Alvarez-Soto v. B. Frank Joy, LLC

258 F.Supp.3d 615

Manuel ALVAREZ–SOTO, Darryl Reid and Charles Thomas, on behalf of themselves and all others similarly situated, Plaintiffs,

v.B. FRANK JOY, LLC, T. Kenneth Joy and Kevin Joy, Defendants.

Civil Action No. TDC-15-1120.

United States District Court, D. Maryland.

Signed June 23, 2017

Christine A. Dixon, C. Dixon Global Law PLLC, Washington, DC, Larry A. Strauss, Pro Hac Vice, Willie E. Gary, Pro Hac Vice, Gary, Williams, Parenti, Watson, and Gary, PLLC, Stuart, FL, for Plaintiffs.

Maurice Baskin, William F. Allen, Steven E. Kaplan, Littler Mendelson, P.C., Washington, DC, for Defendants.

MEMORANDUM OPINION

THEODORE D. CHUANG, United States District Judge

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 BFJ and two of BFJ'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. § 201 – 219 (2012) ; the Maryland Wage and Hour Law ("MWHL"), Md. Code Ann., Lab. & Empl. §§ 3–401 to 3–431 (West 2016) ; the Maryland Wage Payment and Collection Law ("MWPCL"), Md. Code Ann., Lab. & Empl. §§ 3–501 to 3–509 ; the District of Columbia Minimum Wage Act ("DCMWA"), D.C. Code §§ 32–1001 to 32–1015 (West 2013) ; the District of Columbia Wage Payment and Collection Law ("DCWPCL"), D.C. Code §§ 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 §§ 32–131.01 to 32–131.17 ; 42 U.S.C. § 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 of BFJ, 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 BFJ 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 Complaint does not describe the extent of the Individual Defendants' involvement in the day-to-day 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 of BFJ'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. Loading the trucks takes between 15 and 90 minutes each morning. 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 to work over 40 hours per week, BFJ 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 "spics." Decl. of Darryl Reid, SAC Ex. A ¶ 8, ECF No. 76–1 ("Reid Decl.").

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 of BFJ 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 BFJ 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 DCMWA.

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 DCMWA, DCWPCL, D.C. Sick Leave Act, District of Columbia and Maryland common law, and 42 U.S.C. § 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.

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...