                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 DAVID M. DRISCOLL, et al.,

                        Plaintiffs,

                v.                                     Civil Action No. 12-690 (ESH)

 GEORGE WASHINGTON UNIVERSITY,

                        Defendant.



                                  MEMORANDUM OPINION

        David Driscoll, a former employee of George Washington University (“GWU”), has sued

on behalf of himself and others similarly situated alleging that GWU violated federal and D.C.

law by failing to pay overtime wages to certain employees. (Second Amended Class Action

Complaint, Sept. 10, 2012 [ECF No. 24] (“Compl.”).) This Court previously denied GWU’s

motion to dismiss Driscoll’s Fourth Cause of Action, which alleges violations of the D.C. Wage

Payment and Collection Law (“DCWPCL”), D.C. Code § 32-1302. See Driscoll v. George

Wash. Univ., 2012 WL 3900716, at *8 (D.D.C. Sept. 10, 2012). Driscoll has now moved to

certify a Rule 23 class action with respect to his DCWPCL claim (Plaintiff’s Motion to Certify a

Fed. R. Civ. P. Rule 23 Class Action, Oct. 11, 2012 [ECF No. 34]), and GWU has moved for

partial summary judgment as to that claim. (Motion for Partial Summary Judgment, Dec. 4,

2012 [ECF No. 45] (“Mot.”).)

        For the reasons stated herein, the Court will grant GWU’s motion for partial summary

judgment, and as a result, Driscoll’s motion to certify a Rule 23 class action will be denied as

moot.



                                                 1
                                         BACKGROUND

       Driscoll was employed as an Executive Coordinator at GWU from April 2010—

December 2011. (Defendant’s Statement of Material Facts as to Which There is No Genuine

Issue, Dec. 4, 2012 [ECF No. 45-1] (“Def.’s Facts”) ¶ 2; Plaintiffs’ Statement of Genuine Issues

Necessary to Be Litigation and Statement of Material Facts as to Which There Is No Genuine

Issue, Dec. 28, 2012 [ECF No. 55-2] (“Pl.’s Facts”) ¶ 2.) He was promoted to a Department

Operations/Administrative Manager in December 2011, where he remained until his termination

in February 2012. (Def.’s Facts ¶ 3; Pl.’s Facts ¶ 3.) Driscoll was initially classified as an

exempt employee under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (“FLSA”), and the

D.C. Minimum Wage Act, D.C. Code § 32-1012 et seq. (“DCMWA”), so he did not receive

overtime payments. (Compl. ¶ 43.) In 2011, GWU undertook a project to review the

classifications of many positions, including Driscoll’s Executive Coordinator position. (Def.’s

Facts ¶ 4; Pl.’s Facts ¶ 4.) As a result of that review, GWU reclassified Driscoll as non-exempt,

thereby entitling him to prospective overtime payments consistent with the FLSA and the

DCMWA. (Def.’s Facts ¶ 5; Pl.’s Facts ¶ 5.)

       GWU also decided to pay reclassified employees overtime pay for hours worked in

excess of 40 hours per week during the two years prior to the reclassification. (Def.’s Facts ¶ 7;

Pl.’s Facts ¶¶ 7, 48.) To determine the amount of overtime owed each employee, GWU relied on

managers and supervisors to estimate the overtime hours worked by each reclassified employee.

(Def.’s Facts ¶ 8.) Driscoll’s supervisor estimated that Driscoll had worked a total of 24

overtime hours during the roughly 20 months he had worked at GWU prior to his

reclassification. (Id. ¶ 11.) GWU then paid Driscoll for those overtime hours at an amount one-

half his normal hourly rate, based on a method set forth in a Wage & Hour Opinion Letter from



                                                  2
the U. S. Department of Labor. (Id. ¶ 12; Pl.’s Facts ¶ 12.) GWU then notified Driscoll that it

had reclassified his position as non-exempt and would be paying him for 24 hours of overtime

worked prior to the reclassification, which amounted to $232.98, minus taxes and withholdings.

(Def.’s Facts ¶¶ 14-16; Pl.’s Facts ¶¶ 14-16.)

       In response to that letter, Driscoll contacted GWU and asserted that he had “clearly

worked well in excess of 24 hours of overtime.” (Def.’s Facts ¶ 20; Pl.’s Facts ¶ 20.) As

evidence of that fact, Driscoll provided GWU with a spreadsheet containing the hours he worked

during one two-week period, which included more than 50 overtime hours. (Pl.’s Facts ¶ 42.)

However, he did not identify the total number of overtime hours he believes he worked prior to

the reclassification, and GWU has not paid him any additional money beyond the initial $232.98.

(Def.’s Facts ¶ 29; Pl.’s Facts ¶ 29.)

       Thereafter, Driscoll filed suit on behalf of himself and other similarly situated reclassified

employees under the FLSA, DCMWA, and DCWPCL for unpaid overtime wages. He argues

that GWU violated federal and state wage laws by (1) failing to compensate them for all the

overtime hours they actually worked, (2) using the Department of Labor’s half-time payment

method for overtime hours worked, rather than the time-and-one-half method provided for in the

FLSA and DCMWA, (3) paying only two-years’ worth of back overtime payments,

notwithstanding the three-year statute of limitations under the relevant statutes, and (4) failing to

pay liquidated damages or interest, notwithstanding the provision mandating such payments

under the relevant statutes.

       On August 8, 2012, Driscoll moved to conditionally certify an opt-in collective action

under the FLSA and DCMWA. (Plaintiff’s Motion to Conditionally Certify a FLSA Collective

Action and Send Notice to the Class [ECF No. 17].) After a hearing on that motion, the Court



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granted Driscoll’s motion and conditionally certified a class consisting of “[a]ll current and

former Executive Assistants, Executive Coordinators and Executive Associates employed by The

George Washington University after April 27, 2009, who worked in excess of forty hours per

week in those positions, were not paid overtime wages during all or part of their employment in

those positions, and were in one of those positions when those positions were reclassified.” (See

Minute Order, Oct. 25, 2012; Minute Order, Nov. 7, 2012 (adopting plaintiff’s proposed class

definition).) The Court also authorized Notice to be sent to all potential class members. (See

Minute Order, Nov. 7, 2012.) During the 60-day opt-in period, seventeen additional plaintiffs

joined the three who had previously consented to join the lawsuit. 1

       Driscoll now seeks to certify an opt-out Rule 23 class under his Fourth Cause of Action

based on the same class definition. (See Reply in Support of Plaintiff’s Motion to Certify a Fed.

R. Civ. P. Rule 23 Class Action, Jan. 16, 2013 [ECF No. 63] at 1 n.1.) GWU opposes class

certification (Opposition to Motion for Class Certification, Dec. 14, 2012 [ECF No. 50]), and has

filed for summary judgment on that claim.

                                           ANALYSIS

       GWU has filed a motion for summary judgment on Driscoll’s DCWPCL claim, arguing

that (1) the DCMWA provides the exclusive remedy for a plaintiff seeking unpaid overtime

wages, and (2) the DCWPCL does not apply because there is a bona fide dispute as to the

amount of overtime wages Driscoll is owed. 2 Because the Court agrees with GWU that the


1
 Two additional potential plaintiffs consented to join the lawsuit but later withdrew their
consent.
2
 The DCWPCL provides that where there is “a bona fide dispute concerning the amount of
wages due,” and where “the employer [gives] written notice to the employee of the amount of
wages which he concedes to be due, and [pays] such amount,” that payment will constitute
compliance with the terms of §§ 32-1302 and 32-1303. D.C. Code. § 32-1304. GWU contends
that there is a bona fide dispute concerning how much money Driscoll is owed in back overtime
                                                 4
DCMWA is Driscoll’s exclusive state remedy, it need not address whether there is a bona fide

dispute as to the amount of wages owed.

          GWU does not dispute that Driscoll adequately states a claim under the DCMWA. The

DCMWA provides that non-exempt employees in the District of Columbia must be paid

overtime wages for hours worked in excess of 40 hours per week, and that the overtime rate must

be at least one-and-one-half times the employee’s regular hourly rate. D.C. Code. § 32-1003(c).

Driscoll alleges that he was not paid overtime for all hours he worked beyond 40 hours per week,

and that the overtime payments he did receive were only one-half his usual hourly rate. (Compl.

¶¶ 49-52.) Thus, he states a claim under the DCMWA. See also Driscoll, 2012 WL 3900716, at

*6 n.3.

          However, Driscoll’s complaint also seeks relief under the DCWPCL based on identical

facts. (Compl. ¶¶ 74-76.) In its motion to dismiss, GWU argued that Driscoll could not bring

claims under both statutes because “the DCMWA provides the exclusive remedy for a plaintiff

alleging a right to be paid overtime wages under D.C. law.” (Motion to Dismiss, July 3, 2012

[ECF No. 9] at 2.) At that time, the Court noted only that under the plain terms of the DCWPCL,

plaintiff had stated a claim. Driscoll, 2012 WL 3900716, at *8. Specifically, the DCWPCL

provides that “[e]very employer shall pay all wages earned to his employees at least twice during

each calendar month, on regular paydays designated in advance by the employer.” D.C. Code.

§ 32-1302. Thus, because Driscoll alleged that GWU did not pay him “all [overtime] wages

earned,” the Court held that his complaint satisfied Rule 12(b)(6). Driscoll, 2012 WL 3900716,

at *8. However, the Court declined at that time “to decide the difficult state law question of



wages, and that because they sent Driscoll a letter informing him of the amount they believed to
be due and in fact deposited that amount in his bank account, they have complied with the terms
of the DCWPCL. (See Mot. at 18-23.)
                                                 5
whether the DCMWA is Driscoll’s sole remedy for his overtime claims.” 3 Id. The Court now

must tackle this issue. While Driscoll cites cases where a plaintiff has brought claims under both

statutes, these cases are distinguishable (see infra at 9-10), and more importantly, no court in this

jurisdiction has had to confront the question presented here: can a plaintiff bring claims under

both statutes based on the same operative facts? 4

       The history of the two statutes is informative. The DCWPCL was enacted in 1956. In

addition to its prescriptions regarding how and when employers must pay their employees’

wages, it establishes a framework for recovery against an employer who violates its provisions.

See D.C. Code § 32-1308. Specifically, it provides that an employee may recover “unpaid wages

and liquidated damages” and may bring suit in the form of a class action on behalf of himself and

other employees similarly situated. See id. Having established that statutory framework, the

D.C. Council then enacted the DCMWA in 1992, guaranteeing a certain minimum wage and

overtime payments to all non-exempt employees. See D.C. Code § 32-1003. Similar to the

DCWPCL, the DCMWA provides for liability against employers, but the DCMWA (like the

FLSA) is far more restrictive. For example, it allows employers to avoid liquidated damages if


3
 Driscoll argues that, based on this Court’s ruling on the motion to dismiss, it is the “law of the
case” that he may bring a claim under the DCWPCL. (Opposition to Defendant’s Motion for
Partial Summary Judgment, Dec. 28, 2012 [ECF No. 55] (“Opp’n”) at 2-3 & n.1.) However,
because the Court expressly reserved the question of whether the DCMWA provides the
exclusive remedy for his claims, that is plainly not the case. See Driscoll, 2012 WL 3900716, at
*8.
4
 Defendant argues that Driscoll has conceded that the DCMWA is the exclusive remedy for his
claim. (Reply in Further Support of Defendant’s Motion for Partial Summary Judgment, Jan. 23,
2013 [ECF No. 64] at 4-5.) However, in his Opposition to Summary Judgment, Driscoll
incorporated by reference the arguments he made the first time this issue was briefed, in response
to GWU’s motion to dismiss. (Opp’n at 5.) There, Driscoll thoroughly addressed the exclusivity
question (see Opposition to Defendant’s Motion to Dismiss First Amended Complaint, July 17,
2012 [ECF No. 11] (“Motion to Dismiss Opp’n”) at 9-16), arguing specifically that “[c]ourts in
this District regularly allow wage and hour claims to be brought under multiple statutes.” (Id. at
14.)
                                                  6
they can establish that they acted in “good faith” and “had reasonable grounds” to believe they

were in compliance with the statute. D.C. Code. § 32-1012(a). Most significantly, it limits class

actions to “opt-in” lawsuits by providing that “[n]o employee shall be a party plaintiff to any

action brought under this subchapter unless the employee gives written consent to become a

party.” D.C. Code. § 32-1012(b). Neither the good faith defense to liquidated damages nor the

opt-in requirement for class action lawsuits is available under the DCWPCL.

       It is a longstanding and well-established principle of statutory construction that “a

specific statute controls over a general one.” Bulova Watch Co. v. U.S., 365 U.S. 753, 758

(1961); see also Morton v. Mancari, 417 U.S. 535, 550-51 (1974) (“Where there is no clear

intention otherwise, a specific statute will not be controlled or nullified by a general one.”). This

is true even where the general statute is enacted later in time than the more specific statute. See

Bulova Watch, 365 U.S. at 758 (noting that the specific statute controls “without regard to

priority of enactment” (quoting Townsend v. Little, 109 U.S. 504, 512 (1883))). And, of course,

when the legislature enacts a more restrictive statute against a backdrop of a more permissive

pre-existing legislative framework, the later specific statute should control.

       Furthermore, D.C. courts have long held that “[w]hen a statute provides a comprehensive

enforcement scheme for violations of its substantive provisions, a legislative intent to provide an

exclusive remedy may be inferred.” Smith v. Police & Firemen’s Ret. & Relief Bd., 460 A.2d

997, 1000 (D.C. 1983). Thus, a plaintiff cannot bring a claim for wrongful discharge alongside

his DCMWA claim based on the same facts because that statute “provide[s] plaintiff’s exclusive

remedy.” Hicks v. Ass’n of Am. Med. Colleges, 503 F. Supp. 2d 48, 55 (D.D.C. 2007). The D.C.

Council enacted a comprehensive, detailed, and restrictive enforcement scheme for violations of

the DCMWA with full awareness of the more expansive enforcement provisions of the



                                                  7
preexisting DCWPCL. It would therefore frustrate legislative intent—and effectively render the

DCMWA’s restrictive provisions a nullity—for this Court to conclude that because the facts of

Driscoll’s complaint amount to a violation of both the DCMWA and the DCWPCL, he can

proceed under either or both statutes.

       Additionally, permitting Driscoll to proceed under the DCWPCL would allow him to

avoid the DCMWA’s opt-in class action provision, see D.C. Code. § 32-1012(b), even though

his DCWPCL claim is based on the same facts as his DCMWA claim. For example, one of

Driscoll’s major complaints about his overtime pay is that it was not one-and-one-half times his

regular wage, as required by § 32-1012(a) of the DCMWA. (See Compl. ¶ 50.) To allow

Driscoll to litigate that question under the DCWPCL as a Rule 23 opt-out class action would

directly violate the other employees’ right under the DCMWA not to be brought into an action

without their written consent. 5

       Although this is an issue of first impression in this jurisdiction, courts in other

jurisdictions have concluded that claims seeking overtime payments under a state’s wage

payment and collection law are more properly brought under the state’s minimum wage law.

See, e.g., Jara v. Strong Steel Door, Inc., 2008 WL 3823769, at *11-12 (N.Y. Sup. Ct. Aug. 15,

2008); Mitchell v. C&S Wholesale Grocers, Inc., 2010 WL 2735655, at *5 (D.N.J. July 8, 2010);

Lanphear v. Tognelli, 601 A.2d 1384, 1386 (Vt. 1991). This is true notwithstanding broad

statutory language, much like the language of the DCWPCL, that arguably allows recovery of

unpaid overtime wages. See N.Y. Labor § 191 (McKinney 2007) (every employer “shall pay

5
  Indeed, this Court has previously addressed the question whether Driscoll could bring a Rule 23
class action for his DCMWA claim and concluded that “the DCMWA’s opt-in mechanism
confers substantive rights such that application of Rule 23 in these circumstances would violate
the Rules Enabling Act.” Driscoll, 2012 WL 3900716, at *7. To permit Driscoll to invoke the
DCWPCL to bring a Rule 23 class action would effectively nullify this Court’s prior conclusion
as to the DCMWA.
                                                  8
wages” in accordance with that statute’s provisions); N.J. Stat. Ann. § 34:11-4.4 (West 2010)

(“[n]o employer may withhold or divert any portion of an employee’s wages”); Vt. Stat. Ann. tit.

21, § 347 (West 1977) (every employer “shall pay . . . the wages earned by each employee”). 6

Indeed, the Vermont Supreme Court held that a plaintiff stating a claim under Vermont’s

minimum wage law could not take advantage of a remedy under that state’s wages and medium

of payment law, which is analogous to the DCWPCL. See Lanphear, 601 A.2d at 1386. The

court noted that “[i]f violations of requirements to pay no less than minimum wage . . . were

automatically violations subject to [the wages and medium of payment law] penalties, different

remedies and penalties would apply to the same conduct, rendering the less stringent sanctions . .

. meaningless.” Id. The same logic applies with equal force here. If a violation of the DCMWA

based on a failure to pay overtime wages was automatically subject to the DCWPCL’s penalties,

the more stringent sanctions of the DCMWA would be rendered meaningless.

       In support of his position, Driscoll relies on cases where he argues that plaintiffs have

been permitted to bring claims for unpaid compensation under both the DCMWA and DCWPCL.

(See Motion to Dismiss Opp’n at 9, 14-15.) This reliance is misplaced. To be sure, Driscoll is

correct that plaintiffs’ claims for unpaid wages are described in court opinions as arising under

the FLSA, the DCMWA, and the DCWPCL. See, e.g., Thompson v. Linda and A, Inc., 779 F.

Supp. 2d 139 (D.D.C. 2011) (characterizing plaintiff’s allegations as that the defendants had

6
  Driscoll is correct that other courts have allowed overtime claims to be brought under a state’s
wage payment and collection law. See Goldman v. RadioShack Corp., 2005 WL 1155751 (E.D.
Pa. May 13, 2005); Dunn v. Dubuque Glass Co., Inc., 2012 WL 1564700, at *11-12 (N.D. Iowa
May 1, 2012); White v. VNA Homecare, Inc., 2012 WL 1435432 (S.D. Ill. Apr. 25, 2012).
However, none of these cases considered the question whether the facts underlying those claims
could also give rise to a claim under the state’s minimum wage act and if so, whether the claims
were more appropriately brought under that statute. More importantly, none of the state statutes
at issue in the cited cases contained mandatory opt-in class action procedures. Thus, none of the
cases that plaintiff relies on had to confront the question of how a court should resolve
conflicting remedy provisions in two state statutes.
                                                 9
violated the minimum wage provisions of FLSA, DCMWA, and DCWPCL). However, in the

majority of cases, 7 the plaintiffs brought claims under the DCMWA and the DCWPCL based on

different factual allegations, not identical facts, as is the case here. See, e.g., Amended

Complaint, Thompson, 779 F. Supp. 2d 139 (No. 09-1942) (DCMWA claim sought minimum

wage payments; DCWPCL claim alleged that employer took unexplained deductions from

paychecks); Complaint, Encinas v. J.J. Drywall Corp., 265 F.R.D. 3 (D.D.C. 2010) (No. 08-

1156) (DCMWA claim sought overtime payments; DCWPCL claim alleged that employer had

deducted 10% off each paycheck with no justification); Amended Complaint, McKinney v.

United Stor-All Ctrs., Inc., 585 F. Supp. 2d 6 (D.D.C. 2008) (No. 08-0333) (DCMWA claim

sought overtime payments; DCWPCL claim alleged that plaintiff was not paid for unclaimed

vacation time at the time of termination); Complaint, Castillo v. P & R Enter., Inc., 517 F. Supp.

2d 440 (D.D.C. 2007) (No. 07-1195) (DCMWA claim sought overtime payments; DCWPCL

claim alleged that plaintiffs were not compensated for work performed during rest and lunch

periods and before and after the scheduled hours of plaintiffs’ shifts). This Court is not aware of

any case, nor has plaintiff cited one, where a court has addressed whether a plaintiff could pursue

claims under both the DCWPCL and the DCMWA based on identical facts.

       In light of the above principles of statutory construction and the necessity of construing

the DCWPCL so as to avoid rendering the DCMWA’s remedy provisions meaningless, the Court

concludes that the proper avenue for Driscoll to pursue his claim for unpaid overtime wages is

under the DCMWA. His Fourth Cause of Action will therefore be dismissed.


7
 In two cases, Thompson v. Fathom Creative, Inc., 626 F. Supp. 2d 48 (D.D.C. 2009), and
Morales v. Landis Constr. Corp., 715 F. Supp. 2d 86 (D.D.C. 2010), it appears that the plaintiffs
did attempt to seek unpaid overtime wages under both statutes. See Complaint, Thompson, 626
F. Supp. at 48 (No. 08-1841); Amended Complaint, Morales, 715 F. Supp. 2d 86 (No. 08-1463).
However, in neither case was the court asked to consider the propriety of applying both statutes.
Moreover, neither plaintiff sought to bring the DCWPCL claim as a Rule 23 opt-out class action.
                                                 10
                                        CONCLUSION

       For the reasons stated, the Court will grant GWU’s motion for summary judgment, and

Driscoll’s motion to certify a Rule 23 class action will be denied as moot. A separate Order

accompanies this Memorandum Opinion.

                                                                /s/
                                                    ELLEN SEGAL HUVELLE
                                                    United States District Judge

Date: April 5, 2013




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