Hill v. B. Frank Joy, LLC

Filing 92

MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 6/23/2017. (aos, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

MANUEL AL VAREZ-SOTO,
DARRYL REID and
CHARLES THOMAS,
On Behalf a/Themselves and All Others
Similarly Situated,
Plaintiffs,
Civil Action No. TDC-15-1120

v.
B. FRANK JOY, LLC,
T. KENNETH JOY and
KEVIN JOY,
Defendants.

MEMORANDUM OPINION
Plaintiffs Manuel Alvarez-Soto, Darryl Reid, and Charles Thomas, former and current
employees of Defendant B. Frank Joy, LLC ("BFJ"), have filed this civil lawsuit on behalf of
themselves and others similarly situated against BF J and two of BFl' s corporate officers, T.
Kenneth Joy and Kevin Joy (the "Individual Defendants").

Plaintiffs allege that Defendants have

violated their rights under federal and state law by failing to pay both straight time and overtime
wages, refusing to allow Plaintiffs and other employees to take sick leave, and discriminating
against Plaintiffs and other African American and Latino employees.

The Second Amended

Complaint asserts violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C.

S

(2012); the Maryland Wage and Hour Law ("MWHL"), Md. Code Ann., Lab. & Empl.

201-219

SS

3-401

to 3-431 (West 2016); the Maryland Wage Payment and Collection Law ("MWPCL"), Md. Code
Ann., Lab. & Empl.

SS

3-501 to 3-509; the District of Columbia Minimum

Wage Act

("DCMWA"), D.C. Code

SS

32-1001 to 32-1015 (West 2013); the District of Columbia Wage

Payment and Collection Law ("DCWPCL"), D.C. Code

SS

32-1301 to 32-1312; the District of

Columbia Accrued Sick and Safe Leave Act, as amended (the "D.C. Sick Leave Act"), D.C.
Code

SS

32-131.01 to 32-131.17; 42 U.S.C.

S

1981; and District of Columbia and Maryland

common law. BFJ and the Individual Defendants have filed separate Motions to Dismiss under
Federal Rule of Civil Procedure 12(b)(6).

For the reasons set forth below, the Individual

Defendants' Motion is GRANTED, and BFJ's Motion is GRANTED IN PART and DENIED IN
PART.

BACKGROUND
Plaintiffs are current and former employees ofBFJ, a Maryland limited liability company
that specializes in the installation, maintenance, and rehabilitation of underground infrastructure.
Plaintiff Alvarez-Soto, who is Latino, worked as a laborer at BFJ between 2005 and 2015.
Plaintiff Reid, who is African American, drove trucks for BFJ between 2005 and his retirement
in 2016. Plaintiff Thomas, also African American, has worked at BFJ since 2008 and remains
employed there. He is currently a driver operating trucks weighing less than 10,000 pounds. All
three named Plaintiffs are residents of Maryland.

Plaintiffs seek to bring this lawsuit on behalf

of a class of current and former BF J employees who have worked as construction workers,
laborers, equipment operators, forepersons, flaggers, and truck drivers.
Defendant T. Kenneth Joy and Kevin Joy are corporate officers of BFJ.

The Second

Amended Complaint alleges that T. Kenneth Joy is the President and Chief Executive Officer of
BFJ, but he claims that he serves only as Chairman of the Board and merely advises BFJ on
business development and acquisition strategy. Kevin Joy is alleged to be the Vice President of
BFJ, but he claims to hold only the position of Secretary of the Board. The Second Amended

2

Complaint does not describe the extent of the Individual Defendants' involvement in the day-today management

of BFJ, including employee compensation,

payroll, scheduling, and other

personnel-related issues. Rather, it alleges only that the Individual Defendants knew or should
have known ofBFJ's alleged legal violations.
I.

Wage and Hour Claims
BFJ operates primarily out of a construction yard (the "Construction Yard") located in

Hyattsville, Maryland.

BFJ's employees report to the Construction Yard before leaving on

company trucks for different work sites. Although the paid work day officially begins at 7:00
a.m., BFJ employees must report to the Construction Yard between 5:00 a.m. and 6:00 a.m., up
to an hour and a half before departing for work sites, in order to load company trucks and
construction vehicles with tools and equipment.
minutes each morning.

Loading the trucks takes between 15 and 90

After the trucks are loaded, truck drivers transport the construction

workers and laborers to job sites located throughout the Washington, D.C. metropolitan area.
When the daily work at the construction site ends, the truck drivers transport the construction
workers and laborers back to the Construction Yard, where they unload the trucks and vehicles
for 15 to 45 minutes.
Plaintiffs allege that BFJ has not been compensating

employees for the time spent

loading and unloading vehicles at the Construction Yard or for time spent traveling between the
Construction Yard and the various job sites.

According to the Second Amended Complaint,

construction workers and laborers are not paid at all for time spent loading and unloading
vehicles or for travel time. Truck drivers are compensated for only 30 minutes of travel time per
day, even though the average amount of daily travel time is 60 minutes, and some job sites
require more than an hour of travel time. In addition, although BFJ routinely requires employees

3

to work over 40 hours per week, BF J fails to pay overtime wages of one and one-half times the
employees' regular hourly rate of pay.
According to Plaintiffs, part of the reason BFJ fails to correctly compensate its workers is
its failure to maintain an adequate timekeeping system. Instead of utilizing a time clock or other
employee self-reporting system, the forepersons at each job site report time for all workers.
However, forepersons often depart before the day's work is completed, and their reports are
often inaccurate. Plaintiffs also allege that BFJ has retaliated against employees who complained
about inaccurate time records, wages, or lack of overtime payments

by demoting them,

discharging them, and otherwise discriminating against them. Specifically, Thomas alleges that
he was demoted after complaining that he was not receiving overtime pay. Plaintiffs also allege
that they were denied use of sick leave, even though the BFJ Company Employee Handbook
states that employees are entitled to sick leave.
II.

Discrimination Claims
Plaintiffs further assert that BFJ discriminates against African American and Latino

workers on the basis of race. Alvarez-Soto alleges that a white foreman asked why Alvarez-Soto
earns $13 per hour even though he "can't speak English."

Decl. of Manuel Alvarez-Soto,

Second Am. Compl. ("SAC") Ex. A ~ 6, ECF No. 76-1 ("Alvarez-Soto Decl."). He claims that
he was not allowed to apply for a driving position because he is Dominican and speaks English
with an accent, and he further states that BFJ allowed his former co-workers to make fun of his
English and treat him "like a second-class citizen." Id. ~ 12. Reid alleges that a foreman cursed
and yelled at him because he is African American.

He asserts that he saw the foreman belittle

Latino workers on the job, and that a BFJ fleet manager referred to Spanish-speaking employees
as "spies." Decl. of Darryl Reid, SAC Ex. A ~ 8, ECF No. 76-1 ("Reid Decl.").

4

Thomas alleges race discrimination based on the fact that when he complained about
mistreatment, he lost his position to another African American employee who "does as he is told
without question or concern for his fellow coworkers."

Decl. of Charles Thomas, SAC Ex. A ~~

2-3, ECF No. 76-1 ("Thomas Decl."). Thomas also asserts that after he had a vehicle accident at
work, he "was drug tested and a point was added to my Joy license," while no action was taken
against a white employee who "rear-ended a lady's car." Id. ~ 6. Likewise, Thomas claims that
an African American woman employee involved in a vehicle accident was subjected to
discrimination when she was fired by BFJ for not submitting to an immediate drug test. Thomas
has also heard ofBFJ management using derogatory terms to refer to BFJ employees, including a
white employee referred to as Julio because he "works like a Mexican." Id. ~ 8.
III.

Procedural History
This case was originally filed by Harry Hill, a former BFJ employee, against BF J only

and alleged violations of the FLSA, MWHL, and MWPCL.

After Hill filed an Amended

Complaint, the Court granted summary judgment to BFJ on the FLSA and MWHL claims
because Hill was subject to the Motor Carrier Act exception to both statutes and was thus not
protected by those laws.

The Court allowed Hill to file a motion for leave to amend the

Complaint to substitute a new named plaintiff and add a claim under the DCMW A.
The Second Amended Complaint went further, in that it added T. Kenneth Joy and Kevin
Joy as defendants and expanded the claims to include causes of actions under the DCMW A,
DCWPCL, D.C. Sick Leave Act, District of Columbia and Maryland common law, and 42
U.S.C.

S

1981.

The Court nevertheless

accepted the Second Amended Complaint as the

operative complaint, as well as declarations executed by each of the three new named Plaintiffs,
which the Court deemed to be attachments to the Second Amended Complaint.

5

After BFJ and the Individual Defendants filed the pending Motions, Plaintiffs missed the
deadlines to respond to the Motions by several weeks.

On March 30, 2017, Plaintiffs filed an

untimely memorandum of law in opposition to the Motions ("Opposition"), along with a Motion
requesting that the Court consider the untimely filing.
DISCUSSION
I.

Untimely Filing
BFJ filed its Motion to Dismiss on January 31, 2017.

Plaintiffs'

Opposition was

therefore due 14 days later, on February 14, 2017. The Individual Defendants filed their Motion
to Dismiss on February 27, 2017, and Plaintiffs' Opposition was therefore due on March 13,
2017.

Plaintiffs did not file their Opposition until March 30, 2017.

In their "Motion for the

Court to Consider Plaintiffs' Untimely Responses to the Motions to Dismiss," which Defendants
have opposed, Plaintiffs explain that their Opposition was untimely because of a calendaring
error.
Under the Federal Rules of Civil Procedure, "[w]hen an act mayor must be done within a
specified time, the court may, for good cause, extend the time ... on motion made after the time
has expired if the party failed to act because of excusable neglect."

Fed. R. Civ. P. 6(b)(l)(B).

Here, the Court accepts Plaintiffs' representation of a calendaring error and concludes that the
failure to respond to the Motions was the result of "excusable neglect." See Pioneer Inv. Servs.
Co. v. Brunswick Assocs. Ltd. P'Ship, 507 U.S. 380, 391-92 (1993) (holding that "excusable
neglect" may include "inadvertent delays" and is "not strictly limited to omissions caused by
circumstances beyond the control of the movant"); Thompson v. E.l DuPont de Nemours & Co.,
76 F.3d 530,533 (4th Cir. 1996). In addition, the United States Court of Appeals for the Fourth
Circuit has established a "strong policy that cases be decided on the merits."

6

United States v.

Shaffer Equip. Co., 11 F.3d 450, 462 (4th Cir. 1993). Consequently, the Court will grant the
Motion and will consider the untimely Opposition.
II.

Legal Standard
To defeat a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6), the

complaint must allege enough facts to state a plausible claim for relief. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). A claim is plausible when the facts pleaded allow "the court to draw the
reasonable inference that the defendant is liable for the misconduct

alleged."

Id.

Legal

conclusions or conclusory statements do not suffice. Id. The Court must examine the complaint
as a whole, consider the factual allegations in the complaint as true, and construe the factual
allegations in the light most favorable to the plaintiff.
(1994); Lambeth v. Bd. o/Comm'rs

Albright v. Oliver, 510 U.S. 266, 268

o/Davidson Cty., 407 F.3d 266,268 (4th Cir. 2005).

On a Rule 12(b)(6) motion, Courts are permitted to consider documents attached to a
complaint "so long as they are integral to the complaint and authentic." Kensington Volunteer
Fire Dep't, Inc. v. Montgomery Cty., 684 F.3d 462, 467 (4th Cir. 2012) (quoting Philips v. Pitt
Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009)).

Accordingly, the Court considers the

Declarations deemed attached to the Complaint.
In their Motion, the Individual Defendants move to dismiss all claims alleged against
them for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) or, in the
alternative,

on summary judgment

under Rule 56.

The Individual

Defendants

attach

Declarations to their Motion in which they separately assert that they did not have authority to
hire or fire Plaintiffs, had no role in personnel policies or payroll matters, and did not know of or
authorize any discrimination against Plaintiffs. When facts outside the pleadings are considered
on a motion to dismiss, a court must treat the motion as one for summary judgment.

7

Fed. R. Civ.

P. 12(d). Here, Plaintiffs argue that summary judgment is premature because Plaintiffs dispute
the Individual Defendants'
claims.

assertions, and discovery is necessary before any resolution of the

In support of their position, Plaintiffs attach competing declarations disputing the

Individual Defendants' factual assertions and a Rule 56(d) declaration by counsel explaining the
need for discovery. Because the Court agrees that a motion for summary judgment is premature,
it excludes the submitted declarations and construes the Individual Defendants'

Motion as a

motion to dismiss under Rule 12(b)(6).
III.

B. Frank Joy, LLC
BFJ's Motion alleges that the Second Amended Complaint fails to allege sufficient facts

to state plausible claims against BFJ for retaliation under the FLSA, violations of the DCWPCL
and MWPCL relating to unlawful deductions, a violation of the D.C. Sick Leave Act, common
law claims under District of Columbia and Maryland law, and violations of 42 U.S.C.
relating to race discrimination.

S

1981

Plaintiffs argue that Defendants' characterizations of the defects

in the Second Amended Complaint are "greatly exaggerated" and that Defendants' arguments are
based on technicalities.
A.

Opp'n at 2, ECF No. 90.

FLSA Retaliation

BF J first asserts that Plaintiffs have failed to state a plausible claim of retaliation under
the FLSA. Under the FLSA anti-retaliation provision, it is unlawful for an employer covered by
the FLSA:
to discharge or in any other manner discriminate against any employee because
such employee has filed any complaint or instituted or caused to be instituted any
proceeding under or related to this chapter, or has testified or is about to testify in
any such proceeding.
29 U.S.C.

S 215(a)(3).

To establish aprimafacie

case of an FLSA retaliation claim, a plaintiff

must show that (1) the plaintiff engaged in an activity protected by the FLSA, (2) the plaintiff
8

suffered an adverse action by the employer subsequent to or contemporaneous with the protected
activity, and (3) a causal connection exists between the employee's activity and the employer's
adverse action. Darveau v. Detecon, Inc., 515 F.3d 334, 340 (4th Cir. 2008).
The Second Amended Complaint alleges generally that BFJ retaliated against Plaintiffs
for making complaints related to FLSA violations by "actually or constructively
and/or demoting employees who complained."

discharging

SAC ~ 84. Thomas specifically alleges that he

was demoted after complaining to BFJ that he was not paid overtime. For purposes of resolving
a motion to dismiss under Rule 12(b)(6), Thomas's allegation is sufficient.

Thomas's claim

adequately asserts that he engaged in protected activity by making a complaint to BFJ about
overtime pay. See Minor v. Bostwick Labs., Inc., 669 F.3d 428,438 (4th Cir. 2012) (holding that
intracompany

complaints are protected activity under the FLSA).

adverse action, satisfying the second factor.

Demotion is plainly an

See Darveau, 515 F.3d at 343 (stating that "a

plaintiff asserting a retaliation claim under the FLSA need only allege that his employer
retaliated against him by engaging in an action that would have been materially adverse to a
reasonable employee" and that "could well dissuade a reasonable worker" from making a
complaint under the FLSA (quoting Burlington N & Santa Fe Ry. Co. v. White, 548 U.S. 53,57
(2006»).

Finally, drawing all inferences in Plaintiffs' favor, as is required at the Rule 12(b)(6)

stage, the Court infers causation

from the statement that Thomas was demoted

complaining to [BFJ] that he was not being paid overtime."

SAC ~ 7.

"[a]fter

Accordingly, BFJ's

Motion is denied as to Thomas's FLSA claim.
Alvarez-Soto and Reid, however, have not alleged sufficient facts to state a claim for
FLSA retaliation.

Neither Alvarez-Soto

nor Reid alleges that he made an FLSA-related

complaint or that he suffered a specific adverse action in response.

9

The general allegation that

BFJ discharged or demoted "employees who complained" does not provide enough "factual
context" to "nudge their claim from conceivable to plausible."

See Hall v. DIRECTV, LLC, 846

F.3d 757, 777 (4th Cir. 2017) (quoting Dejesus v. HF Mgmt. Servs., LLC, 726 F.3d 85, 90 (2d
Cir. 2013». Accordingly, BFJ's Motion is granted as to the FLSA retaliation claims of AlvarezSoto and Reid.1

B.

DCWPCL and MWPCL

Count V of the Second Amended Complaint alleges that BFJ failed to pay Plaintiffs
"unpaid wages" and made "unlawful deductions" in violation of the DCWPCL.

Specifically,

Plaintiffs allege that they were not paid "their promised and required wage rate for all hours they
worked" and that BFJ "made unlawful deductions from the earned wages of the Class Plaintiffs
and all others similarly situated, and thus failed to pay them their promised and required wage
rate for all hours they worked, in violation of ~ 32-1302 of the DCWPCL."

SAC,-r,-r 111-12.

Count VI likewise asserts that BFJ violated the MWPCL based on "unpaid wages" and
"unlawful deductions" by failing "to timely pay" Plaintiffs "their promised and required wage
rate for all hours they worked" in violation of section 3-502 of the MWPCL and by making
"unlawful deductions from the earned wages of Class Plaintiffs" and thus failing "to pay them

1
Because no class has yet been certified under Rule 23, only the named Plaintiffs' individual
claims are presently before the Court. See Shelton v. Pargo, Inc., 582 F.2d 1298, 1304 (4th Cir.
1978) ("It is the actual certification of the action as a class action under [Rule 23] which alone
gives birth to the class as a jurisprudential entity, changes the action from a mere individual suit
with class allegations into a true class action . . . and provides that sharp line of demarcation
between an individual action seeking to become a class action and an actual class action."
(footnote omitted) (quoting Satterwhite v. City of Greenville, 557 F.2d 414, 425 (5th Cir. 1977)
(Gee, J., dissenting»); Lloyd v. Gen. Motors Corp., 575 F. Supp. 2d 714, 723 (D. Md. 2008)
(dismissing the claims of individual plaintiffs in a putative class action for failure to state a
claim); see also Hitch Enters., Inc. v. Cimarex Energy Co., 859 F. Supp. 2d 1249, 1257 nA
(W.D. Okla. 2012) (stating that "[u]ntil issues of class certification are presented to, and
addressed by, the Court under Rule 23, [Plaintiffs] are not representatives of any other parties"
and each "must meet its own procedural burden under Rule 12(b)(6) and the pleading standards
of Twombly and Iqbal").

10

their promised and required wage rate" in violation of section 3-503 of the MWPCL.

BFJ does

not challenge the DCWPCL and MWPCL claims for unpaid wages but asserts that Plaintiffs
have failed to assert sufficient facts to state claims for unlawful deductions under the DCWPCL
or MWPCL.
Subject to certain exceptions not relevant here, section 32-1302 of the DCWPCL requires
that an employer "pay all wages earned to his or her employees on regular paydays designated in
advance by the employer and at least twice during each calendar month." D.C. Code 9 32-1302.
The statute defines "wages" as "all monetary compensation after lawful deductions, owed by an
employer, whether the amount owed is determined on a time, task, piece, commission, or other
basis of calculation." Id. 9 32-1301 (3).
The MWPCL requires an employer to set regular pay periods and pay each employee at
least every two weeks or twice a month, and states that "[a]n agreement to work for less than the
wage required under this subtitle is void."

Md. Code Ann., Lab. & Empl. 9 3-502(a), (t). A

"wage" is defined as "all compensation that is due to an employee for employment."

Id. 9 3-

501(c). The MWPCL further states that an employer "may not make a deduction from the wage
of an employee unless the deduction is" pursuant to a court order, authorized in writing by the
employee, allowed by the Commissioner

of Labor and Industry because the employee has

received full consideration for the deduction, or was "otherwise made in accordance with any
law or any rule or regulation issued by a governmental unit." Id. 9 3-503. The DCWPCL and
MWPCL each provide a private right of action. See D.C. Code 9 32-1308(a); Md. Code Ann.,
Lab. & Empl. 93-507.2(a).
To the extent that Counts V and VI assert claims under the DCWPCL and MWPCL
under a theory of unlawful deductions, Plaintiffs have not offered sufficient facts to support

11

those claims. The Second Amended Complaint does not allege any facts that describe the
deductions in question or support the conclusion that they were unlawful. Although Rule 8 does
not require detailed allegations, the Second Amended Complaint does not provide even the
limited detail that would be sufficient to state a plausible claim based on unlawful deductions.
Cf Diaz v. Corp. Cleaning Sols., LLC, No. DKC-15-2203, 2016 WL 1321419, at *4 (D. Md.
April 5, 2016) (holding that the plaintiff stated an MWPCL claim for unlawful deductions by
alleging that defendants "deducted monies for work uniforms" without having obtained consent
or written authorization); Thompson v, Linda & A., Inc., 779 F. Supp. 2d 139, 142 (D.D.C. 2011)
(describing the complaint, which sufficiently alleged a DCWPCL unlawful deduction claim by
asserting that "the defendants took unexplained deductions from the plaintiff s wages, including
late fees, fines for calling in sick, and stage fees"). Accordingly, to the extent that Plaintiffs seek
to assert unlawful deduction claims under the DCWPCL and MWPCL in Counts V and VI, those
claims are dismissed. The unpaid wages claims alleged in Counts V and VI under those statutes,
which BFJ does not challenge, remain intact.
C.

D.C. Sick Leave Act

In Count VII, Plaintiffs assert a violation of the D.C. Sick Leave Act, which provides that
"(aJn employer with 100 or more employees shall provide for each employee not less than one
hour of paid leave for every 37 hours worked, not to exceed 7 days per calendar year."
Code

S

32-131.02(a)(l).

D.C.

The leave may be used for certain specified absences including

obtaining medical care, caring for sick family members, and seeking services related to domestic
violence or sexual abuse.

See id.

S

32-131.02(b).

Paid leave under the D.C. Sick Leave Act

"shall accrue in accordance with the employer's established pay period," and an employee "may
begin to access paid leave after 90 days of service with his or her employer."

12

Id.

9

32-

131.02( c)(1). The employee seeking leave must submit a written request in advance, id.

S 32-

131.03, and an employer may require that paid leave of three consecutive days or more be
supported by a reasonable certification, id.

S 32-131.04.

BFJ asserts that the Second Amended Complaint does not state a plausible claim for
relief under the D.C. Sick Leave Act because it does not allege that Plaintiffs were eligible for
sick leave or that they complied with the notice requirements.

The Second Amended Complaint

alleges that even though Plaintiffs had accrued and were entitled to take sick leave, they were
denied the use of sick leave benefits. Plaintiffs further allege that they were promised at the time
of hire that they would be given sick leave benefits, and that a September 1998 B. Frank Joy
Company Employee Handbook provided for such benefits, but that African American and Latino
workers were prevented from taking such leave, while white employees were not. Drawing all
inferences in favor of Plaintiffs, these allegations are sufficient to support the inference that each
Plaintiff was eligible to take sick leave and properly sought to take such leave, but was
unjustifiably barred from doing so, in violation of the D.C. Sick Leave Act.

BFJ cites no

authority for the proposition that Plaintiffs are required to plead explicitly that they complied
with the notice requirements, nor is the Court aware of any.

Accordingly, BFJ's Motion is

denied as to Count VII. See Hall, 846 F.3d at 765 (stating that on a motion to dismiss, a court
must construe the complaint liberally and "draw all reasonable inferences in favor of the
plaintiff').
D.

State Common Law Claims

In Counts VIII-XI, the Second Amended Complaint also alleges common law claims for
breach of contract and unjust enrichment under District of Columbia and Maryland law.
According to Plaintiffs, BFJ breached oral employment contracts with them by failing to pay

13

regular and overtime wages. Plaintiffs further allege that BFJ was unjustly enriched because it
increased the profits it received from its government contracts by paying Plaintiffs less than the
prevailing wage rate agreed to in those contracts.

BFJ argues that these state common law

claims are preempted by federal law.
The Fourth Circuit has recognized that "Congress prescribed exclusive remedies in the
FLSA for violations of its mandates." Anderson v. Sara Lee Corp., 508 F.3d 181,194 (4th Cir.
2007). Accordingly, state claims are preempted by the FLSA "where those claims have merely
duplicated FLSA claims."

Id.; see also Bouthner v. Cleveland Constr. Inc., No. RDB-11-244,

2011 WL 2976868, at *6-7 (D. Md. July 21,2011) (holding that a quantum meruit claim based
on unpaid regular and overtime wages was preempted by the FLSA). While Plaintiffs' breach of
contract and unjust enrichment claims do not explicitly reference the FLSA, they seek "the value
of the regular time and overtime wages" sought in the FLSA claim.
2976868, at *7.

Bouthner, 2011 WL

Thus, in asserting their breach of contract and unjust enrichment claims,

Plaintiffs "must rely upon the FLSA as the source of their claim[s] because the FLSA establishes
minimum wage and overtime requirements."

Id. Because Plaintiffs' state common law claims

essentially duplicate their claims for unpaid regular and overtime wages in violation of the
FLSA, they are preempted.

See Anderson, 508 F.3d at 193 (dismissing as preempted state

common law claims that "depend on establishing that [the defendant] violated the FLSA" and
"essentially require [d] the same proof as claims asserted under the FLSA itself'); see also, e.g.,
Bouthner, 2011 WL 2976868, at *7; Helm v. Alderwoods Grp., 696 F. Supp. 2d 1057, 1076
(N.D. Cal. 2009) (holding that the FLSA "preempts common law claims that seek remedies for
rights protected by the FLSA (such as minimum wage and overtime pay)"); Morrow v. Green
Tree Servicing, LLC, 360 F. Supp. 2d 1246, 1252 (M.D. Ala. 2005) (dismissing as preempted

14

breach of contract and unjust enrichment claims "based largely, if not exclusively, on the
FLSA").
BFJ further argues that Plaintiffs' unjust enrichment claims are preempted by the DavisBacon Act ("DBA"), 40 U.S.C.

SS 3141-3148

(2012). The Davis-Bacon Act, which requires that

laborers and mechanics working on federally funded construction projects be paid no less than
the prevailing wage in the locality where the work was performed, 40 U.S.C.

S 3142,

establishes

an extensive administrative scheme for the recovery of unpaid wages rather than a private right
of action. See Johnson v. Prospect Waterproofing Co., 813 F. Supp. 2d 4, 8-9 (D.D.C. 2011).
Courts have held that where plaintiffs'

"state-law claims are indirect attempts at privately

enforcing the prevailing wage schedules contained in the DBA," those claims are preempted
because allowing a private common law action "aimed at enforcing those wage schedules would
be inconsistent with the underlying purpose of the legislative scheme and would interfere with
the implementation of that scheme."

Grochowski v. Phoenix Const., 318 F.3d 80, 86 (2d Cir.

2003) (quoting Davis v. United Airlines, Inc., 575 F. Supp. 677, 680 (E.D.N.Y.

1983)).

Plaintiffs, who do not allege that they have exhausted their administrative remedies under the
DBA, may not "get around the administrative prerequisites of the Act simply by dressing up their
claim in new language and asserting that it arises under state law." Johnson, 813 F. Supp. 2d at
9-10 (dismissing as preempted state law quantum meruit claims arising from the defendant's
failure to pay the prevailing Davis-Bacon wage rates). See also Johnson v. Sys. Connection of
Md., No. JKB-16-0630, 2016 WL 4124214, at *3 (D. Md. Aug. 2, 2016) ("(F]ederal courts have
repeatedly rejected attempts by litigants to avert the administrative requirements of the DavisBacon Act by cloaking inherently Davis-Bacon claims in the garb of state law.").

15

Here, Plaintiffs

allege that BFJ was unjustly

enriched because

it "increased

the

profitability of its government contracts tied to prevailing market wages by paying workers less
than the contracted-amount
145, 163.

for wages and keeping the difference for the company."

Although they do not specifically reference the DBA, Plaintiffs'

SAC,-r,-r

reference to

"government contracts tied to prevailing market wages" is undoubtedly an indirect reference to
the DBA that illustrates that the unjust enrichment claim is based on the failure to pay wage rates
in accordance with that statute. Under such circumstances, the DBA preempts the state common
law claim. See Johnson, 2016 WL 4124214, at *2 (finding that the complaint's claim of a failure
to pay "scale wages" was a reference to the requirements of the DBA and was thus preempted).
Accordingly, to the extent Plaintiffs'

common law unjust enrichment claims arise from the

failure to pay Davis-Bacon Act prevailing wage rates, they are also preempted by the DBA.
BFJ's Motion is therefore granted as to the state common law claims.
E.

42 U.S.c. ~ 1981

In addition to their wage- and benefits-related

claims, Plaintiffs

allege that BFJ

discriminated against African American and Latino employees by treating them differently than
white employees, in violation of 42 U.S.C.

S

1981. 42 U.S.C.

S

1981 provides that:

All persons within the jurisdiction of the United States shall have the same right
in every State and Territory to make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white citizens, and shall be
subject to like punishment, pains, penalties, taxes, licenses, and exactions of every
kind, and to no other.
42 U.S.C.

S

1981(a). The statute defines the term "make and enforce contracts" to include "the

making, performance,

modification,

and termination of contracts, and the enjoyment of all

benefits, privileges, terms, and conditions of the contractual relationship."
state a claim under

S

Id

S

1981(b).

To

1981, a plaintiff must establish "purposeful, racially discriminatory actions
16

that affect at least one of the contractual aspects listed in

S

1981(b)." Spriggs v. Diamond Auto

Glass, 165 F.3d 1015, 1018 (4th Cir. 1999). The substantive elements ofaprimajacie
employment discrimination under

S

case of

1981 are the same as for a claim brought under Title VII of

the Civil Rights Act of 1964 ("Title VII"). Bryant v. Bell Atlantic Md., Inc., 288 F.3d 124, 133
n.7 (4th Cir. 2002); Sewell v. Strayer Univ., 956 F. Supp. 2d 658,673 (D. Md. 2013).
Although Plaintiffs need not allege facts sufficient to establish a prima facie case under
Title VII, they nevertheless must plead facts sufficient to support a reasonable inference that an
alleged adverse employment action was motivated by bias or discrimination.

See McCleary-

Evans v. Md. Dep't ojTransp., 780 F.3d 582, 584-85 (4th Cir. 2015). Plaintiffs' generally assert
that African American and Latino workers (1) are subjected to derogatory remarks by white
managers and workers; (2) receive lower hourly wages for the same jobs, and received smaller
wage increases, than white employees; (3) are denied sick leave and other benefits received by
white employees; (4) receive harsher discipline in that they, but not white employees, are
subjected to drug tests after vehicle accidents; and (5) are denied promotions

when they

complain about discrimination.
BFJ argues that Plaintiffs' allegations are insufficient to state a plausible claim for relief.
For the most part, the Court agrees. Although Plaintiffs describe several instances in which BFJ
personnel used derogatory names to refer to African American or Latino employees, in the
absence of a hostile work environment claim, such facts do not, by themselves, state a claim for
discrimination if unlinked to a particular adverse employment action. See James v. Booz-Allen &
Hamilton, Inc., 368 F.3d 371, 375-76 (4th Cir. 2004) (stating that in a discrimination case "the
existence of some adverse employment action" that "adversely affects the terms, conditions, or
benefits of the plaintiffs employment" is required). Dallas v. Giant Food, Inc., 187 F. Supp. 2d

17

505, 508 (D. Md. 2002). With respect to wage discrimination, no Plaintiff alleges specific facts
showing that he was paid less than any similarly situated white employee, or that the difference
was the result of race discrimination.

Although Alvarez-Soto alleges that "probably 99%" of the

employees in the Gas or Sewer Department are white and that BFJ pays employees in that
Department more than employees in other departments, Alvarez-Soto Decl. ,-r 11, he does not
allege facts showing that the work performed in that Department is comparable to his own work
such that the pay should be the same. See Mallory v. Booth Refrigeration Supply Co., 882 F.2d
908, 912 (4th Cir. 1989) (stating that plaintiff must demonstrate that white employees were
"similarly situated" for the purpose of "comparing wages").
Likewise, although Plaintiffs have alleged that they sought and were denied sick leave,
see supra Part lII.C, they offer no specific facts to show that any similarly situated white
employee sought and was granted sick leave.

The general claim that minority employees are

denied promotions when they complain about discrimination is likewise unsupported by specific
factual allegations. Thomas alleges in his Declaration that he was demoted, but he acknowledges
that the employee who replaced him was also African American.
Plaintiffs provide sufficient facts relating to two claims under
Soto has stated

a claim

S

1981. First, Alvarez-

for failure to hire or promote based on his description in his Declaration

of an episode in which BFJ refused to allow him to apply for a driver position for which he
believed he was qualified because he is Dominican and speaks broken English.

Drawing all

inferences in favor of Alvarez-Soto, the Court concludes that the BFJ manager's cursing and
reference to Alvarez-Soto' s English abilities, coupled with the broader evidence of derogatory
statements made against Latino employees, support an inference of discrimination for purposes
of a motion to dismiss.

See McNairn v. Sullivan, 929 F.2d 974, 977 & n.6 (4th Cir. 1991)

18

(stating that a failure to promote claim requires that the plaintiff applied for the position, was
qualified, and was rejected "under circumstances
discrimination").

giving rise to an inference of unlawful

Second, Thomas has stated a claim of disparate treatment relating to discipline.

Thomas asserts that he was drug-tested and assessed "a point" against his driving record when he
got into a vehicle accident, while a white employee who rear-ended another car was not
subjected to drug testing or penalized in his driving record. Thomas Dec!. ,-r 6. Thomas further
alleges that an African American woman employee was told to submit to a drug test after a
vehicle accident and was then terminated when she refused. Although not particularly detailed,
these facts, when combined with the facts showing racially hostile statements by BF J managers
to minority employees, are sufficient to state a claim by Thomas for race discrimination under

S

1981.
Accordingly, the Court denies BFJ's Motion to Dismiss the

S

1981 claim to the extent to

alleges a failure to hire or promote Alvarez-Soto to the driver position and alleges discriminatory
discipline against Thomas.

The remaining allegations of race discrimination under

S

1981 are

dismissed.
IV.

The Individual Defendants
A.

Wage Claims and Retaliation

The Individual Defendants assert that the FLSA overtime and other wage-related claims,
as well as the FLSA retaliation claim, must be dismissed because they do not qualify as
"employers" under the relevant statutes. In order to state a claim under the FLSA, the plaintiff
must allege facts that, if true, establish that the defendant is the plaintiff s "employer" within the
meaning of each statute.

See Kerr v. Marshall Univ. Bd. of Govs., 824 F.3d 62, 83 (4th Cir.

2016). The FLSA defines "employer" as "any person acting directly or indirectly in the interest

19

of an employer in relation to an employee," 29 U.S.C. ~ 203(d), which includes "those with
managerial responsibilities and substantial control of the terms and conditions of the work of
employees," Kerr, 824 F.3d at 83 (alteration omitted) (quoting Falk v. Brennan, 414 U.S. 190,
195 (1973)). Courts determine whether a person or entity is an "employer" within the meaning
of the FLSA by applying the "economic reality" test, which considers "whether the employer (1)
had the power to hire and fire the employees, (2) supervised and controlled employee work
schedules or conditions of employment, (3) determined the rate and method of payment, and (4)
maintained employment records."

Id. (quoting Herman v. RSR Sec. Servs. Ltd, 172 F.3d 132,

139 (2d Cir. 1999)).
The Second Amended Complaint alleges generally that T. Kenneth Joy and Kevin Joy
were "employers" within the meaning of the FLSA and the identified District of Columbia and
Maryland wage laws and "had knowledge of the matters set forth" in the Second Amended
Complaint "regarding, at minimum, [BF1's] policies, procedures and actions."

SAC ~~ 14, 18.

For each count, the Second Amended Complaint states that "[b]y virtue of their respective roles
as [BFl' s] corporate officers and superior knowledge of [BFl's] operations which was or should
have been derived from their positions," the Individual Defendants "authorized, assented to,
were aware, or should have been aware of' each violation and "failed to take action to address"
each violation. E.g., id. ~~ 80-81.
These allegations are insufficient to establish, even for purposes of a Motion to Dismiss,
that the Individual Defendants were "employers"

within the meaning of the FLSA.

"[A]n

individual's status as a high-level corporate shareholder or officer does not automatically impart
'employer'

liability to that individual."

Whyte v. PP&G, Inc., No. WMN-13-2806, 2015 WL

3441955, at *3 (D. Md. May 26,2015) (quoting Pearson v. Pro!'l 50 States Prot., No. 09-RDB-

20

3232, 2010 WL 4658188, at *10 (D. Md. Sept. 15, 2014)).
Defendants'

The allegation that the Individual

had knowledge of FLSA violations does not satisfy the "economic reality" test,

which focuses on whether the worker is economically dependent on the putative employer, and
accordingly requires the actual authority to hire and fire employees, control conditions of
employees or work schedules, determine the rate or method of payment, or maintain employment
records. Kerr, 824 F.3d at 83. No one factor is dispositive, but where, as here, the complaint has
"utterly failed to allege any indicia" of "control over the conditions"

of employment

or

"authority to terminate," the allegations are insufficient to state an FLSA claim. Id. The FLSA
overtime and FLSA retaliation claims against the Individual Defendants

will therefore be

dismissed.
The DCMW A, DCPWCL, MWHL,' and MWPCL also require a showing that the
defendant is an "employer."

Thompson, 779 F. Supp. 2d at 146 (DCMWA and DCWPCL);

Watkins v. Brown, 173 F. Supp. 2d 409, 415-16 (D. Md. 2001) (MWPCL); Newell v. Runnels,
967 A.2d 729, 771 (Md. 2009) (MWHL). Under the MWHL, DCMWA, and DCWPCL, courts
use the same "economic reality" test applicable to the FLSA to determine whether a defendant is
an "employer."

Wilson v. Hunam Inn, Inc., 126 F. Supp. 3d 1, 5 (D.D.C. 2015) (stating that

because the definition of "employer" under the DCMW A is "nearly identical" to the FLSA
definition,

"courts construe the federal and local statutes coterminously

for purposes

of

determining who is liable as an employer"); Ventura v. Bebo Foods, Inc., 738 F. Supp. 2d 1, 5
n.2 (D.D.C. 2010) ("Because the DCWPCL and FLSA contain nearly identical provisions with
respect to employers liability, the DCWPCL is to be construed consistently with the FLSA.");
Newell, 967 A.2d at 772-73 (applying the "economic reality" test to determine whether the
defendant is an employer under both the FLSA and the MWHL).

21

The claims against the

Individual Defendants under these statutes therefore rise and fall with the FLSA claims and are
likewise dismissed.
The MWPCL defines an "employer" as "any person who employs an individual."
Code Ann., Lab. & Empl.,

S

3-501(b).

Md.

This definition is "narrower" than the definition of

employer under the FLSA, in that it does not include individuals who act "indirectly in the
interest of an employer."

See Hall, 846 F.3d at 775 n.10.

Because Plaintiffs have not

sufficiently alleged that the Individual Defendants were "employers" under the broader FLSA
definition, the Court concludes that the allegations are likewise insufficient to state a claim that
the Individual Defendants were "employers" who violated the MWPCL. Accordingly, the Court
will grant the Motion as to the MWPCL claim against the Individual Defendants.
B.

D.C. Sick Leave Act

The Individual Defendants seek dismissal of the D.C. Sick Leave Act claim against them
because the D.C. Sick Leave Act does not impose individual liability.

The Court agrees. The

D.C. Sick Leave Act defines "employer" as "a legal entity (including a for-profit or nonprofit
firm, partnership, proprietorship,

sole proprietorship, limited liability company, association, or

corporation), or any receiver or trustee of an entity ...

who directly or indirectly or through an

agent or any other person, including through the services of a temporary services or staffing
agency or similar entity, employs or exercises control over the wages, hours, or working
conditions

of an employee."

D.C. Code

S

32-131.01(3)(A).

This definition

does not

contemplate that an individual would be deemed to be an employer, in contrast to the DCMW A
and DCWPCL,
"employer."

which include the terms "individual"

See D.C. Code

S

32-1002(3); D.C. Code

and "person"

S

32-1301(lB).

in the definition

of

Indeed, the D.C. Sick

Leave Act's recognition that the "legal entity" employer may act "through an agent or any other

22

person" illustrates that such persons, even in supervisory or managerial roles, are not personally
subject to liability as an "employer." See D.C. Code

S 32-131.01(3)(A)

(emphasis added). Thus,

Plaintiffs cannot state a claim against the Individual Defendants under the D.C. Sick Leave Act.
The Individual Defendants' Motion is granted as to that claim.
C.

State Common Law Claims

Because the state common law claims are preempted by federal law, they are dismissed
as to both BFI and the Individual Defendants. See supra Part IILD.
D.

42 U.S.c. ~ 1981

The Individual Defendants also seek dismissal of the discrimination claims under 42
U.S.C.

S 1981.

The Second Amended Complaint alleges that the Individual Defendants knew or

should have known that their colleagues, subordinates, and employees engaged in a pattern or
practice of discriminatory conduct against African American and Latino workers.
within a company cannot be liable under

S

Individuals

1981 unless "they intentionally cause an employer to

infringe the rights secured by section 1981." Luy v. Bait. City Police Dep't, 326 F. Supp. 2d 682,
688 (D. Md. 2004) (internal alterations omitted).
under

S

"To make out a claim for individual liability

1981, a plaintiff must demonstrate some affirmative link to causally connect the actor

with the discriminatory
involvement."

action, and the claim must be predicated

on the actor's personal

Hawthorne v. Va. State. Univ., 568 F. App'x 203,204-05 (4th Cir. 2014) (quoting

Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000) (alterations
omitted); see also Brown v. Bait. Police Dep't, No. RDB-II-0 136, 2011 WL 6415366,at
Md. Dec. 21, 2011 ) (dismissing a

S

* 8 (D.

1981 claim against the police commissioner because there

were no allegations that the commissioner "intentionally and personally participated in Plaintiff s
deprivation of rights").

The allegation that the Individual Defendants knew or should have

23

known of ongoing discrimination falls short of that standard.

See Carson v. Giant Food, Inc.,

187 F. Supp. 2d 462, 483 (D. Md. 2002) (granting summary judgment to defendants where
plaintiffs alleged only "that the individual defendants were aware of racial problems and graffiti
in the workplace after they occurred and did not respond properly," and there was no evidence
that the individual
discrimination").

defendants

"directed,

participated

in or even approved

The Individual Defendants' Motion is granted as to the

S

of intentional

1981 discrimination

claim.
V.

Leave to Amend
Defendants contend that the dismissal of any claims should be with prejudice. However,

the Second Amended

Complaint represents

the initial pleading

DCWPCL, DCMWA, D.C. Sick Leave Act, and

S

of the FLSA retaliation,

1981 claims. The Court cannot conclude "to a

certainty" that, given the opportunity to amend, Plaintiffs will be unable to cure any of the
pleading deficiencies identified above.

Ostrzenski v. Seigel, 177 F.3d 245, 252-53 (4th Cir.

1999) (stating that plaintiffs must be given "every opportunity to cure a formal defect in his
pleading" unless it "appears to a certainty that the plaintiff cannot state a claim" (quoting 5A
Charles Allen Wright & Arthur R. Miller, Fed. Prac. & Proc.

S

1357 (2d ed.1990))).

Because discovery has not yet begun in this case and the prejudice to Defendants is
therefore limited, the Court will grant Plaintiffs 14 days to submit a motion for leave to amend
the complaint.

Any proposed amendments must be limited to adding new factual allegations

relating to the FLSA retaliation claims, the DCWPCL and MWPCL claims based on unlawful
deductions, claims under 42 U.S.C.

S

1981 relating to race discrimination, and the claims against

the Individual Defendants under the FLSA for unpaid wages and retaliation, the DCMW A, the
DCWPCL, the MWHL, the MWPCL, or 42 U.S.C.

24

S

1981. The Motion must comply with Local

Rule 103.6 and must include specific factual allegations pertaining to each Plaintiff sufficient to
meet the federal pleading standards for each claim.
parties or causes of action at this time.

Plaintiffs are not permitted to add new

If Plaintiffs file a motion for leave to amend the

complaint, Defendants are directed to respond within 14 days of the date it is filed.
The claims against all Defendants under state common law, and the claims against the
Individual Defendants under the D.C. Sick Leave Act, cannot be cured through amendment and
are dismissed with prejudice.
Because leave to amend has been granted, the Court will deny the request to strike class
claims as premature.
CONCLUSION
For the foregoing reasons, Plaintiffs'

Motion for the Court to Consider Plaintiffs'

Untimely Responses to the Motions to Dismiss is GRANTED.
The Individual Defendants'

Motion to Dismiss is GRANTED, and BFJ's Motion to

Dismiss is GRANTED IN PART and DENIED IN PART. Both Motions are granted as to Count
VIII (breach of contract under District of Columbia law), Count IX (unjust enrichment under
District of Columbia law), Count X (breach of contract under Maryland law), and Count XI
(unjust enrichment

under Maryland

law), which are dismissed

with prejudice

as to all

Defendants.
The Individual Defendants'

Motion is granted as to Count VII (D.C. Sick Leave Act)

which is dismissed with prejudice as to the Individual Defendants only.

The Individual

Defendants' Motion is also granted as to Count I (FLSA overtime), Count II (FLSA retaliation),
Count III (DCMWA), Count IV (MWHL), Count V (DCWPCL), Count VI (MWPCL), and
Count XII

(s

1981), which are dismissed without prejudice as to the Individual Defendants.

25

BFJ's Motion is granted as to the claims by Alvarez-Soto and Reid in Count II (FLSA
retaliation), the unlawful deduction claims in Count V (DCWPCL) and Count VI (MWPCL), and
claims for discrimination under ~ 1981 other than Alvarez-Soto's failure to promote or hire claim
and Thomas's discriminatory discipline claim. These claims are dismissed without prejudice as
to BFJ. BFJ's Motion is denied as to all other claims.
Plaintiffs may file a Motion for Leave to Amend the Complaint within 14 days.
separate Order shall issue.

Date: June 23,2017
THEODORE D. CHU
United States District J

26

A