GROVES et al v. USA Document 1: Complaint

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UNITED STATES COURT OF FROERAL CLAIMS |

j JUN ~ 9 2006

U.S. COURT OF
FEDERAL CLAIMS

+

de WAYNE GROVES

} ) }

2. BRIAN G. McCLUNE } } ™ .

) LE FS on GF Plaintiffs, \ Sf ) COMPLAINT ve } ) UNITED STATES OF AMERICA, } ) Defendant. } } COMPLAINT Zi. INTRODUCTION Le This civil action is brought on behalf of employees of the United States of America {hereinafter "defendant"}, employed presently by the Department of Justice ("DOJ” hereinafter), Drug Enforcement Administration ("DEA"). Plaintiffs Wayne Groves and Brian G.

McClune are Diversion investigators at DEA, They seek to recover from defendant back pay, liquidated damages, interest, attorney's fees and -COStS pursuant to the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201, gst seg., (hereinafter "FLSA") , rr. JURISDICTION

2. This Court has jurisdiction over plaintiffs’ claims pursuant to 5 U.S.C. § 5596 and § 8715, 28 U.S.c. § 1346(a) (2), 28 U.Ss.c, § 1361, 28 U.S.c. § 1491, 28 U.S.C, §5 2501, 2516 and 2517 and 23 U.S.C.

§ 216(b).

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Ili. THE PARTIES

3. The individual plaintiffs identified in the caption of Plaintiffs’ Complaint, and other persons similarly situated, are all present or former employees of the defendant within the INcaning of § 3(a) of FLSA, 29 U.S.C, § 203(e), and 5 U.s.c, § 2105.

4, Attached to plaintiffs’ Complaint are plaintiffs’ signed individual consents to be included as parties to this action.

5. The individual plaintiffs and others Similarly situated are cr have been employed by defendant during pay periods from 2003 to date,

Vv. GENERAL ALLEGATIONS

G. Defendant and its officers and agencies are responsible under the United States Constitution, Federal law and regulations for the establishment and administration of personnel, employment and compensation policies and practices and for applying to the plaintiffs and others similarly situated the provisions of the FLSA and other applicable federal pay and compensation statutes and regulations.

7, As is more fully set forth below, the defendant and its officers and agencies wilfully have violated, and continue wilfully to violate, the provisions of the FLSA and the leave, holiday and premium pay provisions of Title 5 of the U.S. Code by wrongfully and wilfully failing and refusing to provide the plaintiffs and other employees Similarly situated with pay and benefits due them under the FLSA and 5 U.S.C. §§ 5542, 5543, 5545, 5546, 6103, 6303, 6307, 6322 and 6323 and

implementing regulations of defendant.

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8, Since &t least 2003, while Plaintiffs have been employed by defendant at grade levels inciuding but not limited to Gs-9 - GS-12, defendant has considered plaintiffs as being "FLSA exempt" and has not accorded plaintiffs the rights to which FLSA non-exempt employees of defendant are entitled.

9. Since at least 2003, while Plaintiffs occupied positions in grade levels including but not Limited to Gsg-9 - GS-12 as alleged in paragraph 9 above, plaintiffs were not employed by defendant in an exempt capacity within the meaning of 29 U.S.C. § 213 (as (1),

10, Since at least 2603, while plaintiffs were employed by defendant they were FLSA non-exempt since they were not salaried empioyees within the meaning of 29 U.$.¢, § 213(a) (i) and 29 C.FLR. §§ 541.1, 541.2 and 5414.3,

Vv. COUNT ONE

Li. Plaintiffs incorporate by reference nerein the allegations contained in Paragraphs 1 through 10 above.

i2. Defendant and its officers and agencies have at least xrom 2003 and continuing to date wrongfully and wilfully denied Plaintiffs and others Similarly situated coverage under FLSA and have wrongfully and wilfully withheld overtime compensation due plaintiffs and others similari Situated by failing and refusing to pay them in accordance with FLSA for hours worked in excess of forty each week, Such overtime hours include but are not limited to hours during which Gefendant and its officers and agents directed and/or suffered or permitted plaintiffs to work without paying them any compensation whatsoever, including travei, training and other work verformed by

plaintiffs on defendant's behalf.

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VI. COUNT TWO

13. Plaintiffs incorporates herein by reference the allegations contained in paragraphs 1 through 12 above.

14. From at least 2003 and continuing to date defendant has wrongfuliy and wilfully denied plaintiffs and others Similarly situated coverage under FLSA and has wrongfully and wilfully withheid overtime compensation due such plaintiffs and others Similarly situated by failing and refusing to pay them in accordance with FLSA for hours worked in excess of forty each week, and otherwise depriving them of overtime compensation to which they were entitled under FLSA, or otherwise, VII. COUNT THREE iS. Plaintiffs incorporates herein by veference the allegations contained in paragraphs 1 through 14 above.

16. From at least 2003 and continuing to date defendant has wrongfully and wilfully denied plaintiffs and others Similarly situated coverage under FLSA and has wrongfully and wilfuliy withheld overtime compensation due such plaintiffs and others Similarly situated by failing and refusing to pay them in accordance with FLSA for hours worked in excess of forty each week, by failing to compensate plaintiffs with FLSA overtime for FLSA travel status overtime hours, for regularly scheduled and administratively uncontrollable overtime, hazardous duty pay, for training performed outside their regular tours of duty, and otherwise depriving them of overtime compensation to which they were entitled under FLSA, or otherwise.

ViII. COUNT FOUR

17. Plaintiffs incorporates herein Dy reference the allegations contained in Paragraphs 1 through 16 above. -q-

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18. From at least 2003 and continuing to date individual plaintiffs and others Simileriy situated have taken annual, sick, Jury, injury, witness, administrative and military leave, paid holidays, excused absences and other similar paid absences which plaintiffs were entitied to enjoy under applicable federal laws and regulations without suffering a loss of, or reduction in, pay, including FLSA overtime compensation. Notwithstanding the foregoing, defendant denied plaintiffs such overtime compensation Dy failing to treat the foregoing pericds of leave, holidays and paid absences as "time worked" for the pPurpeses of computing such FLSA overtime compensation.

IX. COUNT FIVE

19, AS a result of the wrongful and willfui violations of law by defendant and its officers and agencies as alleged in the claims specified above, there is due and owing to the individual plaintiffs and others similarly situated various amounts of back pay, liquidated damages, interest, attorney's fees and costs.

20. Employment, time, work, pay, leave and other records for each individual plaintiffs and others Similarly situated are in the possession, contrel, and custody of defendant and its officers and agencies, and plaintiffs are unable to State at this time the exact amounts of pay, benefits, liquidated damages and interest which are due and owing to each of them with respect to their individual claims. Defendant and its officers and agencies are under a duty imposed by § il {c) of FLSA, 29 U.s.c, § 21iic), and other statutes and regulations to maintain and preserve Payroll and other employment records with respect to plaintiffs and others Similarly situated from which the amounts of

cefendant's liability may be determined.

-~K-

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WHEREFORE, the plaintiffs, on their own behalives and on behalf of others similarly Situated, pray that this Court:

a) Order defendant, subject to rules and regulations to be established by this Court which conform with FLSA and Title 5 of the U.S, Code, to conduct a fuli, complete and accurate accounting of ali back overtime, premium and other pay, ieave, holiday and excused and other paid absence compensation, and benefits, interest and liquidated damages due and owing to plaintiffs and others similarly situated as is sought herein from 2003 te a date which is not more than 39 days before the date on which the judgment herein is paid; and

b} Award plaintiffs and other Similarly situated persons such back pay, leave, absence and holiday compensation, tigquidated damages and interest under the Back Pay Act from the date of the denial of such pay and compensation until a date not more than 30 days before the date on which the judgment herein is paid, and costs, as are due and owing to them by defendant under applicable federal Laws and regulations; and

c) Award plaintiffs’ counsel reasonable attorney's fees to be paid by the defendant under FLSA, the Back Pay Act and the Equal Access to Justice Act; and

d) Grant to plaintiffs such other relief as may be just and

proper.

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any (A sub OF COUNSEL: va / UGS nn

Linda Lipsett \Sabes Bernstein <= of Record) Bernstein & Lipsett, P.c, Edgar James 1920 L Street, N.¥, vames & Hoffman Suite 303 1i0l 17th Street, NW. Washington, D.c. 20036 Suite 510 (202) 296-1798 Washington, D.C. 20036

(202) 496-0500 Attorneys for Plaintiff Dated: June 9, 2006

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2006 f 10 Case 1:0GmnA0A56olWBamiROCHMENL! 24, lled,06/09/2006 Page 8 o AND CONTINGENT FEF AGREEMENT 4

1. Tohave been an employee in with a law enfarcemant agency of tha United States Government, I consent to be 4 Plaintiff in a lawsyit brought on my behalf and on behalf of cther persons against the United States asserting my Yights under the Fair Labor Standards Act. My claims include but are not iimited te the failure of the United States to pay me overtime compensation because I have been created incorrectly as being exempt from FLSA coverage or otherwise not paid in accordance with Title §& of the United States Code, Any of the plaintiffs in the lawapit, jointly or Severally, may serve as Ty representative . ay i authorize the law firm of Bernstein ¢ Lipsettr, Pl. (“the Fitm’), ta represent me concerning my claims, including seeking back wages, liquidated damages, interest, attorney's fees and costs, The Firm facting through Jules Bernstein, Linda Lipsett, and other attorneys authorized by them, including, at their Giscretion, Edgar James of the law firm of James 6 Hoftfma:, P,c,) may file this consent in court aud take ali necessary actions including the settlement and collection cat any and all of my clains,

3. In consideration of the Firm's Services, I agree that it shall receive 254% (twenty-five percent) of my recovery as a legal fee in addition to whatever statutory fees and costs they may be able to revever, J further agree, authorize and direct that any checks issued by the United States to me in commection with my claims shall be paid to the Firm ag trustee an my behalf. After attorney's fees are deducted therefrom the balance shali be Forwarded to me by the Pirm. 12 the complaint and/or claims brought on my behalf result in no recovery, I will have no obligation to Pay attorney's fees, 4, Tounderstand that under Section 15{a}(3) of FLSA I cannot be discharged, Gisciplined, ar otherwise penalized by my employer because of my having filed a FLSA Lawsuit and/or claim.

PEEASE UYPE OCR PRINT CLEARLY

“y ba \ AGREED: DATE: 05-15-2006 oe AGREES: ihc 4 {jo Poo ~ Name: WAYME GROVES WLAN Nena Bp us a Jules Bernstein

Home linda Lipsetti Address: 26222 KENDALLWOOP ee Bernstein «4 wipseth, Plc, 1920 L Street, N.W., Suite 303 Washington, D.C. 20036 FARMINGTON HILLS, MI 48334

f :

(202) ové-17ga ff we pe City State Zip Code iD fof i et i ‘ i Foir ia Dare: i¢ poy tLe wow A Home Tel. No, {246 32a4e3g / i Work Yel. No. (313 32344328 Cell Tel. No. (313 1575-9769 OR aa Home E-mail Address: ee __ _ Work Eemail Address: WAYNE SROVES@USDOI. GOV ee .

Soc, Sec. No, 149-44-1231 a ee Indicate the agency by which you were employed during the years in question, the grade, the month your grade changed and the job title and occupational cade. If retired, indicate retirement date, JOB TITLE 5 YEAR AGENCY GRADE MONTH OSC CODE 2003 _ DEA 12 -3 | ——— DIVERSION TNV 2004 _ DEA 22 -3_ __ a DIVERSION TRV 2005 DEA 82+5 ae — . DIVERSION INV eee 2008 DEAR 1a~7_ aa DIVERSION INV wee pee 2006 DI

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Case 1:06:6M00496- 1B, aRoGument Vara Filed 96/09/20 06. fage Sof 1 AND CONTINGENT FEE AGRINEMENT

L. i have been an employee in with a law enforcement agency of the United States Government. 1 consent to be a plaintiff in a lawsuit brought on my behalf and on behalf of other persons against the United States asserting my rights under the Fair Labor Standards Act. My claims include bot are not limited to the Failure of the United States to bay Ie overtime compensation because I have been treated incorrectly as being exempt frott FLSA coverage or otherwise not paic in accordance with Titie 3 of the United States Code. Any of the plaintiffs in the lawsuit, jointly oz severally, may serve as my representative.

2. t authorize the law firm of Bernstein « bipsett, P.c, (“the Firm’), to represent me concerning my claims, including seeking back wages, liquidated damages, interest, attorney's fees and costs. The Firm facting through Jules Bernstein, Linda Lipsett, and ather attorneys authorized by them, including, at their Giscretion, Edgar James of the law firm of James & Hoffman, 2.C.) may file this consent in court and take ali necessary actions including the settlement and collection of any and ail of my claims,

3. In consideration of the Firm's services, I agree Chat it shall receive 25% (twenty-five percent} of my recovery as @ legal fee in addition to whatever statutory fees and costs they may be able to recover, 1 further agree, authorize and direct that any checks issued by the United States to me in connection with my claims shall be yaid to the Firm as trustee on my behalf. After attornay's fees are deducted therefrom the balance shall be forwarded to me by the Firm. If the complaint and/or claims prought on my behalf result in no recovery, I will have no obligation to pay attorney's feas.

4. fo understand that under Section i5{a)(3} of FLSA £ cannot be discharged, disciplined, oar otherwise penalized by my employer because of my having filed a FLSA lawsuit and/or claim, PLEASE TY PE OR BRINT SLEARLY ~~ 7 % ae.

AGREED : DATE: Os “ADs GE& —— a nano: Atta 6 MACCLou ue _ eiteene . ‘Jube® pernscein aan Signature:

wane 4 —_— Home . Linda Lipsett Address: xf? Sea MALE STIS a Bernstein & Lipsett, P.c, Pehkinaa 1920 b Street, N.W., Suite 303 i : A os Washington, D.C. 20036 DSEEAIVE LRA EE, te 470 EP (202) 296-1798 7 i

en, a City State Zip Code f i ‘ fib _ Date: o AX i f YU .

Home Tel, No, Gd) AF a Za rs f_ / / ao 3 so ns TL o Work Tel. No. 2/8 2 3x: BEES Cell Tel. No, OY, DEA” Ge Jaf Home E-mail Address: EEPAIOO MEP CTAOTL, Work E-mail Address; Ou fA Soc. Sec. Ne. YFG F- FG7 £4 EO Indicate the agency by which you were employed during the years in question, the grade, the month your grade changed and tne job title and occupational code. Tf retired, indicate Yetirement date.

JOR TITLE &

YEAR AGENCY GRADE MONTH OcC CODE 2003

2008 fA ESF S88 of 00s BEA GS AEC Of ¢ £0) 2005 BEA Sil DEE OE | 4 Ba (Po)

2006 DI

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ZXAHT BI

SAB LB IE A

DRUG ENFORCEMENT ADMINISTRATION

re

WAYNE GROVES

2. BRIAN G. McCLUNE