief to the injured person[s], and thereby relieve the wrongdoer from making any
amend for [its] acts.’” Id. (internal citation omitted).
19
there is a lack of records and does not extend to the District’s burden to prove all
complainants where employees who performed work for Dynamic Visions. Cf.
DeSisto, 929 F.2d at 794 (“Although [employee who worked as a teacher at the
Massachusetts campus of a boys farm program] could certainly testify about his
own hours and duties, . . . he should not have been permitted to testify in a
representative capacity for all other employees (including blue collar workers [at
that campus] and those employed in Florida”).).
The District also contends that the testimony of the representative group can
satisfy the burden of proof for all employees because “representative employees may
establish prima facie proof of a pattern and practice of FLSA violations.” Martin v.
Selker Bros., 949 F.2d 1286, 1298 (3d Cir. 1991). We are not persuaded because
the specific issue presented in this case is more foundational in bringing a collective
wage claim action, to the extent actual employment is being challenged. It is the
District’s burden to prove (1) the complainants were employees of the employer, (2)
who performed work for the employer, (3) were not compensated or timely
compensated for their work, and (4) the measure of damages due to the employees.
See Mt. Clemens, 328 U.S. at 687-88. The District’s contention skips the
requirement of establishing by a preponderance of the evidence each element of a
20
wage claim action, which includes proving the non-testifying complainants were
employees and performed work for Dynamic Visions.
Dynamic Visions challenged the status of all complainants as employees;
thus, to resolve this dispute the District needed to provide evidence proving
employment in order for the trial court to find Dynamic Visions liable to all members
of the group in the collective action. Here, the District’s position — that the non-
testifying complainants were employees because they filed OWH claims — is
conclusory and unsupported by any evidence other than the complaint forms, which
were not admitted for the truth of the allegations asserted within them. Furthermore,
OWH’s methodology for verifying employment does not provide assistance. Ms.
Hood testified that to verify employment OWH would either use documentation
provided by the complainant and employer, or in the absence of documentation
would reach a determination based on the testimony of the complainant and
employer. 12 Here, based on Ms. Hood’s testimony, we have to assume that in the
absence of documentation OWH’s verification of employment was a credibility
determination. The trial court did not defer to OWH’s credibility determination.
12
In addition, Ms. Hood’s testimony that it was her experience OWH did not
pursue complaints that it could not substantiate was her personal opinion and
unsupported by data.
21
The trial court could also not conduct its own credibility assessment considering the
absence of testimony from the non-testifying complainants.
The trial court did not err in determining that the District failed to prove that
the non-testifying complainants were in fact employees. As stated by the trial court,
due to the nature of the work, where “a large number of people who probably don’t
know each other, didn’t really work together, didn’t work at the same time, and don’t
even speak the same language in many cases,” and without some evidence to verify
employment, either testimony from co-workers, admissible documents, or testimony
from those complainants themselves, it was proper to require evidence probative of
the central issue of whether the non-testifying complainants were employees.
Finally, the District argues that the trial court applied the wrong legal standard,
requiring a precise calculation of damages, and therefore erred in reducing damages
to eleven of the testifying complainants. We disagree. The trial court applied the
legal standard announced in Mt. Clemens, which states that an employee must
produce “sufficient evidence to show the amount and extent of that work as a matter
of just and reasonable inference,” which the court should utilize to calculate
approximate damages. Mt. Clemens, 328 U.S. at 687. Mt. Clemens does not support
the District’s assertion that a court must wholly accept, without discretionary
22
assessment, an employee’s approximated damages whenever the employer has failed
to keep proper records. 13 The trial court’s reduction or denial of damages to eleven
of the testifying employees was not made in error because the complainants’ initially
claimed damages were either “disclaimed” during their testimony at trial, were found
to have tabulation errors, or were found to be false or otherwise discredited.
“[R]esolution of conflicting evidence is within the province of the trial court.”
Johnson & Jenkins Funeral Home, Inc. v. District of Columbia, 318 A.2d 596, 597
(D.C. 1974) (holding that the trial court did not clearly err in awarding damages to
two employees who were under compensated, only after reducing the total amounts
claimed upon finding some testimony untruthful). In other words, the evidence
presented on behalf of these individuals was not sufficient to meet the “just and
reasonable inference” afforded under Mt. Clemens and the damages claims were
properly reduced on that basis.
In conclusion, we affirm the trial court’s judgment in whole.
13
The District cites to several cases in support of this argument. However,
each is distinguishable from the facts in this case. See Arias v. United States Serv.
Indus., 80 F.3d 509, 512 (D.C. Cir. 1996) (finding “nothing unduly speculative”
about inferences drawn from a created document summarizing voluminous time and
payroll records); Herman v. Hector I. Nieves Transp., Inc., 91 F. Supp. 2d 435, 446-
47 (D.P.R. 2000) (finding that testifying truck drivers provided an adequate basis for
determining the average number of hours worked constituting sufficient proof of the
amount and extent of work as a matter of just and reasonable inference).
23
So ordered.