Johnson et al v. Systems Connection of Maryland, Inc.

Filing 11

MEMORANDUM. Signed by Judge James K. Bredar on 8/2/2016. (bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

TIMOTHY JOHNSON, et al.,

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Plaintiffs

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v.

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SYSTEMS CONNECTION OF
MARYLAND, INC.,

CIVIL NO. JKB-16-630

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Defendant
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MEMORANDUM
Timothy Johnson and Vincent Smith (“Plaintiffs”) brought a putative collective and class
action against Systems Connection of Maryland, Inc. (“Defendant”), alleging violations of the
Fair Labor Standards Act (“FLSA”) of 1938, as amended, 29 U.S.C. §§ 201 et seq.; the
Maryland Wage and Hour Law (“MWHL”), Md. Code Ann., Lab. & Empl. §§ 3-401 et seq.; and
the Maryland Wage Payment and Collection Law (“MWPCL”), Md. Code Ann., Lab. & Empl.
§§ 3-501 et seq. Now pending before the Court is Defendant’s Partial Motion to Dismiss (ECF
No. 5) with respect to Plaintiffs’ allegations concerning a “scale” or prevailing wage. The issues
have been briefed, and no hearing is required, see Local Rule 105.6 (D. Md. 2014). For the
reasons explained below, Defendant’s motion shall be GRANTED.
I.

Factual Overview1
Defendant, a “furniture service company,” employed Plaintiffs as furniture installers.

Plaintiff Johnson worked for Defendant from June 9, 2009, through November 24, 2015;
Plaintiff Smith worked from January 25, 2005, through November 15, 2015. (ECF No. 1 ¶¶ 3,
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The facts are recited here as alleged by Plaintiff, this being a motion to dismiss. See Ibarra v. United States, 120
F.3d 472, 474 (4th Cir. 1997).

9-10.)

Plaintiffs’ work involved loading and unloading trucks, transporting furniture and

equipment, and assembling furniture at worksites. (Id. ¶¶ 21-22.) Plaintiffs allege that Defendant
failed to pay them for the time they spent traveling from worksites back to their warehouse. (Id.
¶ 23.) Plaintiffs further contend that they were paid overtime wages only for those hours that they
worked in excess of 43.5 hours per week. (Id. ¶ 24.) Finally, and as relevant here, Plaintiffs allege
that they were undercompensated on certain federal contracts. (Id. ¶ 25.)
Plaintiffs filed suit on March 3, 2016 (ECF No. 1); Defendant filed the pending Partial
Motion to Dismiss on May 9, 2016 (ECF No. 5). Plaintiffs filed a response in opposition (ECF
No. 8), and Defendant replied (ECF No. 9). Defendant’s motion is ripe for decision.
II.

Standard of Review
A complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In analyzing a Rule 12(b)(6) motion, the
Court views all well-pleaded allegations in the light most favorable to the plaintiff. Ibarra v.
United States, 120 F.3d 472, 474 (4th Cir. 1997). Even so, “[f]actual allegations must be enough
to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. “A pleading
that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action
will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further
factual enhancement.’” Iqbal, 556 U.S. at 678 (alteration in original) (quoting Twombly, 550
U.S. at 555, 557).
III. Analysis
Plaintiffs’ Complaint is not the picture of clarity.

In their “Introduction and

Background,” Plaintiffs describe three purported violations: (1) Defendant’s failure to pay all

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overtime due and owing; (2) Defendant’s failure to compensate Plaintiffs for certain travel time;
and (3) Defendant’s failure to pay Plaintiffs the “proper scale wage that was owed to them while
working on government jobsites.” (ECF No. 1 at 2.) Elsewhere in their Complaint, Plaintiffs
allege that many of Defendant’s contracts involved “federal facilities” and that, for such
contracts, “there would be a scale wage that was the required wage that was to be paid to those
working on that jobsite.” (Id. ¶ 26.) Plaintiffs contend that for the “majority [sic] of their
employment, [they] were not paid the correct scale wage on the federal jobsites they worked on.”
(Id. ¶ 27.) Yet under Counts I (FLSA) and II (MWHL), Plaintiffs cite only purported overtime
violations: they make no mention of a “scale” wage (or, for that matter, travel time). And under
Count III (MWPCL), Plaintiffs merely allege that they have “not received compensation from
the Defendant for all wages owed for work performed before the termination of their
employment,” without elaborating on how these outstanding “wages” break down.
Understandably unsure of the precise contours of Plaintiffs’ Complaint, Defendant filed
the pending Partial Motion to Dismiss, contending that (1) insofar as Plaintiffs seek to recover
the difference between a federal prevailing wage and the wages they were actually paid, such a
claim is not cognizable under the FLSA, the MWHL, or the MWPCL; and (2) while the Davis–
Bacon Act, 40 U.S.C. §§ 3141 et seq., does prescribe prevailing wages for certain construction
contracts involving public buildings and public works, there is no private right of action under
that statute. (ECF No. 5–1 at 2.) In their response brief, Plaintiffs do not dispute either of
Defendant’s contentions: instead, Plaintiffs assert that they “do not ask for any relief or seek to
recover damages related to the Defendant’s failure to pay a prevailing wage under the
Davis-Bacon Act” but, instead, are “merely seeking relief under the FLSA, MWHL and the
MWPCL related to overtime wages.” (ECF No. 8–1 at 5.)

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The Court could simply take Plaintiffs at their word and end the matter here. However,
given that Plaintiffs’ Complaint plainly does include allegations relating to a “scale” wage, and
in the interest of setting a smooth course for these proceedings, the Court adds the following
three observations.
First, while Plaintiffs do not expressly cite the Davis–Bacon Act in their Complaint, their
description of a “scale wage that was the required wage” for jobs performed at federal facilities
(ECF No. 1 ¶ 26) seemingly invokes the Act, which prescribes a prevailing wage for “every
contract in excess of $2,000, to which the Federal Government or the District of Columbia is a
party, for construction, alteration, or repair, including painting and decorating, of public
buildings and public works . . . .” 40 U.S.C. § 3142(a). If Plaintiffs’ counsel had some other
authority in mind when he drafted the Complaint, he has not apprised the Court of that authority:
he does not, for instance, cite some other statute that entitles Plaintiffs to a higher-than-minimum
wage, nor does he suggest that the purported “scale” wages were contractually prescribed.
Second, the vast majority of federal courts to consider the question have held that the
Davis–Bacon Act “contains no general private right of action for workers seeking back pay” but
“only authorizes a private right of action after certain administrative mechanisms designed to
ensure adequate payment have failed.” McClean v. Phila. Hous. Auth., Civ. Action No. 12-cv4706, 2013 WL 787032, at *4 (E.D. Pa. Mar. 1, 2013); see also United States ex rel. Krol v. Arch
Ins. Co., 46 F. Supp. 3d 347, 353 (S.D.N.Y. 2014) (explaining that laborers who perform under
contracts governed by the Davis–Bacon Act may seek relief under section 3 of the Act, 40
U.S.C. § 3144(a)(2), only if (1) “funds withheld by the [contracting] agency are insufficient to
fully reimburse all laborers who are entitled to prevailing wages” and (2) “either the contracting
agency or the [Department of Labor] . . . has administratively determined that the contractor or

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subcontractor has failed to pay prevailing wages”). Apart from the narrow remedy set forth in
section 3, there “is no implied right of private action under the Davis-Bacon Act,” Bane v. Radio
Corp. of Am., 811 F.2d 1504, 1987 WL 35851, at *1 (4th Cir. 1987) (unpublished table
decision); see also Duran–Quezada v. Clark Constr. Grp., LLC, 582 F. App’x 238, 239 (4th Cir.
2014) (per curiam) (agreeing with the “majority of . . . sister Circuits to address this question . . .
that ‘neither the language, the history, nor the structure of the [Davis–Bacon Act] supports the
implication of a private right of action’” (quoting United States ex rel. Glynn v. Capeletti Bros.,
Inc., 621 F.2d 1309, 1317 (5th Cir. 1980))); Robinson v. Ohio Hous. Fin. Agency, No. 1:11-cv352, 2011 WL 7789840, at *4 (S.D. Ohio Dec. 15, 2011) (collecting cases), adopted as modified,
2012 WL 1564312 (S.D. Ohio May 2, 2012). Thus, had Plaintiffs expressly included a Davis–
Bacon count in their Complaint, that count would fail because Plaintiffs do not aver that they
have pursued any administrative remedies with respect to their unpaid “scale” wages; for that
matter, the relevant allegations in Plaintiffs’ Complaint are so vague and conclusory that the
Court cannot even ascertain which contracting agencies, if any, might have shared responsibility
with the Department of Labor for determining whether Defendant failed to pay such wages.
Third, Plaintiffs’ FLSA, MWHL, and MWPCL counts are inappropriate vehicles for
obtaining back wages as prescribed by the Davis–Bacon Act. The FLSA and the MWHL supply
parallel guarantees of minimum-wage and overtime compensation, compare 29 U.S.C. §§ 206–
07, with Md. Code Ann., Lab. & Empl. §§ 3-413, -415, but neither statute provides for a “scale”
or prevailing wage. The MWPCL is broader in the sense that it defines a “wage” as “all
compensation that is due to an employee for employment,” Md. Code Ann., Lab. & Empl.
§ 3-501(c)(1). However, federal courts have repeatedly rejected attempts by litigants to avert the
administrative requirements of the Davis–Bacon Act by cloaking inherently Davis–Bacon claims

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in the garb of state law. See Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003)
(“Since . . . no private right of action exists under the [Davis–Bacon Act], the plaintiffs[’] efforts
to bring their claims as state common-law claims are clearly an impermissible ‘end run’ around
the [Act].”); Johnson v. Prospect Waterproofing Co., 813 F. Supp. 2d 4, 9 (D.D.C. 2011) (“[A]s
courts in this circuit and elsewhere have concluded, plaintiffs cannot get around the
administrative prerequisites of the [Davis–Bacon] Act simply by dressing up their claim in new
language and asserting that it arises under state law.”); accord Castro v. Fid. & Deposit Co. of
Md., 59 F. Supp. 3d 9, 15 (D.D.C. 2014); Horne v. Scott’s Concrete Contractor, LLC, Civ. Action
No. 12-cv-01445-WYD-KLM, 2013 WL 3713905, at *8 (D. Colo. Apr. 24, 2013), adopted as
modified, 2013 WL 3713653 (D. Colo. July 16, 2013); Miccoli v. Ray Commc’ns, Inc., No. CIV.A.
99-3825, 2000 WL 1006937, at *3 (E.D. Pa. July 20, 2000); Eldred v. Comforce Corp., No.
3:08-CV-1171 (LEK/DEP), 2010 WL 812698, at *7 (N.D.N.Y. Mar. 2, 2010).2
In summary, then, to whatever extent Plaintiffs initially intended to pursue a claim for
prevailing wages (an intent which, in light of their opposition brief, they have apparently
abandoned), they have not plausibly demonstrated that they are entitled to any such recovery
under the Davis–Bacon Act, nor have they have identified any other source of authority to
support such a claim. Accordingly, as this litigation proceeds, the Court will disregard Plaintiffs’
allegations concerning “scale” wages.

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Such end-runs around the Davis–Bacon Act are to be distinguished from situations in which plaintiffs identify a
separate authority altogether for their prevailing-wage claims, such as a “little” Davis–Bacon statute. See United
States v. Clark, 787 F.3d 451, 461 n.2 (7th Cir. 2015) (noting that thirty states have their own prevailing-wage laws),
cert. denied, 136 S. Ct. 492 (2015). In fact, Maryland has a prevailing-wage statute that is similar in some respects
to the Davis–Bacon Act. See Md. Code Ann., State Fin. & Proc. §§ 17-201 et seq. However, the Maryland statute
applies primarily to public-works contracts awarded by the state and its instrumentalities/subdivisions, and then only
to those contracts valued at $500,000 or more. §§ 17-202, -213. The Maryland statute further excludes from
coverage the “part of a public work contract for which the federal government provides money if, as to that part, the
contractor is required to pay the prevailing wage rate as determined by the United States Secretary of Labor.” See
§17-202(b)(2).

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IV. Conclusion
For the foregoing reasons, an Order shall enter GRANTING Defendant’s Partial Motion
to Dismiss (ECF No. 5).
DATED this 2nd day of August, 2016.
BY THE COURT:

/s/
James K. Bredar
United States District Judge

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