Alvarez-Soto et al v. B. Frank Joy, Llc

MOTION to Dismiss for Failure to State a Claim, in Part, Plaintiff's Second Amended Putative Class and Collective Action Complaint

D. Md.January 31, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : Manuel Alvarez-Soto, et. al., : on behalf of themselves and all others : similarly situated : : Plaintiffs, : : v. : Case No. 8:15-CV-1120 (TDC) : B. FRANK JOY, LLC. et. al, : : Defendants. : : DEFENDANT B. FRANK JOY, LLC’S MOTION TO PARTIALLY DISMISS PLAINTIFFS’ SECOND AMENDED PUTATIVE CLASS AND COLLECTIVE ACTION COMPLAINT Pursuant to Fed. R. Civ. P. 8(a)(2) and 12(b)(6), Defendant B. Frank Joy, LLC (“BFJ”), through its undersigned counsel, respectfully submits Motion to Partially Dismiss Plaintiffs’ Second Amended Putative Class and Collective Action Complaint. For the reasons set forth in BFJ’s accompanying Memorandum of Law in Support of its Motion, which is incorporated herein by reference, the Court should dismiss the following claims: (1) retaliation under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 215(a)(3) (Count II); (2) unlawful deductions under the District of Columbia Wage Payment and Collection Law (“DCWPCL”), D.C. Code § 32-1301, et. seq, (Count V)1; (3) unlawful deductions under the Maryland Wage Payment and Collection Law (“MWPCL”), and Md. Code Ann., Lab. & Empl. § 3-503 (Count VI); (4) violation of the District of Columbia’s Accrued Sick and Safe Leave Act of 2008 (“Sick and Safe Leave Act”), as amended, D.C. Code § 32- 1 In Counts V and VI, BFJ is moving to dismiss Plaintiffs’ unlawful “deduction” claim (and not Plaintiff’s “unpaid wages” claim) under the DCWCL and the Maryland Wage Payment and Collection Law. Case 8:15-cv-01120-TDC Document 79 Filed 01/31/17 Page 1 of 3 2. 131.02(a), et. seq. (Count VII); (5) breach of oral contract under District of Columbia law (Count VIII); (6) unjust enrichment/quantum meruit under District of Columbia law (Count VIII); (7) breach of oral contract under Maryland law (Count X); (8) unjust enrichment/quantum meruit under Maryland law (Count XI); and (9) race and ethnicity discrimination under 42 U.S.C. § 1981 (Count XII). WHEREFORE, Defendant B. Frank Joy, LLC respectfully requests that the Court grant its Motion to Partially Dismiss Plaintiffs’ Second Amended Putative Class and Collective Action Complaint, as set forth in the proposed Order. January 31, 2017 Respectfully submitted, B. FRANK JOY, LLC /s/ Maurice Baskin Maurice Baskin (Bar No. 04342) William F. Allen (Bar No. 16816) Steven E. Kaplan (Bar No. 16531) LITTLER MENDELSON, P.C. 815 Connecticut Avenue, NW, Suite 400, Washington, D.C. 20006 202.842.3400 Telephone 202.842.0011 Facsimile mbaskin@littler.com ballen@littler.com skaplan@littler.com Attorneys for Defendant B. Frank Joy, LLC Case 8:15-cv-01120-TDC Document 79 Filed 01/31/17 Page 2 of 3 CERTIFICATE OF SERVICE I, Steven Kaplan, an attorney for B. Frank Joy, LLC, hereby certify that I served Defendant B. Frank Joy, LLC’s Motion to Partially Dismiss Plaintiffs’ Second Amended Putative Class and Collective Action Complaint, Memorandum in Support, and Proposed Order through the ECF system upon: Christine A. Dixon C. Dixon Global Law, PLLC 1050 Connecticut Ave, NW 5th Floor Washington, 20036 Larry Strauss Willie Gary Law Offices of Gary, Williams, Parenti, Watson & Gary, PLLC 221 S.E. Osceola Street Stuart, FL 34994 /s/ Steven Kaplan Steven Kaplan Case 8:15-cv-01120-TDC Document 79 Filed 01/31/17 Page 3 of 3 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : Manuel Alvarez-Soto, et. al., : On behalf of themselves and all others : similarly situated : : Plaintiffs, : : v. : Case No. 8:15-CV-1120 (TDC) : B. FRANK JOY, LLC. et. al, : : Defendants. : : DEFENDANT B. FRANK JOY, LLC’S MEMORANDUM IN SUPPORT OF ITS MOTION TO PARTIALLY DISMISS PLAINTIFFS’ SECOND AMENDED PUTATIVE CLASS AND COLLECTIVE ACTION COMPLAINT Defendant B. Frank Joy, LLC (“BFJ”), through its undersigned counsel, respectfully submits its Memorandum in Support of its Motion to Partially Dismiss Plaintiffs’ Second Amended Putative Class and Collective Action Complaint (hereinafter “Am. Compl.”).1 I. INTRODUCTION As explained more fully below, the Court should dismiss the majority of Plaintiffs’ newly added claims because they failed to sufficiently plead their claims under the pleading standards set forth under Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009), among other reasons. More specifically, the Court should dismiss the following claims: (1) retaliation under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 215(a)(3) (Count II); 1 This Motion is limited to claims against Defendant BFJ. The newly added individual Defendants will be entitled to respond separately to Plaintiffs’ complaint at a later time, upon completion of service as to them. BFJ reserves the right to join or otherwise support any such response. Case 8:15-cv-01120-TDC Document 79-1 Filed 01/31/17 Page 1 of 22 2 (2) unlawful deductions under the District of Columbia Wage Payment and Collection Law (“DCWPCL”), D.C. Code § 32-1301, et. seq, (Count V); (3) unlawful deductions under the Maryland Wage Payment and Collection Law (“MWPCL”), and Md. Code Ann., Lab. & Empl. § 3-503 (Count VI); (4) violation of the District of Columbia’s Accrued Sick and Safe Leave Act of 2008 (“Sick and Safe Leave Act”), as amended, D.C. Code § 32- 131.02(a), et. seq. (Count VII); (5) breach of oral contract under District of Columbia law (Count VIII); (6) unjust enrichment/quantum meruit under District of Columbia law (Count VIII); (7) breach of oral contract under Maryland law (Count X); (8) unjust enrichment/quantum meruit under Maryland law (Count XI); and (9) race and ethnicity discrimination under 42 U.S.C. § 1981 (Count XII). Though Plaintiffs’ Amended Complaint constitutes the third attempt to state an actionable claim in this matter, this latest version of Plaintiffs’ putative claims is pled with no more than conclusory statements, bald accusations, and mere speculation. Under settled law, the new claims should all be dismissed with prejudice. Moreover, for each claim that the Court dismisses in its entirety, it should dismiss or strike the related class claim because Plaintiffs do not have standing to advance such a claim.2 II. FACTS PLEADED IN THE AMENDED COMPLAINT BFJ operates in the construction industry, specializing in the installation, maintenance, and rehabilitation of underground infrastructure construction. (Am. Compl.¶ 11). Plaintiffs 2 BFJ does not in this Motion ask the Court to dismiss Plaintiffs’ putative collective action FLSA claim (Count I) or the “unpaid wages” claims under the DCWCL and the Maryland Wage Payment and Collection Law. (Counts III and IV). BFJ is prepared to answer those Counts following clarification of the scope of the Amended Complaint in response to this Motion. See Saman v. LBDP, Inc., 2012 U.S. Dist. LEXIS 159658, at *10-11 (D. MD. 2012); see also Maas v. Lee, 189 F. Supp. 3d 581 (E.D. VA 2015). Case 8:15-cv-01120-TDC Document 79-1 Filed 01/31/17 Page 2 of 22 3 allege that they were not paid for all time worked, were not paid for all overtime worked, were discriminated against generally based on race or national origin, and otherwise denied certain employment rights discussed more fully below. (Id. passim). The putative class allegedly includes construction workers, laborers, equipment operators, forepersons, flaggers, and/or truck drivers. (Id. ¶ 8.) The more specific allegations by the individual plaintiffs, pertinent to this Motion, are as follows: A. Plaintiff Manuel Soto-Alvarez Plaintiff Manuel Soto-Alvarez (Latin-American) allegedly began his employment with BFJ as a laborer in October 2005, with an hourly wage of $12.40 per hour. (Am. Compl. ¶ 5, Soto-Alvarez Decl. ¶ 2).3 Sometime in 2005, more than 11 years before the Amended Complaint was filed a white foreman identified as “Jeff Z” made racially derogatory remarks to Soto-Alvarez. (Soto-Alvarez Decl. ¶ 6). Plaintiff allegedly reported this incident to unspecified management, but BFJ allegedly did not correct the issue. (Id.). At some other unidentified point in time, Plaintiff allegedly applied for a driving position, but was allegedly told by an unnamed person to “get the f**k out of here, you don’t speak English.” (Id. ¶ 7). Plaintiff also alleges that “the company” refers to minorities generally in a derogatory fashion. (Id. ¶¶ 9-10). Plaintiff alleges that “working in the Gas or Sewer Department pays more than jobs in the other departments in the company,” and that probably 99% of the workers in the Gas or Sewer Department are white.” (Id. ¶ 11). Soto-Alvarez does not claim that he ever applied for work in that Department or that he was qualified to do so. On another unidentified occasion, an unnamed foreman allegedly called Soto-Alvarez a 3 Plaintiffs have purported to incorporate declarations from each of the three Plaintiffs into the Amended Complaint. As further discussed below, however, the specific statements referenced here are not meaningfully connected to the allegations of the Complaint and are not integral to the Complaint. Case 8:15-cv-01120-TDC Document 79-1 Filed 01/31/17 Page 3 of 22 4 “stupid mother f***er” for getting injured at work. (Id. ¶ 13). According to Plaintiff, BFJ terminated his employment on June 25, 2015, because he became “permanently injured” and was unable to lift more than 15 pounds. (Id. ¶¶ 4, 8, 18). The Amended Complaint contains no allegations that Soto-Alvarez engaged in protected activity or that he suffered an adverse action because he engaged in such activity. Nor is there any specific allegation that BFJ made any unlawful deductions from Soto-Alvarez’s paycheck. Soto-Alvarez also does not allege that he was eligible for, asked for, or was denied paid sick leave by BFJ. Soto-Alvarez also does not identify any Caucasians who were paid more than him for similar work, or were paid overtime when he was not, or received a promotion for which he had applied. B. Plaintiff Darryl Reid BFJ allegedly employed Plaintiff Darryl Reid (African-American) as a driver from 2005 through his August 5, 2016 retirement. (Am. Compl. ¶ 6)). According to his declaration, foreman Jeff Zucarri and Plaintiff allegedly “got into a big hollering match” and, the next day, BFJ transferred him to another job site. (Reid Decl. ¶ 5). On other occasions, Plaintiff alleges that Mr. Zucarri “belittle[d] or call[ed] his crew out of their names.” (Id. ¶ 6). Another manager, Jimmy Fleming, allegedly referred to Spanish speaking employees as “spics.” (Id. ¶ 8). The Amended Complaint contains no allegations that Reid engaged in protected activity or that he suffered an adverse action because he engaged in such activity. Nor is there any specific allegation that BFJ made any unlawful deductions from Reid’s paycheck. Reid also does not allege that he was eligible for, asked for, or was denied paid sick leave by BFJ. Reid also does not identify any Caucasians who were paid more than him for similar work, or were Case 8:15-cv-01120-TDC Document 79-1 Filed 01/31/17 Page 4 of 22 5 paid overtime when he was not, or received a promotion for which he had applied. C. Plaintiff Charles Thomas Plaintiff Charles Thomas (African-American), a current employee, allegedly worked in a “variety of jobs” since 2008, including as a driver. (Am. Compl. ¶ 7). In the Amended Complaint, Plaintiff alleges that “after complaining to Joy that he was not being paid overtime, he was demoted.” (Id.). Further related to his demotion, however, Plaintiff alleges that Dave Call, an employee of Joy customer PEPCO, made “adverse statements” against Thomas to a Joy manager regarding Thomas’s performance, and that the demotion from “flagger supervisor” followed a few days after that. (Thomas Decl. ¶ 2). Plaintiff Thomas also alleges that sick and bereavement leave is “denied to positions which are primarily occupied by African-Americans and other minorities” while “whites are given any type of leave at will.”4 (Id. ¶5). However, Thomas does not allege that he was eligible for, asked for, or was denied paid sick leave by BFJ. The Amended Complaint contains no specific allegation that BFJ made any unlawful deductions from Thomas’s paycheck. Thomas alleges that he witnessed unidentified discriminatory acts but does allege that he was personally discriminated against in any way. He does not identify any Caucasians who were paid more than him for similar work, or were paid overtime when he was not, or received a promotion for which he had applied. 4 Related to their Sick and Safe Leave and § 1981 claims, Plaintiffs allege that BFJ’s Handbook provides, “you may be eligible for paid sick leave of up to 24 hours per year for non- occupational illness or injury.” (Am. Compl. ¶ 133). Case 8:15-cv-01120-TDC Document 79-1 Filed 01/31/17 Page 5 of 22 6 III. ARGUMENT A. The Standard for Dismissal under Fed. R. Civ. P. 8(a)(2) and 12(b)(6) Rule 8(a)(2) requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). That showing must consist of more than “a formulaic recitation of the elements of a cause of action” or “naked assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S. at 678. A pleading must give the court and defendant “fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, (2002). Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) is proper when a complaint fails to state a claim upon which relief can be granted. Fed. R. Civ. P. § 12(b)(6). When ruling on a motion to dismiss pursuant to Rule 12(b)(6), a court must accept the facts alleged in the complaint as true. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). Overall, the function of Rule 12(b)(6) is to test the legal sufficiency of the complaint. Id. at 1134-1136. A court should grant a motion to dismiss when a plaintiff fails to plead “enough facts to state a claim to relief that is plausible on its face.” Twombly, 127 S.Ct. at 1974; Iqbal, 129 S.Ct. at 1959 (“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief.”) (internal quotations omitted). In order to satisfy the pleading standards under Rule 12(b)(6), courts have held that “the complaint must set forth sufficient facts to give rise to an inference of discrimination; conclusory allegations of discrimination are insufficient.” McCleary-Evans v. Md. Dep’t of Transp., Civil Action No. 13-cv-990, 2013 U.S. Dist. LEXIS 158244, at *9 (D. Md. Nov. 5, 2013). Case 8:15-cv-01120-TDC Document 79-1 Filed 01/31/17 Page 6 of 22 7 B. Plaintiffs Have Not Adequately Pled a Retaliation Claim under the FLSA (Count II) The Court should dismiss Plaintiffs’ retaliation claims because they have not sufficiently alleged that BFJ retaliated against them under the pleading standards set forth under Iqbal and Twombly. The retaliation provision of the FLSA renders it unlawful “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.” 29 U.S.C. § 215(a)(3). A plaintiff asserting a prima facie claim of retaliation under the FLSA must show that: “(1) he engaged in an activity protected by the FLSA; (2) he suffered adverse action by the employer subsequent to or contemporaneous with such protected activity; and (3) a causal connection exists between the employee's activity and the employer's adverse action.” Jackson v. Mayor & City Council of Baltimore City, No. 08-cv-3103, 2009 U.S. Dist. LEXIS 59787 (D. Md. July 14, 2009) (dismissing retaliation claim, quoting Darveau v. Detecon, Inc., 515 F.3d 334, 340 (4th Cir. 2008)).5 As noted above, the Amended Complaint contains no allegations that Plaintiffs Soto- Alvarez and Reid engaged in protected activity or that they suffered an adverse action because they engaged in such activity. See Wilson v. Susquehanna Bancshares, Inc., 14-cv-79, 2014 U.S. Dist. LEXIS 68469, at *11 (D. Md. May 19, 2014) (court dismissed plaintiff’s retaliation claim pursuant to Rule 12(b)(6) “because he does not allege he engaged in a protected activity”); Autrey v. Maryland, No. 14-cv-3064, 2016 U.S. Dist. LEXIS 10577, at *15 (D. Md. Jan. 29, 2016) (pursuant to 12(b)(6) the Court dismissed plaintiff Morris’s retaliation claim because he 5“[C]laims arising under the anti-retaliation provision of the FLSA, 29 U.S.C. § 215(a)(3), are governed by the same analytical framework as those claims for Title VII retaliation.” Lee v. Safeway, Inc., 13-cv-3476, 2016 U.S. Dist. LEXIS 85186, *12 (D. Md. June 30, 2016). Case 8:15-cv-01120-TDC Document 79-1 Filed 01/31/17 Page 7 of 22 8 failed to plead an “actionable adverse employment action”); See also Dobias-Davis v. Amazon.com.kydc, LLC, No. 15-cv-00393, 2016 U.S. Dist. LEXIS 3396, at *8-9 (E.D. Va. Jan. 11, 2016) (dismissing retaliation claim pursuant to 12(b)(6) upon finding that “[plaintiff’s] claims fail the first prong of the retaliation analysis because she did not engage in a protected activity”). Moreover, given that they have not alleged the first two elements, Plaintiffs have also not alleged a causal connection between the two elements. See Feliciano v. Reger Grp., No. 14-cv- 985, 2014 U.S. Dist. LEXIS 183364, at *5 (E.D. Va. Sept. 10, 2014) (“Here, Plaintiff pleads no facts showing that she would not have been retaliated against but for discussing her eligibility for short term disability. * * * Because the Plaintiff fails to adequately plead a causal link between her discussion with her supervisor and her termination, Plaintiff's ADA retaliation claim is facially implausible and must be dismissed.”); Jones v. Hosp. Corp. of Am., 16 F. Supp. 3d 622, 635 (E.D. Va. 2014) (“Jones does not allege sufficiently specific facts that would permit this Court to make a ‘reasonable inference’ of causation.”) Plaintiff Thomas baldly alleges that, “[a]fter complaining to BFJ that he was not being paid overtime, he was demoted.” (Am. Compl. ¶ 7). Notably, Plaintiff Thomas has not alleged when he complained, to whom he complained, what position he held before the demotion, what position BFJ demoted him to, or how long after he purportedly engaged in protected activity BFJ demoted him. Moreover, Plaintiff Thomas has not alleged the third element - causation - because he has not alleged that the decision-maker was aware of his protected activity or that the alleged retaliatory act occurred in close proximity of his protected activity. See, supra, Feliciano, 2014 U.S. Dist. LEXIS at *5. Case 8:15-cv-01120-TDC Document 79-1 Filed 01/31/17 Page 8 of 22 9 Furthermore, Plaintiff Thomas’s bald allegation that BFJ demoted him after he allegedly engaged in protected activity contradicts paragraph 2 of his Declaration, in which he avers that BFJ demoted him from a flagger supervisor to an unspecified position after he got into some altercation with a PEPCO employee. (Thomas Decl. ¶ 2). Accordingly, Plaintiff’s own declaration further demonstrates that he has not alleged retaliation under the FLSA. See Howard v. Aerotex Staffing Agency, No. 14-cv-951, 2015 U.S. Dist. LEXIS 24603, at *19 (D. Md. Mar. 2, 2015) (“Even considering these facts in a light most favorable to Plaintiff - and assuming that Ms. House misunderstood Plaintiff - the circumstances would not entitle Plaintiff to relief under Title VII or the FLSA because Plaintiff's own allegations show that something other than conduct protected under those acts caused Plaintiff's termination.”). C. Plaintiffs Have Not Adequately Pled a Claim for Unlawful “Deductions” under the DCWPCL (Count V) or the MWPCL (Count VI) In Counts V and VI, Plaintiffs claim that BFJ “made unlawful deductions” in violation of the DCWPCL and MWPCL. (Am. Compl. ¶¶ 112, 121). The Court should dismiss these two counts because, simply, none of the Plaintiffs has alleged that BFJ made an unlawful deduction, much less specified what that deduction was. Ashcroft, 129 S.Ct. at 1959 (“[W]here the well- pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not shown - that the pleader is entitled to relief.”). Nor have Plaintiffs’ provided Defendant with fair notice of the basis for these claims. D. Plaintiffs Have Not Adequately Pled a Violation of D.C.’s Accrued Sick and Safe Leave Act (Count VII) In Count VII, Plaintiffs baldy claim that they were denied use of sick leave in violation of D.C. Accrued Sick and Safe Leave Act. (Am. Compl. ¶ 130). Here, the Court should dismiss Plaintiffs’ Sick and Safe Leave Act claim because they have not alleged that: (1) they were ever Case 8:15-cv-01120-TDC Document 79-1 Filed 01/31/17 Page 9 of 22 10 “eligible” for the leave; (2) they provided the requisite notice under the Act; (3) they ever asked for sick leave; and (4) BFJ denied them sick leave under any circumstances. Moreover, the Act expressly states that, to sue, an employee must be “injured by a violation of this chapter.” § 32- 131.12(a)(1). As explained below, the Court should dismiss this claim because Plaintiffs have not alleged an “injury” under the Act. The Sick and Safe Leave Act provides that “[a]n 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.” D.C. Code § 32-131.02. As explained below, the Act sets forth several requirements an employee must meet in order to be eligible for sick leave, none of which Plaintiffs have alleged. Indeed, the Act states that employees are required to submit a written request to the employer if they need sick leave and meet other criteria not pleaded here.6 Id. § 32-131.03. Further, the Act states that an employee must satisfy one of the below conditions to qualify for sick leave: (1) An absence resulting from a physical or mental illness, injury, or medical condition of the employee; (2) An absence resulting from obtaining professional medical diagnosis or care, or preventive medical care, for the employee, subject to the requirement of subsection (d) of this section; 6 More specifically, the Act states: Paid leave shall be provided upon the written request of an employee upon notice as provided in this section. The request shall include a reason for the absence involved and the expected duration of the paid leave. If the paid leave is foreseeable, the request shall be provided at least 10 days, or as early as possible, in advance of the paid leave. If the paid leave is unforeseeable, an oral request for paid leave shall be provided prior to the start of the work shift for which the paid leave is requested. In the case of an emergency, the employer shall be notified prior to the start of the next work shift or within 24 hours of the onset of the emergency, whichever occurs sooner.” Case 8:15-cv-01120-TDC Document 79-1 Filed 01/31/17 Page 10 of 22 11 (3) An absence for the purpose of caring for a child, a parent, a spouse, domestic partner, or any other family member who has any of the conditions or needs for diagnosis or care described in paragraph (1) or (2) of this subsection; or (4) An absence if the employee or the employee’s family member is a victim of stalking, domestic violence, or sexual abuse; provided, that the absence is directly related to social or legal services pertaining to the stalking, domestic violence, or sexual abuse. Id. 32-131.02(b). Here, Plaintiffs Soto-Alvarez and Reid do not allege that they were eligible for paid sick leave, that they complied with the notification requirements under the Act, that they asked for sick leave, or that BFJ denied them sick leave. Plaintiff Thomas, in his declaration, states in conclusory fashion, that, “[s]ick and bereavement leave is denied to positions which are primarily occupied by African-Americans and other minorities. On the other hand, whites are given any type of leave at will.” (Thomas Decl. ¶ 5). The Court should dismiss Plaintiff Thomas’s claim under the Act because, like the other two Plaintiffs, Plaintiff concedes that BFJ offered sick leave under its policies7 and he has not declared or alleged that he was eligible for paid sick leave, that he complied with the notice requirements under the Act, that he ever asked for sick leave, or was ever denied sick leave. F. Plaintiffs Have Not Adequately Pled That BFJ Entered Into an Oral Employment Contract under D.C. or Maryland Law and This Claim is Preempted by the FLSA (Counts VIII and X) In Counts VIII and X, Plaintiffs allege that they “entered into binding oral contracts . . . [for] payment of wages for every hour of work performed.” (Am. Compl. ¶¶ 135). That one allegation is the sum total of Plaintiffs’ factual allegations that any of them entered into an oral employment contract with BFJ. The Court should dismiss these two counts because Plaintiffs 7 See Am. Compl. ¶ 133. Case 8:15-cv-01120-TDC Document 79-1 Filed 01/31/17 Page 11 of 22 12 have not sufficiently alleged that they entered into a contract with BFJ under the pleading standards set forth in Twombly and Iqbal. Moreover, to the extent Plaintiffs’ overtime pay claim is simply re-pled as a breach of contract claim, it is preempted by the FLSA. To state a claim for breach of contract under Maryland law, a complaint must ‘'allege with certainty and definiteness facts showing a contractual obligation owed by the defendant to the plaintiff and a breach of that obligation by defendant.” See Willis v. Bank of Am. Corp., No. 13-cv-02651, 2014 U.S. Dist. LEXIS 105339, at *103 (D. Md. Aug. 1, 2014) quoting Polek v. J.P. Morgan Chase Bank, N.A., 424 Md. 333, 362 (2012) (breach of contract claim dismissed because plaintiff “failed adequately to . . . identify any terms in the Note, Deed of Trust, or any other contract that defendants purportedly breached”); Xereas v. Heiss, 933 F. Supp. 2d 1, 9 (D.D.C. 2013) (holding that plaintiff’s “claim of breach of an express contractual duty fails because [he] has identified no provision of either purported contract that created any contractual duty that [defendants] are alleged to have violated”).8 Here, Plaintiffs have not alleged the substance of the oral “offer,” who made the offer, or when each Plaintiff entered into their respective contracts, and have not otherwise placed BFJ of on “fair notice” of this claim. Swierkiewicz, 534 U.S. at 512. Indeed, neither Plaintiffs Reid nor Thomas alleged the initial agreed-upon wage and none of the Plaintiffs alleged what initial duties BFJ expected from them (other than naming their job title), how many hours they were expected to work, what time they were expected to arrive, whether the parties agreed that their duties or wages would change over time, how overtime would be paid, and how they defined “compensable” work. See Am. Compl. ¶ 22 (Plaintiffs readily admit that “[t]hey only recently 8 To state a claim for breach of contract under D.C. law, the plaintiff must plead facts to state four elements: “(1) a valid contract between the parties; (2) an obligation or duty arising out of the contract; (3) a breach of that duty; and (4) damages caused by breach.” Xereas, 933 F. Supp. 2d at 7-8 quoting Tsintolas Realty Co. v. Mendez, 984 A.2d 181, 187 (D.C. 2009). Case 8:15-cv-01120-TDC Document 79-1 Filed 01/31/17 Page 12 of 22 13 became aware of their rights to such compensation and/or overtime pay.”) Moreover, the Fourth Circuit in Anderson v. Sara Lee Corp., held that the FLSA preempts claims for overtime pay based on negligence, breach of contract, and/or fraud theories pursuant to obstacle preemption. 508 F.3d 181, 191-195 (4th Cir. 2007). In its analysis, the Fourth Circuit stated that, “the FLSA provides an unusually elaborate enforcement scheme,” such as “[a] provision of criminal penalties for willful violations; the empowerment of the Secretary of Labor to supervise payment of unpaid wages due and to bring actions for unpaid wages, liquidated damages, and injunctive relief; and the authorization for workers to file private actions, in state or federal court, to recover unpaid wages, liquidated damages, and costs and attorney’s fees.” Id. After a thorough analysis of various forms of preemption and the FLSA, the Fourth Circuit held that plaintiffs’ “contract, negligence, and fraud claims are precluded under a theory of obstacle preemption.” Id. (emphasis added); See also Bouthner v. Cleveland Constr. Inc., No. 11-cv-244, 2011 U.S. Dist. LEXIS 79316(D. Md. July 21, 2011) (citing Sara Lee, the Court held that “the FLSA preempts plaintiffs’ quantum meruit claims” for overtime pay). Accordingly, the Court should dismiss Plaintiffs’ oral employment claims because: (1) they have not sufficiently alleged it under Twombly and Iqbal; and (2) the FLSA preempts such claims to the extent that Plaintiffs’ breach of contract claims are duplicative of their FLSA claims. G. Plaintiffs’ Claims for Unjust Enrichment or quantum meruit under D.C. or Maryland Law Fail as a Matter of Law (Counts IX and XI) In Counts IX and XI, Plaintiffs allege that BFJ failed to pay them additional “prevailing market wages” under some private or government contract and, in their view, the proper avenues for relief are claims for unjust enrichment and quantum meruit. (Am. Compl. ¶¶ 145, 163). Plaintiffs do not specify whether the prevailing wage requirement to which they refer is a Case 8:15-cv-01120-TDC Document 79-1 Filed 01/31/17 Page 13 of 22 14 product of federal or state law. However, as further shown below, to the extent that the source of their claims stems from a federal government contract, Plaintiffs’ common law claims are preempted by the Davis-Bacon Act, 40 U.S.C. §§ 3141 et seq. Similarly, to the extent that the source of their common law claims stems from a state public works contract, the Court should dismiss Plaintiffs’ claims because they failed to exhaust their administrative procedures under Maryland statutory law 1. The Davis Bacon Act bars Plaintiffs’ claims that stem from a federal contract Claims for “prevailing wages” are generally governed by the Davis-Bacon Act, 40 U.S.C. ¶ 3142(b), and the Davis-Bacon Act does not provide for a private right of action. See 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.”); Johnson v. Sys. Connection of Md, Inc. No. 16-cv-630, 2016 U.S. Dist. LEXIS 101557 (D. Md. Aug. 2, 2016) (dismissing claim that defendant failed to pay “proper scale wage that was owed to them while working on government jobsites” in violation of the FLSA, MWHL, and MWPCL). Accordingly, the Davis-Bacon Act preempts Plaintiffs’ common law claims for unjust enrichment and quantum meruit.9 9 Although it does not appear from the Complaint that Plaintiffs allege that they are owed overtime pay under their unjust enrichment and quantum meruit claims, however, if pled, those claims would of course be preempted under the FLSA. Anderson, 508 F.3d at 194 (discussed above). Case 8:15-cv-01120-TDC Document 79-1 Filed 01/31/17 Page 14 of 22 15 2. Plaintiffs failed to exhaust their administrative remedies with respect to claims for prevailing wages that stem from a state public works contract For similar reasons, Maryland’s prevailing wage statute, which applies to public-works contracts awarded by the state and its instrumentalities/subdivisions, requires a plaintiff to exhaust his administrative remedies before filing a civil action. Indeed, the law only allows an employee to file a civil action if: (1) the employee files a complaint; (2) the Commissioner of Labor and Industry determines that, after a hearing, an employer failed to pay the employee prevailing wages; and (3) the employer fails to comply with the order to pay restitution. Md. Code Ann., State Fin. & Proc. §§ 17-201 et seq. Since there are plainly no allegations that Plaintiffs have satisfied these preconditions, the Court should dismiss this claim for failure to exhaust their administrative remedies. See Norville v. Anne Arundel County Bd. of Educ., 160 Md. App. 12, 77 (2004) (no common law claim where there was a statute “with an administrative remedy”).10 H. Plaintiffs Have Not Adequately Pled a Claim for Discrimination under Section 1981 (Count XII) In Count XII, Plaintiffs allege that BFJ discriminated against them on the basis of their race and ethnicity with respect to: (a) higher pay; (b) overtime; (c) promotions; (d) sick pay; and (e) other benefits. (Am. Compl. ¶ 173). While Plaintiffs make it clear that they believe that certain employment actions were unfair, or even discriminatory in their opinion, “it is not enough for [a plaintiff] to allege that []he is a member of a protected class who [suffered an adverse employment action]. Rather, the complaint must allege facts that give rise to a plausible inference that [plaintiff’s adverse employment action] was the result of intentional discrimination 10 While Norvelle addressed another Maryland statute, the holding and rationale are equally persuasive and appropriate here. Case 8:15-cv-01120-TDC Document 79-1 Filed 01/31/17 Page 15 of 22 16 based on race.” Colahar v. Christmas, No. 11-cv-3389, 2012 U.S. Dist. LEXIS 176207, *9 (D. Md. Dec. 12, 2012) (dismissing race claim pursuant to Rule 12(b)(6)). Section 1981 provides, in pertinent part, that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens[.]” 42 U.S.C. § 1981(a). To state a claim under § 1981, a plaintiff must establish “purposeful, racially discriminatory actions that affect at least one of the contractual aspects listed in § 1981(b).” Osei v. Univ. of Md. Univ. College, No. 15- cv-2502, 2016 U.S. Dist. LEXIS 107376, at *16 (D. Md. Aug. 15, 2016) (dismissing claim, quoting Spriggs v. Diamond Auto Glass, 165 F.3d 1015, 1018 (4th Cir. 1999)) (“Title VI and § 1981 require that Plaintiff plausibly allege intentional discrimination. Here, he has not done so”.) To survive a motion to dismiss, a plaintiff must “plausibly allege intentional discrimination.” Osei, 2016 U.S. Dist. LEXIS at *16. Nor can Plaintiffs fill in the gaps in their pleadings by relying on the declarations attached thereto, which allege isolated derogatory remarks by some Joy Company supervisors. (ECF No. 76-1). None of the statements allegedly made by the company’s agents have any connection whatsoever with the alleged discriminatory acts. More specifically, “[d]irect evidence must be evidence of conduct or statements that … bear directly on the contested employment decision. Even if there is a statement that reflects a discriminatory attitude, it must have a nexus with the adverse employment action.” Dyer v. Oracle Corp., No. 16-cv-167195, 2016 U.S. Dist. LEXIS 167195, at *9-14 (D. Md. Dec. 5, 2016) (emphasis added). In Dyer, for example, plaintiff argued that his supervisor made “several . . . derogatory remarks about race to Dyer . . . .” Id. at *11. The Court considered and rejected plaintiff’s argument that he sufficiently alleged direct evidence of discrimination, holding “[The supervisor’s] statements were made one Case 8:15-cv-01120-TDC Document 79-1 Filed 01/31/17 Page 16 of 22 17 year and nine months before the earliest alleged adverse employment action forming the basis for Dyer’s discrimination claims. And, none of them references or relates to the later employment actions Oracle took. Therefore, regardless whether they reflect a discriminatory attitude, Dyer has failed to allege any connection between these temporally distant remarks in different contexts and any adverse employment action.” Id. at *13. The same is true here. The supervisory statements on which Plaintiffs rely are almost entirely unconnected to Plaintiffs’ claims of discrimination, and are either remote in time or are completely untethered to any date, time or place. As further shown below, Plaintiffs have failed to identify any specific discriminatory acts by Defendants and do not state claims for relief under Section 1981. 1. Higher Pay To establish a prima facie case of wage discrimination, a plaintiff must show allege: (1) he is a member of a protected class; (2) he was paid less than an employee outside the class; and (3) the higher paid employee was performing a substantially similar job. Kess v. Mun. Employees Credit Union of Baltimore, Inc., 319 F. Supp. 2d 637, 644 (D. Md. 2004).11 With respect to Plaintiffs Reid or Thomas, the Court should dismiss this claim because they failed to allege the second or third elements; that is, they have not specifically alleged or declared that Caucasians performing substantially similar jobs were paid more than them. See Kling v. Montgomery County, Md., 15-cv-2866, 2016 U.S. Dist. LEXIS 95039 (D. Md. July 20, 2016) (court dismissed wage discrimination claim under Title VII because “[plaintiff] has failed to allege any connection between her sex and her unequal pay allegations.”); see also Isaacowitz v. Dialysis Clinic Inc., No. 9-cv-638, 2010 U.S. Dist. LEXIS 144863, at *35 (D. N.M. Feb. 22, 11 “Substantively, the evidentiary standards for analyzing claims of race-based discrimination . . . are identical to those employed under Title VII.” Sewell v. Strayer Univ., 956 F. Supp. 2d 658, 673 (D. Md. 2013). Case 8:15-cv-01120-TDC Document 79-1 Filed 01/31/17 Page 17 of 22 18 2010) (court dismissed discrimination claim because plaintiff failed to allege that the positions were “substantially similar.”). Nor have they alleged an inference of discrimination. See Wilson, 2014 U.S. Dist. LEXIS at *12 (dismissing failure to promote claim pursuant to Rule 12(b)(6) because plaintiff’s claim “lacks an inference of racial discrimination.”) With respect to Plaintiff Soto-Alvarez, the Court should dismiss his Section 1981 claim for similar reasons. Here, his claim seems to stem from his mere observation that “working in the Gas or Sewer Department pays more than jobs in other departments in the company. Probably 99% of the workers in the Gas or Sewer Department are white.” (Soto-Alvarez Decl. ¶ 11). Plaintiff has failed to state a claim because he has not alleged that his work as a laborer was “substantially similar” to the work performed in the Gas or Sewer Department. See, supra, Isaacowitz, 2010 U.S. Dist. LEXIS at *35. To the extent that Plaintiff Soto-Alvarez is alleging that BFJ should have transferred him to such a position, the Court should dismiss this claim because he himself has not alleged that he ever requested a transfer into the Gas or Sewer Department or that BFJ turned him down. Nor has he alleged that he was qualified to work in such a department or that he even expressed an interest in working in that department. In other words, he has not alleged an adverse employment action or an inference of intentional discrimination. See Quraishi v. Kaiser Found. Health Plan of the Mid-Atlantic States, Inc., No. 13-cv-10, 2013 U.S. Dist. LEXIS 75683, at *9 (D. Md. May 30, 2013) (plaintiff’s Section 1981 claims dismissed because “her complaint fails to allege facts sufficient to create an inference of racially discriminatory motivation.”). 2. Overtime Pay While Plaintiffs’ core complaint is that BFJ failed to pay flaggers, construction workers, laborers, equipment operators, forepersons, and truck driver’s overtime pay, none of the Case 8:15-cv-01120-TDC Document 79-1 Filed 01/31/17 Page 18 of 22 19 Plaintiffs alleges that BFJ treated Caucasian employees more favorably in this regard. Indeed, Plaintiffs have not pled a single fact to suggest that BFJ failed to pay them overtime pay on the basis of their race or ethnicity. To the contrary, the allegations in the Complaint suggest that BFJ failed to pay all flaggers, construction workers, laborers, equipment operators, forepersons, and truck driver’s overtime pay as a matter of practice or policy - regardless of the employee’s race or ethnicity. (Am. Compl. ¶¶ 61-81). 3. Failure to Promote The Court should dismiss Plaintiffs’ failure to promote claims because they have not alleged that they applied for, were qualified for, or were denied a promotion, or that someone outside of their race or ethnicity received a promotion that they sought. In order to establish a prima case of discriminatory denial of a promotion, a plaintiff must allege that: (1) he is a member of a protected group; (2) the defendant had an open position for which the plaintiff applied; (3) he was qualified for the position; and (4) he was rejected for the position under circumstances giving rise to an inference of discrimination. Mackey v. Shalala, 360 F.3d 463 (4th Cir. 2004); Janey v Hess Sons, Inc., 268 F.Supp.2d 616 (D. Md. 2003) (citing Evans v. Techs. Applications and Serv., Co., 80 F.3d 954, 959-60 (4th Cir. 1996)) (all granting motions to dismiss). See also McCleary-Evans v. Maryland Dep’t of Transportation, 780 F.3d 582, 585-596 (4th Cir. 2015), upholding dismissal of claims in which the plaintiff alleged significantly more facts than Plaintiffs here and the Fourth Circuit affirmed the District Court’s dismissal of plaintiff’s failure to promote claim pursuant to Rule 12(b)(6). In the present case, the Court should dismiss Plaintiffs’ failure to promote claims because they have utterly failed to allege any element of a prima facie case, including, most significantly, any facts to suggest that they applied for and were denied a promotion on the basis of their race Case 8:15-cv-01120-TDC Document 79-1 Filed 01/31/17 Page 19 of 22 20 or ethnicity. See also Cepada v. Bd. of Educ. of Baltimore Cnty., 814 F. Supp. 2d 500, 510 (D. Md. 2011) (failure to promote claim dismissed because plaintiff has not alleged a non-African American employee received the promotion); Tasciyan v. Med. Numerics, 820 F. Supp. 2d 664, 675 (D. Md. 2011) (dismissed because plaintiff failed to “allege that one or more similarly situated males received a promotion.”); Alexander v. Marriott Int’l, Inc., Civil Action No. 09-cv- 2402 (RWT), 2012 U.S. Dist. LEXIS 33329, 821 (D. Md. Mar. 29, 2011) (plaintiff’s complaint “contains no facts indicating that Defendant placed another person outside the protected group in the position for which she applied.) 4. Discriminatory Enforcement of Sick Leave In Count VII, supra, Plaintiffs alleged that they were denied use of sick leave in violation of D.C. Accrued Sick and Safe Leave Act. (Am. Compl. ¶ 130). In this claim, they allege that BFJ denied them sick leave on account of their race or ethnicity. To establish a prima facie case of discriminatory enforcement of employment policies, Plaintiff must allege: (1) they are a member of a protected class; (2) they suffered an adverse employment action; (3) they was performing her duties at a level that met their employer’s legitimate expectations at the time of the adverse employment action; and (4) the adverse employment action occurred under circumstances creating an inference of unlawful discrimination. Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004). The Court should dismiss this claim for all the same reasons it should dismiss Count VII; that is, Plaintiffs have not alleged that they suffered an “adverse employment action.”12 More specifically, the Court should dismiss this claim because Plaintiffs have not alleged that they were eligible for sick leave, that they complied with the notification requirements under BFJ’s 12Under Count VI, BFJ explained that Plaintiffs had failed to allege an “injury” under D.C.’s Accrued Sick and Safe Leave Act. Case 8:15-cv-01120-TDC Document 79-1 Filed 01/31/17 Page 20 of 22 21 policy, that they asked for sick leave, or that BFJ denied them sick leave. See Bailey v. Ares Group, Inc., 803 F. Supp. 2d 349, 356-57 (D. Md. 2010) (plaintiff failed to allege “discriminatory enforcement of employment policies” because she did not allege an adverse employment action or that male employees were treated more favorably) 5. Other Benefits Lastly, Plaintiffs allege that BFJ denied them “other benefits.” Other benefits could mean anything. Quite clearly, Plaintiffs have not sufficiently alleged this claim under the standards set forth under Twombly and Iqbal. Indeed, they have not alleged to what they refer, whether they were eligible for such a benefit, whether they asked for such a benefit, or whether BFJ denied them the benefit. Nor have Plaintiffs alleged an inference of intentional discrimination. J. The Court should Dismiss or Strike Plaintiffs’ Class Claims Pursuant to Federal Rule of Civil Procedure 12(b)(6) or 12(f), for each claim that the Court dismisses in its entirety, the Court should dismiss or strike the related class claim. More specifically, the Court should strike their class claims because, under well-established case law, an individual cannot represent a class of employees if the individual does not have a claim. See, e.g., Miller v. Pacific Shore Funding, Inc., 224 F. Supp. 2d 977, 996 (D. Md. 2002) (explaining that a class action plaintiff must have standing because, otherwise, “any plaintiff could sue a defendant against whom the plaintiff had no claim in a putative class action, on the theory that some member of the hypothetical class, if a class were certified, might have a claim”); Herlihy v. Ply-Gem Industries, Inc., 752 F. Supp. 1282, 1291 (D. Md. 1990) (dismissing putative class action for lack of standing because “each plaintiff has not and cannot allege an injury arising from the conduct of each and every defendant”). Case 8:15-cv-01120-TDC Document 79-1 Filed 01/31/17 Page 21 of 22 22 IV. CONCLUSION For the reasons stated above, Defendant B. Frank Joy, LLC, respectfully requests that the Court enter an Order dismissing the above individual and class claims, as described in the attached proposed Order. Dated: January 31, 2017 Respectfully submitted, LITTLER MENDELSON, P.C. By: /s/William F. Allen Maurice Baskin (Bar No. 04342) William F. Allen (Bar No. 16816) Steven E. Kaplan (Bar No. 16531) Littler Mendelson, P.C. 815 Connecticut Avenue, NW, Suite 400, Washington, D.C. 20006 202.842.3400 Telephone 202.842.0011 Facsimile mbaskin@littler.com ballen@littler.com skaplan@littler.com Attorneys for Defendant B. Frank Joy, LLC Case 8:15-cv-01120-TDC Document 79-1 Filed 01/31/17 Page 22 of 22 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : Manuel Alvarez-Soto, et. al., : On behalf of themselves and all others : similarly situated : : Plaintiffs, : : v. : Case No. 8:15-CV-1120 (TDC) : B. FRANK JOY, LLC. et. al, : : Defendants. : : ORDER Upon consideration of Defendant B. Frank Joy, LLC’s Motion to Partially Dismiss Plaintiffs’ Second Amended Putative Class and Collective Action Complaint, any Opposition thereto and any Reply, it is hereby: ORDERED, Defendant’s Motion is GRANTED; ORDERED, Plaintiffs’ FLSA retaliation claims (and related collective action claim) under Count II are DISMISSED; ORDERED, Plaintiffs’ DCWPCL unlawful deduction claims (and related class action claim) under Count V are DISMISSED; ORDERED, Plaintiffs’ MWPCL unlawful deduction claims (and related class action claim) under Count VI are DISMISSED; ORDERED, Plaintiffs’ Sick and Safe Leave Act claims (and related class action claim) under Count VII are DISMISSED; ORDERED, Plaintiffs’ District of Columbia Breach of Oral Contract claims (and related class action claims) under Count VIII are DISMISSED; Case 8:15-cv-01120-TDC Document 79-2 Filed 01/31/17 Page 1 of 2 2. ORDERED, Plaintiffs’ District of Columbia Unjust Enrichment/Quantum Meruit claims (and related class action claims) under Count VIII are DISMISSED; ORDERED, Plaintiffs’ Maryland Breach of Oral Contract claims (and related class action claims) under Count X are DISMISSED; ORDERED, Plaintiffs’ Maryland Unjust Enrichment/Quantum Meruit claims (and related class action claims) under Count XI are DISMISSED; and ORDERED, Plaintiffs’ 42 U.S.C. § 1981 discrimination claims (and related class action claims) under Count XII are DISMISSED. Date: __________________, 2017 __________________________________ The Honorable Theodore D. Chuang United States District Judge Case 8:15-cv-01120-TDC Document 79-2 Filed 01/31/17 Page 2 of 2