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1
Case 3:11-cv-00519 Document 157-1 Filed 02/22/13 Page 1 of 27 PageID #: 2262
seeks to represent remedy Defendants illegal underpayments of wages owed to them under
federal and state law.
Plaintiff Noel brings this lawsuit as a collective action, pursuant to 29 U.S.C. 216(b) of
the FLSA and pursuant to Tennessee state law for breach of contract, unjust enrichment, and
violation of the Tennessee Wage Regulations, Tenn. Code Ann. 50-2-101(Tennessee Wage
Regulations), on behalf of herself and all others similarly situated (the FLSA Class). Plaintiff
alleges that Defendant has failed to pay the FLSA Class Members for all time worked at an
agreed upon hourly rate, including overtime pay. Plaintiff also alleges that by failing to pay for
all work, Defendant has violated Tennessee common law and the Tennessee Wage Regulations.
First, Defendant has violated the employment contract reached with the FLSA Class to pay them
certain hourly rates for all time worked. Second, by failing to pay the FLSA Class Members for
all time worked but receiving the benefit of such work, Defendant has been unjustly enriched.
Third, Defendant has violated the Tennessee Wage Regulations by failing to pay the FLSA Class
for all hours worked at agreed upon hourly rates. To date, 236 Correctional Officers have opted
into this litigation as members of the FLSA Class, including Plaintiff Noel. 1
Additionally, Plaintiff Noel brings this action pursuant to Rule 23 of the Federal Rules of
Civil Procedure on her own behalf and on behalf of all Correctional Officers who have worked
for the Davidson County Sheriffs Office (DCSO or Sheriffs Office) at any time during the
six years preceding the filing of this Second Amended Collective and Class Action Complaint
(the Rule 23 Class). Plaintiff alleges that Defendant has been unjustly enriched or, in the
alternative, has breached its employment contract with the Rule 23 Class Members by paying the
Rule 23 Class Members less than the wages to which they are entitled under the binding Pay
1
Initially, 240 Correctional Officers opted into this litigation as members of the FLSA class. Since
that time, five opt-in plaintiffs have voluntarily dismissed their FLSA claims through the parties filing of
joint stipulations of dismissal.
2
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Plan of the Metropolitan Government of Nashville and Davidson County, Tennessee (the Metro
Pay Plan).
The FLSA alone does not require Defendant to pay Correctional Officers the hourly wage
rates prescribed by the binding Metro Pay Plan. However, Tennessee state common law does
require Defendant to pay Correctional Officers the rates agreed upon and prohibits Defendant
from being enriched unjustly by enjoying the fruits of the Correctional Officers labor without
paying them the rates agreed upon.
Defendant to pay its Correctional Offices at wage rates agreed upon prior to the Correctional
Officers beginning their work. In this case, those wage rates are the hourly rates stated in the
Metro Pay Plan. Moreover, for weeks where a Correctional Officer did not accrue overtime, the
FLSA may not provide a remedy for Defendants underpayment of the Correctional Officers
regular work hours. Thus, Plaintiff Noel, and the Correctional Officers she seeks to represent,
seeks to remedy Defendants failure to apply the binding Metro Pay Plan to Correctional Officers
through the class unjust enrichment or, in the alternative, breach of contract claims asserted
herein.
JURISDICTION AND VENUE
1.
This Court has jurisdiction over Plaintiffs FLSA claims pursuant to 29 U.S.C.
216(b) and 28 U.S.C. 1331. This Court also has supplemental jurisdiction over Plaintiffs
state law unjust enrichment collective action claims pursuant to 28 U.S.C. 1357 because the
state law claims are so related to the FLSA claims that they form part of the same case or
controversy.
2.
This Court has jurisdiction over Plaintiffs state law unjust enrichment claims and
Plaintiffs alternatively-pled state law breach of contract claims pursuant to the Class Action
3
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Fairness Act, 28 U.S.C. 1332(d). This Court also has supplemental jurisdiction over Plaintiffs
state law unjust enrichment claims and Plaintiffs alternatively-pled state law breach of contract
claims pursuant to 28 U.S.C. 1357 because the state law claims are so related to the FLSA
claims that they form part of the same case or controversy.
3.
Venue for this action properly lies in the Middle District of Tennessee, pursuant
to 28 U.S.C. 1391, because Defendant resides in this judicial district and because the claims
arose in this judicial district.
THE RELEVANT TIME PERIODS
I. Collective Claims
A. FLSA Collective Claims
4.
The FLSA permits Plaintiff to recover unpaid wages and liquidated damages for
This lawsuit was filed on June 2, 2011. Accordingly, the FLSA allegations set
forth herein concern the FLSA Class Members employment since as early as June 2, 2008
through the resolution of this litigation. This time period shall be referred to herein as the
FLSA Class Relevant Time Period.
B. Collective Unjust Enrichment Claims
6.
Under Tennessee law, unjust enrichment claims are subject to a six-year statute of
limitations.
7.
This Fourth Amended Collective and Class Action Complaint was filed on
February 22, 2013. Accordingly, the FLSA Class Members collective unjust enrichment claims
concern the FLSA Class Members employment since as early as February 22, 2007.
C. Collective Breach of Contract Claims
4
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8.
Under Tennessee law, breach of contract claims are subject to a six-year statute of
limitations.
9.
This Fourth Amended Collective and Class Action Complaint was filed on
February 22, 2013. Accordingly, the FLSA Class Members collective breach of contract claims
concern the FLSA Class Members employment since as early as February 22, 2007.
D. Collective Tennessee Wage Regulations Claims
10.
limitations.
11.
This Fourth Amended Collective and Class Action Complaint was filed on
Regulations claim concern the FLSA Class Members employment since as early as February 22,
2010.
III.
Under Tennessee law, unjust enrichment and breach of contract claims are subject
The Second Amended Collective and Class Action Complaint, which added
Plaintiffs Rule 23 unjust enrichment and breach of contract claims, was filed on July 18, 2012.
Accordingly, the unjust enrichment and alternatively-pled breach of contract allegations set forth
herein concern the Rule 23 Class Members employment since as early as July 18, 2006 through
the resolution of this litigation. This time period shall be referred to herein as the Rule 23 Class
Relevant Time Period.
5
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PARTIES
I.
Plaintiff
14.
County, Tennessee. Plaintiff Noel has been continuously employed by Defendant since 2004.
II.
Defendant
15.
Davidson County, Tennessee, the DCSOs primary duties are to house inmates and to serve civil
warrants.
18.
Defendant is a public entity covered by the FLSA. See 29 U.S.C. 203(d), (x).
19.
Plaintiff, and those she seeks to represent, have been directly employed by
Defendant during the FLSA Class Relevant Time Period and, as such, are employees entitled to
the FLSAs protections. See 29 U.S.C. 203(e).
DEFENDANTS COMMON BUSINESS POLICIES AND PRACTICES
I.
Defendants Operations
20.
Development Center Male (CDM), the Correctional Development Center Female (CDF),
the Criminal Justice Center (CJC), the Hill Detention Center (HDC), and the Offender ReEntry Center (ORC).
6
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21.
During the Relevant Time Periods, Defendant has also overseen some or all of the
uniformed officers at its jails/detention facilities and in ASD. These officers hold the job title of
Correctional Officer, with the position rankings of Correctional Officer 1, Correctional Officer 2,
and Correctional Officer 3.
23.
The classes Plaintiff seeks to represent are limited to Correctional Officers from
Davidson County, Tennessee (Metro) mandates a procedure by which Metro, acting through
the Mayor and the Metro Council, adopts and periodically revises a Pay Plan setting forth the
compensation, or compensation ranges, including hourly wage rates, for various employees of
Metro. This Pay Plan is referred to herein as the Metro Pay Plan.
25.
As set forth in the Metro Charter, all covered employees must be paid in
7
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27.
Metro Pay Plan. Specifically, Defendant is required to pay its Correctional Officers according to
the Correctional Officer Pay Table provided in the Metro Pay Plan.
28.
The Correctional Officer Pay Table provides an hourly rate for each grade and
Correctional Officers must be paid by the hour for all time worked in accordance
In light of the fact that Correctional Officers are hourly workers, the semi-
monthly, bi-weekly, and annual compensation figures provided for Correctional Officers in the
Metro Pay Plan are estimates.
31.
monthly, bi-weekly, and annual basis in connection with the actual number of hours worked by
the Correctional Officer.
32.
shall be paid at a rate less than the base rate nor more than the maximum for a classification as
provided for in the pay plan except as provided for in the Metro policy regarding Red-Lining
Employee Salary.
33.
This policy, as well as the Metro Charter, requires Defendant to compensate its
Correctional Officers at the hourly wage rates provided in the Metro Pay Plan.
III.
During the Relevant Time Periods, Correctional Officers who have worked at
jails/detention facilities other than HDC have generally been scheduled to work twenty (20)
8
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eight-and-a-half-hour (8.5-hour) shifts during each 28-day pay period. Thus, such Correctional
Officers have generally been scheduled to work 170 hours during each 28-day pay period.
35.
who worked at HDC were generally scheduled to work twenty (20) eight-and-a-half-hour (8.5hour) shifts during each 28-day pay period. Thus, such Correctional Officers were generally
scheduled to work 170 hours during each 28-day pay period.
36.
HDC have generally been scheduled to work fourteen (14) twelve-hour (12-hour) shifts during
each 28-day period. Thus, such Correctional Officers have generally been scheduled to work
168 hours during each 28-day pay period.
37.
During the Relevant Time Periods, Correctional Officers who work in ASD have
generally been scheduled to work twenty (20) eight-and-a-half-hour (8.5-hour) shifts during each
28-day pay period, although a few Correctional Officers in ASD have generally been scheduled
to work ten-hour (10-hour) shifts. Thus, the Correctional Officers in ASD who work 8.5-hour
shifts have generally been scheduled to work 170 hours during each 28-day pay period.
IV.
The Correctional Officers who work for Defendants are non-exempt employees
Pursuant to Section 207(k) of the FLSA, along with its enacting regulations,
Relevant Time Periods, Defendant has consistently paid overtime compensation to Correctional
Officers when Defendants pay records indicate that the Correctional Officers have worked more
9
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than their scheduled 170 hours (for 8.5-hour-shift Correctional Officers) or 168 hours (for 12hour-shift Correctional Officers) in a 28-day pay period.
41.
Officers receive paychecks every fourteen (14) days, and are paid, for purposes of overtime
accrual, on a 28-day pay period.
42.
Officers are paid the same amount on each paycheck for their regularly scheduled shifts and/or
for any shifts that have been substituted for their regularly scheduled shifts.
43.
the Annual compensation listed on the Metro Pay Plan for each grade and step of Correctional
Officer by 26.
44.
bi-weekly payments compensate Correctional Officers for the 170 hours (for 8.5-hour-shift
Correctional Officers) or 168 hours (for 12-hour-shift Correctional Officers) they regularly work
in a 28-day pay period.
45.
These regular, bi-weekly payments are based on lower hourly rates that the hourly
rates mandated by the Metro Pay Plan. Accordingly, Defendant compensates its Correctional
Officers at lower hourly rates than the hourly rates provided for the Correctional Officers in the
Metro Pay Plan for their regularly scheduled shifts and/or for any shifts that have been
substituted for their regularly scheduled shifts.
46.
Specifically, these regular, bi-weekly payments equate to lower hourly rates than
the hourly rates provided in the Metro Pay Plan multiplied by the 170 hours (for 8.5-hour-shift
10
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regularly indicate that each Correctional Officer is paid for 80 hours of work at the stated Metro
Pay Plan rate, even though the Correctional Officer worked his or her regularly scheduled 85
hours (for 8.5-hour-shift Correctional Officers) or 84 hours (for 12-hour-shift Correctional
Officers).
V.
Deviations from Standard Pay for Correctional Officers, Including the Named
Plaintiff
48.
pays Correctional Officers the regular, biweekly payments described above if the Correctional
Officers work all of their scheduled shifts and/or any shifts that have been substituted for their
regularly scheduled shifts.
49.
does not increase or decrease these payments when Correctional Officers are allowed to leave
work up to approximately thirty (30) minutes before the end of a shift or when Correctional
Officers are required to work up to approximately thirty (30) minutes after the end of a shift.
50.
thirty (30) minutes before or after the end of a shift, Defendant does not record the fact that the
Correctional Officer worked less or more than his or her scheduled shift, and the Correctional
Officers compensation is neither decreased nor increased as a result.
51.
In such cases, Defendants pay records do not indicate when the Correctional
Officer actually stopped working. Rather, Defendants pay records indicate that the Correctional
Officer worked until the scheduled end of the shift.
11
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52.
If, however, a Correctional Officer leaves work more than approximately thirty
(30) minutes before the end of a shift, the Correctional Officers supervisor will report the
amount of time missed to the Human Resources department, and that amount of time will not be
recorded as time worked.
53.
thirty (30) minutes after the end of a shift, the Correctional Officers supervisor will typically
report the amount of additional time worked to the Human Resources department, and that
amount of time will be recorded as additional time worked.
54.
Defendants pay records indicate that a Correctional Officer has worked more than his or her
scheduled 170 hours (for 8.5-hour shift Correctional Officers) or 168 hours (for 12-hour shift
Correctional Officers) in a 28-day pay period, the Correctional Officers additional compensation
is calculated using the hourly rate provided in the Metro Pay Plan.
55.
12
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57.
to overtime compensation if, for example, the Correctional Officer used a vacation day during a
28-day pay period but also worked an extra shift beyond his or her scheduled shifts.
58.
Thus, Defendant pays its Correctional Officers at lower hourly rates than the
hourly rates provided for such officers in the Metro Pay Plan for regularly scheduled work, but
Defendant pays for all additional recorded work using the hourly rates provided in the Metro Pay
Plan, or 1.5 times those rates in the case of overtime compensation.
59.
In other words, the DCSO uses two different sets of hourly rates to pay its
Correctional Officers: (1) hourly rates lower than the Metro Pay Plans hourly rates for regularly
scheduled work, and (2) the Metro Pay Plans hourly rates for work recorded performed in
addition to regularly scheduled work. However, neither the Metro Charter, nor the DCSOs
Compensation Policies, authorize such deviations from the Metro Pay Plan.
FACTS PERTAINING TO NAMED PLAINTIFF VONDA NOEL
60.
61.
During her employment, Plaintiff Noel has worked for Defendant at two of its
work additional time after the end of her paid shift without providing her with any corresponding
additional compensation, as described herein.
13
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63.
Defendant is obligated to pay Plaintiff Noel in accordance with the Metro Pay
Plan, including the hourly rates prescribed in the Metro Pay Plan. Throughout Plaintiff Noels
employment, Defendant has paid her at lower hourly rates than the hourly rates prescribed by the
Metro Pay Plan for her job position, as described herein.
64.
Correctional Officers at lower hourly rates than the hourly rates prescribed by the Metro Pay
Plan.
FACTS AND ALLEGATIONS PERTAINING TO THE
FLSA CLASS COLLECTIVE ACTION CLAIMS
65.
Plaintiff desires to pursue her FLSA claims on behalf of all individuals who opt
Plaintiff and the above class members are similarly situated, as that term is
defined in 29 U.S.C. 216(b), because, inter alia, Defendant routinely requires the members of
the FLSA Class to work additional time after the end of their paid shifts without providing them
with any corresponding additional compensation, in accordance with Defendants common
business policies and/or practices.
68.
Pursuant to Defendants common business policies and/or practices for the entire
Relevant Time Periods, Defendant has compensated recorded work performed by Correctional
Officers beyond 170 hours in a 28-day pay period (for 8.5-hour-shift Correctional Officers) or
14
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168 hours in a 28-day pay period (for 12-hour-shift Correctional Officers) at a rate of 1.5 times
the hourly rate provided for each Correctional Officer in the Metro Pay Plan.
69.
Thus, for the entire Relevant Time Periods, Defendant and its Correctional
Officers have operated under the agreement that Correctional Officers will be compensated for
recorded hours worked beyond 170 hours in a 28-day pay period (for 8.5-hour-shift Correctional
Officers) or 168 hours in a 28-day pay period (for 12-hour-shift Correctional Officers) at the
overtime rate of 1.5 times the hourly rate provided for each Correctional Officer in the Metro
Pay Plan.
70.
Correctional Officer finishing his or her shift cannot leave the facility, and does not finish
working, until he or she is relieved by a Correctional Officer who is beginning his or her shift.
71.
Clearing count is a term used within the DCSO to describe the process whereby
the incoming and outgoing Correctional Officer shifts work together to verify that all inmates
housed in each jail/detention facility are accounted for.
72.
At every shift change, count must clear, either for the entire jail/detention facility
or for each unit of a jail/detention facility, before the Correctional Officers ending their shift in
that jail/detention facility or unit of a jail/detention facility, respectively, may stop working and
leave the facility.
73.
During the FLSA Class Relevant Time Period, count has often cleared after the
For this reason and for other reasons, the members of the FLSA Class have
routinely worked beyond the end of their paid, scheduled shifts without receiving compensation
15
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for the additional time worked, in accordance with Defendants common business policies and/or
practices.
75.
Defendant knows that the members of the FLSA Class have routinely worked
beyond the end of their paid, scheduled shifts without receiving compensation for the additional
time worked.
76.
Specifically, Defendants know that the members of the FLSA Class have worked
beyond the end of their paid, scheduled shifts without receiving compensation for the additional
time worked every time that count has cleared after the end of the scheduled shift without a pay
exception being entered into the payroll system to extend the recorded time worked for each
Correctional Officer.
77.
This unpaid time can be easily captured by Defendant for pay purposes.
78.
Plaintiff Noel brings this action on her own behalf and, pursuant to Rule 23 of the
Federal Rules of Civil Procedure, on behalf of the following class of Correctional Officers:
All Correctional Officers who have been or were employed by the
Metropolitan Government of Nashville and Davidson County,
Tennessee and/or the Davidson County Sheriffs Office since July
18, 2006 who are/were paid at lower hourly rates than the hourly
rates set forth for Correctional Officers by the Metro Pay Plan (the
Rule 23 Class).
80.
81.
16
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a.
Joinder of all of the 755 individuals who comprise the Rule 23 Class is
impracticable, as illustrated by the fact that just 240 individuals opted into
this litigation by the opt-in deadline, despite the fact that notice was sent to
574 individuals. This return rate of less than 45% of the members of the
potential FLSA Class demonstrates that an opt-in class procedure cannot
effectively protect the rights of the members of the Rule 23 Class.
82.
All members of the Rule 23 Class share the same pivotal questions of law and
Namely, all members of the Rule 23 Class share the question of whether
Defendant, during the Rule 23 Class Relevant Time Period, paid the class
members at lower hourly rates than the hourly rates prescribed by the
Metro Pay Plan for each class member, in violation of the Metro Charter,
the Metro Civil Service Rules, and the DCSOs Compensation policy.
b.
Because all Correctional Officers are paid the same hourly rates, their
damages are the same on an hourly basis.
83.
The claims of Plaintiff Noel are typical of the claims of the Rule 23 Class, thus
17
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a.
For her employment with Defendant, Ms. Noel, like all potential Rule 23
Class Members, has been paid by Defendant at a lower hourly rate than
the hourly rate prescribed for her job position by the Metro Pay Plan.
b.
Further, the underpayments by Defendant are the same for all Correctional
Officers based on their grade and step, i.e. Correctional Officers 1 through
3 and step 1 through at least 10, if not higher.
84.
Plaintiff Noel will fairly and adequately represent and protect the interests of the
Rule 23 Class. Further, Plaintiff has retained competent counsel experienced in representing
classes of employees against their employers related to their employers failure to pay them
properly under the law, thus satisfying Federal Rule of Civil Procedure 23(a)(4).
85.
By consistently paying their Correctional Officers at lower hourly rates than the
hourly rates prescribed by the Metro Pay Plan for regularly scheduled work, Defendant has acted
on grounds that apply generally to all members of the Rule 23 Class, such that final injunctive
relief and corresponding declaratory relief is appropriate respecting the class as a whole.
Accordingly, Plaintiff Noel is entitled to pursue her claims as a class action, pursuant to Federal
Rule of Civil Procedure 23(b)(2).
86.
By consistently paying their Correctional Officers at lower hourly rates than the
hourly rates prescribed by the Metro Pay Plan for regularly scheduled work performed by their
Correctional Officers, Defendant has created a scenario where questions of law and fact common
to Rule 23 Class Members predominate over any questions affecting only individual members.
Thus, a class action is superior for adjudication of this matter to other available methods for
fairly and efficiently adjudicating the controversy. Accordingly, Plaintiff Noel is entitled to
pursue her claims as a class action, pursuant to Federal Rule of Civil Procedure 23(b)(3).
18
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All previous paragraphs are incorporated as though fully set forth herein.
88.
Plaintiff, and those she seeks to represent, are employees entitled to the FLSAs
protections.
89.
90.
compensation not less than one and one-half times their regular rate of pay. See 29 U.S.C.
207.
92.
Class members are entitled to overtime compensation at a rate of 1.5 times their regular rate of
pay for all hours worked over 170 hours in a 28-day pay period (for 8.5-hour-shift Correctional
Officers) or 168 hours in a 28-day pay period (for 12-hour-shift Correctional Officers).
93.
on a daily basis for all time worked, including overtime, in accordance with the continuous
workday principal. IBP v. Alvarez, 546 U.S. 21 (2008).
94.
Defendant has failed to pay Correctional Officers for post-shift work performed
19
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95.
does not deduct any time from their Correctional Officers paid time for any breaks, including
meal breaks.
96.
To the extent that Defendant does deduct time from their Correctional Officers
paid time, such deductions are improper under the FLSA, as the Correctional Officers are not
provided bona fide meal breaks, as defined by the FLSA.
97.
In violation of the FLSA, Defendant acted willfully and with reckless disregard of
All previous paragraphs are incorporated as though fully set forth herein.
99.
Defendant is obligated to pay the FLSA Class for all time worked.
100.
The FLSA requires Defendant to pay the FLSA Class for all time worked.
101.
Defendant has been unjustly enriched as a result of its accepting the work of the
FLSA Class without proper compensation for all time worked. It would be unjust to allow
Defendant to enjoy the fruits of the FLSA Class labor without proper compensation.
III.
All previous paragraphs are incorporated as though fully set forth herein.
103.
The FLSA Class and Defendant entered into employment agreements whereby all
FLSA Class Members agreed to perform work for Defendant in exchange for being compensated
for all of their work time at the appropriate hourly rate provided for in Defendants Pay Plan.
104.
The agreements were made between parties capable of contracting and contained
20
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105.
The members of the FLSA Class have performed all conditions precedent, if any,
Defendant failed and refused to perform its obligations in accordance with the
terms and conditions of the agreement by failing to pay the members of the FLSA Class (as well
as all correctional officers) for all time worked on behalf of Defendant. The FLSA Class was
thereby damaged in an amount to be determined at trial.
IV.
All previous paragraphs are incorporated as though fully set forth herein.
108.
Defendant violated and is violating the Tennessee Wage Regulations, Tenn. Code
Ann. 50-2-101, in relevant part, by failing to pay all wages due to the FLSA Class.
Specifically, Defendant violated this statute by failing to pay the FLSA Class for work
performed post-shift on a regular, daily basis.
109.
Prior to beginning their work, Defendant agreed to pay each member of the FLSA
Class for all time worked based on specific hourly rates as provided in its Pay Plan.
110.
Despite the fact that Defendant agreed to pay each member of the FLSA Class for
all time worked at specific hourly rates, Defendants failed to pay for all such time.
RULE 23 CLASS ACTION CLAIMS
I.
All previous paragraphs are incorporated as though fully set forth herein.
112.
Defendant has been unjustly enriched by benefiting from the work of its
Correctional Officers while consistently paying its Correctional Officers at lower hourly rates
than the hourly rates prescribed by the Metro Pay Plan for regularly scheduled work performed
by Correctional Officers.
21
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113.
Under Tennessee law, a claim for unjust enrichment has three required elements:
[1] A benefit conferred upon the defendant by the plaintiff, [2] appreciation by the defendant of
such benefit, [3] and acceptance of such benefit under such circumstances that it would be
inequitable for him to retain the benefit without payment of the value thereof. Paschall's, Inc. v.
Dozier, 407 S.W.2d 150, 155 (Tenn. 1966).
114.
The relevant statute of limitations for the Rule 23 Class members unjust
Defendant has received the benefit of the work provided by the members of the
Rule 23 Class for the entire Rule 23 Class Relevant Time Period.
116.
Defendant has appreciated the benefit of such work provided by the members of
Defendant has accepted the benefit of such work while knowingly paying the
members of the Rule 23 Class at lower hourly rates than the hourly rates provided for the
members of the Rule 23 Class in the Metro Pay Plan.
119.
Specifically, Defendant has routinely paid the members of the Rule 23 Class for
either 170 or 168 hours of actual work in a 28-day period at a rate equivalent to just 160 hours of
work at the prescribed rates set forth in the Metro Pay Plan. Alternately stated, Defendant has
routinely paid members of the Rule 23 Class at lower hourly rates than the hourly rates
prescribed by the Metro Pay Plan. In fact, the specific rates Defendant pays the members of the
Rule 23 Class are not mentioned anywhere in the Metro Pay Plan.
22
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120.
It would be inequitable for Defendant to retain the benefit of such work without
paying the members of the Rule 23 Class the hourly rates Defendant has been, and is, required to
pay the members of the Rule 23 Class by the Metro Pay Plan.
121.
Thus, Defendant has been unjustly enriched, and the Rule 23 Class Members are
All previous paragraphs are incorporated as though fully set forth herein.
123.
Plaintiff Noel pleads her claim for breach of contract in the alternative to her
As part of that contractual relationship, Defendant is, and has been, obligated by
the Metro Charter and by its own Compensation Policies to pay the members of the Rule 23
Class at the hourly rates prescribed for each member of the Rule 23 Class by the Metro Pay Plan.
126.
including Plaintiff Noel and all Rule 23 Class Members, of the wages to be paid for the labor
performed. Tenn. Ann. Code 50-2-101.
127.
The contract for employment at certain hourly rates prescribed by the Metro Pay
By consistently paying its Correctional Officers at lower rates than the hourly
rates prescribed by the Metro Pay Plan, Defendant has breached its contractual obligations
throughout the Rule 23 Class Relevant Time Period to pay the members of the Rule 23 Class at
the hourly rates prescribed for each member of the Rule 23 Class by the Metro Pay Plan.
23
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129.
Specifically, Defendant has routinely paid the members of the Rule 23 Class for
either 170 or 168 hours of actual work in a 28-day pay period at a rate equivalent to just 160
hours of work at the prescribed rates set forth in the Metro Pay Plan. Alternately stated,
Defendant has routinely paid members of the Rule 23 Class at lower hourly rates than the hourly
rates prescribed by the Metro Pay Plan. In fact, the specific rates Defendant pays the members
of the Rule 23 Class are not mentioned anywhere in the Metro Pay Plan.
130.
The relevant statute of limitations for the Rule 23 Class members alternatively-
Having breached the contractual obligation to the members of the Rule 23 Class
to pay them according to the hourly rates set forth in the Metro Pay Plan, Defendant should be
required to provide all remedies available under the law to the members of the Rule 23 Class.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff seeks the following relief on behalf of herself, on behalf of all
members of the FLSA Class, where applicable, and on behalf of all members of the Rule 23
Class, where applicable:
A.
pursuant to 29 U.S.C. 216(b) related to all uncompensated post-shift work performed by the
members of the FLSA Class, including uncompensated straight time and overtime work, in
violation of the FLSA and in violation of Tennessee law, including for breach of contract, unjust
enrichment, and the Tennessee Wage Regulations;
B.
C.
A declaration that Defendants violation of the FLSA was willful and knowing;
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Case 3:11-cv-00519 Document 157-1 Filed 02/22/13 Page 24 of 27 PageID #: 2285
D.
for compensation for post-shift work not provided by Defendant as well as the amount of unpaid
and underpaid overtime that Defendant has failed and refused to pay in violation of the FLSA;
E.
of the Federal Rules of Civil Procedure related to all work for which Defendant has compensated
the Correctional Officers in their employment at lower hourly rates than the hourly rates
prescribed for each Correctional Officer by the Metro Pay Plan;
F.
An order tolling the statute of limitations for the Rule 23 Class members unjust
enrichment and breach of contract claims, allowing them to pursue such claims individually,
should this Court deny their request for class certification in accordance with Rule 23;
G.
Back pay damages and prejudgment interest to the fullest extent permitted under
the law;
H.
I.
fullest extent permitted under the law, including under 29 U.S.C. 216(b);
J.
Rule 23 Class in accordance with the Metro Pay Plan prospectively; and
K.
Such other and further relief as this Court deems just and proper.
Respectfully submitted,
Nashville, TN 37201
(615) 244-2202
gbarrett@barrettjohnston.com
dgarrison@barrettjohnston.com
stift@barrettjohnston.com
shyatt@barrettjohnston.com
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Case 3:11-cv-00519 Document 157-1 Filed 02/22/13 Page 26 of 27 PageID #: 2287
CERTIFICATE OF SERVICE
I hereby certify that a true and exact copy of the foregoing Fourth Amended Collective
and Class Action Complaint has been served on the following via the Courts ECF filing system:
ALLISON L. BUSSELL
CHRISTOPHER M. LACKEY
R. ALEX DICKERSON
Metropolitan Legal Department
P O Box 196300
Nashville, TN 37219
(615) 862-6341
allison.bussell@nashville.gov
chris.lackey@nashville.gov
alex.dickerson@nashville.gov
Attorneys for Defendants
on this the 22nd day of February, 2013
/s/ David W. Garrison
DAVID W. GARRISON
BARRETT JOHNSTON, LLC
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Case 3:11-cv-00519 Document 157-1 Filed 02/22/13 Page 27 of 27 PageID #: 2288