Case. 1.1970v700818 Doc 1 Filed. 04/12/19 1 of 12. PagelD x1. 1

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

SHAVANDA BECK, and oil CASE NO.:
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COUNTY OF CUYAHOGA
2079 E. 9111 Sueel
Cleveland Ohio 44115

Defendnm.

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CLASS AND COLLECTIVE ACTION COMPLAINT
Plaintiffs, Shavanda Beck (“Beck”), Tracy D. Reid (“Reid”), Revell Whitney
(“Whitney”), and Melchezidek K. Muhammad (“Muhammad”)(sometimes collectively referred
to as “Plaintiffs”), through their undersigned counsel, individually and on behalf of all persons
similarly situated, file this Complaint against Defendant County of Cuyahoga (“the County” or
“Defendant”) seeking all available relief under the Fair Labor Standards Act of 1938, 29 U.S.C.
§§ 201, et seq. (“FLSA”), the Ohio Minimum Fair Wage Standards Act (“OMFWSA”), R.C.
Chapter 4111, et seq., the Ohio Constitution, Oh. Const. Art. II, § 34 and R.C. 4113.15., and all
other applicable Ohio state law. The following allegations are based on personal knowledge as
to Plaintiffs’ own conduct and on information and belief as to the acts of others.
JURISDICTION AND VENUE
1.

Jurisdiction over Plaintiffs’ FLSA claim is proper under 29 U.S.C. § 216(b) and

28 U.S.C. §1331.
2.

This Court has supplemental jurisdiction under 28 U.S.C. §1367 over Plaintiffs’

state law claims because those claims derive from a common nucleus of operative facts.
Plaintiffs’ state law claims are brought pursuant to Ohio Revised Code Chapter 4111.
3.

Venue in this court is proper pursuant to 28 U.S.C. §1391(b)(2) in that a

substantial part of the events giving rise to Plaintiffs’ and Class Members’ claims occurred
within this judicial district. Plaintiffs and other Class Members performed work in this judicial
district and were paid pursuant to the County’s unlawful pay policy in this judicial district, and
the County routinely conducts business in this judicial district. Moreover, the County is a body
politic in the State of Ohio.

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PARTIES
4.

At all times relevant herein, Plaintiff Beck was a resident of the City of

Willoughby, County of Lake, State of Ohio and is a United States Citizen.
5.

At all times relevant herein, Plaintiff Reid was a resident of the City of Shaker

Heights, County of Cuyahoga, State of Ohio and is a United States Citizen.
6.

At all relevant times herein, Plaintiff Whitney was a resident of the City of

Bedford Heights, County of Cuyahoga, State of Ohio and is a United States Citizen.
7.

At all relevant times herein, Plaintiff Muhammad was a resident of the City of

Cleveland, County of Cuyahoga, State of Ohio and is a United States Citizen.
8.

At all times relevant herein, Plaintiffs were “employees” in the “employ” of the

County for its Juvenile Court Division, as defined in 29 U.S.C. §§ 203(e)(2)(C) and (g) and R.C.
4111.03(D)(1) and (2). The County’s Juvenile Court Division consists of employees who hold
the following job classifications: “activities assistant; cook; custodial worker; detention clerk;
detention officer; food service worker; and lead detention clerk.” Moreover, the County
continues to employ similarly situated employees.
9.

At all times relevant herein, the County was an employer within the meaning of

29 U.S.C. § 203(s)(1)(C) and R.C. 4111.03(D)(2).
10.

The County did not employ Plaintiffs in a bona fide executive, administrative or

professional capacity and Plaintiffs did not perform work for the County in a bona fide
executive, administrative or professional capacity, as defined in 29 U.S.C. § 213(a)(1) and R.C.
4111.03(D)(3)(d).
11.

Pursuant to 29 U.S.C. §216(b), Plaintiffs have consented in writing to being

Plaintiffs in this action. See Exhibit 1.

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CLASS DEFINITIONS
12.

Plaintiffs bring this lawsuit for Count I pursuant to 29 U.S.C. § 216(b) as a

collective action on behalf of themselves and the following class of potential opt-in litigants:
All current or former hourly, non-exempt employees of the County who
performed work for its Juvenile Court Division at any time during the last three
years, who were not compensated at a rate of one and one half times their regular
rate of pay for all hours worked over forty in a workweek (the “FLSA Class”).
13.

Plaintiffs bring this lawsuit for Counts II and III as a class action pursuant to Fed.

R. Civ. P. 23, on behalf of herself and the following class:
All current or former hourly, non-exempt employees of the County who
performed work for its Juvenile Court Division at any time during the last six
years1, who were not compensated at a rate of one and one half times their regular
rate of pay for all hours worked over forty in a workweek (the “Ohio Class”).
14.

The FLSA Class and the Ohio Class are together referred to as the “Classes.”

15.

Plaintiffs reserve the right to redefine the Classes prior to notice or class

certification, and thereafter, as necessary.
FACTUAL BACKGROUND
16.

At all times relevant herein, Plaintiffs were employed by the County for its

Juvenile Court Division in hourly non-exempt positions, at its Juvenile Detention Center, located
at 9300 Quincy Avenue, Cleveland, Ohio 44106.
17.

Plaintiffs were regularly scheduled to work forty (40) hours per week, totaling

eighty (80) hours per each bi-weekly pay period. Generally, Plaintiffs were scheduled to work
five (5), eight (8) hour shifts in one work week.
18.

Plaintiffs and the Class Members regularly worked in excess of 40 hours per

week, exclusive of scheduled overtime shifts. However, the County calculated these overtime
The statute of limitations for Plaintiffs’ unjust enrichment claim is six years, pursuant to R.C. 2305.07.
Therefore, employees may be members of the Ohio Class if they were employed on or after April 12, 2013,
for at least one of the claims alleged on behalf of the Ohio Class.
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hours as part of Plaintiffs’ regular earnings and did not include them as part of Plaintiffs’
overtime earnings.
19.

The County did not pay Plaintiffs and the Class Members overtime compensation

for hours worked over 40 per workweek.
20.

The County, at all relevant times described herein, did not maintain accurate

records of the hours that Plaintiffs and the Classes worked each workday and the total number of
hours worked each workweek as required by the FLSA.
21.

The County has acted willfully and/or with reckless disregard of applicable FLSA

and Ohio state law provisions, by failing to properly compensate Plaintiffs and the Class
Members for hours worked in excess of forty (40) during the workweek.
22.

Moreover, during the entire relevant time period, the County was aware that the

Plaintiffs and the Classes were not properly compensated under the FLSA and Ohio state law,
because it failed to properly track, monitor, or record the actual number of hours per day that
Plaintiffs and the FLSA Class members worked, as required by the FLSA.
23.

Additionally, the County has consistently failed to pay Plaintiffs and the Classes

overtime on a timely basis. The County routinely does not pay Plaintiffs and the Classes
overtime on the regular payday following the pay period in which the overtime was worked.
COLLECTIVE ACTION ALLEGATIONS
24.

Plaintiffs bring this lawsuit pursuant to 29 U.S.C. § 216(b) as a collective action

on behalf of the FLSA Class defined above.
25.

Plaintiffs deserve to pursue their FLSA claim on behalf of any individuals who

opt-in to this action pursuant to 29 U.S.C. § 216(b).

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26.

Plaintiffs and the FLSA Class are “similarly situated,” as that term is used in 29

U.S.C. § 216(b), because, inter alia, all such individuals worked pursuant to the County’s
previously described common pay practices and, as a result of such practices, were not paid the
full and legally mandated overtime premium for hours worked over forty (40) during the
workweek. Resolution of this action requires inquiry into common facts, including, inter alia,
the County’s common compensation, timekeeping, and payroll practices.
27.

Specifically, the County paid Plaintiffs and the FLSA Class at an hourly rate and

failed to pay overtime as required by federal law.
28.

The similarly situated employees are known to the County, are readily

identifiable, and may be located through the County’s records and the records of any payroll
companies that the County utilizes. The County employs many FLSA Class Members within its
Juvenile Court Division. These similarly situated employees may be readily notified of this
action through direct U.S. mail and/or other appropriate means, and allowed to opt into it
pursuant to 29 U.S.C. §216(b), for the purpose of collectively adjudicating their claims for
overtime compensation, liquidated damages (or, alternatively, interest), attorneys’ fees and costs
under the FLSA.
CLASS ACTION ALLEGATIONS
29.

Plaintiffs bring this action as a class action pursuant to Fed. R. Civ. P. 23 on

behalf of themselves and the Ohio Class defined above.
30.

The members of the Ohio Class are so numerous that joinder of all members is

impracticable. Upon information and belief, there are more than one hundred (100) members of
the Ohio Class.

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31.

The Plaintiffs will fairly and adequately represent and protect the interests of the

Ohio Class because there is no conflict between the claims of Plaintiffs and those of the Ohio
Class, and Plaintiffs’ claims are typical of the claims of the Ohio Class. Plaintiffs’ counsel are
competent and experienced in litigating class actions and other complex litigation matters,
including wage and hour cases like this one.
32.

There are questions of law and fact common to the proposed Ohio Class, which

predominate over any questions affecting only individual Class members, including, without
limitation: whether the County has violated and continues to violate Ohio law through its policy
or practice of not paying its hourly, non-exempt detention officers overtime compensation.
33.

Plaintiffs’ claims are typical of the claims of the Ohio Class in the following

ways, without limitation: (a) Plaintiffs are members of the Ohio Class; (b) Plaintiffs’ claims arise
out of the same policies, practices, and course of conduct that form the basis of the claims of the
Ohio Class; (c) Plaintiffs’ claims are based on the same legal and remedial theories as those of
the Ohio Class and involve similar factual circumstances; (d) there are no conflicts between the
interests of Plaintiffs and the Ohio Class members; and (e) the injuries suffered by Plaintiffs are
similar to the injuries suffered by the Ohio Class members.
34.

Class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because questions

of law and fact common to the Ohio Class predominate over any questions affecting only
individual Class members.
35.

Class action treatment is superior to the alternatives for the fair and efficient

adjudication of the controversy alleged herein. Such treatment will permit a large number of
similarly situated persons to prosecute their common claims in a single forum simultaneously,
efficiently, and without the duplication of effort and expense that numerous individual actions

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would entail. No difficulties are likely to be encountered in the management of this class action
that would preclude its maintenance as a class action, and no superior alternative exists for the
fair and efficient adjudication of this controversy. The Ohio Class is readily identifiable from the
County’s own employment records. Prosecution of separate actions by individual members of
the Ohio Class would create the risk of inconsistent or varying adjudications with respect to
individual Ohio Class members that would establish incompatible standards of conduct for the
County.
36.

A class action is superior to other available methods for adjudication of this

controversy because joinder of all members is impracticable. Further, the amounts at stake for
many of the Ohio Class members, while substantial, are not great enough to enable them to
maintain separate suits against the County.
37.

Without a class action, the County will retain the benefit of its wrongdoing, which

will result in further damages to Plaintiffs and the Ohio Class. Plaintiffs envision no difficulty in
the management of this action as a class action.
FIRST CAUSE OF ACTION
38.

All the allegations contained in paragraphs 1-37 of the Complaint are hereby

restated and re-alleged as if fully rewritten herein.
39.

The FLSA requires that covered employees be compensated for all hours worked

in excess of forty (40) hours per week at a rate not less than one and one-half (1 ½ ) times the
regular rate at which he is employed pursuant to U.S.C. § 207(a)(1).
40.

By engaging in the above-described acts and omissions, which acts and omissions

were intentional, willful, extreme and outrageous, Defendant knowingly failed to compensate
Plaintiffs and the FLSA Class at a rate of one and one-half (1 ½ ) times the regular hourly wage

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for hours worked in excess of forty (40) hours per week, in violation of the FLSA, 29 U.S.C. §
207(a)(1).
SECOND CAUSE OF ACTION
41.

All the foregoing allegations contained in paragraphs 1-41 of the Complaint are

hereby re-stated and re-alleged as if fully incorporated herein.
42.

By engaging in the above-described acts and omissions, which acts and omissions

were willful, intentional, extreme and outrageous, Defendant knowingly and willfully failed to
make, keep and preserve records of the hours worked by Plaintiffs and the FLSA Class, in
violation of the FLSA.
THIRD CAUSE OF ACTION
43.

All the foregoing allegations contained in paragraphs 1-42 of the Complaint are

hereby re-stated and re-alleged as if fully incorporated herein.
44.

By engaging in the above-described acts and omissions, which acts and omissions

were willful, intentional, extreme and outrageous, Defendant knowingly and willfully failed to
make, keep and preserve records of the hours worked by Plaintiffs and the Ohio Class, in
violation of the OMFWSA and the Ohio Constitution, Oh. Const. Art. II, § 34.
FOURTH CAUSE OF ACTION
45.

All the allegations contained in paragraphs 1-44 of the Complaint are hereby

restated and re-alleged as if fully rewritten herein.
46.

By engaging in the above-described acts and omissions, which acts and omissions

were willful, intentional, extreme and outrageous, Defendant knowingly and willfully failed to
promptly pay overtime to Plaintiffs and the Ohio Class in violation of R.C. 4113.15.

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FIFTH CAUSE OF ACTION
47.

All the allegations contained in paragraphs 1-46 of the Complaint are hereby

restated and re-alleged as if fully rewritten herein.
48.

By engaging in the above-described acts and omissions, which acts and omissions

were willful, intentional, extreme and outrageous, Defendant knowingly and willfully violated
the OMFWSA and the Ohio Constitution, Oh. Const. Art. II, § 34 by failing to pay Plaintiffs and
the Ohio Class for all hours worked and failing to pay Plaintiffs and the Ohio Class all overtime
compensation due them.
SIXTH CAUSE OF ACTION
49.

All the allegations contained in paragraphs 1-48 of the Complaint are hereby

restated and re-alleged as if fully rewritten herein.
50.

At all relevant times hereto, Defendant devised and implemented a plan to

increase its budget and/or profits by fostering a scheme of securing work from Plaintiffs and the
Ohio Class without paying overtime compensation for all hours worked.
51.

Contrary to all good faith and fair dealing, Defendant induced Plaintiffs and the

Ohio Class to perform work while failing to pay overtime compensation for all hours worked as
required by law.
52.

By reason of having secured the work and efforts of Plaintiffs and the Ohio Class

without paying overtime compensation as required by law, Defendant enjoyed reduced overhead
with respect to its labor costs, and therefore realized additional earnings and profits to its own
benefit and to the detriment of Plaintiffs and the Ohio Class. Defendant retained and continues
to retain such benefits contrary to the fundamental principles of justice, equity, and good
conscience.

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53.

By engaging in the above-described acts and omissions, which acts and omissions

were intentional, willful, extreme and outrageous, including receiving and benefiting from the
uncompensated labors of Plaintiffs and the Ohio Class, Defendant has been unjustly enriched.
WHEREFORE, Plaintiffs, individually and on behalf of all others similarly situated,
respectfully request that this Court grant the following relief against Defendant Cuyahoga
County:
1.

An order permitting this litigation to proceed as an FLSA collective action

pursuant to 29 U.S.C. § 216(b); and
2.

Prompt notice, pursuant to 29 U.S.C. § 216(b), of this litigation to all potential

FLSA Class members; and
3.

An order permitting this litigation to proceed as a class action pursuant to Fed. R.

Civ. P. 23 on behalf of the Ohio Class; and
4.

Compensatory damages for all unpaid compensation, including overtime

compensation, the exact amount to be determined at trial; and
5.

Liquidated and/or treble damages as allowed by the FLSA, the OMFWSA, the

Ohio Constitution, Oh. Const. Art. II, § 34 and R.C. 4113.15; and
6.

Pre-judgment and post-judgment interest on damages; and

7.

Punitive damages, in an amount necessary and appropriate to punish, the exact

amount to be proven at trial; and
8.

Reasonable litigation costs, expenses, and attorneys’ fees to the fullest extent

permitted under the law; and
9.

Such further relief as this Court deems necessary and appropriate.

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JURY DEMAND
Plaintiffs request a jury trial on all legal matters contained in the Complaint.
CONSOLO LAW FIRM CO., LPA
/s/ Frank Consolo
FRANK CONSOLO [0042455]
HORACE F. CONSOLO [0096571]
212 Hoyt Block
700 West St. Clair Avenue
Cleveland, Ohio 44113
(216) 696-5400 FAX (216) 696-2610
fconsolo@consololaw.com
hconsolo@consololaw.com
Attorneys for Plaintiffs

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