United States District Court, D. Maryland
R. ALEXANDER ACOSTA, Secretary of Labor, U.S. Department of Labor, Plaintiff,
MEZCAL, INC. d/b/a MEZCAL MEXICAN RESTAURANT & BAR, et al., Defendants,
K. Bredar Chief Judge.
R. Alexander Acosta, Secretary of Labor, United States
Department of Labor ("the Secretary"), filed suit
against Mezcal, Inc., a corporation, d/b/a Mezcal Mexican
Restaurant & Bar ("Mezcal"), and Carlos Ulloa,
Mezcal's owner, alleging multiple violations of the Fair
Labor Standards Act, 29 U.S.C. §§ 201 et
seq. ("FLSA" or "the Act"). The
Secretary seeks back wages, liquidated damages, and
injunctive relief. 29 U.S.C. §§ 216(b), 217. Now
pending before the Court is the Secretary's Amended
Motion for Summary Judgment. (ECF No. 53.) No. hearing is
required. Local Rule 105.6 (D. Md. 2018). For the reasons set
forth below, the Secretary's Motion will be granted in
part and denied in part.
lawsuit follows an investigation by the Department of Labor
("DOL") into possible violations of the FLSA's
minimum wage, overtime, and recordkeeping requirements at
Mezcal Restaurant and Bar. 29 U.S.C. §§ 206(a),
207(a)(1), 211 (c); see also Id. § 215(a)(2),
(a)(5) (making violations of the foregoing provisions
illegal). The suit seeks to collect unpaid wages owed to
sixty-two current and former employees listed in Schedule A
of the Amended Complaint. (Am. Compl. at 7, ECF No. 6.) The
Secretary alleged that Defendants violated the FLSA's
minimum wage requirements by paying bartenders and servers
less than minimum wage, failing to provide required notice,
and operating an invalid tip pool. (Id. ¶ 6.)
He also alleged that Defendants failed to pay the overtime
premium to employees working in excess of forty hours per
week and failed to keep required records of all
employees' names, schedules, and pay. (Id.
¶¶ 7-8.) The Secretary alleged that these
violations were willful, (id. ¶¶ 6-9),
which would extend the statute of limitations to three years,
29 U.S.C. § 255(a), and sought liquidated damages and
injunctive relief, in addition to back pay for Schedule A
employees. (Am. Compl. at 4-5.)
Legal Standard for Summary Judgment
court shall grant summary judgment 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); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986) (citing predecessor to current Rule
56(a)). The moving party bears the burden of demonstrating
the absence of any genuine dispute of material fact.
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157
(1970). If sufficient evidence exists for a reasonable jury
to render a verdict in favor of the non-moving party, then a
genuine dispute of material fact exists, and summary judgment
should be denied. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). But, the "mere
existence of a scintilla of evidence in support of the
[non-moving party's] position" is insufficient.
Id. at 252. The non-moving party may not rest upon
the pleadings but instead must, by evidentiary showing, set
out specific facts showing a genuine dispute for trial.
Fed.R.Civ.P. 56(c)(1). Facts and inferences must be viewed in
the light most favorable to the non-moving party. Scott
v. Harris, 550 U.S. 372, 380 (2009).
addressing the substantive claims, the Court will consider
Defendants' objections to certain evidence relied on by
the Secretary. Defendants argue that several cited exhibits
are inadmissible unsworn declarations, are not properly
authenticated, and/or contain hearsay. (Opp'n M.S.J, at
5-7, ECF No. 54 (objecting to Plaintiffs Exhibits G, H, and
Court turns first to Plaintiffs Exhibit G, which purports to
contain signed but unsworn statements from current and former
Mezcal employees taken by a DOL investigator during the
investigation. (PI. Exh. G, ECF No. 53-9.) Under the 2010
amendment to Rule 56, exhibits need not be in
admissible form to be considered at summary judgment,
provided they could be put in admissible form at trial.
Fed.R.Civ.P. 56(c)(2); see also Kurland v. ACE Am. Ins.
Co., Civ. No. JKB-15-2668, 2017 WL 354254, at *3 n.2 (D.
Md. Jan. 23, 2017). The rule "contemplates a
'multi-step process by which a proponent may submit
evidence, subject to objection . . . and an opportunity
[after an objection] for the proponent to either authenticate
the document or propose a method [of] doing so at
trial."' Kurland, 2017 WL 354254, at *3 n.2
(quoting Ridgell v. Astrue, Civ. No. DKC-10-3280,
2012 WL 707008, at *9 (D. Md. Mar. 2, 2012)) (first
alteration in original).
the employee statements are not notarized or taken under
seal, they are not self-authenticating under Federal Rule of
Evidence 902, and Defendants argue that they do not comport
with the statute under which an unsworn declaration may be
treated as functionally the same as a sworn statement or
oath. 28 U.S.C. § 1746; see also Fed. R. Evid.
902(10). Under section 1746, unsworn declarations must to be
in writing, signed, dated, and made "in substantially
the following form:... 'I declare (or certify, verify or
state), under penalty of perjury that the foregoing is true
and correct.'" § 1746(2). Courts construing the
statute consider the requirements that an unsworn declaration
be (1) avowed to be "true and correct" and (2) made
"under penalty of perjury" to be independent
elements. See, e.g., In re World Trade Ctr. Disaster
Litig., 722 F.3d483, 488 (2d Cir. 2013) (per curiam);
DIRECTV, Inc. v. Budden, 420 F.3d 521, 530-31 (5th
Cir. 2005); Pollock v. Pollock, 154 F.3d 601, 611
n.20 (6th Cir. 1998); United States v. Ericson, Civ.
No. 13-00551-LEK-KSC, 2014 WL 6749120, at *5 (D. Haw. Nov.
employee statements offered by the Secretary fall into two
categories. Some "declare" certain facts
"under the pains penalties [sic] of
perjury." (PI. Exh. G at 1-4, 9, 16-17). Others, appearing
on DOL forms, declare that "the aforementioned is
correct." (Id. at 5-8, 10-15.) None declares
both that the statements are true and that
they were made under penalty of perjury. The specific words
required by section 1746 are not mere formalities; they are
"indicia of truthfulness." Davenport v. Bd. of
Trs. of State Ctr. Cmty. Coll. Dist., 654 F.Supp.2d
1073, 1083 (E.D. Cal. 2009). A bedrock presumption of our
legal system is that the presence of certain words- words
that assert the veracity of the statements made and accept
the risk of a specific legal penalty for falsehoods-alert
declarants to the gravity of their undertaking and thereby
have a meaningful effect on truth-telling and reliability.
Because none of the statements contains both required
incantations, they do not conform with 28 U.S.C. § 1746.
reply, the Secretary argues that the employee statements
should nonetheless be considered under the business records
exception to the hearsay rule, Fed.R.Evid. 803(6). He offers
a declaration from the investigator who purportedly took the
statements as authentication. (Reply at 3, ECF No. 63; O.
Blanco Decl., ECF No. 63-1.) Documents properly admitted
under the business records exception are treated as
self-authenticating, but only if their compliance with the
exception's requirements is "shown by a
certification of the [record's] custodian or another
qualified person that complies with a federal statute"
or rule. Fed.R.Evid. 902(11); see also Fed. R. Evid.
803(6)(D). The Blanco declaration, however, suffers from the
same deficiencies as the statements themselves-although
executed under penalty of perjury, it is unsworn and lacks an
avowal that the statements contained are true and correct. As
such, it does not adhere to 28 U.S.C. § 1746 and cannot
be used to authenticate the employee statements in Exhibit
remaining evidentiary objections concern failures to provide
sworn affidavits authenticating two other exhibits: a list of
names, purportedly of kitchen staff, alongside amounts and
dates of payment, (PI. Exh. H, ECF No. 53-10); and a sample
of payroll records, (PI. Exh. I, ECF No. 53-11). For the same
reason that the Blanco declaration fails to authenticate the
employee statements, it fails to authenticate these exhibits,
as well. However, affidavits or declarations are not the only
possible methods of authentication. Authentication only
requires "evidence sufficient to support a finding that
the item is what the proponent claims it is," which may
include "distinctive characteristics" discernible
from the face of the document, such as its appearance or
contents. Fed.R.Evid. 901(a), (b)(4). Exhibit I includes a
heading reading "Mezcal Inc.," a footer reading
"Payroll by Payee," and columns containing employee
information, dates, hours, and pay amounts, all of which is
sufficient for the Court to find that the documents are what
the Secretary claims: payroll records from three employees
for pay periods between April 2014 and November 2015.
Defendants, who are in the best position to dispute the
accuracy or provenance of these records, raise no such
substantive challenges to their reliability. The Court will
therefore consider them.
H, however, lacks such distinctive characteristics. It
contains several pages of typed lists of first names,
alongside dates, amounts, and handwritten annotations, but no
heading or other marking identifying it on its face as a
record kept by Defendants. The Court concludes that the
Secretary failed to sufficiently authenticate Exhibit H, and
it will not be considered.
reasons for excluding Exhibits G and H from consideration may
appear technical, but exclusion is nonetheless warranted. The
Secretary bears the burden of proof in this case, a case in
which the Government seeks to wield its disproportionate
enforcement powers against private citizens. The Court will
not make excuses for the Government when it improperly cuts
corners in the discharge of those powers.
only admissible evidence, the Court now turns to the claimed
violations. "The FLSA is 'best understood as the
minimum wage/maximum hour law, '" enacted to
'"protect all covered workers from substandard wages
and oppressive working hours.'" U.S. Dep 7
of Labor v. Fire & Safety Investigation Consulting
Servs., LLC, 915 F.3d 227, 280 (4th Cir. 2019) (quoting
Trejo v. Ryman Hosp. Props., Inc., 795 F.3d 442, 446
(4th Cir. 2015)). Courts construe the Act
"'liberally to apply to the furthest reaches
consistent with congressional direction.'" Roy
v. Cty. of Lexington, 141 F.3d 533, 540 (4th Cir. 1998)
(quoting Tony & Susan Alamo Found, v. Sec'y of
Labor, 471 U.S. 290, 296 (1985)); see also Purdham
v. Fairfax Cty. Sch. Bd, 637 F.3d 421, 427 (4th Cir.
2011) ("The FLSA should be broadly interpreted and
applied to effectuate its goals.").
undisputed that Defendant Mezcal is an employer subject to
the Act's minimum wage, overtime, and recordkeeping
provisions, and that those provisions apply to Schedule A
employees. 29 U.S.C. § 203(d), (s)(1). (Ans.
¶¶ 4-5, ECF No. 8; C. Ulloa Dep. At 16:21-17:16,
24:12-20, PI. Exh. A, ECF No. 53-3 (admitting engagement in
commerce and that Mezcal's sales exceed the minimum
required by 29 U.S.C. § 203(s)(1)(A)(ii)); Opp'n
M.S. J. at 5 (conceding employer status for purpose of the
pending motion).) See also Speert v. Profwio Mortg.
Ventures, LLC, Civ. No. JKB-10-718, 2011 WL 2417133, at
*2 (D. Md. June 11, 2011) (finding stipulation to the
statutory text of § 203(s)(1) sufficient to support
summary judgment). It is also undisputed that Defendant
Ulloa, as Mezcal's sole owner, is an employer subject to
individual liability under the Act. Individual employer
status is determined under the "economic realities
test," id. at *3 (citing Howard v.
Malcolm, 852 F.2d 101, 104-05 (4th Cir. 1988)), which
considers authority to hire, fire, and control employee
hours, working conditions, pay, and records, id.
(citing Herman v. RSR Sec. Servs. Ltd., 172 F.3d
132, 139 (2d Cir. 1999)). Ulloa admitted that he had such
supervisory and decision-making authority for Schedule A
employees. (Ulloa Dep. at 9:2-17; PI. First Req. for
Admission Nos. 4-7, PL Exh. B, ECF No. 53-4 (deemed admitted
in ECF No. 20); see also Opp'n M.S.J, at 5
(conceding individual employment status for the purpose of
the Secretary has shown as a matter of law that Mezcal and
Ulloa are employers subject to the FLSA's recordkeeping,
minimum wage, and overtime obligations with respect to
Schedule A employees.