United States District Court, D. Maryland
K. BREDAR UNITED STATES DISTRICT JUDGE
Johnson and Vincent Smith (“Plaintiffs”) brought
a putative collective and class action against Systems
Connection of Maryland, Inc. (“Defendant”),
alleging violations of the Fair Labor Standards Act
(“FLSA”) of 1938, as amended, 29 U.S.C.
§§ 201 et seq.; the Maryland Wage and Hour
Law (“MWHL”), Md. Code Ann., Lab. & Empl.
§§ 3-401 et seq.; and the Maryland Wage
Payment and Collection Law (“MWPCL”), Md. Code
Ann., Lab. & Empl. §§ 3-501 et seq.
Now pending before the Court is Defendant’s Partial
Motion to Dismiss (ECF No. 5) with respect to
Plaintiffs’ allegations concerning a
“scale” or prevailing wage. The issues have been
briefed, and no hearing is required, see Local Rule
105.6 (D. Md. 2014). For the reasons explained below,
Defendant’s motion shall be GRANTED.
a “furniture service company, ” employed
Plaintiffs as furniture installers. Plaintiff Johnson worked
for Defendant from June 9, 2009, through November 24, 2015;
Plaintiff Smith worked from January 25, 2005, through
November 15, 2015. (ECF No. 1 ¶¶ 3, 9-10.)
Plaintiffs’ work involved loading and unloading trucks,
transporting furniture and equipment, and assembling
furniture at worksites. (Id. ¶¶ 21-22.)
Plaintiffs allege that Defendant failed to pay them for the
time they spent traveling from worksites back to their
warehouse. (Id. ¶ 23.) Plaintiffs further
contend that they were paid overtime wages only for those
hours that they worked in excess of 43.5 hours per week.
(Id. ¶ 24.) Finally, and as relevant here,
Plaintiffs allege that they were undercompensated on certain
federal contracts. (Id. ¶ 25.)
filed suit on March 3, 2016 (ECF No. 1); Defendant filed the
pending Partial Motion to Dismiss on May 9, 2016 (ECF No. 5).
Plaintiffs filed a response in opposition (ECF No. 8), and
Defendant replied (ECF No. 9). Defendant’s motion is
ripe for decision.
Standard of Review
complaint must contain “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In
analyzing a Rule 12(b)(6) motion, the Court views all
well-pleaded allegations in the light most favorable to the
plaintiff. Ibarra v. United States, 120 F.3d 472,
474 (4th Cir. 1997). Even so, “[f]actual allegations
must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
“A pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.’ Nor does a
complaint suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual
enhancement.’” Iqbal, 556 U.S. at 678
(alteration in original) (quoting Twombly, 550 U.S.
at 555, 557).
Complaint is not the picture of clarity. In their
“Introduction and Background, ” Plaintiffs
describe three purported violations: (1) Defendant’s
failure to pay all overtime due and owing; (2)
Defendant’s failure to compensate Plaintiffs for
certain travel time; and (3) Defendant’s failure to pay
Plaintiffs the “proper scale wage that was owed to them
while working on government jobsites.” (ECF No. 1 at
2.) Elsewhere in their Complaint, Plaintiffs allege that many
of Defendant’s contracts involved “federal
facilities” and that, for such contracts, “there
would be a scale wage that was the required wage that was to
be paid to those working on that jobsite.”
(Id. ¶ 26.) Plaintiffs contend that for the
“majority [sic] of their employment, [they]
were not paid the correct scale wage on the federal jobsites
they worked on.” (Id. ¶ 27.) Yet under
Counts I (FLSA) and II (MWHL), Plaintiffs cite only purported
overtime violations: they make no mention of a
“scale” wage (or, for that matter, travel time).
And under Count III (MWPCL), Plaintiffs merely allege that
they have “not received compensation from the Defendant
for all wages owed for work performed before the termination
of their employment, ” without elaborating on how these
outstanding “wages” break down.
unsure of the precise contours of Plaintiffs’
Complaint, Defendant filed the pending Partial Motion to
Dismiss, contending that (1) insofar as Plaintiffs seek to
recover the difference between a federal prevailing wage and
the wages they were actually paid, such a claim is not
cognizable under the FLSA, the MWHL, or the MWPCL; and (2)
while the Davis- Bacon Act, 40 U.S.C. §§ 3141
et seq., does prescribe prevailing wages for certain
construction contracts involving public buildings and public
works, there is no private right of action under that
statute. (ECF No. 5-1 at 2.) In their response brief,
Plaintiffs do not dispute either of Defendant’s
contentions: instead, Plaintiffs assert that they “do
not ask for any relief or seek to recover damages related to
the Defendant’s failure to pay a prevailing wage under
the Davis-Bacon Act” but, instead, are “merely
seeking relief under the FLSA, MWHL and the MWPCL related to
overtime wages.” (ECF No. 8-1 at 5.)
Court could simply take Plaintiffs at their word and end the
matter here. However, given that Plaintiffs’ Complaint
plainly does include allegations relating to a
“scale” wage, and in the interest of setting a
smooth course for these proceedings, the Court adds the
following three observations.
while Plaintiffs do not expressly cite the Davis-Bacon Act in
their Complaint, their description of a “scale wage
that was the required wage” for jobs performed at
federal facilities (ECF No. 1 ¶ 26) seemingly invokes
the Act, which prescribes a prevailing wage for “every
contract in excess of $2, 000, to which the Federal
Government or the District of Columbia is a party, for
construction, alteration, or repair, including painting and
decorating, of public buildings and public works . . .
.” 40 U.S.C. § 3142(a). If Plaintiffs’
counsel had some other authority in mind when he drafted the
Complaint, he has not apprised the Court of that authority:
he does not, for instance, cite some other statute that
entitles Plaintiffs to a higher-than-minimum wage, nor does
he suggest that the purported “scale” wages were
the vast majority of federal courts to consider the question
have held that the Davis-Bacon Act “contains no general
private right of action for workers seeking back pay”
but “only authorizes a private right of action after
certain administrative mechanisms designed to ensure adequate
payment have failed.” McClean v. Phila. Hous.
Auth., Civ. Action No. 12-cv-4706, 2013 WL 787032, at *4
(E.D. Pa. Mar. 1, 2013); see also United States ex rel.
Krol v. Arch Ins. Co., 46 F.Supp.3d 347, 353 (S.D.N.Y.
2014) (explaining that laborers who perform under contracts
governed by the Davis-Bacon Act may seek relief under section
3 of the Act, 40 U.S.C. § 3144(a)(2), only if (1)
“funds withheld by the [contracting] agency are
insufficient to fully reimburse all laborers who are entitled
to prevailing wages” and (2) “either the
contracting agency or the [Department of Labor] . . . has
administratively determined that the contractor or
subcontractor has failed to pay prevailing wages”).
Apart from the narrow remedy set forth in section 3, there
“is no implied right of private action under the
Davis-Bacon Act, ” Bane v. Radio Corp. of Am.,
811 F.2d 1504, 1987 WL 35851, at *1 (4th Cir. 1987)
(unpublished table decision); see also Duran-Quezada v.
Clark Constr. Grp., LLC, 582 F. App’x 238, 239
(4th Cir. 2014) (per curiam) (agreeing with the
“majority of . . . sister Circuits to address this
question . . . that ‘neither the language, the history,
nor the structure of the [Davis-Bacon Act] supports the
implication of a private right of action’”
(quoting United States ex rel. Glynn v. Capeletti Bros.,
Inc., 621 F.2d 1309, 1317 (5th Cir. 1980)));
Robinson v. Ohio Hous. Fin. Agency, No. 1:11-cv-352,
2011 WL 7789840, at *4 (S.D. Ohio Dec. 15, 2011) (collecting
cases), adopted as modified, 2012 WL 1564312 (S.D.
Ohio May 2, 2012). Thus, had Plaintiffs expressly included a
Davis- Bacon count in their Complaint, that count would fail
because Plaintiffs do not aver that they have pursued any
administrative remedies with respect to their unpaid
“scale” wages; for that matter, the relevant
allegations in Plaintiffs’ Complaint are so vague and
conclusory that the Court cannot even ascertain which
contracting agencies, if any, might have shared
responsibility with the Department of Labor for determining
whether Defendant failed to pay such wages.
Plaintiffs’ FLSA, MWHL, and MWPCL counts are
inappropriate vehicles for obtaining back wages as prescribed
by the Davis-Bacon Act. The FLSA and the MWHL supply parallel
guarantees of minimum-wage and overtime compensation,
compare 29 U.S.C. §§ 206- 07,
with Md. Code Ann., Lab. & Empl. §§
3-413, -415, but neither statute provides for a
“scale” or prevailing wage. The MWPCL is broader
in the sense that it defines a “wage” as
“all compensation that is due to an employee for
employment, ” Md. Code Ann., Lab. & Empl. §
3-501(c)(1). However, federal courts have repeatedly rejected
attempts by litigants to avert the administrative
requirements of the Davis-Bacon Act by cloaking inherently
Davis-Bacon claims in the garb of state law. See
Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir.
2003) (“Since . . . no private right of action exists
under the [Davis-Bacon Act], the plaintiffs[’] efforts
to bring their claims as state common-law claims are clearly
an impermissible ‘end run’ around the
[Act].”); Johnson v. Prospect Waterproofing
Co., 813 F.Supp.2d 4, 9 (D.D.C. 2011) (“[A]s
courts in this circuit and elsewhere have concluded,
plaintiffs cannot get around the administrative prerequisites
of the [Davis-Bacon] Act simply by dressing up their claim in
new language and asserting that it arises under state
law.”); accord Castro v. Fid. & Deposit Co. of
Md., 59 F.Supp.3d 9, 15 (D.D.C. 2014); Horne v.