case 1:17-cv-00215-jcc-msn document 1 filed 02/23/17 page 1 13 pageld# 1 · 2020-01-02 · case...

Case 1:17-cv-00215-JCC-MSN Document 1 Filed 02/23/17 of 13 PagelD# 1

IN THEUNITED STATED DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIAAlexandria Division

NELSIS RAUL RODAS,

JOSE RODA, A.K.A BRANDIS SALGADO

On behalf of themselves and others similarly-situated

Plaintiffs,

V.

OURISMAN CHANTILLY IMPORTS, INC.,d.b.a. OURISMAN FAIRFAX TOYOTA

Defendant.

Ourisman Chantilly Imports, Inc.

SERVE: Robert D. Hager (Registered Agent)6129 Richmond HighwayAlexandria, VA 223113

COLLECTIVE ACTION COMPLAINT

COME NOW Plaintiffs, NELSIS RAUL RODAS ("RODAS"), and JOSE RODA

("RODA"), also known as BRANDIS SALGADO, by counsel, on behalf of themselves and all

others similarly situated, and file this Collective Action Complaint against Defendant

OURISMAN CHANTILLY IMPORTS, INC., d.b.a. OURISMAN FAIRFAX TOYOTA

("OURISMAN") pursuant to the Fair Labor Standards Act of 1938, as amended. 29 U.S.C.

201, et seq. ("ELSA")

1


PRELIMINARY STATEMENT

Plaintiffs, who are Spanish-speaking workers with little or no fluency in either spoken or

written English, bring this action on behalf of themselves and a class of other similarly-

situated employees (the "Plaintiff Class") to require Defendant to pay back wages owed

to them and to the Plaintiff Class, which Defendant failed to pay in violation of 7 of the

FLSA. The named Plaintiffs and the Plaintiff Class are collectively referred to herein as

"Plaintiffs." Plaintiffs seek permanent injunctive relief and damages for themselves and

all class members.

2. From 2006 until May 30, 2016, the named Plaintiffs were or have been employed by

Defendant, by an individual who identifies himself as "JR", and by an apparently

unincorporated entity doing business as "MAC Products and Services, Inc." ("MAC") to

wash, clean, and "detail" automobiles at Ourisman Toyota of Fairfax located at 10287

Fairfax Boulevard, Fairfax, VA 22030. Similarly-situated employees have been

employed by Defendant to perform these tasks for periods beginning on or before

February 23, 2014, through the present. Defendant employs between 4 and 6 employees

to perform these manual tasks. Plaintiffs and other similarly-situated employees routinely

worked more than 40 hours per week. The named Plaintiffs worked 80 hours a week, for

a period beginning before February 23, 2014, and ending on May 30, 2016, earning a

collective total of $80, 372.12 in unpaid overtime ($42,737.64 for Plaintiff Rodas, and

$37,634.48 for Plaintiff Roda). Defendant failed to pay Plaintiffs and other similarly-

situated employees an overtime premium of one and one-half times their regular rates of

pay for their hours worked over 40 in any workweek.

2


JURISDICTION AND VENUE

3. 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).

4. Venue is proper pursuant to 28 U.S.C. 1391(b)(ii) because the Defendant transacts

business in this District, Defendant employed the named Plaintiffs and the Class

Plaintiffs in this District, and most of the actions complained of were conducted within

this District.

PARTIES

5. Plaintiffs Nelsis Raul Rodas and Jose Roda, (hereinafter "named Plaintiffs") are former

non-exempt employees of Defendant who earned, but did not receive, compensation for

time worked, together with time and one-halfpay for time spent over 40 hours per week

from Defendant.

6. The class of similarly-situated employees (hereinafter "Class Plaintiffs") are or were non-

exempt employees of Defendant who earned, but did not receive compensation for time

worked and time and one-half pay for time spent over 40 hours per week from Defendant.

7. The named Plaintiffs and the Plaintiff Class at all times relevant hereto were each

"employees" as that term is defined by 29 U.S.C. §203 (e).

8. The work of the named Plaintiffs and the Plaintiff Class regularly involves them in

commerce between States ("interstate commerce"). The FLSA covers individual workers,

like the named Plaintiffs and the members of the Plaintiff Class, who are "engaged in

commerce or in the production of goods for commerce."

3


9. The Defendant OURISMAN is a corporation formed and existing under the laws of the

Commonwealth of Virginia and at all times during Plaintiffs' employment, Defendant

OURISMAN was an employer as defined by 29 U.S.C. §203 (d). In particular, Defendant

OURISMAN is a "joint employer" with "JR" and "MAC" and is a "person acting directly

or indirectly in the interest of an employer in relation to an employee." 29 U.S.C. §203

(d).

10. At all times relevant, Defendant OURISAMAN has had two (2) or more employees who

have regularly handled and worked on goods and/or materials that have been moved in or

produced for commerce, such as machines, automobiles, equipment, tools, supplies and

cleaners that were transported or produced out-of-state.

11. In establishing the unlawful pay scheme at issue in this case and in misclassifying the

Plaintiffs and other similarly-situated employees as independent contractors, Defendant

OURISMAN was motivated by its desire to avoid paying an overtime premium to

Plaintiffs and other similarly-situated employees as required by the FLSA.

12. Based on information and belief, at all relevant times Defendant's annual gross sales

volume as defined by the FLSA has exceeded $500,000 per year.

CLASS ACTION ALLEGATIONS

13. Pursuant to 29 U.S.C. 216(b), Plaintiffs bring this action on behalf of themselves and an

opt-in class of all persons who were or are hourly non-exempt car wash and "detailing"

employees' and who earned, but did not receive, compensation for time worked, including

but not limited to overtime pay from Defendant.

4


a) The named Plaintiffs are adequate class representatives because they are directly

impacted by Defendant's actions. The interests of the named Plaintiffs are not

antagonistic to, or in conflict with, the interests of the class as a whole. The attorney

representing the class is experienced in representing clients in federal litigation.

b) Common questions of law and fact are involved, including questions posed by

Plaintiffs' allegations that Defendant failed to pay in violation of 7 of the FLSA

present and former non-exempt employees of Defendant who earned, but did not

receive, overtime pay from Defendant.

c) Claims of the named Plaintiffs are typical of the claims of the class because all class

members and the named Plaintiffs are affected by Defendant's conduct.

d) Defendant has acted on grounds generally applicable to the class, thereby making

appropriate final declaratory and injunctive relief with respect to the class as a whole.

e) 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.

f) The named Plaintiffs are similarly situated to the class members in terms ofjob

responsibilities, title, and employment dates as they were or are all car wash employees who

provided car wash and "detailing" services to the Defendants, and who were denied

compensation for all the time that they worked and time and one-half overtime wages by

Defendant.

5


FACTS

14. Defendant hired the named Plaintiffs and the members of the Plaintiff Class by retaining

the services of "JR" and "MAC."

15. Plaintiffs and the members of the Plaintiff Class provide or have provided car wash and

automobile "detailing" services at Defendant's automobile dealership doing business as

"Ourisman Toyota of Fairfax" located at 10287 Fairfax Boulevard, Fairfax, VA 22030.

16. The named Plaintiffs regularly worked more than forty hours in almost every week they

worked during their employment by Defendant.

17. Defendant failed to maintain time records for all ofPlaintiffs' hours worked1.

18. Defendant improperly designated the named Plaintiffs, Class Plaintiffs, "JR", and

"MAC" as independent contractors, when in fact Defendant, "JR" and "MAC" shared,

agreed to allocate responsibility for, or otherwise codetermined formally or informally,

directly or indirectly—the essential terms and conditions of the employment of the named

Plaintiffs and Class Plaintiffs.

a) Formally or as a matter ofpractice, the joint employers "JR", "MAC" and Defendant

jointly determined, shared, or allocated the power to direct, control, or supervise the

named Plaintiffs, whether by direct or indirect means. "JR" and "MAC" employed

1 21I(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 reportstherefrom 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.

6


Roberto Flores as Plaintiffs' manager, but "JR" was present at the dealership where

Plaintiffs worked at most only about two hours a day, and four of Defendant's

dealership managers, including James McGeady, Retail Operations Manager, and

Gaurav Gulati, General Manager, also gave Plaintiffs direct instructions on a daily

basis, instructing them whether to clean cars on the inside or outside, directing them

to clean cars again, and prioritizing their ear cleaning tasks.

b) Formally or as a matter ofpractice, "JR", MAC", and Defendant jointly determined,

shared, or allocated the power to—directly or indirectly—hire or fire the Plaintiffs or

modify the terms or conditions of their employment. Defendant determined Plaintiffs'

working hours.

c) The relationship between "JR", "MAC", and Defendant has been continuous for more

than ten years, and Plaintiffs worked continuously for all of these joint employers at

Defendant's dealership located at 10287 Fairfax Boulevard, Fairfax, VA 22030.from

2006 through May 30, 2016.

d) Through shared management Defendant controls, "JR" and "MAC"

e) The work of Plaintiffs was always performed on premises owned or controlled by

Defendant, namely at Defendant's dealership located at 10287 Fairfax Boulevard,

Fairfax, VA 22030.

f) Formally and as a matter of practice, "JR", "MAC"., and Defendant jointly provide

the facilities, equipment tools, or materials necessary to complete the work performed

by Plaintiffs. "JR" and "MAC" provided some cleaning supplies necessary for

Plaintiffs' car wash and detailing work, and Defendant provided the facility, located

on ti,d picuiiss of i s deaiersiap, water, and c1(.;L:.i.11C4l).

7


19. Plaintiffs were "economically dependent" on "JR", "MAC" and Defendant such that they

are properly classified as employees instead of independent contractors of the joint

employers "JR", "MAC", and Defendant.

a) The joint employers "JR", "MAC", and Defendant exercise a high degree of control

over the manner in which the Plaintiffs' work is performed, directing their daily tasks,

instructing them to clean either the inside or outside of ears, requiring them to "redo"

car was work, and prioritizing their tasks.

b) Plaintiffs' car wash duties consisted entirely of routine, manual work, and they had

absolutely no opportunities for profit or loss dependent on their managerial skill.

c) Plaintiffs had no investment in equipment or material, and did not employ any other

workers.

d) The degree of skill required. for Plaintiffs' car wash work was minimal.

e) For approximately ten years there was a permanent and exclusive working.

relationship between Plaintiffs and the joint employers "jR", "MAC", and Defendant.

f) To a very high degree the car wash services rendered by Plaintiffs are an integral part

of Defendant's retail car sales business.

OVERTIME COMPENSATION

20. Defendant and the other joint employers "JR" and "MAC" routinely and consistently

required the named Plaintiffs and Class Plaintiffs to work over forty hours per week.

21. The FLSA requires an employer to pay its employees at a rate of at least one and one-half

times 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.

8


22. Despite working overtime, the named Plaintiffs and Class Plaintiffs were not paid time

and one-halfpay from Defendant for overtime worked.

WILLFUL VIOLATIONS

23. On information and belief, Defendant has for more than three years, willingly,

deliberately and intentionally refused to pay the Class Plaintiffs for time and one-half pay

for overtime worked, and since on or after February 23, 2014, has willingly, deliberately,

and intentionally refused to pay the named Plaintiffs for time and one-half pay for

overtime worked.

24. On information and belief, and in violation of the FLSA, Defendant did not, during all

relevant times, post the FLSA laws in an area alerting the named Plaintiffs and Class

Plaintiffs of their rights to payment for time worked and to overtime pay under the FLSA.

25. Consequently, the named Plaintiffs and Class Plaintiffs were, until very recently, never

aware that the FLSA provided for compensation 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.

26. Defendant led the named Plaintiffs and the Class Plaintiffs to believe that their regular

pay was paid in conformity with the FLSA.

27. Defendant knew or should have known that the named Plaintiffs and the Class Plaintiffs

were entitled to compensation for time and one-half overtime pay under the FLSA,

during all relevant times.

9


28. Defendant willfully, deliberately and intentionally failed to pay the named Plaintiffs and

Class Plaintiffs for time and one-half overtime wages for their hours worked over forty in

any workweek.

29. Defendant has never claimed that the FLSA laws do not apply to the named Plaintiffs or

Class Plaintiffs, or that these Plaintiffs are subject to any exemption from these

requirements.

30. The named Plaintiffs and Class Plaintiffs are, therefore, owed compensation for time and

one-half overtime wages and back wages by Defendant, which willingly and knowingly

withheld those wages.

CAUSE OF ACTION

(Fair Labor Standards Act)

31. The foregoing paragraphs are included herein as though fully set forth herein.

32. Defendant regularly engages in commerce and its employees handle and use goods,

which have moved in interstate commerce.

33. At all relevant times, Defendant was and is am employer within the meaning of the FLSA

and are subject to the provisions of the FLSA.

34. The named Plaintiffs and Class Plaintiffs at all relevant times were employees of

Defendant, as defined by the FLSA.

35. During the period of time that the named Plaintiffs and the Class Plaintiffs were

employed by Defendant, the named Plaintiffs and Class Plaintiffs performed regular,

scheduled overtime work for which no additional compensation was paid to them by

Defendant in violation of the provisions of the FLSA. More specifically, Defendant

violated 7 of the FLSA by failing to pay time and one-half overtime wages to hourly

10


non-exempt employees, including the named Plaintiffs and the members of the Plaintiff

Class who earned overtime pay.

36. Upon information and belief, the Defendant's pay system was unilaterally imposed upon

the named Plaintiffs and the Class Plaintiffs.

37. The Defendant's failure to compensate the named Plaintiffs and Class Plaintiffs for all

compensable hours violates the minimum wage provisions of the FLSA and the

regulations thereunder.

38. The Defendant's 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.

39. The Defendant's failure to compensate the named Plaintiffs and Class Plaintiffs for all

compensable hours was a willful and knowing violation of the FLSA.

40. As a result of the Defendant's willful and knowing failure to properly compensate the

named Plaintiffs and Class Plaintiffs, those Plaintiffs have suffered substantial delays in

receipt of wages owed and damages.

41. The Defendant's failure to properly administer a compensation scheme for overtime was

a willful and knowing violation of the FLSA.

42. Pursuant to 29 U.S.C. 207 and 216, Defendant owes the named Plaintiffs and Class

Plaintiffs compensation for their overtime work, an additional equal amount as liquidated

damages, together with an additional sum for attorneys' fees and costs.

11


PRAYER FOR RELIEF

WHEREFORE, the named Plaintiffs and Class Plaintiffs seek judgment against Defendant 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 ofherein violated provisions of the Fair Labor Standards Act;

4. That Defendant be enjoined from further violations of the Fair Labor Standards Act;

5. That the named Plaintiffs and Class Plaintiffs recover unpaid overtime wages together

with an equal amount of liquidated damages as provided under the law and in 29 U.S.C.

216(b);

6. That the named Plaintiff and the Class Plaintiffs recover an award of reasonable

attorney's fees, costs, and expenses;

7. Order the Defendant to make whole the named Plaintiffs and Class Plaintiffs 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 ofjustice may require.

PLAINTIFF DEMANDS TRIAL BY JURY ON ALL ISSUES SO TRIABLE

12


Respectfully submitted,

NELSIS RAUL RODAS and JOSE RODA on behalf of themselves and all others similarlysituated,

By Counsel

By:THOMAS F. HENNESSY (VSB No. 32830)Counselfor Plaintiffs4015 Chain Bridge RoadSuite GFairfax, Virginia 22030Phone: (703) 865-8836Fax: (703) [email protected]

13

FOR OP ICE ISE ONLY

Case 1:17-cv-00215-JCC-MSN Document 1-1 Filed 02/23/17 Page 1 of 1 PagelD# 14JS 44 (Rev. 08/16) CIVIL COVER SHEETThe JS 44 civil cover sheet and the infonnation contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as

provided by local mies of court. Tlds forna, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk ofCourt for thepurpose of initiatMg the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTSNelsis Raul Rodas, Jose Rode, a.k.a. Brandis Salgado Ourisman Chantilly Imports, Inc. d.b.a. Ourisman Fairfax Toyota

(b) County of Residence of First Listed Plaintiff Fairfax, VA County of Residence of First Listed Defendant Fairfax, VA(EXCEPT IN U.S. PLAINTIFF CASES) (IN US. PLAINTIFF CASES ONLY)

NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OFTHE TRACT OF LAND INVOLVED.

(C) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (I/Known)Thomas F. Hennessy, Virginia Employment and Family Law Office4015 Chain Bridge Road, Suite G, Fairfax, Virginia 22030T: (703) 865-8836 F: (703) 865-7633 E: [email protected]

II. BASIS OF JURISDICTION (Place an "X" in One BOX OnlY) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place tm "X" in One BoxfOr Plaintiff(For Diversify Cuses Only) and One BoxfOr Defendant)

O 1 U.S. Government kf 3 Federal Question PTF DEF PTF DEE

Plaintiff (U.S. Government Not a Pally) Citizen of This State 0 1 0 1 Incorporated or Principal Place 10 4 CI 4

of Business In This State

O 2 U.S. Government El 4 Divetsity Citizen of Another State 0 2 tEl 2 Incorporated and Principal Place 0 5 0 5Defendant (Indicate Citizenship ofParties in Item III) of Business In Another State

Citizen or Subject of a 0 3 0 3 Foreign Nation El 6 0 6

Foreign CountryIV N A T1 TR OF SE 11T 11,7nr, an "X" in f ROY Onlrl Click here for: Nature €sf Suit Cork Descriptions.

I::. CONTRACT,: :TORTS:,:. FOREEITURElPENALIN BANKRUPTCY OTHER STATUTES IO 110 insurance PERSONAL INJURY PERSONAL INJURY 0 625 Drug Related Seizure 0 422 Appeal 28 IJSC 158 0 375 False Claims Act1 120 Marine 0 310 Airplane 0 365 Personal Injury of Property 21 USC 881 0 423 Withdrawal 0 376 Qui Tam (31 USCO 130 Miller Act 0 315 Airplane Product Product Liability 0 690 Other 28 DSC 157 3729(a))1 140 Negotiable Instrument Liability 0 367 Health Care/ 0 400 State ReapportionmentO 150 Recovery of Overpayment 0 320 Assault, Libel & Pharinaceutical.: PROPERTY RIGHTS 0 410 Antitrust

& Enforcement of Judgment Slander Personal Injury 0 820 Copyrights 01 430 Banks and BankingO 151 Medicare Act 0 330 Federal Employers' Product Liability 0 830 Patent 0 450 CommerceO 152 Recovery of Defaulted Liability 0 368 Asbestos Personal 0 840 Trademark 0 460 Deportation

Student Loans 0 340 Marine Injury Product 10 470 Racketeer Influenced and

(Excludes Veterans) 0 345 Marine Product Liability LABOR SOCIAL SECURITY Corrupt OrganizationsO 153 Recovery of Overpayment Liability PERSONAL PROPERTY 6 710 Eair Labor Standards 0 861 1-11A (139510 0 480 Consumer Credit

of Veteran's Benefits 0 350 Motor Vehicle 0 370 Other Fraud Act 0 862 Black Lang (923) il 490 CableiSat TV

O 160 Stockholders' Suits o 355 Motor Vehicle 0 371 Truth in Lending 0 720 Labor/Management tEl 863 DIWC/DIWW (405(g)) 0 850 Securities/Commodities'O 190 Other Contract Product Liability 0 380 Other Personal Relations 0 864 SSID Title XVI ExchangeO 195 Contract Product Liability 1 360 Other Personal Property Damage 0 740 Railway Labor Act 0 865 RSI (405(g)) 0 890 Other Statatory ActionsEl 196 Franchise Injury 10 385 Property Damage EI 751 Family and Medical 0 891 Agricultural Acts

0 362 Personal Injury Product Liability Leave Act 0 893 Environmental MatiersMedical Malpractice ri 790 Other Labor Litigation 0 895 Freedom of Infonnation

I REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS o 791 Employee Retirement FEDERAL TAX SUITS Act

O 210 Land Condemnation 0 440 Other Civil Rights Habeas Corpus: Income Security Act 0 870 Taxes (U.S. Plaintiff 0 896 ArbitrationO 220 Foreclosure 0 441 Voting 0 463 Alien Detainee or Defendant) il 899 Administrative ProcedureO 230 Rent Lease & Ejectment 0 442 Employment 0 510 Motions to Vacate 0 871 IRS—Third Party Act/Review or Appeal ofO 240 Torts to Land CI 443 Housing" Sentence 26 USC 7609 Agency Decision0 245 Tort Product Liability Accommodations 0 530 General 0 950 Constitutionality ofCI 290 All Other Real Properly El 445 Amer. w/Disabilities 0 535 Death Penalty IMMIGRATION State Statutes

Employment Other: El 462 Naturalization Application0 446 Amer. ski/Disabilities 0 540 Mandamus & Other 0 465 Other hninigration

Other 0 550 Civil Rights Actions3 448 Education 0 555 Prison Condition

0 560 Civil DetaineeConditions ofCon fineinent

V. ORIGIN (Place an "X" in One BM" Only)X1 Original El 2 Removed from 0 3 Remanded from ti 4 Reinstated or 0 5 Transferred from 1 6 Multidistrict CI Multidistric,t

Proceeding State Court Appellate Court Reopened Another District Litigation Litigation(epecO) Transfer Direct File

Cite the U.S. Civil Statute under which you are filing (Do not rite jurisdktional statutes unless diversity).

VI. CAUSE OF ACTION Brief description of' cause:

Claims for unpaid overtime compensation, liquidaded damages, and attorney's fees

VII. REQUESTED IN o CHECK IF THIS IS A CLASS ACTION DEMAND CHECK YES only if demanded in complaint:COMPLAINT: UNDER RULE 23, F.R.Cv.P. 80,372.12 JURY DEMAND: X Yes 10 No

VIII. RELATED CASE(S)IF ANY (See inslmctio»s):

JUDGE DOCKET NUMBER

DATE 10 1 RE 01...,TTOR EY OF RECORD

02/23/2017

RECEIPT 4 AMOUNT APPLYING IFP JUDGE MAG. JUDGE

ClassAction.orgThis complaint is part of ClassAction.org's searchable class action lawsuit database and can be found in this post: Ourisman Fairfax Toyota Faces Wage and Hour Class Action

https://www.classaction.org/news/ourisman-fairfax-toyota-faces-wage-and-hour-class-action

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