UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CARLOS N. ANTUNEZ CRUZ, et
al.,
Plaintiffs,
v. No. 20-1978 (EGS)
JIMENEZ CONSTRUCTION LLC, et
al.,
Defendants.
MEMORANDUM OPINION
Carlos N. Antunez Cruz (“Mr. Cruz”) and Ruth Nicolle Lopez
Villalta (“Ms. Villalta”) (collectively, “Plaintiffs”) bring
this action alleging violations of the Fair Labor Standards Act,
29 U.S.C. § 201 et seq. (“FLSA”); the District of Columbia
Minimum Wage Revision Act, D.C. Code § 32-1001 et seq.
(“DCMWRA”); and the District of Columbia Wage Payment and Wage
Collection Law, D.C. Code §§ 32-1301 et seq. (“DCWPWCL”). See
generally Compl., ECF No. 1. They have sued two groups of
defendants to recover unpaid wages and for damages: Jimenez
Construction LLC, Arian Jimenez, Dennise Vasquez-Martinez
(collectively, the “Jiminez Defendants”); and Mid-Atlantic
Military Family Communities LLC and Mid-Atlantic San Diego LLC
(collectively, the “Mid-Atlantic Defendants”). See id. The Court
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refers to the Jiminez Defendants and the Mid-Atlantic Defendants
collectively as the “Defendants.”
Pending before the Court is the Mid-Atlantic Defendants’
Motion to Dismiss Plaintiffs’ Complaint, see Mot. Dismiss Pls.’
Compl., ECF No. 10; to which the Jimenez Construction Defendants
“consent”, see Co-Defendants’ Response, ECF No. 12. Upon careful
consideration of the motion, the opposition, and reply thereto,
the applicable law, the entire record herein, and for the
reasons explained below, the Court hereby GRANTS IN PART AND
DENIES IN PART Defendants’ Motion to Dismiss.
I. Background
A. Factual
The Court assumes the following facts alleged in the
complaint to be true for the purposes of deciding the Motion to
Dismiss and construes them in Plaintiffs’ favor. See Baird v.
Gotbaum, 792 F.3d 166, 169 n.2 (D.C. Cir. 2015). Plaintiffs
allege that they were hired by Defendants to work on projects
that were covered by the Davis-Bacon Act (“DBA”), 40 U.S.C. §
3141, et seq. Compl., ECF No. 1 ¶¶ 11, 12. Mr. Cruz alleges that
he was hired to be a “Painter” and that he also performed duties
of a “Carpenter,” but that Defendants never paid him the DBA
wages for a “Painter” or for a “Carpenter.” Id. ¶¶ 16, 17. Ms.
Villalta alleges that when she worked for Defendants, she
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performed work as a janitor or a “Painter,” but that Defendants
never paid her the DBA wages for a “Painter.” Id. ¶¶ 18, 19.
Aside from the allegations regarding Defendants’ failure to
pay applicable DBA wages, Plaintiffs also allege the non-DBA
hourly rates they were actually paid. Id. ¶¶ 16, 18. With regard
to the non-DBA rates, Plaintiffs allege that Defendants violated
the FLSA, the DCMWRA, and the DCWPWCL by failing to pay them all
the overtime they were owed and failing to pay them for all of
the hours they worked. Id. ¶¶ 29, 36, 42.
B. Relevant Statutes
1. Davis-Bacon Act
The Davis-Bacon Act is “a minimum wage law designed for the
benefit of construction workers.” United States v. Binghamton
Constr. Co., 347 U.S. 171, 178 (1954). It “was ‘designed to
protect local wage standards by preventing contractors from
basing their bids on wages lower than those prevailing in the
area.’” Univs. Rsch. Ass’n, Inc. v. Coutu, 450 U.S. 754, 773
(1981) (quoting H. Comm. on Educ. & Lab., Legislative History of
the Davis-Bacon Act, 87th Cong., 2d Sess., 1 (Comm. Print
1962)). Pursuant to the Act, the Secretary of Labor sets
“prevailing” minimum wage rates for various classes of workers,
which contractors must pay on federally- and District of
Columbia-funded contracts in excess of $2,000. 40 U.S.C. §§
3142(a)-(b). The DBA authorizes the Department of Labor (“DOL”)
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to withhold accrued payments to contractors as “necessary to pay
to laborers and mechanics employed by the contractor or any
subcontractor on the work the difference between the rates of
wages required by the contract to be paid . . . and the rates of
wages received.” Id. § 3142(c)(3). DOL regulations set forth an
administrative process through which workers may obtain unpaid
wages and damages, see 29 C.F.R. § 5.11; and the statute
provides a right of action for workers “if the accrued payments
withheld under the terms of the contract are insufficient to
reimburse” them, 40 U.S.C. § 3144(a)(2).
2. Fair Labor Standards Act
The FLSA provides, among other things, that “no employer
shall employ any of his [covered] employees ... for a workweek
longer than forty hours unless such employee receives
compensation for his employment in excess of the hours above
specified at a rate not less than one and one-half times the
regular rate at which he is employed.” 29 U.S.C. § 207(a)(1). An
employee's “regular rate” is “deemed to include all remuneration
for employment paid to, or on behalf of, the employee, but shall
not be deemed to include” various items such as gifts, vacation
and sick pay, various insurance payments, and certain other
exempted items. Id. § 207(e). Employers who violate §§
206 and 207 are liable “in the amount of [the employee's] unpaid
minimum wages, or their unpaid overtime compensation,
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as the case may be, and in an additional equal amount as
liquidated damages.” Id. § 216(b). Finally, the FLSA authorizes
a private right of action for aggrieved employees: “An
action to recover the liability prescribed in the preceding
sentences may be maintained against any employer (including
a public agency) in any Federal or State court of competent
jurisdiction by any one or more employees for and in behalf
of himself or themselves and other employees similarly
situated.” Id.
3. District of Columbia Minimum Wage Revision Act
The DCMWRA mirrors the FLSA. Subject to certain exemptions,
the DCMWRA prohibits any employer from “employ[ing] any employee
for a workweek that is longer than 40 hours, unless the employee
receives compensation for employment in excess of 40 hours at a
rate not less than 1 ½ times the regular rate at which the
employee is employed.” D.C. Code § 32-1003(c). Violators are
subject to steep penalties: “[A]ny employer who pays any
employee less than the wage to which that employee is entitled
under this subchapter shall be liable to that employee in the
amount of the unpaid wages, statutory penalties, and an
additional amount as liquidated damages equal to treble the
amount of unpaid wages.” Id. § 32-1012(b)(1). The DCMWRA also
creates a private right of action for aggrieved employees. See
id. §§ 32-1012(a), 32-1308.
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4. District of Columbia Wage Payment and Wage
Collection Law
The DCWPWCL requires employers to pay employees “all wages
earned” on regular paydays. D.C. Code § 32-1302. It 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. § 32-1301(3). “Wages” include “[o]ther remuneration promised
or owed ... [p]ursuant to District or federal law,” as well as
pursuant to “a contract for employment, whether written or oral”
or “a contract between an employer and another person or
entity.” Id. § 32-1301(3)(E); see also id. § 32-1301(3)(A)–(D)
(further defining wages to include bonuses, commissions,
fringe benefits paid in cash, and overtime premiums). The
DCWPCL provides that, “[i]n enforcing the provisions of this
chapter, the remuneration promised by an employer to an
employee shall be presumed to be at least the amount required
by federal law, including federal law requiring the payment
of prevailing wages, or by District law.” Id. § 32-1305. The
DCWPCL authorizes a private right of action and, like the
DCMWA, there are steep consequences for violations, including
treble damages. Id. § 32-1308.
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C. Procedural
On September 9, 2020, the Mid-Atlantic Defendants moved to
dismiss the Complaint for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6). See generally Mot. Dismiss
Pls.’ Compl., ECF No. 10; Mem. in Supp. of Defs.’ Mot. Dismiss
Pls.’ Compl. Failure State Claim (“MTD”), ECF No. 10-1. The
Jimenez Defendants consented to the Motion to Dismiss. See Co-
Defs.’ Resp. Defs.’ Mot. Dismiss Pls.’ Compl., ECF No. 12.
Plaintiffs filed their opposition, see Pls.’ Mem. in Opp’n to
Mid-Atlantic Defs.’ Mot. Dismiss Compl. (“Opp’n”), ECF No. 14;
and the Mid-Atlantic Defendants thereafter filed a reply, see
Reply in Supp. of Defs.’ Mot. Dismiss Pls.’ Compl. Failure State
Claim (“Reply”), ECF No. 15. The motion is ripe and ready for
adjudication.
II. Legal Standard
A motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) tests the legal sufficiency of a complaint.
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A
complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief, in order to give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (citation and internal quotation marks
omitted).
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Despite this liberal pleading standard, to survive a motion
to dismiss, a complaint “must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible
on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation and internal quotation marks omitted). “In determining
whether a complaint fails to state a claim, [the Court] may
consider only the facts alleged in the complaint, any documents
either attached to or incorporated in the complaint and matters
of which [the Court] may take judicial notice.” EEOC v. St.
Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir.
1997) (citation omitted). A claim is facially plausible when the
facts pled in the complaint allow the court to “draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678 (citation omitted).
The standard does not amount to a “probability requirement,” but
it does require more than a “sheer possibility that a defendant
has acted unlawfully.” Id. (citation and internal quotation
marks omitted).
“[W]hen ruling on a defendant’s motion to dismiss [pursuant
to Rule 12(b)(6)], a judge must accept as true all of the
factual allegations contained in the complaint.” Atherton v.
D.C. Off. of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009)
(citation and internal quotation marks omitted). In addition,
the court must give the plaintiff the “benefit of all inferences
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that can be derived from the facts alleged.” Kowal v. MCI
Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994) (citation
omitted).
III. Analysis
A. Plaintiffs Cannot Bypass the DBA By Recasting Their
DBA Claims Under the FLSA, DCMWRA, or the DCWPWCL
Plaintiffs allege violations of three different laws based
on Defendants’ alleged failure to pay them the applicable DBA
rates: (1) failure to pay overtime rates equal to one and one-
half times the applicable DBA rates in violation of the FLSA,
Compl., ECF No. 1 ¶ 30; (2) failure to pay overtime rates and
failure to pay them for all the hours works at the applicable
DBA rate in violation of the DCMWRA, id. ¶ 37; (3) Failure to
pay Plaintiffs (a) anything for some of their hours of work, and
(b) failure to pay the applicable DBA rates in violation of the
DCWPWCL, id. ¶ 42.
Defendants move to dismiss Plaintiffs’ claims “because they
require the Court to determine whether Plaintiffs were assigned
the proper labor categories and entitled to DBA wages, a task
delegated by Congress exclusively to the [U.S.] Department of
Labor.” MTD, ECF No. 10-1 at 8. Defendants argue that: (1) “all
of Plaintiffs’ claims are barred because they may not bring a
private cause of action to recover [DBA] Wages” and Plaintiffs
cannot circumvent the lack of a private cause of action “by
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recasting the alleged violation of the DBA as a statutory
violation under the FLSA, [DCWPWCL] or the [DCMWA], id. at 9,
11-12. 1
As an initial matter, the Parties agree, for the sake of
this motion, that the DBA does not confer a private right of
action on plaintiffs who have claims for back wages under DBA
contracts. See MTD, ECF No. 10-1 at 9; Opp’n, ECF No. 14 at 1.
Therefore, the Court will assume, without deciding, that the DBA
does not confer a private right of action. See, e.g., Johnson v.
Prospect Waterproofing Co., 813 F. Supp. 2d 4, 9 (D.D.C. 2011).
The Court of Appeals for the District of Columbia Circuit
(“D.C. Circuit”) has not settled question of “the interaction
between the DBA and other federal or state wage laws, and there
is a division of authority among the circuits.” Garcia v.
Skanska USA Building, Inc., 324 F. Supp. 3d 76, 80 (D.D.C.
2018). Plaintiffs urge the Court to adopt the reasoning of the
Court of Appeals for the Fourth Circuit (“Fourth Circuit”),
which in Amaya v. Power Design, Inc., concluded that “Congress
intended the FLSA to apply broadly notwithstanding any overlap
with other labor statutes.” 833 F.3d 440, 445 (4th Cir. 2016).
1 In the alternative, Defendants argue that “Plaintiffs’ DCMWRA
claim fails to the extent they seek overtime based on minimum
wages established by the DBA. MTD, ECF No. 10-1 at 12-13. In
view of the Court’s dismissal of the DBA claims based on
Defendants’ lead argument, the Court need not reach this
argument.
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Accordingly, it allowed FLSA claims to go forward and further,
it interpreted the “regular rate” under FLSA as referring to the
“prevailing rate” under the DBA. Id. at 447 (citing 40 U.S.C. §
3142(e)). In making that determination, the Fourth Circuit found
instructive the Supreme Court’s determination in Powell v. U.S.
Cartridge Co. that employees could pursue FLSA actions for
unpaid overtime under a contract subject to the Walsh-Healey Act
(“WHA”). 339 U.S. 497, 519-520 (1950). 2
The Court, however, is persuaded by authority in this
District that relies on authority from the Court of Appeals for
the Second Circuit (“Second Circuit”). In Johnson v. Prospect
Waterproofing Co., as here, the plaintiffs brought claims for
violations of the DCWPWCL and the District of Columbia Minimum
Wage Act (“DCMWA”). Johnson, 813 F. Supp. 2d at 5. Still, the
court held that each of the claims was founded exclusively on
the DBA because the Complaint alleged that defendants had
violated the DCWPWCL and DCMWA by “failing to compensate
according to the prevailing [DBA] rate.” Id. at 10. In so
2 Plaintiffs’ assertion that Powell “conclusively establish[es]
that the DBA does not preclude a civil action for DBA-mandated
rates under FLSA’s overtime provisions,” Opp’n, ECF No. 14 at 4;
is clearly an overstatement since Powell does not concern the
DBA. Furthermore, Plaintiffs’ assertion that the WHA is
“identical to the DBA in all significant respects” is neither
explained in sufficient detail nor clearly supported by the
caselaw cited. Id. at 4-5.
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holding, the court explained that it adopted the reasoning in
Grochowski v. Phoenix Const., 318 F.3d 80 (2003):
“At bottom, the plaintiffs' state-law claims
are indirect attempts at privately enforcing
the prevailing wage schedules contained in the
DBA. To allow a third-party private contract
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 to the same extent as would a cause of
action directly under the statute.”
Johnson, 813 F. Supp. 2d at 9 (quoting Grochowski, 318 F.3d at
86 (internal quotation marks omitted)). Accordingly, the Johnson
court “conclude[d] that plaintiffs' claims ‘are clearly an
impermissible end run around’ the [DBA].” Johnson, 813 F. Supp.
2d at 10 (quoting Grochowski, 318 F.3d at 86). “As other courts
have held, if plaintiffs could bring such an action directly in
this Court, it would severely undermine the specific remedial
scheme established by Congress.” Id.
Similarly, in Ibrahim v. Mid-Atl. Air of D.C., LLC, the
Plaintiff claimed, among other things, that the Defendant had
failed to pay him the required DBA rate. Ibrahim, 802 F. Supp.
2d 73 (D.D.C. 2011), aff’d, No. 11-7150, 2012 WL 3068460 (D.C.
Cir. July 19, 2012). The court dismissed the complaint on the
ground that the claim is “‘clearly an impermissible end run
around’” the DBA. Id. at 76 (quoting Grochowski, 318 F.3d at
86).
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Here too, Plaintiffs’ relevant claims are founded on the
DBA. Plaintiffs allege that Defendants violated: (1) the FLSA by
failing to pay Plaintiffs the applicable DBA rates, Compl., ECF
No. 1 at 11 ¶ 30; (2) the DCMWRA by failing to pay Plaintiffs
the applicable DBA rates, id. at 12 ¶ 37; and (3) the DCWPWCL by
failing to pay Plaintiffs the applicable DBA rates, id. at 13 ¶
42. Accordingly, the resolution of Plaintiffs’ claims depends on
what the DBA rates are. “[A]s courts in this circuit and
elsewhere have concluded, plaintiffs cannot get around the
administrative prerequisites of the [DBA] simply by dressing up
their claim in new language and asserting that it arises under
state law.” Johnson, 813 F. Supp. 2d at 9.
Plaintiffs point to other persuasive authority in this
District, but the cases are easily distinguishable. In Garcia v.
Skanska USA Building, Inc., the Plaintiff sued under the FLSA,
DCMWA, and the DCWPWCL, and the Defendants moved to dismiss
based on arguments similar to those being made here. Garcia, 324
F. Supp. 3d 76, 77, 80 (D.D.C. 2018). The Garcia court permitted
those claims to proceed, reasoning as follows:
Garcia's claims, by contrast, would not
short-circuit the DBA's administrative
process or embroil the Court in legal
determinations Congress intended the
Department of Labor to resolve. First,
Garcia's complaint could be construed—and so,
on a motion to dismiss, must be construed—to
avoid the DBA entirely. Garcia alleges that
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the employers here agreed to hire and pay him
“as a carpenter” and that “he understood from
this that he would be paid at least the legal
prevailing wage for a carpenter.” Compl. ¶¶
21–22. That the DBA may have provided the
basis for the parties' alleged
“underst[anding]” does not transform the
agreement into anything other than an
ordinary contract; on this reading, Garcia is
not suing for the DBA-mandated rates per se,
but rather for the rates his employers agreed
to pay him.
Garcia, 324 F. Supp. 3d at 84. Here, however, there is no way to
“avoid” the DBA for Plaintiffs’ claims that are based on the
failure to pay DBA rates. See Compl., ECF No. 1 ¶¶ 30, 37, 42.
Accordingly, here the Plaintiffs are suing for “the DBA-mandated
rates per se.”
Similarly, Plaintiffs’ reliance on Perez v. C.R. Calderon
Construction, Inc., is misplaced. Plaintiffs point to the
Court’s conclusion “that no matter how DOL would classify the
plaintiffs' correct wage rate, they are entitled to the wage
rate that they were promised upon being hired and that they
reasonably expected applied over the duration of their work
on the Project.” Perez, 221 F. Supp. 3d. 115, 150 (D.D.C. 2016).
However, Plaintiffs fail to acknowledge that regarding this
conclusion, the Court stated that it “need not resolve whether
it has jurisdiction to determine the correctness of the
plaintiffs' classification as carpenters, since the prevailing
wage rate for carpenters under the Davis–Bacon Act would
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nonetheless apply here,” Id. at 150 n.24; or that the DBA rate
was set forth in a pretrial Settlement Agreement between the
Defendant in Perez and the Department of Labor for violations of
the DBA, but for persons other than the Plaintiffs in Perez.
Accordingly, Plaintiffs’ reliance on Perez for the proposition
that this Court can resolve DBA classification issues in this
case is entirely unpersuasive.
B. Plaintiffs’ FLSA, DCMWRA and DCWPWCL Claims That Are
Not Based on DBA Wages May Proceed
Plaintiffs argue that even if the Court determines that
Plaintiffs cannot bring claims for DBA wages under the FLSA,
DCMWRA, and DCWPWCL, their claims under these statutes based on
the rates Defendants actually paid them should not be dismissed.
Opp’n, ECF No. 14 at 11-12. Defendants did not address these
claims in the Motion to Dismiss, see generally MTD, ECF No. 10-
1; and do not respond to Plaintiffs’ argument in their Reply
briefing, see generally Reply, ECF No. 15. Defendants have
therefore conceded it. Cf. Hopkins v. Women's Div., Gen. Bd. Of
Global Ministries, 238 F. Supp. 2d 174, 178 (D.D.C. 2002) (“It
is well understood in this Circuit that when a plaintiff files
an opposition to a motion ... addressing only certain arguments
raised by the defendant, a court may treat those arguments that
the plaintiff failed to address as conceded.”). The Court notes
that in Grochowski, the Court affirmed the District Court’s
15
decision to “limit[] the plaintiffs’ claims under the FLSA for
unpaid overtime compensation to one-and-a-half times the hourly
rates actually paid.” Grochowski, 318 F.3d at 87.
IV. Conclusion
For the foregoing reasons, the Court GRANTS IN PART AND
DENIES IN PART Defendants’ Motion to Dismiss, ECF No. 10.
Plaintiffs’ claims based on the failure to pay DBA wages are
DISMISSED and Plaintiffs’ claims based on non-DBA wages may
proceed.
An appropriate Order accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
March 31, 2023
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