Johnson v. Prospect Waterproofing Co.

CourtUnited States District Courts. United States District Court (Columbia)
Citation813 F.Supp.2d 4
Docket NumberCivil Action No. 11–0077 (ABJ).
PartiesEric JOHNSON, et al., Plaintiffs, v. PROSPECT WATERPROOFING COMPANY, et al., Defendants.
Decision Date21 September 2011


Nicholas Woodfield, R. Scott Oswald, The Employment Law Group, P.C., Washington, DC, for Plaintiffs.

Allen Vern Farber, Gregory Willis Homer, John Daniel Victor Ferman, Drinker Biddle & Reath, Washington, DC, Joseph Henry Kasimer, Kasimer & Annino, P.C., Falls Church, VA, for Defendants.



Plaintiffs bring this proposed class action, on behalf of themselves and others similarly situated, against defendants Prospect Waterproofing Company and its owner, George Barlow, for unpaid wages based on state statutory and common law claims. Defendants moved to dismiss for failure to state a claim, arguing that plaintiffs' claims are founded on the Davis–Bacon Act (the Act or “DBA”), 40 U.S.C. § 3141, et seq., which does not give rise to a private right of action but instead establishes an administrative process for the recovery of unpaid wages. The Court agrees and for the following reasons will grant defendants' motion to dismiss.

I. Background

The named plaintiffs in this caseEric Johnson, Melvin Green, John Stelly, and Jonathan Thomas—allege that they were each hired as roofers by Prospect Waterproofing Company (Prospect), a roofing contractor. Am. Compl. ¶¶ 16, 33, 36, 39, 42. Plaintiffs worked for Prospect on various federally-funded or federally-assisted construction projects in the District of Columbia. Id. ¶ 17. Those projects were allegedly subject to the Davis–Bacon Act, id. ¶ 18, which requires that employers pay prevailing wage rates for certain categories of jobs in the community. 40 U.S.C. § 3142. Plaintiffs allege that defendants failed or refused to pay them and similarly situated employees the prevailing wage rate established under the Davis–Bacon Act.

On November 29, 2010, plaintiff Eric Johnson filed a complaint in the Superior Court for the District of Columbia on behalf of himself and other similarly situated employees. Green, Stelly, and Thomas subsequently opted into the action as named plaintiffs. Plaintiffs then amended the complaint on January 12, 2011, and that same day, defendants removed the action to this Court.

Plaintiffs' amended complaint alleges that three state law causes of action arise out of defendants' failure to compensate plaintiffs and similarly situated employees according to the prevailing Davis–Bacon Act rate: (1) a claim for a violation of the District of Columbia Wage Payment and Collection Law (“DCWPCL”), D.C.Code § 32–1301, et seq. ; (2) a claim for a violation of the District of Columbia Minimum Wage Act, D.C.Code § 32–1001, et seq. ; and (3) a common law quantum meruit claim based on defendants' retention of the difference between the Davis–Bacon Act prevailing wage rate and what was actually paid. Plaintiffs seek, among other relief, a judgment for the difference between the wages paid and the wages owed, all back wages, liquidated damages, interest, and attorneys' fees.

Now pending before the Court is defendants' motion to dismiss the amended complaint for failure to state a claim under Fed.R.Civ.P. 12(b)(6).

II. Standard of Review

“To survive a [Rule 12(b)(6) ] 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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted); accord Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). In Iqbal, the Supreme Court reiterated the two principles underlying its decision in Twombly: “First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” 129 S.Ct. at 1949. And [s]econd, only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 1950.

A claim is facially plausible when the pleaded factual content “allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 1949. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. A pleading must offer more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of action,” id., quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955, and [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.

When considering a motion to dismiss under Rule 12(b)(6), the complaint is construed liberally in plaintiff's favor, and the Court should grant plaintiff “the benefit of all inferences that can be derived from the facts alleged.” Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C.Cir.1994). Nevertheless, the Court need not accept inferences drawn by the plaintiff if those inferences are unsupported by facts alleged in the complaint, nor must the Court accept plaintiff's legal conclusions. See id.; Browning v. Clinton, 292 F.3d 235, 242 (D.C.Cir.2002).

III. Analysis
A. Private right of action under the Davis–Bacon Act

The Davis–Bacon Act requires that all laborers and mechanics working on federally funded construction projects be paid not less than the prevailing wage in the locality where the work is performed. 40 U.S.C. § 3142. 1 The Secretary of Labor (“Secretary”) “has promulgated extensive regulations regarding the Davis–Bacon Act and its enforcement.” United States ex rel. Bradbury v. TLT Constr. Corp., 138 F.Supp.2d 237, 240 (D.R.I.2001), citing 29 C.F.R. Pts. 1, 3, 5–7. Every contract entered into pursuant to the Act must stipulate that the contractor shall pay the wages established by the Secretary. 40 U.S.C. § 3142(c)(1); see 29 C.F.R. § 5.5. The contract must also provide that if the contractor fails to pay the minimum wages specified in the contract, the government's contracting officer may withhold so much of the accrued payments as may be considered necessary to pay the laborers and mechanics the difference between the contract wages and those actually paid. 40 U.S.C. § 3142(c)(3). The Act further provides that [i]f the accrued payments withheld under the terms of the contract are insufficient to reimburse” the laborers and mechanics for the wages owed, those “laborers and mechanics have the same right to bring a civil action and intervene against the contractor and the contractor's sureties as is conferred by law on persons furnishing labor or materials.” Id. § 3144(a)(2). 2 “But, this purely financial remedy is available only after there has been an administrative determination that some money is owed and that insufficient funds have been withheld to compensate the affected laborer.” Bradbury, 138 F.Supp.2d at 241.

Defendants argue that the Davis–Bacon Act does not provide a direct private right of action where an employer is alleged to have failed to pay the prevailing wage rates under the Act. The Supreme Court has not yet addressed the issue, but in Universities Research Ass'n v. Coutu, 450 U.S. 754, 101 S.Ct. 1451, 67 L.Ed.2d 662 (1981), it held that the Act “does not confer a private right of action for back wages under a contract that administratively has been determined not to call for Davis–Bacon work.” Id. at 767–68, 101 S.Ct. 1451 (emphasis added). The Court reasoned that to “imply a private right of action” in that situation “would destroy [the] careful balance” between the interests of contractors and employees and “would undercut as well the elaborate administrative scheme promulgated” by the Secretary. Id. at 782–83, 101 S.Ct. 1451. “The uniformity fostered by those regulations would be short-lived if courts were free to make postcontract coverage rulings.” Id. at 783, 101 S.Ct. 1451. The Court “recognize[d] that some of [its] reasoning arguably applies to the question whether the Act creates any implied right of action,” but it declined to reach that broader issue. Id. at 769 n. 19, 101 S.Ct. 1451.3

Since then, [t]he ‘majority of courts that have addressed the issue’ have concluded that no private right of action exists under 40 U.S.C. § 3142,” the section of the Davis–Bacon Act at issue in this case. Ibrahim v. Mid–Atlantic Air of DC, LLC, 802 F.Supp.2d 73, 75–77, No. 11–1070, 2011 WL 3489110, at *2 (D.D.C. Aug. 10, 2011), quoting Bradbury, 138 F.Supp.2d at 240 (collecting cases). In Grochowski v. Phoenix Construction, 318 F.3d 80 (2d Cir.2003), the Second Circuit held that the “great weight of authority indicates that” the Davis–Bacon Act does not “confer[ ] a private right of action on an aggrieved employee for back wages.” Id. at 85, citing Operating Eng'rs Health & Welfare Trust Fund v. JWJ Contracting Co., 135 F.3d 671, 676 (9th Cir.1998); Chan v. City of New York, 1 F.3d 96, 102 (2d Cir.1993); Weber v. Heat Control Co., 728 F.2d 599, 599–600 (3d Cir.1984). Likewise, in United States ex rel. Glynn v. Capeletti Bros., 621 F.2d 1309, 1313 (5th Cir.1980), the Fifth Circuit examined the issue under the four factors set forth in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the test used to determine whether a private remedy is implied in a statute.4 In a thorough and convincing analysis of those factors, the Fifth Circuit held that the Act does not provide a private right of action for payment of unpaid wages. 621 F.2d at 1313–17.5

Although the D.C. Circuit has not addressed the issue directly, another court in this district recently cited Grochowski when it dismissed a claim for unpaid wages under the Davis–Bacon Act. Ibrahim, 802 F.Supp.2d at 76, 2011 WL 3489110, at *2. In Ibrahim, the court noted that the case law in the D.C. Circuit “suggests that no private right of action exists,” as the majority of other courts have...

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