Seo v. Oh ( 2023 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KANG KYU SEO, et al.,
Plaintiffs,
v. Civil Action No. 18-cv-785 (RDM)
CHARLES MOON SUK OH, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
On October 6, 2022, a jury returned a verdict in favor of all four Plaintiffs, finding that
Charles Moon Suk Oh and Wade Road, Inc. failed to pay Plaintiffs overtime wages as required
by the Fair Labor Standards Act (“FLSA”), the D.C. Wage Payment and Collection Law
(“DCWPCL”), and the D.C. Minimum Wage Act (“DCMWA”). Following trial, Plaintiffs
requested that the Court enter final judgment awarding them compensatory damages based on
the jury’s findings regarding the number of uncompensated overtime hours each Plaintiff
worked, additional liquidated damages pursuant to D.C. Code § 32-1012(b)(1), and interest
commencing in October 2022 pursuant to D.C. Code § 28-3302(c). Dkt. 61. For the reasons
explained below, the Court will award compensatory and liquidated damages, albeit in amounts
slightly different than those proposed by Plaintiffs, and will defer ruling on the availability of
interest pending further briefing.
A.
For the most part, Defendants did not (at least at first) take issue with Plaintiffs’ request
for the entry of final judgment. They did not dispute Plaintiffs’ calculation of compensatory
damages, and they raised only one argument respecting the award of liquidated damages—that
is, the Court should not award liquidated damages because Plaintiffs failed to prove that
Defendants “willfully” violated the FLSA. Dkt. 62. There are two problems with that argument.
First, it misstates the standard for disallowing or reducing the award of liquidated damages under
the FLSA. Second, and more importantly, it ignores the fact that Plaintiffs’ request for
liquidated damages is premised not on the FLSA but, rather, on D.C. law.
Under the FLSA, an employer who fails to pay an employee the required “overtime
compensation” is “liable to the employee” for the “amount of their unpaid . . . overtime
compensation” and for “an additional equal amount as liquidated damages.” 29 U.S.C. §§ 207,
216(b). “[T]he Court has discretion,” however, “to disallow or [to] reduce liquidated damages
‘if the employer shows to the satisfaction of the [C]ourt that the act or omission giving rise to
such action was in good faith and that [the employer] had reasonable grounds for believing that
[its] act or omission was not a violation of [the FLSA].’” Gainor v. Optical Soc’y of Am., Inc.,
206 F. Supp. 3d 290, 306 (D.D.C. 2016) (some alterations in original) (quoting 29 U.S.C. § 260).
“This good faith defense to liquidated damages requires ‘an affirmative showing of a genuine
attempt to ascertain what the law requires,’ not simply the absence of bad faith.” Thompson v.
Linda And. A., Inc., 779 F. Supp. 2d 139, 153 (D.D.C. 2011) (quoting Danesh v. Rite Aid Corp.,
39 F. Supp. 2d 7, 13 (D.D.C. 1999)). The good-faith defense, moreover, requires both “a
subjective inquiry” into the employer’s beliefs and application of “an objective standard.” Laffey
v. Nw. Airlines, Inc., 567 F.2d 429, 464 (D.C. Cir. 1976), overruled in part on other grounds,
McLaughlin v. Richland Shoe Co., 486 U.S. 128, 134 (1988); see also 29 U.S.C. § 260. Notably,
the employer bears the burden of proving that it acted in good faith and that liquidated damages
are unwarranted. See Orellana v. NBSB Inc., 332 F. Supp. 3d 252, 262 (D.D.C. 2018).
2
Here, Defendants would flip (and increase) this burden of proof, requiring the employee
to prove that her employer’s “violation was ‘willful’ under the FLSA.” Dkt. 62 at 2. In their
view, Plaintiffs have failed to satisfy that demanding burden because Plaintiffs presented “no
evidence . . . to show that Defendants possessed the level of recklessness required to warrant [the
award of] liquidated damages.” Id. at 4. For the reasons just explained, that argument grossly
misstates the law.
Defendants premise their argument to the contrary on a single case, Souryavong v.
Lackawanna, 872 F.3d 122 (3d Cir. 2017). That case, however, has nothing to do with the
standard for awarding liquidated damages under the FLSA. Instead, the Third Circuit merely
addressed whether the district court had correctly applied a different provision of the FLSA, 29
U.S.C. § 255(a), which extends the FLSA statute of limitations from two to three years when the
employee’s “cause of action aris[es] out of a willful violation” of the statute. Far from
embracing Defendants’ view of the separate liquidated damages rule, the Third Circuit cautioned
that, “[a] lack of evidence going to good faith,” which relates to the award of liquidated
damages, is not the same as evidence in support of “intentionality,” which is required to extend
the statute of limitations. Souryavong, 872 F.3d at 127.
In any event, Defendants’ focus on the FLSA’s good-faith affirmative defense to the
award of liquidated damages is beside the point, because Plaintiffs have requested that the Court
award liquidated damages pursuant to the DCMWA. Dkt. 61 at 1. Because the standards of
liability under the DCMWA and the FLSA “parallel” one another, the Court—with the parties’
agreement—submitted the questions of liability under both statutes to the jury concurrently. See
Dkt. 56 at 21 (explaining that “[t]he relevant provisions of the D.C. Minimum Wage Act mirror
the relevant provisions of the FLSA” and that, as a result, the Court’s instructions on the FLSA
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apply to both statutes). That symmetry, however, does not extend to awards of liquidated
damages. Awards of liquidated damages under the FLSA and DCMWA are not cumulative and,
because D.C. law “is more generous to employees,” this Court typically “first assesses whether
liquidated damages should be awarded under District of Columbia law” and, if so, does not
separately consider whether liquidated damages are also available under the FLSA. Sanchez v.
Devashish Hosp., LLC, 322 F.R.D. 32, 38 (D.D.C. 2017) (cleaned up); see also Portillo v. Smith
Commons DC, LLC, 2022 WL 3354730, at *7 (D.D.C. Aug. 13, 2022) (“Because the Plaintiffs
seek recovery under both the FLSA and the DCMWA, the Court will assess liquidated damages
under District of Columbia law, given that it provides for more generous liquidated damages.”);
Denson v. DC Rest. Holdings, Inc., 2021 WL 4988994, at *3 (D.D.C. Oct. 27, 2021) (“These
provisions are not cumulative; ‘[s]ince D.C. law is more generous to employees on the relevant
points, the Court will . . . assess damages under D.C. law and will not award a duplicative
amount pursuant to federal law.’” (alterations in original) (quoting Ventura v. L.A. Howard
Constr. Co., 134 F. Supp. 3d 99, 104 (D.D.C. 2015)).
The DCMWA, like the FLSA, provides for liquidated damages, but the penalties under
D.C. law are higher:
Except as provided in paragraph (2) of this subsection, any employer who pays
any employee less than the wage to which that employee is entitled under this
subchapter shall be liable to that employee in the amount of the unpaid wages,
statutory penalties, and an additional amount as liquidated damages equal to
treble the amount of unpaid wages.
D.C. Code § 32-1012(b)(1) (emphasis added). More importantly for present purposes, the
Court’s authority to decline to award liquidated damages under the DCMWA is more narrowly
drawn than under the FLSA. Under D.C. Code § 32-1012(b)(2),
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The court may award an additional amount of liquidated damages less than treble
the amount of unpaid wages, but not less than the amount of unpaid wages, only
if the employer demonstrates to the satisfaction of the court that:
(A) The act or omission that gave rise to the action was in good faith;
(B) That the employer had reasonable grounds for the belief that the act or
omission was not in violation of this subchapter; and
(C) That the employer promptly paid the full amount of wages claimed to be
owed to the employee.
Id. § 32-1012(b)(2) (emphasis added).1 In other words, the Court must impose treble liquidated
damages, unless the employer carries its burden on proving that it acted in good faith; that it’s
belief was reasonable; and that it “promptly paid” the employee “the full amount of wages
claimed.” Id.
Here, Defendants have made no effort to meet this burden. They have offered no
evidence that they had a good faith belief that no overtime wages were due or that any such
belief was objectively reasonable. But, even if they had, their defense would fail, because they
have not—to date—paid Plaintiffs the overtime wages that they claim, and they certainly did not
do so “promptly.” See Orellana, 332 F. Supp. 3d at 262 (awarding treble liquidated damages
because defendants did not “promptly repa[y] the waged owed”). The Court, accordingly, is
without discretion to decline Plaintiffs’ demand for the award of liquidated damages pursuant to
D.C. Code § 32-1012(b). Although perhaps a severe remedy, that provision requires the Court to
1
The DCWPCL allows liquidated damages to be calculated as “10 per centum of the unpaid
wages for each working day during which such failure shall continue after the day upon which
payment is hereunder required, or an amount equal to treble the unpaid wages, whichever is
smaller.” D.C. Code § 32-1303(4). Because Plaintiffs seek the treble damages permitted under
the DCMWA, and Defendants do not argue that the alternative remedy applies here, the Court
need not address the alternative remedy. In any event, using the 10 per centum calculation
would seem to result in a higher damages award. See, e.g., Amaya v. Logo Enterprises, LLC,
251 F. Supp. 3d 196, 201 n.5 (D.D.C. 2017).
5
award what amounts to quadruple damages: compensatory damages equal to the unpaid overtime
wages plus liquidated damages equal to three times that amount. See Portillo, 2022 WL
3354730, at *7; see also D.C. Code § 32-1012(b)(1) (“[A]ny employer who pays any employee
less than the wage to which that employee is entitled under this subchapter shall be liable to that
employee in the amount of the unpaid wages, statutory penalties, and an additional amount as
liquidated damages equal to treble the amount of unpaid wages.”) (emphasis added).
B.
Although Defendants raised only one objection to Plaintiffs’ request for the entry of final
judgment, the Court raised two additional issues sua sponte: First, Danita Chase, Michelle
Johnson, and Tamora Agnew all worked during periods of time when the minimum wage
changed in D.C., but for Chase and Johnson, the jury was not asked to specify her exact start and
end dates. Thus, for those two Plaintiffs, determining the amount of the compensatory award
required more than “a formulaic or mathematical calculation of damages,” Martinez v. Asian
328, LLC, 220 F. Supp. 3d 117, 120 (D.D.C. 2016) (quoting Monroe v. FTS USA, LLC, 815 F.3d
1000, 1022–23 (6th Cir. 2016)). Second, the jury found that Tamora Agnew worked from
February 20, 2017 to August 1, 2017, which is approximately 23 weeks. Dkt. 59 at 6 (Jury
Verdict). But, in a separate finding, the jury also found that Agnew worked 28 weeks, id.,raising the question whether the Court should award damages to Agnew for 23 or 28 weeks,
Min. Order (11/02/2022). The Court, accordingly, ordered that the parties file supplemental
briefs addressing these questions.
1.
In response to the Court’s first question, Plaintiffs contend that Chase “is owed 7 weeks
of wages at the base rate of $10.50 per hour,” which was the prevailing minimum wage in the
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D.C. prior to July 1, 2016, and is owed “34 weeks of wages at the base rate of $11.50 per hour,”
which became the prevailing minimum wage on July 1, 2016. Dkt. 65 at 5. As they explain,
Defendants admitted in their answer to the complaint that “Chase . . . worked at Charlie’s Corner
from May 2016 through February 2017, approximately forty-one . . . weeks.” Dkt. 1 at 5
(Compl. ¶ 24); Dkt. 5 (Answer ¶ 24) (“Admitted”). The difficulty is that approximately 43
weeks passed from the beginning of May to the end of February, and the admission does not
indicate whether Chase started work at the very beginning of May or in the middle of the month,
and her start date will have a bearing on the number of weeks that she worked at the lower
minimum wage. This will have only a modest effect on the Court’s award of damages, but a
modest error is an error nonetheless.
In Plaintiffs’ view, the Court should set Chase’s start date at May 8, 2016, because she
testified at trial that she recalled starting work on May 5, 2016, which was a Thursday, and “her
first full week of work would have begun on Sunday, May 8, 2016.” Dkt. 65 at 6. Defendants
do not dispute this testimony or point to any conflicting testimony but, instead, argue that they
are entitled to a new trial because determining Chase’s start date required a “finding of fact
regarding a very element of [her] FLSA claim,” and Plaintiffs had the burden of proving their
case. Dkt. 66 at 3. The Court agrees with Defendants that Plaintiffs bear the burden of proof
with respect to compensatory damages—including establishing Chase’s start date to the extent
that date has any bearing on the applicable minimum wage—but disagrees that only the jury, and
not the Court, can resolve that question.
Federal Rule of Civil Procedure 49(a)(3) speaks directly to the question posed. Under
that rule, “[a] party waives the right to a jury trial on any issue of fact raised by the pleadings or
evidence but not submitted to jury unless, before the jury retires, the party demands its
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submission to the jury.” Fed. R. Civ. P. 49(a)(3). And, “[i]f the party does not demand
submission, the court may make a finding on the issue.” Id. Here, the parties agreed to the
verdict form, which asked the jury only to specify “the number of weeks [Chase] worked and
average number of hours over forty that [she] worked per week from May 2016 through
February 2017.” Dkt. 59 at 4; see also Rough Trial Tr. at 124–25, 131 (Oct. 5, 2022). And,
although the D.C. minimum wage increased in July 2016, Defendants did not request that the
Court submit the question of Chase’s precise start date to the jury. Rule 49(a)(3) “puts the
burden of securing a jury verdict on all of the meaningful issues in the case squarely on the
parties,” and, “[i]f the right to [a] jury trial has been waived on an issue by a failure to demand its
submission, the trial judge should make his or her own finding of fact on that issue.” 9B Wright
& Miller, Federal Practice and Procedure § 2507 (3d ed. 2022); see also Lewis v. District of
Columbia, 315 F. Supp. 3d 571, 580 (D.D.C. 2018). That is what happened here, leaving it to
the Court to determine Chase’s start date.
In the present context, that task is not a difficult one. The only evidence that either party
cites is Chase’s unrebutted testimony that she started work on May 5, 2016. Rough Trial Tr. at
128 (Oct. 3, 2022). Nor is there any reason to doubt the veracity of that testimony: Chase
testified that she was arrested that night and therefore remembers the precise date Id. Indeed,
even if the Court were to indulge every inference in Defendant’s favor, Chase’s first full week of
work would shift forward by only one week, resulting in a difference in compensatory damages
of about $30. The Court, accordingly, finds by a preponderance of the evidence that Chase’s
first full week of work began on May 8, 2016. This means that she worked approximately 7.7 of
her 41 weeks (54 days) prior to July 1, 2016 (when the D.C. minimum wage was $10.50) and
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that she worked approximately 33.3 weeks (233 days) after July 1, 2016 (when the D.C.
minimum wage was $11.50).
The same general framework applies to the question of when Johnson began work,
although the factual basis for Plaintiffs’ argument is different. In particular, Plaintiffs note that
Defendants admitted that Johnson worked at Charlie’s Corner from January 2017 until February
2018. Dkt. 1 at 6 (Compl. ¶ 32); Dkt. 5 at 3 (Answer ¶ 32) (“Admitted”). Although it is less
clear whether she worked full or part-time in January and February 2018, see Dkt. 1 at 6 (Comp.
¶ 32) (asserting both that she worked full time through February 2018 and that “[s]he worked
part-time for Defendants in January and February 2018”), Defendants clearly admitted that
Johnson worked “full time at Charlie’s Corner” prior to January 2018, id.; Dkt. 5 at 3 (Answer
¶ 32). On this basis, the parties agreed to a verdict form that asked the jury to specify “the
number of weeks [Johnson] worked and the average number of hours over forty that [she]
worked per week from January 2017 through December 2017,” Dkt. 59 at 5, and the jury found
that she worked “50 weeks” at an average number of overtime hours of 30.32 per week, Dkt. 59
at 5.
To the extent any question exists with respect to whether the jury was asked to find the
precise date on which Johnson started work at Charlie’s Corner, the Court concludes that
Defendants have waived their right to a jury trial on that question and that, pursuant to Rule
49(a)(3), “the court may make a finding on the issue.” And the evidence, once again, is one
sided. As the Court construes Plaintiffs’ complaint and Defendants’ answer, Defendants
admitted that Johnson worked full-time at Charlie’s Corner through the end of December 2017.
Counting backwards, this means that Johnson worked 23.7 of her 50 full-time weeks (166 days)
9
prior to July 1, 2017 (when the D.C. minimum wage was $11.50), and 26.3 weeks (184 days)
after July 1, 2017 (when the D.C. minimum wage was $12.50).
The Court will, accordingly, use these dates in calculating the compensatory damages
that Chase and Johnson are due.
2.
The Court’s second question addressed an inconsistency in the jury’s verdict. Because
Defendants did not admit the dates that Agnew worked, the jury was required to decide both the
dates she worked and the total number of weeks and average hours of overtime that she worked
over that time span. Compare Dkt. 1 at 7 (Compl. ¶ 40), with Dkt. 5 at 3 (Answer ¶ 40 (“Denied,
demand strict proof at trial”)); see also Dkt. 59 at 6. The jury’s findings, however, do not jibe. It
found that Agnew worked from February 20, 2017 to August 1, 2017—a period of about 23
weeks—and that she worked a total of 28 weeks. Dkt. 59 at 6. In Plaintiffs’ view, the Court can
cure this inconsistency by giving Defendants the benefit of the doubt and using the more
conservative finding of 23 weeks to calculate the amount of compensatory and liquidated
damages Defendants must pay. Dkt. 67 at 4. Defendants, in contrast, argue that “there [is] no
way to reconcile the jury’s findings” and that, as a result, the Court must set aside the jury’s
verdict and grant Defendants a new trial with respect to Agnew’s claims. Dkt. 66 at 2.
Under Federal Rule of Civil Procedure 49(b), if the jury’s answers to written questions
“are inconsistent with each other and one or more is also inconsistent with the general verdict,”
the Court may either “direct the jury to further consider its answers and verdict[] or . . . order a
new trial.” Fed. R. Civ. P. 49(b)(4). That rule does not fit neatly here because the parties have
left it to the Court to enter the general verdict (assessing the total amount of damages due) based
on the jury’s answers to the written questions posed. But it is safe to assume that whatever
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general verdict the Court enters will necessarily be inconsistent with either (1) the jury’s finding
that Agnew worked at Charlie’s Corner from February 20, 2017 to August 1, 2017, or (2) its
finding that she worked a total of 28 weeks. For present purposes, the Court will, accordingly,
assume that Rule 49(b) applies.
The problem that Defendants face, however, is that they did not raise this inconsistency
until long after the jury was discharged, thereby depriving Agnew of the opportunity to request
that the Court resubmit the question to the jury. Had Defendants raised the issue in a timely
manner, the inconsistency could have been easily addressed, with minimal cost to Plaintiffs and
without requiring a new trial before a new jury. Under these circumstances, courts routinely
hold that “if a party fails to object to an inconsistency in a . . . verdict before the jury is excused,
that party waives any objection in that regard.” Frank C. Pollara Grp. v. Ocean View Inv.
Holdings, LLC, 784 F.3d 177, 191 (3d Cir. 2015) (collecting cases); see also 9B Wright &
Miller, Federal Practice and Procedure § 2513 (3d ed. 2022). Decisions from the First, Second,
Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh circuits all embrace this
rule.2
2
See, e.g., Babcock v. Gen. Motors Corp., 299 F.3d 60, 63 (1st Cir. 2002) (“We have held that
under Rule 49(b), objections to the inconsistency of verdicts must be made after the verdict is
read and before the jury is discharged.”); Kosmynka v. Polaris Indus., Inc., 462 F.3d 74, 83 (2d
Cir. 2006) (“It is well established that a party waives its objection to any inconsistency in a jury
verdict if it fails to object to the verdict prior to the excusing of the jury.”); In re Processed Egg
Prods. Antitrust Litig., 962 F.3d 719, 729 (3d Cir. 2020) (“To the extent the plaintiffs are arguing
that the jury’s verdict is somehow internally inconsistent . . . [t]hey waived any such argument
by failing to object to the verdict before the jury was discharged.”); Austin v. Paramount Parks,
Inc., 195 F.3d 715, 726 (4th Cir. 1999) (“[A] litigant’s failure to raise an inconsistency before the
jury is discharged renders Rule 49(b) inapplicable and thus precludes that litigant from relying
upon the inconsistency to challenge an adverse disposition.”); Team Contractors, L.L.C. v.
Waypoint Nola, L.L.C., 976 F.3d 509, 515 (5th Cir. 2020) (“[I]f there is a general verdict with
written questions, arguments about inconsistency are waived by not raising them until after the
jurors are discharged.”); Fencorp, Co. v. Ohio Kentucky Oil Corp., 675 F.3d 933, 944 (6th Cir.
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The only case that has touched on this issue in the D.C. Circuit, however, provides
minimal guidance. In that case, Hundley v. District of Columbia, 494 F.3d 1097 (D.C. Cir.
2007), the court rejected the defendants’ waiver argument, but on fact-specific grounds. Id. at
1103. As the court explained, in that case, “the plaintiffs repeatedly objected at trial to the
proposed written interrogatory,” and the defendants themselves “acknowledged and
foreshadowed the potential for inconsistency” raised by verdict form. Id. As the court further
noted, the defendants “cited no case supporting waiver”—from any circuit—“when:”
(i) a party objected to a written interrogatory; (ii) the district court dismissed
the jury after receiving the verdict without asking the parties whether they had
any objections to the verdict; and (iii) the party raised an inconsistent verdict
argument—based on the previously objected-to written interrogatory—in its
post-trial motion for judgment as a matter of law or a new trial.
Id. The D.C. Circuit took care, however, to limit the reach of its holding, stressing that it merely
agreed “[u]nder these narrow circumstances” that the plaintiffs had “not waived [their] objection
to an inconsistent verdict caused in part by a written interrogatory.” Id.
2012) (“Defendants failed to raise th[e] argument that the jury’s verdict was internally
inconsistent before the jury was discharged and, consequently, have waived this objection.”);
Cont’l Vineyard, LLC v. Vinifera Wine Co., LLC, 973 F.3d 747, 754 (7th Cir. 2020) “([A] party
wishing to challenge a jury’s general verdict on the ground of inconsistent verdicts must
normally make a contemporaneous objection before the jury disbands.”); Chem-Trend, Inc. v.
Newport Indus., Inc., 279 F.3d 625, 629 (8th Cir. 2002) (“[T]o the extent Chem-Trend claims an
inconsistency in the verdicts, Chem-Trend waived the challenge by failing to object before the
district court discharged the jury.”); Flores v. City of Westminster, 873 F.3d 739, 757 (9th Cir.
2017) (“As the district court correctly concluded, the Chiefs waived any objection to the jury’s
allegedly inconsistent answers when they failed to object before the jury was discharged.”);
Johnson v. Ablt Trucking Co., 412 F.3d 1138, 1141 (10th Cir. 2005) (“[A] party waives the right
to object to inconsistencies in a general verdict with special interrogatories if it does not object
on that ground before the jury is discharged unless the verdict is inconsistent on its face such that
the entry of judgment upon the verdict is plain error.”) (internal quotation marks and citation
omitted)); Walter Int’l Prods., Inc. v. Salinas, 650 F.3d 1402, 1419 (11th Cir. 2011) (“We have
held that if the party challenging [a general verdict with written interrogatories] has failed to
object before the jury is discharged, that party has waived the right to contest the verdicts on the
basis of alleged inconsistency.”) (internal quotation marks and citation omitted)).
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Read in this light, the Hundley decision does not place the D.C. Circuit on a different
path from all other circuits and does not call into question the general rule that a party wishing to
challenge an inconsistent verdict must do so before the jury is discharged. Indeed, the two courts
that have considered just this question agree that Hundley stands for the narrow proposition that
the waiver rule does “not apply when a party object[s] to a written interrogatory as likely to
cause an inconsistency before the case [is] submitted to the jury,” even if that party “fail[s] to
object after the jury return[s] an inconsistent verdict as predicted.” Yazdianpour v. Safeblood
Techs., Inc., 779 F.3d 530, 538 n.4 (8th Cir. 2015); see also President & Dirs. of Georgetown
Coll. v. Wheeler, 75 A.3d 280, 288 n.4 (D.C. 2013).
A close reading of Hundley, moreover, verifies that conclusion. Two points, in
particular, bear mention. First, although the D.C. Circuit noted that “the district court dismissed
the jury . . . without asking the parties whether they had any objections to the verdict,” the court
also noted that the district court’s actions in this respect were “[c]onsistent with ordinary
practice.” Hundley, 494 F.3d at 1103. Second, the court stressed that the plaintiffs’ motion for a
new trial “raised an inconsistent verdict argument . . . based on the previously objected-to written
interrogatory.” Id. (emphasis added). In other words, the plaintiffs relied on an objection that
they had, in fact, raised, even though they did not separately object when the consequences that
they had foreshadowed materialized.
Here, in contrast, Defendants agreed to the relevant jury instructions and to the verdict
form, and they never raised any pertinent objection until after (1) the jury was discharged; (2)
Plaintiffs submitted their proposed final judgment; (3) Defendants responded to that proposal;
and (4) the Court, then, sua sponte inquired about the inconsistency. At every step along the
way, Defendants could have objected—to the jury instructions, the verdict form, the discharge of
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the jury without resubmitting any questions, and Defendants’ proposed final judgment—but did
not. Under these circumstances, the Court is persuaded that Defendants waived any objection to
the inconsistency in the jury’s answers to the Court’s special interrogatories. To hold otherwise
would unfairly prejudice Agnew, who would need to bear the expense of a second trial, at least
on the question of damages, as a result of Defendants’ late objection.
This conclusion, however, does not end the matter, because the Court must also consider
whether the Court’s failure to grant a retrial would result in a “fundamental error” or would rise
to the level of “clear error.” See Hudley, 494 F.3d at 1103 n.3. Although the D.C. Circuit had no
need to elaborate on the plain error doctrine in Hundley, the court cited to three circuit court
opinions that at least briefly discuss the issue. Id. (citing Armstrong ex rel. Armstrong v.
Brookdale Univ. Hosp. & Med. Ctr., 425 F.3d 126, 136 (2d Cir. 2005); Johnson, 412 F.3d at
1141; Strauss v. Stratojac Corp., 810 F.2d 679, 683 (7th Cir. 1987)). In each of these cases, the
courts recognized that an unflinching adherence to the waiver rule can, at times, undermine “the
very integrity of the trial” and thus ought not stand. See Armstrong, 425 F.3d at 136. Although
“plain error” is a concept that typically governs appellate review of issue not raised in the district
court, the concept is akin to the standard applicable in the district courts under Federal Rule of
Civil Procedure 59(a), which typically requires a “manifest error of law or fact,” In re
Lorazepam & Clorazepate Antitrust Litigation, 467 F. Supp. 2d 74, 87 (D.D.C 2006), and some
harm to the moving the party, see, e.g., Caudle v. District of Columbia, 707 F.3d 354, 359 (D.C.
Cir. 2013) (“A new trial is unwarranted if the trial error is harmless.”); Morris v. Pruitt, 308 F.
Supp. 3d 153, 159 (D.D.C. 2018) (result must have been “unfair to the moving party” (quoting
EEOC v. New Breed Logistics, 783 F.3d 1057, 1066 (6th Cir. 2015))); Lewis, 315 F. Supp. 3d at
577 (same). Consistent with this rule, courts have at times imposed a harm requirement before
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ordering a new trial based on allegedly inconsistent verdicts. See, e.g., Abou-Khadra v. Mahshie,
4 F.3d 1071, 1080 (2d Cir. 1993) (“[E]ven if there was an inconsistency in the jury’s answers to
the RICO interrogatories, Abou-Khadra was in no way harmed as a result.”); Evans v.
Washington Metro. Area Transit Auth., 816 F. Supp. 2d 27, 34 (D.D.C. 2011) (“[T]he disputes
surrounding the jury’s answers to these questions would still not merit a new trial because the
jury’s answers to No. 3c and 3d would not materially change the result of trial.”).
In the present context, Defendants have little to complain about. To be sure, the jury’s
findings regarding the dates Agnew worked and the number of weeks she worked are
inconsistent. But this is not a case in which the jury was required to choose between “[t]wo
distinct versions of events” yet chose both. Cf. Hudley, 494 F.3d at 1102. Rather, on the central
question, the jury indisputably found in Agnew’s favor: whether Defendants “failed to pay [her]
overtime pay required by law.” Dkt. 59 at 6. The sole question at issue is how many weeks
Agnew worked, and, on that question, Agnew has agreed to accept the version of the jury’s
verdict that is less favorable to her and more favorable to Defendants. As a result, if anything,
Defendants stand to benefit from the inconsistent verdicts. Nor is there is any reason to believe
that the inconsistency in the jury’s verdicts suggests that the jury was so confused that it was
incapable of rendering a fair verdict. To the contrary, with respect to each of the other Plaintiffs,
the jury accurately counted the number of weeks worked. When it came to Agnew, however, it
appears that the jury either miscounted the number of weeks from February 20, 2017 to August
1, 2017 or, quite possibly, simply misread a “3” as an “8” when it reported its calculations on the
verdict form. Either way, there is no reason to presume that when it came to Agnew—as
opposed to the other Plaintiffs—the jury fundamentally “erred in the legal reasoning by which it
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proceeded.” Elliott v. Watkins Trucking Co., 406 F.2d 90, 92 (7th Cir. 1969). And, either way,
if the Court accepts Agnew’s concession, Defendants will suffer no cognizable harm.
The Court will, accordingly, use the jury’s finding that Agnew worked for Defendants
from February 20, 2017 to August 1, 2017 in calculating the compensatory damages that Agnew
is due.
C.
That leaves the question of interest. According to Plaintiffs, they are each entitled to an
additional award of interest “at the rate of 5%” starting on October 6, 2022. Dkt. 61-1 at 1-2.
Plaintiffs fail to explain why they are entitled to the payment of interest running from the date of
the jury’s verdict but, rather, merely cite to D.C. Code § 28-3302(c). That provision, however,
sets the prevailing interest rate “on judgments and decrees,” id., and is thus seemingly inapposite,
since the Court has yet to enter judgment, see Zuniga v. Whiting-Turner Contracting Co., 270
A.3d 897, 902 (D.C. 2022) (holding that “judgment” under that statute is a final, appealable
order). But because neither party has briefed this issue, and because Plaintiffs have requested the
opportunity to heard on the question, Dkt. 61 at 2, the Court will defer ruling on the question of
interest at this time.
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CONCUSION
In light of the conclusions set forth above, the Court finds that Plaintiffs are entitled to
compensatory and liquidated damages in the following amounts:
Plaintiff Compensatory Liquidated Damages Total Damages
Damages (Compensatory (Compensatory +
Damages x 3) Liquidated Damages)
Kang Kyu Seo $31,762.133 $95,286.39 $127,048.52
Tamora Agnew $9,821.204 $29,463.60 $39,284.80
Danita Evette $20,870.365 $62,611.07 $83,481.43
Chase
Michelle Johnson $27,346.486 $82,039.44 $109,385.92
3
Seo’s hourly wages were $18.59 (40 hours per week + 40.68 hours per week overtime =
80.68/week. $1,500 (Seo’s weekly wage) / 80.68 = $18.59). He worked 1,139.04 overtime
hours (28 weeks x 40.48 hours/week). His total unpaid wages therefore amount to $31,762.13
($18.59 x. 1,139.04 x 1.5).
4
As relevant to Agnew, who worked between February and August 2017, the D.C. minimum
wage was raised from $11.50 to $12.50/hour on July 1, 2017. D.C. Code § 32-1003(a)(5)(A)(ii).
Per the verdict, Agnew worked from February 20, 2017 to June 30, 2017 at $11.50/hour,
resulting in compensatory damages of $7,760.63 (1.5 x $11.50 x 24.04 hours/week x (131
days/7)). She then worked July 1, 2017 to August 1, 2017 at $12.50/hour, resulting in
compensatory damages of $2,060.57 (1.5 x $12.50 x 24.04 hours/week x (32 days/7)). Her total
compensatory damages thus come out to $9,821.20.
5
Chase worked 7.7 weeks at $10.50/hour, D.C. Code § 32-1003(a)(1)(4), and 33.3 weeks at
$11.50/hour, D.C. Code § 32-1003(a)(1)(5)(A)(i) (41 weeks in total). For the first 7.7 weeks,
Chase should have earned $3,645.00 in overtime pay (1.5 x $10.50/hour x 30 hours/week
overtime x (54 days / 7)). Then, for the 33.3 weeks, Chase should have earned $17,225.36 in
overtime pay (1.5 x $11.50 x 30 hours/week overtime x (233/7)). In total, then, Chase is owed
$20,870.360 in compensatory damages.
6
For the first 23.7 weeks, Johnson should have earned $11.50/hour, and for the last 26.3 weeks,
she should have earned $12.50/hour. See D.C. Code § 32-1003(a)(1)(5)(A)(i)-(ii). For the first
23.7 weeks, Johnson should have been paid $12,403.05 (1.5 x $11.50/hour x 30.32 hours
overtime /week x (166 days / 7)). And for the last 26.3 weeks, Johnson should have been paid
$14,943.43 (1.5 x $12.50/hour x 30.32 hours overtime/week x (184 days / 7)). In total, then,
Johnson is owed $27,346.48.
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The parties are hereby ORDERED to submit any further argument on the question of
interest on or before January 18, 2023. The parties’ briefs shall not exceed five pages per side.
After the Court has reviewed those filings, the Court will enter final judgment.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: January 10, 2023
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