Andrews et al v. Comcast Cable Communications Management LLC.

Filing 34

MEMORANDUM AND ORDER granting 31 Motion to Dismiss Count III of Plaintiff's Amended Complaint; and dismissing Count III of the Amended Complaint. Signed by Judge William M Nickerson on 6/28/13. (apls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

ISHMAEL ANDREWS et al.

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COMCAST CABLE COMMUNICATIONS
MANAGEMENT, LLC

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Civil Action No.WMN-12-2909

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v.

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MEMORANDUM AND ORDER
Before the Court is Defendant’s motion to dismiss Count III
of Plaintiffs’ Amended Complaint.
ripe.

ECF No. 31. The motion is

Upon a review of the pleadings and the applicable case

law, the Court determines that no hearing is necessary, Local
Rule 105.6, and that the motion will be granted.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs Ishmael Andrews and Kyle Camp, on behalf of
themselves and all others similarly situated, seek to recover
overtime wages from the Defendant Comcast Cable Communications
Management, LLC (Comcast).

Plaintiffs were employed at

Comcast’s call center as hourly, non-exempt Customer Account
Executives (CAE).

Plaintiffs allege that they were required to

work before and after their recorded start and end of shift to
perform duties such as “booting-up computers, initializing
several software programs, reading company emails, and

performing other tasks.”

Am. Compl. ¶ 2.

Plaintiffs also

allege that they performed work during break periods which
included “completing customer orders, finishing customer service
calls, logging back into the phone system, re-booting computers,
and initializing software programs.” Id. at ¶ 3.
To accomplish these required tasks, Plaintiffs allege that
they consistently worked approximately 10 to 15 minutes prior to
the recording of their start shift.

As a result of working

before their scheduled shifts, during breaks, and after their
scheduled shifts, Plaintiffs worked over 40 hours a week.
Plaintiffs allege that the Defendant did not pay employees for
their unrecorded overtime work, for which they were entitled to
receive compensation at the overtime rate or one and one-half
times the hourly pay. Id. at ¶¶ 2-4.
Based on these facts, Plaintiffs bring their claims under
the Fair Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219, the
Maryland Wage and Hour Law (MWHL), Md. Code Ann., Lab. & Empl.
§§ 3-401-3-407, and the Maryland Wage Payment and Collection Law
(MWPCL), Md. Code Ann., Lab. & Empl. §§ 3-501-3-509.

Defendant

moves to dismiss Plaintiffs’ MWPCL claim, Count III of
Plaintiffs’ Amended Complaint, because the Amended Complaint
fails to state a cause of action under that statute.

Defendant

argues that the Plaintiffs’ claim to overtime wages is governed
under the FLSA and the MWHL, not the MWPCL.
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II. LEGAL STANDARDS
Defendant moves to dismiss Plaintiffs’ MWPCL claim under
the Federal Rule of Civil Procedure 12(c), which states that a
party may request judgment on the pleadings after the pleadings
are closed if brought early enough not to delay trial.

A Rule

12(c) motion is governed by the same legal standard as a motion
to dismiss under Rule 12(b)(6).

See Edwards v. City of

Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999).
“The purpose of a motion to dismiss pursuant to Fed. R.
Civ. P. 12(b)(6) is to test the sufficiency of the plaintiff’s
complaint.”

Butler v. Directsat USA, LLC, 800 F. Supp. 2d 662,

666 (D. Md. 2011).

In order to survive a Rule 12(b)(6) motion

to dismiss, the complaint must plead factual allegations that
plausibly demonstrate that the plaintiff is entitled to relief.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2009).

When

reviewing a Rule 12(b)(6) motion to dismiss, a court must accept
all factual allegations as true, which are viewed in the light
most favorable to the non-moving party.

Brockington v. Boykins,

637 F.3d 503, 505 (4th Cir. 2011).
III. DISCUSSION
Section 3-507.2 of the MWPCL provides a private cause of
action to an employee to recover from an employer unpaid wages
under certain circumstances.

Under this provision, an employee

may only recover when an employer has violated § 3-502 or § 33

505 of the Act.

Section 3-502 requires the employer to set

regular pay periods and pay the employee at least every two
weeks or twice in each month.

Section 3-505 requires the

employer to pay a terminated employee any wages due within the
regular pay period.

According to § 3-507.2(b), a court may

award an employee treble damages and attorney fees if there is a
found violation that an employer withheld wages that was not the
result of a bona fide dispute.
In one of the primary Maryland cases discussing the MWPCL,
the Maryland Court of Appeals stated that the Act “does not
concern the amount of wages payable but rather the duty to pay
whatever wages are due on a regular basis and to pay all that is
due following termination of the employment.”
Frankel, 819 A.2d 354, 362 (Md. 2003).

Friolo v.

The Maryland Court of

Appeals also held that, while the MWPCL provides a cause of
action for wages unlawfully withheld, it is the MWHL that
provides a cause of action for the entitlement of wages owed to
an employee.

Id. at 361-62.

Thus, a claim that focuses on the

plaintiff’s entitlement to overtime wages falls outside the
scope of the MWPCL.

Butler, 800 F. Supp. 2d at 671.

“While it may be an intuitive argument that wages which are
not paid at all are necessarily not paid on time, courts
applying the MWPCL, including this one, have held otherwise.”
Orellana v. Cienna Props., LLC, No. 11-2515, 2012 WL 203421, at
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*4 (D. Md. Jan. 23, 2012).

For example, in McLaughlin v.

Murphy, this Court dismissed Plaintiff’s MWPCL claim, because he
did not allege that his employer “failed to pay him regularly,
but that it failed to pay him enough; and he [did] not allege
that [his employer] failed to pay him minimum wage and overtime
due him upon his termination, but that it failed to pay him
these wages at all.”

372 F. Supp. 2d 465, 475 (D. Md. 2004).

Similarly, in Butler, this Court held that the plaintiffs failed
to state a cause of action under the MWPCL because they “[did]
not allege that Defendants failed to pay them on a regular basis
or that they were not paid upon termination.”
at 670.

800 F. Supp. 2d

Rather, the plaintiffs’ allegations focused on their

entitlement to wages and thus was outside of the scope of the
Act.

Id. at 671; see also, Guevara v. Clean & Polish, Inc., No.

12-2944, 2013 WL 1856357, at *2-3 (D. Md. May 1, 2013) (holding
that allegations that focus on the underlying claim of
entitlement to wages rather than the timing of payments will be
dismissed); Jones v. Nucletron Corp., No. 11-02953, 2013 WL
663304, at *3 (D. Md. Feb. 20, 2013) (same); Calle v. Chul Sun
Kang Or, No. 11-0716, 2012 WL 163235, at *4 (D. Md. Jan. 18,
2012) (same); Fisher v. Rite Aid Corp., No. 09-1909, 2010 WL
2332101, at *2 (D. Md. June 8, 2010) (same).
Relying on this well established line of cases, Defendant
argues that Count III of Plaintiff’s Amended Complaint should be
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dismissed.

Defendant argues that the Amended Complaint does not

contain facts alleging that Comcast failed pay them regularly
during their employment pursuant to § 3-502 or that Comcast
failed to pay them upon termination pursuant to § 3-505.
Instead, Plaintiffs’ allegations focus on their entitlement to
the recoupment of overtime wages, a claim that is not governed
under the MWPCL.
To avoid dismissal of this claim, Plaintiffs argue that
there is a split in authority on this issue, citing Hoffman v.
First Student, Inc., No. 06-1882, 2009 WL 1783536, at *10 (D.
Md. June 23, 2009) and Reed v. Code 3 Sec. and Prot. Servs.,
Inc., No. 09-1162, 2009 WL 5177283, at *5 (D. Md. Dec. 18,
2009).

ECF No. 32 at 3-4.

In Hoffman, this Court did deny the

motion for summary judgment on plaintiffs’ MWPCL claim.
1783536, at *10.

2009 WL

The instant case, however, is distinguishable

from Hoffman because, in Hoffman, the dispute focused on
“whether the defendant has ‘withheld’ or ‘failed to pay timely’
wages due to Plaintiffs.”

Id. at *10.

This Court found that

there was no dispute that Plaintiffs were entitled to be
compensated, at the proper rate of pay, for the hours they
worked.

Id.

Here, Plaintiffs’ dispute focuses on the

entitlement of unpaid wages rather than the Defendant’s wrongful
withholding of wages.

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Similarly, Plaintiffs’ also rely on Reed where this Court
denied a motion to dismiss a MWPCL claim.
5177283, at *5 (D. Md. Dec. 18, 2009).

No. 09-1162, 2009 WL

Reed does not support

Plaintiffs’ argument that there is a split in authority,
however, because this Court upheld the prior case law by holding
that the MWPCL does not allow recovery for the entitlement of
wage claims.

Reed, 2009 WL 5177283, at *4.

In Reed, the

plaintiffs were terminated employees who argued that the
employer “withheld” their wages.

Their primary claim was

premised on § 3-505, which governs wages withheld after
termination of employment.1

Id.

This Court opined that,

“[b]ecause Plaintiffs allege that, as in Hoffman, the instant
dispute centers on whether Defendant withheld wages, and not on
whether Plaintiffs were entitled to wages, the Court will not
dismiss the MWPCL claims at this stage.”

Id. at *5.

Plaintiffs also assert that a 2010 amendment to the MWPCL
supports their cause of action for overtime wages.

ECF No. 32.

The 2010 amendment to the MWPCL added “overtime wages” to the
definition of wages recoverable under § 3-501.

Plaintiffs also

present a letter written by the Commissioner of Labor and
Industry, Ronald DeJuliis, in which he opines that the purpose

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Reed was a class action suit. Employees who were still
employed by the defendant fell outside of the scope of § 3-505
of the MWPCL and their claim under the MWPCL was dismissed.
Reed, 2009 WL 5177283, at *4.
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of the amendment was to allow an employee to receive enhanced
damages from the employer’s failure to pay overtime wages.

ECF

No. 32-3, Feb. 24, 2010 Letter (“I support this bill because I
believe that the availability of treble damages for overtime
claims will deter employers from violating the law.”).
While it may appear that the amendment changed the
application of the MWPCL, courts have not adopted this
interpretation and have continued to hold that claims focusing
on the entitlement to withheld wages falls outside the scope of
the MWPCL.

See, e.g., Butler, 800 F. Supp. 2d at 669 (holding

that the MWPCL does not govern entitlement to overtime wages,
even after the passage of the 2010 amendment).

The Court

believes that the 2010 amendment simply clarified that overtime
wages, if not paid on time or upon termination, can give rise to
treble damages.

It is unlikely that the Maryland legislature

would create a second statute, the MWPCL, to provide the same
cause of action to remedy the same wrong as the MWHL.2

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 The Court is aware that the same issue raised in this motion is
potentially at issue in a case currently before the Maryland
Court of Special Appeals, Adedje v. Westat, Inc., No. 620 Sept.
Term 2012 (Md. Ct. Spec. App.). Plaintiff in that action raises
many of the same arguments raised here and oral argument was
held recently. Should the Court of Special Appeals reach a
conclusion differing from that reached by this Court during the
pendency of this action, Plaintiff may move for reconsideration.

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Accordingly, IT IS this 28th day of June, 2013, by the
United States District Court for the District of Maryland,
ORDERED:
1) That Defendant’s Motion to Dismiss Count III of
Plaintiffs’ Amended Complaint, ECF No. 31, is GRANTED;
2) That Count III of the Amended Complaint is DISMISSED;
and
3) That the Clerk of the Court shall transmit a copy of
this Memorandum and Order to all counsel of record.

____________/s/___________________
William M. Nickerson
Senior United States District Judge

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