Rimaihi v. Avitecture, Inc.

• Decision Date: 15 November 2022
• Docket Number: Civil Action 20-0930 (CKK)
• Parties: JARRELL RIMAIHI, et al., individually and on behalf of all persons similarly situated, Plaintiffs, v. AVITECTURE, INC., Defendant.
• Court: U.S. District Court — District of Columbia

JARRELL RIMAIHI, et al., individually and on behalf of all persons similarly situated, Plaintiffs, v. AVITECTURE, INC., Defendant.

Civil Action No. 20-0930 (CKK)

United States District Court, District of Columbia

November 15, 2022

MEMORANDUM OPINION AND ORDER

COLLEEN KOLLAR-KOTELLY, United States District Judge.

This labor dispute is before the Court on Defendant^[1] Avitecture Inc.'s (“Defendant” or “Avitecture”) motion to dismiss. Plaintiffs, a putative class of electricians and contractors, argue that Defendant, their employer, paid Plaintiffs less than they were due under their contract and District of Columbia statute. Defendant essentially argues that Plaintiffs' state-law claims are preempted by federal statute or alternatively, that the United States Department of Labor has primary jurisdiction over this matter. Consistent with the vast majority of other courts to confront the same arguments here, the Court concludes that Plaintiffs state a claim under state law and that no federal law otherwise preempts Plaintiffs' state-law claims. As such, and upon consideration of the pleadings,^[2] the relevant legal authorities and the record for purposes of this motion, the Court DENIES Avitecture's [17] Motion to Dismiss Class and Collective Action Complaint.

I. BACKGROUND

For the purposes of the motion before the Court, the Court accepts as true the well-pleaded allegations in Plaintiffs' complaint. The Court does “not accept as true, however, the plaintiff's legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014).

Since 2020, Plaintiffs, along with their putative class, were employed as technicians by Defendant Rightech, Inc. (“Rightech”), a staffing agency, to perform certain electrical and contracting work at the headquarters of the Transportation Security Agency in Springfield, Virginia (“TSA Job”). Compl. ¶ 27. Additionally, in 2018, Rightech hired Plaintiff Rimaihi as a “technician” to install speakers, wiring, and electrical equipment at the Federal Reserve Board building at 20001 Constitution Avenue, NW, Washington, DC 20551 (“Federal Reserve Job”). Id. ¶ 29.

Avitecture “is an electrical audio/visual contracting company which performs electrical construction and installation work for governmental entities and private parties.” Id. ¶ 9. It contracted with Rightech to perform the disputed work for the TSA and Federal Reserve Jobs. Id. ¶¶ 11-14. According to Plaintiffs' complaint, Avitecture regularly wins similar federal contracts and regularly employs Rightech to staff and ultimately effect the work the federal and District of Columbia governments pay Avitecture to perform. See id. ¶¶ 31, 51. Plaintiffs, on behalf of themselves and their putative class, allege (partly legally and partly factually) that all

In an exercise of its discretion, the Court finds that holding oral argument in this action would not be of assistance in rendering a decision. See LCvR 7(f). contracts for such work make explicit or implicit reference to the Davis-Bacon Act, 40 U.S.C. § 3142 (“DBA”).

That law governs all public contracts with the federal or District of Columbia governments relating to construction on public buildings or public works. Among other things, the DBA empowers the Secretary of Labor to classify laborers and set minimum wages for those laborers that “shall be based on the wages the Secretary [] determines to be prevailing” for each class of laborer in a given market. Id. (a)-(b). Based upon those rates, the eventual labor contract must then contain three stipulations:

(1) That the contractor will pay covered workers at least the prevailing rates as recited in the advertised specifications, any contrary agreement between the contractor and his workers notwithstanding

(2) That the contractor will publish post the wage scale at work; and . . .

(3) That there may be withheld from the contractor so much of accrued payments as the contracting officer considers necessary to pay laborers and mechanics employed by the contractor or any subcontractor on the work the difference between the wages required by the contract to be paid laborers and mechanics on the work and the rates of wages received by the laborers and mechanics and not refunded to the contractor or subcontractors or their agents.

Garcia v. Skanska USA Bldg., Inc., 324 F.Supp.3d 76, 78 (D.D.C. 2018) (capitalization altered) (quoting 40 U.S.C. § 3142(c)) (DLF). Through this third mandatory stipulation, the DBA creates a remedy for workers paid less than the wages guaranteed by the DBA.

The DBA, however, has no private cause of action. Id. at 79. Rather, “[d]isputes over the proper classification of workers under a contract containing Davis-Bacon provisions must be referred to the Secretary [of Labor] for determination.” Univs. Rsch. Ass'n v. Coutu, 450 U.S. 754, 761 (1981). In other words, disputes over the DBA's applicability to a particular contract and the wages due under the DBA (as applied to that contract) must first be presented to the Department of Labor. See, e.g., Ibrahim v. Mid-Atl. Air of DC, LLC, 802 F.Supp.3d 73, 76 (D.D.C. 2011).

Importantly, Plaintiffs do not bring a Davis-Bacon Act claim. Rather, Plaintiffs advance two claims under District of Columbia state law. First, Plaintiffs mount a breach-of-contract claim arising under District of Columbia law. Compl. at 20. As to this first claim, it appears that Plaintiffs' theory is either that the contracts' wage provisions were amended by operation of state law and/or that the plain meaning of the wage provisions are informed by the DBA as background context. See id. ¶¶ 77-82. Second, Plaintiffs claim that Avitecture violated District of Columbia law by failing to pay higher wages, specifically, the D.C. Wage Payment and Collection Law (“Wage Law” or “DCWPCL”), D.C. Code § 32-1301 et seq. (West 2022).

Pursuant to the Wage Law, employers must pay their employees “all wages earned.” Id. § 32-1302. “Wages” are “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” further include” all “remuneration promise 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. (3)(E) (emphasis added). “[R]emuneration 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 (emphasis added). The Wage Law authorizes a private right of action. Id. § 32-1308; Garcia, 324 F.Supp.3d at 80. Avitecture moves to dismiss only the Wage Law claim.

In moving to dismiss for failure to state a claim, Defendant argues only that the DBA somehow prevents employees from maintaining an action for unpaid wages promised under state law if those employees would otherwise be subject to the DBA. With Defendant's motion fully briefed,^[3]the Court turns to that question's resolution.

II. LEGAL STANDARD

Under Rule 12(b)(6), a party may move to dismiss a complaint on the grounds that it “fail[s] to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “[A] complaint [does not] suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

III. DISCUSSION

Without precisely using the word, Avitecture argues mainly that the DBA preempts Plaintiffs' state law claims. Defendant's position is not without support. In Grochowski v. Phoenix Const., 318 F.3d 80 (2d Cir. 2003), the United States Court of Appeals for the Second Circuit held that the DBA's bar on a private cause of action effectively preempts any state “common law contract claim” predicated on a labor contract governed by the DBA. Id. at 86. The Grochowski court offered scant explanation for why the lack of a cause of an action in a federal statute ipso facto bars recovery under state law where a private cause of action is available. See Cox v. NAP Const. Co., Inc., 891 N.E.2d 271, 276 (N.Y. 2008). Facing such limited justification for its holding, every other federal Court of Appeals to examine such a question has concluded that Grochowski is, in fact, itself “really just an ‘end-run' around well-established preemption doctrine.” E.g., Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 584 (7th Cir. 2012);^[4] cf. also Cox, 691 N.E.2d at 276 (in rejecting Grochowski, “the default assumption, absent a showing to the contrary, is that Congress intended neither to create a new federal right of action nor to preempt existing state ones (emphasis added)). Most recently, Judge Dabney L. Friedrich of this jurisdiction joined the great weight of authority rejecting Grochowski to hold that the DBA does not preempt a Wage Act claim predicated on DBA worker-classification. Garcia, 324 F.Supp.3d at 84-85. Without any binding appellate authority on the question, and after careful consideration of the parties briefing, the Court shall join Judge Friedrich in applying the well-reasoned, majority approach.

Because Avitecture...