United States District Court, D. Maryland
MANUEL ALVAREZ-SOTO, DARRYL REID and CHARLES THOMAS, On Behalf of Themselves and All Others Similarly Situated, Plaintiffs,
B. FRANK JOY, LLC, T. KENNETH JOY and KEVIN JOY, Defendants.
THEODORE D. CHUANG United States District Judge
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. S 201-219 (2012);
the Maryland Wage and Hour Law ("MWHL"), Md. Code
Ann., Lab. & Empl. 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 §§ 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.
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.
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-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 of BFJ's alleged legal violations.
Wage and Hour Claims
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.
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 Complain,, 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.
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
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 Deck"). 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").
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.
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 Complain,,
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.
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. 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.
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.
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.
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)(1)(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.I. 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." 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
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. Albright v. Oliver, 510 U.S. 266, 268
(1994); Lambeth v. Bd. of Comm'rs of Davidson
Cty., 407 F.3d 266, 268 (4th Cir. 2005).
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.
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. Fed.R.Civ.P.
12(d). Here, Plaintiffs argue that summary judgment is
premature because Plaintiffs dispute the Individual
Defendants' assertions, and discovery is necessary before
any resolution of the claims. In support of their position,
Plaintiffs attach competing declarations disputing the
Individual Defendants' factual assertions and a Rule