Hernandez v. Global Prisoner Services, LLC D/b/a Texas Prisoner Transportation Services

Western District of Texas, txwd-5:2019-cv-00374

AMENDED COMPLAINT against Global Prisoner Services, LLC, PTS of America, LLC, Ryan Whitten amending, filed by Amanda Hernandez.

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3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION AMANDA HERNANDEZ, Individually§ and On Behalf of All Others Similarly § Situated, § § Plaintiff, § No. 5:19-cv-00374-FB § v. § § GLOBAL PRISONER SERVICES, LLC § d/b/a TEXAS PRISONER § TRANSPORTATION SERVICES, § § Defendants. § PLAINTIFF'S FIRST AMENDED COMPLAINT TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Plaintiff Amanda Hernandez (referred to as "Plaintiff" or "Hernandez") bringing this collective action and lawsuit on behalf of herself and all other similarly situated employees to recover unpaid overtime wages from Defendants Global Prisoner Services, LLC d/b/a Texas Prisoner Transportation Services (referred to as "Texas Prisoner Transportation"); PTS of America, LLC (referred to as "PTS"); and Ryan Whitten (referred to as "Whitten") (collectively referred to as "Defendants"). In support thereof, she would respectfully show the Court as follows: I. Nature of Suit 1. Hernandez's claims arise under the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-219 ("FLSA"). 3 2. The FLSA was enacted to eliminate "labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency and general well-being of workers" 29 U.S.C. § 202(a). To achieve its humanitarian goals, the FLSA defines appropriate pay deductions and sets overtime pay, minimum wage, and recordkeeping requirements for covered employers. 29 U.S.C. §§ 206(a), 207(a), 211(c). 3. Defendants failed to pay Plaintiff and other similarly situated employees for all hours worked in violation of the FLSA. 4. Defendants further violated the FLSA by employing Plaintiff and other similarly situated nonexempt employees "for a workweek longer than forty hours [but refusing to compensate them] for [their] employment in excess of [forty] hours … at a rate not less than one and one-half times the regular rate at which [they are or were] employed." 29 U.S.C. § 207(a)(1). 5. Additionally, Defendants violated the FLSA by failing to maintain accurate time and pay records for Plaintiff and other similarly situated nonexempt employees as required by 29 U.S.C. § 211(c) and 29 C.F.R. pt. 516. 6. Hernandez brings this collective action under 29 U.S.C. § 216(b) on behalf of herself and all other similarly situated employees to recover unpaid regular and overtime wages. II. Jurisdiction & Venue 7. The Court has jurisdiction of this action pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 216(b) because it arises under the FLSA, a federal statute. -2- 3 8. Venue is proper in this district and division pursuant to 28 U.S.C. § 1391(b)(1), (2) because Defendants reside in the San Antonio Division of the Western District of Texas and/or a substantial part of the events or omissions giving rise to Plaintiff's claims occurred in the San Antonio Division of the Western District of Texas. III. Parties 9. Amanda Hernandez is an individual who resides in Bexar County, Texas and who was employed by Defendants during the last three years. 10. Global Prisoner Services, LLC d/b/a Texas Prisoner Transportation Services is a Tennessee company that may be served with process by serving its registered agent: Thor Catalogne, at 108 E. Highway 79, Thrall, Texas 76578. Alternatively, if the registered agent of Global Prisoner Services, LLC d/b/a Texas Prisoner Transportation Services cannot with reasonable diligence be found at the company's registered office, Global Prisoner Services, LLC d/b/a Texas Prisoner Transportation Services may be served with process by serving the Texas Secretary of State pursuant to TEX. BUS. ORG. CODE § 5.251 and TEX. CIV. PRAC. & REM. CODE § 17.026. 11. PTS of America, LLC is a Tennessee company that may be served with process by serving its registered agent: Davidson Corporate Services, Inc. at 511 Union St, Suite 1600, Nashville, TN 37219-1780. Alternatively, if the registered agent of PTS of America, LLC cannot with reasonable diligence be found at the company's registered office, PTS of America, LLC may be served with process by serving the Texas Secretary of State pursuant to TEX. BUS. ORG. CODE § 5.251 and TEX. CIV. PRAC. & REM. CODE § 17.026. -3- 3 12. Ryan Whitten is an individual who may be served with process at 1854 Air Lane Drive, Suite #20, Nashville, TN 37210 or wherever he may be found. 13. Whenever it is alleged that Defendants committed any act or omission, it is meant that Defendants' officers, directors, vice-principals, agents, servants or employees committed such act or omission and that, at the time such act or omission was committed, it was done with the full authorization, ratification or approval of the Defendants or was done in the routine and normal course and scope of employment of the Defendants' officers, directors, vice-principals, agents, servants or employees. IV. Facts 14. Defendants contracts with local and state governments to perform inmate transportation services between prisons and other facilities; it does business in the territorial jurisdiction of this Court. 15. Texas Prisoner Transportation employed Plaintiff as an Extradition Officer. 16. Plaintiff's job duties were primarily manual labor in nature, requiring little to no official training, much less managerial skill or power. 17. Plaintiff's job duties included transporting inmates between prisons and other facilities in passenger vans weighing less than 10,001 pounds. 18. Plaintiff was employed by Defendants from approximately October 2017 to June 2018 and again from January 2019 to February 2019. -4- 3 19. Following a bungled escape of a prisoner, Texas Prisoner Transportation announced:1 20. Defendants Whitten further stated2: 21. Upon information and belief, Defendants Whitten, who is the CEO of both Texas Prisoner Transportation and PTS, in fact transferred Texas Prisoner Transportation's assets to PTS and continued Texas Prisoner Transportation's operation under PTS. 1 Jake Bleiberg, Prison Transport Firm Closing After Escape, Cites Insurance. AP News (Feb. 11, 2019), https://www.apnews.com/b93ae6e4237940e986b7b83c4a7f1802. 2 Id. -5- 3 22. PTS is liable to Plaintiff as a successor employer is liable to all plaintiffs as a successor employer because (1) it had notice of Texas Prisoner Transportation's wage and hour violations prior to acquiring the business or assets of Texas Prisoner Transportation; (2) Texas Prisoner Transportation may no longer be able to provide relief to Plaintiff; (3) there has been a substantial continuity of business operations between Texas Prisoner Transportation and PTS; (4) PTS uses the same location(s) that was previously used by Texas Prisoner Transportation; (5) PTS uses the same or substantially the same work force as Texas Prisoner Transportation; (6) PTS uses the same or substantially the same supervisory personnel as Texas Prisoner Transportation; (7) the same jobs exist under substantially the same working conditions under PTS as they did under Texas Prisoner Transportation; (8) PTS uses the same vehicles, equipment, and methods of production as Texas Prisoner Transportation did; and (9) PTS provides the same prisoner transport services as that of Texas Prisoner Transportation. 23. During Hernandez's employment with Defendants, she was engaged in commerce or the production of goods for commerce. 24. During Hernandez's employment with Defendants, the company had employees engaged in commerce or in the production of goods for commerce or had employees handling, selling or otherwise working on goods or materials that had been moved in or produced for commerce by others. -6- 3 25. During Hernandez's employment with Defendants, the company had an annual gross volume of sales made or business done of at least $500,000. 26. Defendants paid Hernandez on an hourly basis. 27. Defendants required Hernandez and other extradition officers to work off-the- clock. 28. If Plaintiff worked a 24-hour period, recorded on her timesheets, Defendants would only pay her for 22 hours. 29. If Plaintiff or other extradition officers indicated they worked 24-hours, Defendants would deduct a minimum of two hours. 30. These deductions occurred multiple times per workweek, depending on the number of days Plaintiff and the other extradition officers worked. 31. In other words, Plaintiff and the other extradition offers were not paid for all hours worked in violation of the FLSA. 32. During Hernandez's employment with Defendants, she regularly worked in excess of forty hour per week. 33. Defendants knew or reasonably should have known that Hernandez worked in excess of forty hours per week. 34. Defendants did not pay Hernandez overtime "at a rate not less than one and one-half times the regular rate at which [she was] employed." 29 U.S.C. § 207(a)(1). -7- 3 35. Instead, Defendants required Plaintiff and other extradition officers to work off-the-clock and/or manipulated their time records to reflect fewer hours than they actually worked. 36. Defendants knew or reasonably should have known that Hernandez and the other extradition officers were not exempt from the overtime provisions of the FLSA. 37. Defendants failed to maintain accurate time and pay records for Hernandez as required by 29 U.S.C. § 211(c) and 29 C.F.R. pt. 516. 38. Defendants knew or showed a reckless disregard for whether its pay practices violated the FLSA. 39. Defendants are liable to Hernandez for her unpaid overtime wages, liquidated damages and attorney's fees and costs pursuant to 29 U.S.C. § 216(b). 40. All extradition officers employed by Defendants are similarly situated to Hernandez because they (1) have similar job duties; (2) regularly worked in excess of forty hours per week; (3) are not paid all of their regular hours and/or overtime for the hours they work in excess of forty per week as required by 29 U.S.C. § 207(a)(1) and (4) are entitled to recover their unpaid overtime wages, liquidated damages and attorneys' fees and costs from Defendants pursuant to 29 U.S.C. § 216(b). V. Count One—Failure to Pay Overtime in Violation of 29 U.S.C. § 207(a) 41. Hernandez adopts by reference all of the facts set forth above. See, FED. R. CIV. P. 10(c). -8- 3 42. During Hernandez's employment with Defendants, she was a non-exempt employee. 43. As a non-exempt employee, Defendants were legally obligated to pay Hernandez "at a rate not less than one and one-half times the regular rate at which [she was] employed[]" for the hours that she worked over forty in a workweek. 29 U.S.C. § 207(a)(1). 44. Defendants did not pay Hernandez overtime as required by 29 U.S.C. § 207(a)(1) for the hours she worked in excess of forty per week. 45. Instead, Defendants either did not pay Plaintiff at all for the hours she worked in excess of 22 hours per day and/or manipulated Plaintiff's time records to reflect fewer hours worked per week. 46. In other words, Defendants paid Hernandez for her overtime at a rate less than one and one-half times the regular rate at which she was in employed in violation of the FLSA. 47. If Defendants classified Hernandez or the other extradition officers as exempt from the overtime requirements of the FLSA, they were misclassified because no exemption excuses the Defendants' noncompliance with the overtime requirements of the FLSA. 48. Defendants knew or showed a reckless disregard for whether its pay practices violated the overtime requirements of the FLSA. In other words, Defendants willfully violated the overtime requirements of the FLSA. -9- 3 VI. Count Two—Failure to Maintain Accurate Records in Violation of 29 U.S.C. § 211(c) 49. Hernandez adopts by reference all of the facts set forth above. See, FED. R. CIV. P. 10(c). 50. The FLSA requires employers to keep accurate records of hours worked by and wages paid to nonexempt employees. 29 U.S.C. § 211(c); 29 C.F.R. pt. 516. 51. In addition to the pay violations of the FLSA described above, Defendants also failed to keep proper time and pay records as required by the FLSA. VII. Count Three—Collective Action Allegations 52. Hernandez adopts by reference all of the facts set forth above. See, FED. R. CIV. P. 10(c). 53. On information and belief, other employees have been victimized by Defendants' violations of the FLSA identified above. 54. These employees are similarly situated to Hernandez because, during the relevant time period, they held similar positions, were compensated in a similar manner and were denied regular wages at their regular rate and overtime wages at one and one-half times their regular rates for hours worked over forty in a workweek. 55. Defendants' policy or practice of failing to pay regular and overtime compensation is a generally applicable policy or practice and does not depend on the personal circumstances of the putative class members. - 10 - 3 56. Since, on information and belief, Hernandez's experiences are typical of the experiences of the putative class members, collective action treatment is appropriate. 57. All employees of Defendants, regardless of their rates of pay, job titles or locations in which they worked who were not paid at their regular rates for all hours worked and/or at a rate less than one and one-half times the regular rates at which they were employed for the hours that they worked over forty in a workweek are similarly situated. Although the issue of damages may be individual in character, there is no detraction from the common nucleus of liability facts. The Class is therefore properly defined as: All current and former extradition officers who were not paid all regular and/or overtime compensation during the last three years. 58. Defendants are liable to Hernandez and all other extradition officers for the difference between what it actually paid them and what it was legally obligated to pay them. 59. Because Defendants knew and/or showed a reckless disregard for whether its pay practices violated the FLSA, Defendants owe Hernandez and the members of the putative class their unpaid overtime wages for at least the last three years. 60. Defendants are liable to Hernandez and the members of the putative class in an amount equal to their unpaid overtime wages as liquidated damages. 61. Defendants are liable to Hernandez and the members of the putative class for their reasonable attorneys' fees and costs. - 11 - 3 62. Hernandez has retained counsel who are well versed in FLSA collective action litigation and who are prepared to litigate this matter vigorously on behalf of her and all other putative class members. VII. Prayer 63. Hernandez prays for the following relief: a. an order allowing this action to proceed as a collective action under 29 U.S.C § 216(b); b. judgment awarding Hernandez and the members of the putative class all unpaid overtime compensation, liquidated damages, attorneys' fees and costs; c. postjudgment interest at the applicable rate; d. incentive awards for any class representative(s); and e. all such other and further relief to which Hernandez and the putative class may show themselves to be justly entitled. - 12 - 3 Respectfully Submitted, MOORE & ASSOCIATES By: Melissa Moore State Bar No. 24013189 Federal Id. No. 25122 Curt Hesse State Bar No. 24065414 Federal Id. No. 968465 Lyric Centre 440 Louisiana Street, Suite 675 Houston, Texas 77002 Telephone: (713) 222-6775 Facsimile: (713) 222-6739 ATTORNEYS FOR PLAINTIFF - 13 -