The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
David del Villar has a specialized skill in oxidizing architectural metals to refinish them to their original appearance. He was hired by Flynn Architectural Finishes, Inc., because it had two contracts with the United States Government that required such a skill. Mr. del Villar was fired partway through the second of these contracts. He alleges in Count II of his Complaint that he was fired for complaining that he was not paid "the Government wages" as required by the Fair Labor Standards Act, 29 U.S.C. §§ 201, et. seq., and/or the Davis-Bacon Act, 40 U.S.C. §§ 3141, et. seq. Mr. del Villar also raised, at trial, a claim under the D.C. Wage Payment and Collection Law, D.C. Code §§ 32-1301, et seq., for unpaid wages because he was paid less than Davis-Bacon required. Flynn Architectural and its owner, Christopher Flynn, assert that Mr. del Villar was fired because he did not get along with his co-workers and he would not reveal what chemicals he used in his oxidizing work. They conceded at trial that Mr. del Villar may be owed some outstanding wages, but this point remains unproven.
This is a tale of mis-communication, not retaliation. Furthermore, Mr. del Villar failed to present the Court with sufficient evidence to support an award of lost wages. Accordingly, as explained below, judgment will be entered in favor of Defendants on Count II and the alleged D.C. Code violation will be dismissed with prejudice for failure to prosecute.*fn1
The Complaint in this case clearly articulates an alleged wage violation under the Fair Labor Standards Act ("FLSA") and a claim for retaliation under the Act. Compl. [Dkt. 1] Counts I, II. The retaliation claim in Count II was tried as a claim for retaliation under the FLSA for complaints Mr. del Villar made regarding his wages under the Davis-Bacon Act. The FLSA establishes a national minimum wage and guarantees time-and-a-half for hours over 40 in a week in many jobs. See 29 U.S.C. §§ 206(a), 207(a). Supplementary to the FLSA is the Davis-Bacon Act, which requires "that laborers and mechanics under covered government contracts will be paid at least the prevailing wages for corresponding classes in the area of performance of the contract as determined by the Secretary of Labor." Ball, Ball & Brosamer, Inc. v. Reich, 24 F.3d 1447, 1449 (D.C. Cir. 1994). It applies "to 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 of the Government or the District of Columbia." 40 U.S.C. § 3142(a). Notice of the change from the Complaint's focus on FLSA to trial on Davis-Bacon escaped all parties.
Mr. del Villar points to no provision allowing a private right of action for retaliation under the Davis-Bacon Act. The Court decides Mr. del Villar's claims as he pled them, under the FLSA.
After a bench trial, the Court enters the following findings of fact and conclusions of law.
1. David del Villar worked for Flynn Architectural from approximately March to July 2008 as a metal refinisher.
2. Flynn Architectural assigned Mr. del Villar to work on three federal construction contracts that were covered by the Davis-Bacon Act: contracts at the Navy Medical Research Center in Bethesda, Maryland ("Navy Project"), the United States Capitol ("U.S. Capitol Project"), and the Visitor's Center at the Federal Bureau of Investigation ("FBI Project") in the summer of 2008.
3. Mr. del Villar was terminated on July 17, 2008.
4. Christopher Flynn, owner of Flynn Architectural, told Mr. del Villar that the reason for his termination was that Mr. del Villar did not get along with his co-workers and that he would not tell Flynn Architectural which chemicals he used to perform his oxidizing work.
5. Flynn Architectural is located in Silver Spring, Maryland; it specializes in refinishing architectural metal, wood and stone elements in commercial buildings.
6. Christopher Flynn is the owner and president of Flynn Architectural; he owns 80 percent of the company.
7. Flynn Architectural has been in business for over 25 years and employs approximately 33 people.
8. Flynn Architectural works mostly on continuing maintenance contracts in commercial buildings. Work on these contracts is done at night to refinish wood, stone and/or metal. Trial Tr. 5-6, July 26, 2011 (Collins) ("Tr. II"). Multi-year maintenance contracts constitute about 65% of the company's work while non-maintenance, or one-time jobs, constitute about 35%. Id. at 6. Flynn Architectural works between 800 and 1,000 jobs each year. Tr. II at 42-43 (Wingreen).
9. Flynn Architectural is thinly staffed at the management levels. Mr. Flynn is owner and president; he does all bidding and runs the business. Mr. Flynn also visits job sites frequently. Edison Collins is vice president of production. Mr. Collins works in Flynn's office, not the field, managing a database that captures all of the work for the metal and stone divisions; scheduling the work for all field technicians on a weekly basis; and reviewing time cards for accuracy. Tr. II at 3-5 (Collins). Patricia Wingreen is the office manager; among other duties, she runs payroll. Id at 4. Flynn Architectural has one field supervisor, Samuel Robles, who generally travels from job site to job site during the evening to oversee the field work. Trial. Tr. 160, July 25, 2011 (Robles) ("Tr. I"). Each job has one or more foremen. Employees working under a foreman are called helpers.*fn2 Tr. I at 24 (Flynn). All employees who work in the field are called technicians. Tr. II at 16 (Collins).
10. None of the maintenance contracts held by Flynn Architectural is covered by the Davis-Bacon Act and its requirement that a government contractor pay the "prevailing wage." Id. at 6. Only a minimal amount, approximately one percent, of "one-time" jobs done by Flynn Architectural are for the federal government and thereby covered by Davis-Bacon. Id. at 6-7.
C. Mr. del Villar's Work at Flynn Architectural
11. Christopher Flynn himself interviewed and hired Mr. del Villar. Having lost two metal refinishers who were skilled in oxidizing, he was glad that Mr. del Villar had that skill. Mr. Flynn did not ask Mr. del Villar what chemicals he used for oxidizing. Tr. I at 25 (Flynn) ("[W]e hired David [del Villar] because we had an oxidizing job that was coming up and we had recently had lost two technicians [whose] specialties were oxidizing so we hired David specifically for the oxidizing jobs.").
12. Oxidizing is "a method of turning the color of . . . metal." Id. at 47. It is basically "a catalyst that accelerates the surface color of a metal." Id. It is a specialized field because there is a variety of chemicals that might be used for oxidizing and "depending on what chemicals you use and how long the chemical stays there [and] whether you neutralize it," the result will be different hues in the metal. Id. Mr Flynn testified: "it really is a unique process . . . [and t]here are a lot of factors that go into oxidizing." Id. at 47-48.
13. Mr. del Villar worked on approximately 20-30 jobs as a helper*fn3 before he worked on any government contracts for Flynn Architectural. Id. at 22, 48. The Navy Project was not an oxidizing job, and Mr. del Villar continued to act as a helper on this job, but it was for the federal government and therefore "prevailing wages" had to be paid. The U.S. Capitol and FBI Projects required an expert refinisher with oxidizing skills, and Mr. del Villar was assigned to do that work. Id. at 37.
14. Flynn Architectural had a one-time contract to sand and refinish stainless steel and brass at the entrance to Bethesda Naval Hospital in Bethesda, Maryland, just outside D.C. The job needed to be completed in two days. Tr. I at 58-60 (del Villar).
15. There was no oxidizing work on the Navy Project, and Mr. del Villar worked as a helper on this job. Tr. I at 37, 48 (Flynn).
16. Flynn Architectural paid its field technicians on the Navy Project a "piecework rate," rather than an hourly rate. In this context, a piecework rate meant a lump sum, intended to be greater than the applicable hourly rate as an incentive to finish the job quickly. If a job takes longer than expected, technicians may elect to receive their hourly rates instead. Tr. II at 8 (Collins).
17. The piecework rate for the Navy Project may have been considered a "bonus" by the field technicians "because if they finish[ed] early they [would] still get paid th[e] same amount." Id. at 18-19. When Mr. Collins calculated the piecework rate for the Navy Project, he was not aware that it was a Davis-Bacon job. Id. at 19.
18. Mr. del Villar testified that Mr. Collins offered him $400 to complete his part of the job in two days. Tr. I at 60 (del Villar). Mr. del Villar understood this was a "bonus." Id. He thought he would also receive his normal hourly rate, but he did not. Id. at 61.
19. During the Navy Project, Mr. del Villar complained to Mr. Flynn that other field technicians were not working hard enough and that he was doing more work than others on the job. Mr. Flynn interpreted his complaints to be "kind of claiming that he was better than everybody else." Tr. I at 28 (Flynn). On investigation, Mr. Flynn came to believe that Mr. del Villar was "doing less work than the rest of the people," so he gave him an oral warning. Id. at 29.
20. Mr. del Villar reported this incident differently. He testified that "Daniel"*fn4 was a Flynn employee on this job who did not want to work. He described him as someone who kept "talking and playing," Tr. I at 76 (del Villar), but when Mr. del Villar complained to Field Supervisor Samuel Robles about Daniel, it "backfired on [him] because when [he] explained the situation [to] Samuel, Samuel . . . said it's not true." Id. at 77. Mr. del Villar believes that Mr. Robles was protecting Daniel because Mr. Robles is married to or lives with Daniel's sister. Id.
21. Mr. del Villar asked Mr. Collins whether the Navy Project was subject to the Davis-Bacon Act and Mr. Collins responded that Mr. Collins would talk to Mr. Flynn. Id. at 60. Mr. del Villar never received an answer to his question. Id. at 60-61. Because it was a federal job, the Davis-Bacon Act did apply, in addition to the FLSA, and required that all laborers be paid the "prevailing wage."
E. The U.S. Capitol Project
22. The U.S. Capitol Project began on June 23, 2008 and was completed on July 7, 2008. Flynn Architectural employee Louis Mata was the foreman on this project. Tr. I at 97 (del Villar). Because it involved ...