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Date: 06-02-2015

Case Style: Debbra Ellis v. Premier Community Services, Inc.

Case Number: CJ-2014-726

Judge: Dana Kuehn

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: David Warta

Defendant's Attorney: Victor Albert and Brandley Bendure for Premier Community Services, Inc., Van Benton and Rochelle Saunders

Description: Tulsa, OK - Debbra Ellis sued Premier Community Services, Inc., Van Benton and Rochelle Saunders on a fair labor standards act violation theory claiming:

1 Plaintiff was at all times pertinent to this action, employed by Defendants within
Tulsa County, Oklahoma Furthermore Plaintiff is domiciled and resides within Tulsa County, Oklahoma.
2. Defendant Premier Community Services, Inc. (“PCS”) is a domestic for profit business corporation regularly engaged in business in Tulsa County, Oklahoma. PCS operates and staffs residential living facilities for adults with disabilities in the Tulsa metropolitan area. PCS was founded in 2002 and its sole owner is Mr. Van Benton.
3. Mr. Van Benton and Ms. Rochelle Saunders, General Manager, run the daily operations of the firm and oversee its employees. Both Mr. Benton and Ms. Saunders meet the statutory definition of a Fair Labor Standards Act (“FLSA”) Section 3(d) employer, and are therefore individually liable for the allegations contained herein.
4. Plaintiff, while employed by Defendants, was engaged in commerce or was employed in an enterprise engaged in commerce or in the production of goods for commerce.
5. Defendant PCS employs two or more individuals, including Plaintiff, who are engaged in commerce or in the production of goods for commerce, or who handle, sell, or otherwise work on goods or materials that have been moved in or produced for commerce. Furthermore, Defendant PCS is an enterprise that regularly employs equipment, goods and supplies that were manufactured outside of Oklahoma and which were transported to Oklahoma. Finally, upon information and belief, Defendant PCS has respective annual gross volume of sales made or business done of at least $500,000.00. Defendant PCS is therefore an enterprise engaged in commerce under the FLSA. Defendants are employers and Plaintiff is a covered employee under the FLSA.
6. Plaintiff is an employee under the FLSA and is entitled to the protections afforded by the overtime provisions of the FLSA, and has standing under Section 16(b) of the Act to maintain this action.
7. The wrongful acts and violations under the FLSA alleged herein all occurred in Tulsa County, Oklahoma.
8. Therefore, jurisdiction and venue are proper in Tulsa County District Court.
9. Plaintiff incorporates by reference all preceding paragraphs.
10. Beginning in approximately March 2005 through the termination of her employment in February 2012, Plaintiff performed duties a direct care worker in various homes staffed and operated by Defendants. During the relevant time period, all homes in which Plaintiff worked were classified as “non-sleep homes,” a designation that prohibited Plaintiff from sleeping in the homes. During the relevant time period, Plaintiff maintained and resided at her own private residence during sleep hours.
11. Defendants had ultimate management control of the living units in which Plaintiff was employed. The living units were maintained by Defendants primarily to facilitate the provision of assistive services to the clients for whom Plaintiff was responsible. During the relevant time period, Plaintiff was assigned to and worked overtime in a home in which two unrelated residents lived. Another home to which Plaintiff was assigned housed a resident who received services from Defendants from the time the resident began to lease the home.
12. Defendants were listed as authorized signors on checking accounts held by residents of homes in which Plaintiff worked. Defendants paid utility bills from these accounts. Plaintiff was required to submit requests to Defendants for “budget checks” so that Plaintiff could perform tasks and purchase items necessary for the maintenance of the home and daily living expenses of the residents. Timesheets were kept in the homes for Defendants’ employees to complete. A fax machine and desk were provided to Plaintiff within the respective homes so that Plaintiff and other employees of Defendant PCS could fax timesheets and other documents to Defendant PCS.
13. Throughout her employment, Plaintiffs primary job duties included purchasing groceries, providing transportation of residents to doctor’s appointments, movies, concerts, plays, cooking meals, assisting with laundry and cleaning, and consulting clients regarding health and hygiene. Although the residents sometimes assisted with the upkeep of the home, Defendants were ultimately responsible for the maintenance and upkeep of the residence. The residents of the homes in which Plaintiff worked were restricted by Defendants from leaving the home on certain occasions, and therefore the residents were not allowed to leave the respective residences at their sole discretion.
14. The cost of the services provided by Defendants is a significant portion of the cost of the residences in which Plaintiff worked.
15. From the commencement of Plaintiffs employment through her termination, Plaintiff was regularly required to work in excess of 100 hours per workweek. During the course of her employment, Defendant failed to pay Plaintiff one and one half times her regularly hourly rate for the hours worked in excess of 40 in a workweek. During the relevant time period, Defendants paid Plaintiff a regular hourly rate of $10.05 per hour for all hours worked, including overtime hours.
16. Near the end of her employment in February 2012 Plaintiff became aware that others in her position were paid an overtime rate while she was not. Plaintiff complained to Defendants regarding Defendants’ willful failure to properly compensate her overtime hours.
17. Shortly thereafter, Defendants terminated Plaintiffs employment.
18. Plaintiff then filed a Complaint with the Wage and Hour Division of the U.S. Department of Labor regarding the wage violations described herein. A full investigation was conducted and the Department of Labor completed a Compliance Action Report. The Department of Labor concluded that Defendants committed 87 violations regarding failure to pay proper overtime and keep proper records pursuant to the FLSA. Despite the findings, Defendants have continued to refuse to pay Ms. Ellis the amounts owed to her.
19. Plaintiff incorporates by reference all preceding paragraphs.
20. At all times material to this lawsuit, Plaintiff was employed by Defendant and regularly worked in excess of forty (40) hours per week in performance of the duties assigned by Defendants.
21. Plaintiff is not exempt from the overtime compensation requirements of the FLSA under any of the exemptions set forth in the Act.
22. Defendants have a statutory duty to maintain accurate time records covering all hours worked by Plaintiff and to compensate Plaintiff at the rate of one and one-half (1 1/2) times her regular hourly wage for all time worked in excess of forty (40) hours in one workweek.
23. Defendants’ failure to maintain accurate time records and to properly compensate Plaintiff for overtime hours worked was a knowing, willful and intentional violation of the
WHERFORE, Plaintiff prays for judgment against Defendants for:
a. unpaid overtime wages, with prejudgment interest thereon;
b. liquidated damages;
c. attorneys’ fees and costs pursuant to Section 16(b) of the FLSA;
d. such other relief as the Court deems just and equitable.
24. Plaintiff incorporates by reference all preceding paragraphs.
25. During her employment with Defendants, Plaintiff complained to Defendant’s
management regarding the non-payment of overtime wages. As a result of Plaintiff’s complaints, Defendants terminated Plaintiff’s employment. Defendants’ termination of Plaintiff’s employment was a knowing, willful and intentional violation of the FLSA.
WHEREFORE, Plaintiff prays for judgment against Defendants for:
a. backpay, with prejudgment interest thereon;
b. front pay;
c. emotional distress damages;
d. punitive damages;
e. attorneys’ fees and costs; and
f. such other relief as the Court deems just and equitable.
VIOLATION OF 40 O.S. 165.3
26. Plaintiff incorporates by reference all preceding paragraphs.
27. 40 O.S. § 165.3 provides:
A. Whenever an employee’s employment terminates, the employer shall pay the employee’s wages in full, less offsets and less any amount over which a bona fide disagreement exists, as defined by Section 165.1 of this title, at the next regular designated payday established for the pay period in which the work was performed either through the regular pay channels or by certified mail postmarked within the deadlines herein specified if requested by the employee, unless provided otherwise by a collective bargaining agreement that covers the employee.
B. If an employer fails to pay an employee wages as required under subsection A of this section, such employer shall be additionally liable to the employee for liquidated damages in the amount of two percent (2%) of the unpaid wages for each day upon which such failure shall continue after the day the wages were earned and due if the employer willfully withheld wages over which there was no bona fide disagreement; or in an amount equal to the unpaid wages, whichever is smaller; provided, however, that for the purpose of such liquidated damages such failure shall not be deemed to continue after the date of the filing of a petition in bankruptcy with respect to the employer if he thereafter shall have been adjudicated bankrupt upon such petition.
28. The wages described herein were earned and due to Plaintiff no later than the end of February 2012. Even after the U.S. Department of Labor determined that Defendants had failed to properly pay Plaintiff and had advised Defendants of that fact, Defendants continued to refuse to pay Plaintiff’s wages in full as required by 40 O.S. 165.3. Well over fifty days have passed since Defendants were required to pay Plaintiff the wages owed. Therefore, liquidated damages are also owed to Plaintiff based upon Defendants’ failure to timely pay Plaintiff.

Outcome: Settled and dismissed with prejudice.

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