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Alvarez-Soto v. B. Frank Joy, LLC

United States District Court, D. Maryland

June 23, 2017

MANUEL ALVAREZ-SOTO, DARRYL REID and CHARLES THOMAS, On Behalf of Themselves and All Others Similarly Situated, Plaintiffs,


          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. 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.


         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-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.

         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 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.

         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 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").

         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 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.

         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. 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.

         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.


         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 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.

         Under 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 Opposition.

         II. Legal Standard

         To 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).

         On a 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.

         In 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 56(d) ...

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