To receive
the benefit of the suit, you must opt in by completing the appropriate
form and forwarding to this law firm ASAP!
Opt-In
Form
(Word Document)
IN THE
UNITED STATED DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond
Division
LINDA
ADAMS, DEBBIE JACOBS, MARY C. BEASLEY,
ROBIN FRALEY, GINA BAILEY, BETTY W.
HART,
FOREST SHEWSBURON, on their own behalf and for all
others similarly situated,
Plaintiffs,
v.
Case No.3:05CV310
SCHOOL
BOARD OF HANOVER COUNTY,
DR.
STEWART D. ROBERSON,
in his official capacity as a member of the School Board AND Superintendent of
Schools, for the County of Hanover, Virginia
DAVID
L SLONAKER, in his
official capacity as a member of the School Board for the County of Hanover,
Virginia
GLENN
T. MILLICAN, JR.,
in his official capacity as a member of the School Board for the County of
Hanover, Virginia
SUE
F. WATSON, in her
official capacity as a member of the School Board for the County of Hanover,
Virginia
JOHN
F. AXSELLE, III,
in his official capacity as a member of the School Board for the County of
Hanover, Virginia
ROBERT
L. WOOD, in his
official capacity as a member of the School Board for the County of Hanover,
Virginia
ANN
F. H. GLADSTONE,
in her official capacity as a member of the School Board for the County of
Hanover, Virginia
ROBERT
L. HUDLEY, JR., in
his official capacity as a member of the School Board for the County of Hanover,
Virginia
EARL
J. HUNTER, in his
official capacity as a member of the School Board for the County of Hanover,
Virginia
Defendants.
COMPLAINT
PRELIMINARY
STATEMENT
1.
Plaintiffs
brings this action on behalf of themselves and a class of others similarly
situated to require Defendants to pay back wages owed to Plaintiffs and the
Plaintiff Class, which Defendants failed to pay in violation of § 7 of the Fair
Labor Standards Act of 1938, as amended, 29 U.S.C. 201, et seq.
("the Act"). Plaintiffs seek permanent injunctive relief and damages
for themselves and all class members.
JURISDICTION
AND VENUE
2.
This Court has
jurisdiction of Plaintiffs’ claims pursuant to 29 U.S.C. § 201, et seq.; 29
U.S.C. § 216, 28 U.S.C. § 1331 and 28 U.S.C. § 1337(a).
3.
Venue is proper
pursuant to 28 U.S.C. § 1391(b)(ii) because the defendant transacts business in
this district, and plaintiffs were employed by the defendant in this district,
and most of the actions complained of were conducted within this district.
PARTIES
4.
Plaintiffs
Linda
Adams, Debbie Jacobs, Mary C. Beasley, Robin Fraley, Gina Bailey,
Betty W. Hart, and Forest Shrewsbury (hereinafter “Bus Drivers”) are
current hourly non-exempt employee of Hanover County School Board who earned,
but did not receive, compensation for time worked, together with time and
one-half pay for time spent over 40 hours per week from Defendants.
5.
The class of
similarly situated bus drivers are or were hourly non-exempt employees of
Hanover County School Board who earned, but did not receive compensation for
time worked, time and one-half pay for time spent over 40 hours per week from
Defendants.
6.
The plaintiffs
Bus Drivers and the class at all times relevant hereto were each an
“employee” as that term is defined by 29 U.S.C. §203 (e).
7.
The defendant
was at all times relevant hereto was an “employer” as that term is defined
by 29 U.S.C. §203 (d).
8.
Defendant is
Hanover County School Board, (“Hanover”).
The employees of
Hanover
regularly handle and work on goods such as office supplies, buses, etc. which
have moved in interstate commerce.
9.
Defendants Dr.
Stewart D. Roberson, David L. Slonaker, Glen T. Millican, Jr., Sue F. Watson,
John F. Azselle, III, Robert L. Wood, Ann F. H. Gladstone, Robert L. Hudley,
Jr., and Earl J. Hunter are members of the school board for the County of
Hanover and are sued in their official capacity as the employer of the
plaintiffs Bus Drivers and the members of the class.
CLASS
ACTION ALLEGATIONS
10.
Pursuant to 29
U.S.C. § 216(b), Plaintiff Bus Drivers brings this action on behalf of
themselves and an opt-in class of all persons who were, are or will be hourly
non-exempt bus drivers of Hanover who earned, but did not receive compensation
for time worked, including but not limited to overtime pay from Defendant, and
only recently became aware of their right to such compensation and overtime pay.
a)
The size of the
class is so numerous (over 100 persons) that joinder of the individual members
would be impracticable.
b)
The named
Plaintiffs are an adequate class representative because they are directly
impacted by Defendants’ actions. The interests of the named Plaintiffs are not
antagonistic to, or in conflict with, the interests of the class as a whole. The
attorneys representing the class are experienced in representing clients in
federal litigation.
c)
Common
questions of law and fact are involved, including questions posed by
Plaintiffs’ allegations that Defendants failed to pay in violation of § 7 of
the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. 201, et seq.
("the Act") present and former hourly non-exempt employees of Hanover
County, who earned, but did not receive, overtime pay from Defendant.
d)
Claims of the
named Plaintiff are typical of the claims of the class because all class members
and the named Plaintiffs are affected by Defendants’ conduct.
e)
Defendants have
acted on grounds generally applicable to the class, thereby making appropriate
final declaratory and injunctive relief with respect to the class as a whole.
f)
Common
questions of law or fact predominate over any questions affecting only
individual members, and a class action is superior to other available methods
for the fair and efficient adjudication of the controversy.
g)
The named
Plaintiffs are similarly situated to the class members in terms of job
responsibilities, title, and employment dates as they are all bus drivers who
provided services to the students of Hanover County including but not limited to
developmentally and learning disabled children for the purpose of supplying such
services to the public and who were denied compensation for all the time that
they worked and on occasion, time and one-half overtime wages by Defendants.
FACTS
11.
Hanover County
School Board hired the Bus Drivers and class members.
12.
Bus Drivers and
class members provide transportation services, including but not limited to,
driving school buses, maintaining a clean and safe environment, reporting
behavioral issues, issuing conduct notices, cleaning the buses, refueling the
buses, transporting the buses for repairs and maintenance, storing the buses,
supplying such services to the public.
13.
Hanover County
School Board paid Bus Drivers and class members an hourly wage, but failed to
pay for all time worked, including for actual time driving, for time driving the
empty bus, for time fueling, cleaning and inspecting the bus, for time required
to have buses repaired and similar time spent associated with the duties of
driving a bus.
14.
Hanover County
School Board failed to maintain time records.
PAYMENT FOR
ALL TIME WORKING
15.
The Bus Drivers
and class members are not paid for all the time that they work.
Instead, Hanover County School Board pays the Bus Drivers and class
members an arbitrary pay without regard to the time actually expended by the Bus
Drivers and class members working.
16.
The defendants
improperly failed to compensate the plaintiff Bus Drivers and class members for
all time they were at work discharging their work-related duties.
17.
For extra bus
runs, the Bus Drivers and class members are paid at reduced rates.
OVERTIME
COMPENSATION
18.
From time to
time, Bus Drivers and class members are required to worked over forty hours per
week.
19.
The Fair Labor
Standards Act requires an employer to pay its employees at a rate of at least
one and one-half their regular rate for time worked in one work week over forty
hours. This is commonly known as the time-and-a-half pay for overtime work.
20.
Despite working
overtime, the Bus Drivers and class members were not paid time and one-half pay
from Defendants for overtime worked.
WILLFUL
VIOLATIONS
21.
On information
and belief, Defendants have for more than three years, willingly, deliberately
and intentionally refused to pay Bus Drivers and class members for time actually
worked, and for time and one-half pay for overtime worked.
22.
On information
and belief, and in violation of the FLSA, Defendants did not, during all
relevant times, until recently, post the FLSA laws in an area alerting Bus
Drivers and class members of their rights to payment for time worked and to
overtime pay under the FLSA.
23.
Consequently,
Bus Drivers and class members were until very recently, never aware that the
FLSA provided for compensation for time actually worked rather than an arbitrary
determination and for time and one-half pay for overtime worked or that they
were owed compensation for actual time worked and time and one-half pay for
overtime worked as a bus drivers.
24.
Defendants led
Bus Drivers and class members to believe that their regular pay was paid in
conformity with the FLSA and the laws of the State of
Virginia
.
25.
In fact, not
until one of the Bus Drivers contacted the Department of Education did the Bus
Drivers and class members find that they were owed back wages or learn that
Defendants failed to pay in accordance with FLSA and did fail to pay overtime
wages in violation of the FLSA.
26.
Defendants knew
or should have known that Bus Drivers and class members were entitled to
compensation for time actually worked and for time and one-half overtime pay
under the FLSA, during all relevant times.
27.
As proof of
this fact, upon information and belief Defendants had previously received
publications and advice to pay Bus Drivers and class members the wages actually
earned and to pay time and one-half overtime pay, but failed to do so.
28.
As further
proof of this fact, when the failure to comply was brought to the attention of
the director, the only response was “HR knew what they were doing” or words
of similar import.
29.
As further
proof of this fact, in newsletters from the VAPT, schools were notified that
wage claims were arising due to violations of FLSA under circumstances similar
to the present.
30.
When drivers
questioned the director about not being paid for hours in excess of 4 hours per
day, the director responded, “this is just how we do it.”
31.
As further
proof of this fact, Defendants instituted a new time record on April 1, 2005,
which requires the employees Bus Drivers and class members to certify that the
document reports true and correct hours worked, but has concurrently provided
the Bus Drivers and class members with instructions regarding the completion of
the time sheet which will result in erroneous report of that time, including but
not limited to ending the calculation of time as soon as the last child is let
off the bus, starting the time when the bus leaves the lot, if garaged on School
property rather than when inspection of the bus begins, not including time
required to park the bus, not including time spent traveling to refuel the bus
(only including actual pump time) time, no time included for driving the bus for
repairs, no time for inspecting the bus after the bus run to close windows and
insure that no child is left on the bus sleeping.
32.
Defendants,
however, willfully, deliberately and intentionally failed to pay Bus Drivers and
class members for time actually worked and for time and one-half overtime wages
to Bus Drivers and class members who worked over forty hours per week.
33.
Defendants have
never claimed that the FLSA laws do not apply to the Bus Drivers and class
members or that the Bus Drivers and class members are exemption from these
requirements.
34.
The Bus Drivers
and the other similarly situated bus drivers are, therefore, owed compensation
for time actually worked but not paid, and time and one-half overtime wages and
back wages by Defendants, who willingly and knowingly withheld those wages.
FIRST
CAUSE OF ACTION
(Fair
Labor Standards Act)
35.
The foregoing
paragraphs are included herein as though fully set forth herein.
36.
Defendants
regularly engage in commerce and their employees handle and use goods, which
have moved in interstate commerce.
37.
At all relevant
times, Defendants were and are employers within the meaning of the Fair Labor
Standards Act of 1938, as amended, 29 U.S.C. 201, et seq. and are subject
to the provisions of such Act.
38.
Plaintiffs Bus
Drivers and the Plaintiff Class at all relevant times were employees of
Defendants, as defined by the Fair Labor Standards Act of 1938, as amended, 29
U.S.C. 201, et seq.
39.
During the
period of time that Plaintiffs Bus Drivers and the Plaintiff Class were employed
by Defendants, the Plaintiffs Bus Drivers and Plaintiff Class performed work for
which they were not compensated and in addition on occasion overtime work for
which no additional compensation was paid to them by Defendants in violation of
the provisions of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C.
201, et seq. More specifically, Defendants violated § 7 of the FLSA by
failing to pay time and one-half overtime wages to hourly non-exempt employees
who constitute the Plaintiff Class and earned overtime pay.
40.
Upon
information and belief, the defendant’s pay system was unilaterally imposed
upon plaintiff Bus Drivers and class members.
41.
The
defendants’ failure to compensate the plaintiffs Bus Drivers and the class
members for all compensable hours violates the minimum wage provisions of the
FLSA and the regulations thereunder.
42.
The
defendants’ failure to properly administer a scheme of compensation, including
but not limited to actual time, overtime and/or comp time compensation violates
the overtime provisions of the FLSA and the regulations thereunder.
43.
The
defendants’ failure to compensate the plaintiff for all compensable hours was
a willful and knowing violation of the FLSA.
44.
As a result of
defendant’s willful and knowing failure to properly compensate the plaintiff
Bus Drivers and class members, the plaintiff Bus Drivers and class members have
suffered substantial delays in receipt of wages owed and damages.
45.
The
Defendants’ failure to properly administer a compensation scheme for overtime
was a willful and knowing violation of the FLSA.
46.
Pursuant to 29
U.S.C. §§ 207, 216, Defendants owe Plaintiff Bus Drivers and the Plaintiff
Class compensation for the overtime work, an additional equal amount as
liquidated damages, together with an additional sum for attorneys’ fees and
costs.
COUNT
2
29
U.S.C. § 215(a)(3)(1994).
RETALIATION
IN VIOLATION OF FLSA
47.
The foregoing
paragraphs are included herein as though fully set forth herein.
48.
Some of the
Plaintiff Bus Drivers who have completed their time records with actual time
have been subjected to harassment, increased scrutiny and meetings for which
they have not received compensation.
49.
The Bus Drivers
that have complained have been advised that the defendant only has a problem
with a few drivers.
50.
There
is a causal link between the adverse employment actions as described above and
the assertion by plaintiff Bus Drivers of both their rights and the unfulfilled
duties of defendants under the FLSA.
51.
Other Bus
Drivers and the class members fear retaliation for either reporting their time
accurately or for opposing the violations of FLSA by defendants.
52.
The actions of
the defendants are in violation of the anti-retaliation provisions of 29 U.S.C.
§ 215(a)(3)(1994).
53.
§ 704(a) of
the 1964 Civil Rights Act makes it illegal for an employer to retaliate against
any employee who has opposed any unlawful employment practice.
54.
Certain of the
plaintiff Bus Drivers opposed the unlawful employment practices of defendant and
were consequently retaliated against.
PRAYER
FOR RELIEF
WHEREFORE,
Plaintiffs Bus Drivers and the putative class seek judgment against Defendants
as follows:
1.
That the Court
certify the instant suit as an opt-in class action under 29 U.S.C. § 216(b);
2.
That the Court
declare the rights and duties of the parties consistent with the relief sought
by Plaintiffs;
3.
Issue a
declaratory judgment that Defendant’s acts, policies, practices and procedures
complained of herein violated provisions of the Fair Labor Standards Act;
4.
That
Defendants be enjoined from further violations of the Fair Labor Standards Act;
5.
That
the named Plaintiffs Bus Drivers and class members recover compensatory, damages
and an equal amount of liquidated damages as provided under the law and in 29
U.S.C. § 216(b);
6.
That
Plaintiff and the class recover an award of reasonable attorneys fees, costs,
and expenses;
7.
Order the
Defendants to make whole the Plaintiffs Bus Drivers and the class members by
providing appropriate back pay and other benefits wrongly denied in an amount to
be shown at trial and other affirmative relief;
8.
Plaintiffs
further pray for such additional relief as the interests of justice may require.
Plaintiffs
demand a trial by jury of all triable issues.
Linda
Adams, Debbie Jacobs, Mary C. Beasley, Robin Fraley, Gina Bailey, Betty W. Hart,
Forest Shrewsbury, and others similarly situated
______________________________________
Thomas
H. Roberts, #20614
Thomas
H. Roberts & Associates, P.C.
105 S.
First Street
Richmond
,
VA
23219
T (804)
783-2000
F (804)
783-2105
§ 211(c) Records
Every employer subject to any provision of this chapter or of any
order issued under this chapter shall make, keep, and preserve such records of the persons employed by him and
of the wages, hours, and other conditions and practices of employment
maintained by him, and shall preserve such records for such periods of time,
and shall make such reports therefrom to the Administrator as he shall
prescribe by regulation or order as necessary or appropriate for the
enforcement of the provisions of this chapter or the regulations or orders
thereunder. The employer of an employee who performs substitute work
described in section 207
(p)(3)
of this title may not be required under this subsection to keep a record of
the hours of the substitute work.
|