Whiteman v. Wardlaw Consulting Services, Inc. et al

Western District of Texas, txwd-6:2016-cv-00312

COMPLAINT (Filing fee $ 400 receipt number 0542-8729289), filed by TIMOTHY WHITEMAN.

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Case 6:16-cv-00312-RP-JCM Document 1 Filed 08/05/16 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS WACO DIVISION TIMOTHY D. WHITEMAN, § individually, and on behalf of others § similarly situated, § § CIVIL ACTION NO. 6:16-cv-312 Plaintiffs, § § v. § § WARDLAW CONSULTING § SERVICES, INC., WILLIAM F. § Collective Action under WARDLAW, MICHAEL N. § 29 U.S.C. § 216(b) WARDLAW and REBECCA W. § MEADOWS, § Defendants. PLAINTIFF’S ORIGINAL COMPLAINT COMES NOW, Timothy D. Whiteman, Plaintiff, on behalf of himself and all others similarly situated, and hereby complains of Defendant Wardlaw Consulting Services, Inc., William F. Wardlaw, Michael N. Wardlaw and Rebecca W. Meadows (collectively, "Defendants") for violations of the Fair Labor Standards Act of 1938. In support of these claims, Whiteman would respectfully show as follows: I. PARTIES 1. Plaintiff Timothy D. Whiteman is an individual residing in La Porte, Indiana. He was a Director for Wardlaw Consulting Services, Inc. 2. Plaintiff Class Members are other Directors and Managers of Defendants who were not paid a salary, but were paid based on a percentage of certain revenues, who worked more than 40 hours in at least one workweek in the three years prior to the filing of this complaint and who were not otherwise exempt from the overtime provisions of the Fair Labor Standards Act. Such Case 6:16-cv-00312-RP-JCM Document 1 Filed 08/05/16 Page 2 of 6 Class Members were and are employed in various parts of the country. "Plaintiffs" in the plural in this complaint shall refer to Whiteman and Class Members jointly. 3. Wardlaw Consulting Services, Inc. ("WCS") is a Texas-registered for-profit corporation and was an "employer" of Plaintiffs under the FLSA. WCS may be served with summons through its Texas registered agent: William F. Wardlaw, 2725 Texas Central Pkwy., Waco, Texas 76712. 4. Defendant William F. Wardlaw ("W. Wardlaw") is an individual who at all times relevant to this matter acted directly or indirectly in the interest of Defendant as to Plaintiffs as an Owner-Director of WCS and was therefore an "employer" as to Plaintiffs under the FLSA. W. Wardlaw may be served with summons at 2725 Texas Central Pkwy., Waco, Texas 76712. 5. Defendant Michael N. Wardlaw ("M. Wardlaw") is an individual who at all times relevant to this matter acted directly or indirectly in the interest of Defendant as to Plaintiffs as an Owner-Director of WCS and was therefore an "employer" as to Plaintiffs under the FLSA. M. Wardlaw may be served with summons at 2725 Texas Central Pkwy., Waco, Texas 76712. 6. Defendant Rebecca W. Meadows ("Meadows") is an individual who at all times relevant to this matter acted directly or indirectly in the interest of Defendant as to Plaintiffs as an Owner-Director of WCS and was therefore an "employer" as to Plaintiffs under the FLSA. Meadows may be served with summons at 25 Pointview Drive, Waco, Texas 76710. II. JURISDICTION AND VENUE 7. Pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 216(b), the Court has jurisdiction over this claim. The Court has personal jurisdiction over the parties and subject matter jurisdiction over the claim. Whiteman v. Wardlaw Consulting Services, Inc. et al./Original Complaint 2 Case 6:16-cv-00312-RP-JCM Document 1 Filed 08/05/16 Page 3 of 6 8. Pursuant to 28 U.S.C. § 1391(b)(1), venue is proper as WCS is headquartered in this division and district, and W. Wardlaw and M. Wardlaw are residents of the McLennan County, Texas. 9. At all times subject to this suit, WCS was a covered enterprise under the Fair Labor Standards Act § 3(r). 10. At all times subject to this suit, Plaintiffs were covered individuals under the Fair Labor Standards Act. 11. At all times hereinafter mentioned, each Defendant has been an "employer" as to Plaintiffs within the meaning of the Section 3(d) of the FLSA, 29 U.S.C. § 203(d). 12. At all times hereinafter mentioned, Defendant has been an enterprise engaged in commerce or in the production of goods for commerce within the meaning of Section 3(s)(1) of the FLSA, 29 U.S.C. § 203(s)(1), in that said enterprise has had employees engaged in commerce or in the production of goods for commerce, or employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person and in that said enterprise has had and has an annual gross volume of sales made or business done of not less than $500,000 (exclusive of excise taxes at the retail level which are separately stated). 13. At all times hereinafter mentioned, Plaintiffs were individual employees who were engaged in commerce or in the production of goods for commerce as required by 29 U.S.C. §§ 206-207. III. STATEMENT OF FACTS 14. Defendant WCS is based in Texas and conducts business operations in Texas and throughout the country. Its annual gross volume of sales made or business done exceeds $500,000 per year for each of the years subject to this suit. Whiteman v. Wardlaw Consulting Services, Inc. et al./Original Complaint 3 Case 6:16-cv-00312-RP-JCM Document 1 Filed 08/05/16 Page 4 of 6 15. Whiteman worked as a director for WCS from prior to three years before the date of filing of this Original Complaint, through on or about April 30, 2016. He worked out of a claims center in Indiana. His job duties included overseeing all account managers and assisting with adjuster recruiting, field inspections and onsite catastrophe management of adjusters. He also engaged in a substantial amount of basic file review, claims entry work and recruiting of adjusters outside of normal business hours. 16. Class Members are other Directors and Managers who were paid solely through a percentage of the billing amounts brought in by the Directors or Members through their work in their respective departments. Plaintiffs estimate that at any given time, approximately 15 WCS employees are compensated in this manner. Considering turnover, Plaintiffs estimate that the entire class for the three-year period preceding the filing of this complaint may be around 25 current and former employees. 17. WCS provides catastrophic and other insurance adjusting services to insurance companies throughout the United States. 18. Plaintiffs are and were employees who have not been paid on a salary basis for purposes of the Fair Labor Standards Act. They have been paid solely through what is essentially a non-negotiated percentage of certain revenues that varied their compensation on a week-to-week basis. 19. During their employment with WCS that occurred within the three-year period prior to the filing of this complaint, Plaintiffs worked one or more workweeks in excess of 40 hours. 20. Plaintiffs were entitled to an overtime compensation premium for all hours worked over 40 in a workweek. Defendants failed to pay Plaintiffs the overtime pay that they were due. 21. The acts described in the above paragraphs violate the Fair Labor Standards Act, which prohibits the denial of overtime compensation for hours worked in excess of 40 per workweek. Whiteman v. Wardlaw Consulting Services, Inc. et al./Original Complaint 4 Case 6:16-cv-00312-RP-JCM Document 1 Filed 08/05/16 Page 5 of 6 22. As a result of Defendants’ violations of the FLSA, Plaintiffs are entitled to actual and compensatory damages, including the amount of overtime that was not paid but should have been paid. 23. Defendants failed to act reasonably in their failure to comply with the FLSA. Therefore, pursuant to 29 U.S.C. § 216(b), Plaintiffs are also entitled to an award of liquidated damages in an amount equal to the amount of unpaid overtime pay. 24. Defendants’ violations of the FLSA were willful as to the federal rights of Plaintiffs. Defendants either knew about or showed reckless disregard as to whether the manner in which they paid Plaintiffs was prohibited by the FLSA. 25. Plaintiffs are entitled to a reasonable attorney’s fee, expert witness fees, costs and pre-and post-judgment interest at the highest rates allowed by law. IV. PRAYER WHEREFORE, PREMISES CONSIDERED, Plaintiff Whiteman and Class Members respectfully request that the Court find the following against Defendants Wardlaw Consulting Services, Inc., William F. Wardlaw, Michael N Wardlaw and Rebecca W. Meadows, jointly and severally: a. certifying the class of Directors and Managers as requested in this complaint; b. declaring that Defendants violated the Fair Labor Standards Act; c. declaring that Defendants’ violations of the FLSA were willful; d. granting judgment to Plaintiffs for their claims of unpaid overtime wages under the Fair Labor Standards Act, as well as liquidated damages in an amount equal to the amount of the unpaid overtime wages; e. awarding Plaintiffs their costs, expert witness fees and a reasonable attorney’s fee; Whiteman v. Wardlaw Consulting Services, Inc. et al./Original Complaint 5 Case 6:16-cv-00312-RP-JCM Document 1 Filed 08/05/16 Page 6 of 6 f. awarding Plaintiffs pre-and post-judgment interest at the highest rates allowed by law; and g. granting such further relief as the Court finds just. Respectfully submitted, Kerry V. O’Brien Texas Bar No. 24038469 1011 Westlake Drive Austin, Texas 78746 phone: (512) 410-1960 fax: (512) 410-6171 email: ko@obrienlawpc.com LEAD COUNSEL FOR PLAINTIFFS/s/J. Derek Braziel J. Derek Braziel Texas Bar No. 00793380 Jay Forester Texas Bar. No. 24087532 Lee & Braziel, L.L.P. 1801 N. Lamar Street, Suite 325 Dallas, Texas 75202 phone: (214) 749-1400 fax: (214) 749-1010 email: jdbraziel@l-b-law.com email: forester@l-b-law.com overtimelawyer.com CO-COUNSEL FOR PLAINTIFFS Whiteman v. Wardlaw Consulting Services, Inc. et al./Original Complaint 6