Corrections officers sue Metro for overdue wages

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE

VONDA NOEL, On Behalf of HERSELF and All Others Similarly Situated, Plaintiff, v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE Defendant.

) ) ) ) ) ) ) ) ) ) ) ) ) )

CLASS AND COLLECTIVE ACTION CASE NO. 3:11-cv-519 JUDGE SHARP MAGISTRATE JUDGE KNOWLES

FOURTH AMENDED COLLECTIVE AND CLASS ACTION COMPLAINT

Plaintiff Vonda Noel (Plaintiff or Plaintiff Noel) brings this lawsuit on behalf of

herself and all similarly situated individuals as a collective action, pursuant to 29 U.S.C. 216(b)

of the Fair Labor Standards Act (FLSA) and under Tennessee law for unjust enrichment,

breach of contract, and violation of the Tennessee Wage Regulations against the Metropolitan

Government of Nashville and Davidson County, Tennessee (Defendant). Plaintiff also asserts

a class action claim, pursuant to Rule 23 of the Federal Rules of Civil Procedure, against the

Defendant. Through this litigation, Plaintiff Noel seeks to remedy Defendants failure to pay the

Correctional Officers employed by Defendant the wages to which they are entitled under the law.

Plaintiff brings this action as both a collective action and a class action because neither a

FLSA and unjust enrichment collective action nor a Rule 23 class action under Tennessee

common law, standing alone, could remedy Defendants illegal compensation practices. Only

through a combined collective and class action can Plaintiff and the Correctional Officers she

Case 3:11-cv-00519 Document 157-1 Filed 02/22/13 Page 1 of 27 PageID #: 2262

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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.


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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. In addition, the Tennessee Wage Regulations require

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


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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

up to three years prior to the filing of a lawsuit.

5. 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


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8. Under Tennessee law, breach of contract claims are subject to a six-year statute of

limitations.


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. Under Tennessee law, statutory claims are subject to a three-year statute of

limitations.


February 22, 2013. Accordingly, the FLSA Class Members collective Tennessee Wage

Regulations claim concern the FLSA Class Members employment since as early as February 22,

2010.

III. Rule 23 Unjust Enrichment and Breach of Contract Claims

12. Under Tennessee law, unjust enrichment and breach of contract claims are subject

to a six-year statute of limitations.

13. 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.


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PARTIES

I. Plaintiff

14. Plaintiff Vonda Noel is an individual who resides in Hendersonville, Sumner

County, Tennessee. Plaintiff Noel has been continuously employed by Defendant since 2004.

II. Defendant

15. Defendant Metropolitan Government of Nashville and Davidson County,

Tennessee (Metro) is a governmental entity operating pursuant to Tennessee law.

16. The Davidson County Sheriffs Office is a department of the Metropolitan

Government of Nashville and Davidson County, Tennessee.

17. Pursuant to the Charter of the Metropolitan Government of Nashville and

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. During the Relevant Time Periods, Defendant has operated jails/detention

facilities in Davidson County, Tennessee. These facilities have included the Correctional

Development Center Male (CDM), the Correctional Development Center Female (CDF),

the Criminal Justice Center (CJC), the Hill Detention Center (HDC), and the Offender Re-

Entry Center (ORC).


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21. During the Relevant Time Periods, Defendant has also overseen some or all of the

transportation of the inmates housed in Defendants jails/detention facilities, including

transportation between jails/detention facilities, transportation to court, and transportation to

medical facilities. These activities are overseen and carried out by the DCSOs Armed Services

Division (ASD).

22. During the Relevant Time Periods, Defendant has employed non-management,

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

these three rankings.

II. The Metro Pay Plan

24. Section 12.10 of the Charter of the Metropolitan Government of Nashville and

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

accordance with the Metro Pay Plan.

26. Correctional Officers employed by Defendant are covered employees under the

Metro Pay Plan.


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27. Defendant is required to pay the Correctional Officers it employs according to the

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

step of Correctional Officer, as well as a semi-monthly, bi-weekly, and annual compensation

estimate for each Correctional Officer grade and step.

29. Correctional Officers must be paid by the hour for all time worked in accordance

with the FLSA.

30. 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. In other words, a Correctional Officers compensation will vary on a semi-

monthly, bi-weekly, and annual basis in connection with the actual number of hours worked by

the Correctional Officer.

32. The DCSOs Compensation Policy, Index No. 1-1.351, states: No employee

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. Correctional Officer Scheduling

34. 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)


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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. Between June 2, 2005 and approximately spring of 2009, Correctional Officers

who worked at HDC were generally scheduled to work twenty (20) eight-and-a-half-hour (8.5-

hour) 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. Since approximately spring of 2009, Correctional Officers who have worked at

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. Standard Pay for Correctional Officers, Including the Named Plaintiff 38. The Correctional Officers who work for Defendants are non-exempt employees

under the Fair Labor Standards Act.

39. Pursuant to Section 207(k) of the FLSA, along with its enacting regulations,

Correctional Officers are entitled to overtime compensation.

40. Pursuant to Defendants common business policies and/or practices during the

Relevant Time Periods, Defendant has consistently paid overtime compensation to Correctional

Officers when Defendants pay records indicate that the Correctional Officers have worked more


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than their 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.

41. Pursuant to Defendants common business policies and/or practices, Correctional

Officers receive paychecks every fourteen (14) days, and are paid, for purposes of overtime

accrual, on a 28-day pay period.

42. Pursuant to Defendants common business policies and/or practices, Correctional

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. Defendant determines the amount of this regular, bi-weekly payment by dividing

the Annual compensation listed on the Metro Pay Plan for each grade and step of Correctional

Officer by 26.

44. Pursuant to Defendants common business policies and/or practices, these regular,

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


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Correctional Officers) or 168 hours (for 12-hour-shift Correctional Officers) Correctional

Officers regularly work in a 28-day pay period.

47. This fact is illustrated by the Correctional Officers biweekly paychecks, which

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. Pursuant to Defendants common business policies and/or practices, Defendant

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.


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. In both cases, so long as a Correctional Officer leaves work within approximately

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.


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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. Similarly, if a Correctional Officer is required to work more than approximately

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. Pursuant to Defendants common business policies and/or practices, when

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. Specifically, if a Correctional Officers additional recorded hours qualify as

overtime hours, the Correctional Officers additional compensation is calculated by multiplying

the Correctional Officers additional recorded hours by 1.5 times the hourly rate provided in the

Metro Pay Plan for the Correctional Officer.

56. If a Correctional Officers additional recorded hours do not qualify as overtime

hours, however, the Correctional Officers additional compensation is calculated by multiplying

the Correctional Officers additional recorded hours by the hourly rate provided in the Metro Pay

Plan.


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57. A Correctional Officer could be entitled to additional pay without being entitled

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. Plaintiff Vonda Noel has been employed by Defendant since 2004.

61. During her employment, Plaintiff Noel has worked for Defendant at two of its

jails/detention facilities in Davidson County. Plaintiff Noel worked at Correctional Development

Center Male from approximately September 2004 to approximately 2006. Plaintiff Noel is

currently employed as a CO2 at the Criminal Justice Center, where she has worked since

approximately 2006.

62. Throughout Plaintiff Noels employment, Defendant has routinely required her to

work additional time after the end of her paid shift without providing her with any corresponding

additional compensation, as described herein.


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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. Defendant continues to pay Plaintiff Noel and other currently employed

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 Noel brings this lawsuit pursuant to 29 U.S.C. 216(b) as a collective

action on behalf of the following similarly situated litigants:

All Correctional Officers who are or were employed by the Metropolitan Government of Nashville and Davidson County, Tennessee and/or the Davidson County Sheriffs Office since June 2, 2008.

66. Plaintiff desires to pursue her FLSA claims on behalf of all individuals who opt

into this action pursuant to 29 U.S.C. 216(b).

67. 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


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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. At every shift change within Defendants jails/detention facilities, each

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

end of Correctional Officers scheduled shifts.

74. 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


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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. Yet, Defendant has knowingly and willfully refused to compensate Correctional

Officers for this additional time worked.

FACTS AND ALLEGATIONS PERTAINING TO THE RULE 23 CLASS

79. 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. Plaintiff Noel is a member of the class she seeks to represent.

81. The Rule 23 Class is sufficiently numerous that joinder of all members is

impractical, satisfying Federal Rule of Civil Procedure 23(a)(1).


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a. On January 24, 2013, Defendant produced a list of all Correctional

Officers who had worked for Defendant between June 1, 2006 and January

24, 2013. That list contained 755 individuals, including individuals

residing outside of the State of Tennessee. Thus, the Rule 23 Class

contains approximately, or exactly, 755 individuals.

b. 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

fact, thereby satisfying Federal Rule of Civil Procedure 23(a)(2).

a. 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

satisfying Federal Rule of Civil Procedure 23(a)(3).


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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).


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COLLECTIVE ACTION CLAIMS FOR VIOLATIONS OF THE FLSA AND FOR VIOLATIONS OF TENNESSEE STATE LAW

I. Fair Labor Standards Act Violations, 29 U.S.C. 201, et seq.

(Alleging Violations of the FLSA on Behalf of Plaintiff and the Class for Unpaid Work) 87. 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. Defendant is an employer covered by the FLSA.

90. The FLSA entitles employees to compensation for every hour worked in a

workweek. See 29 U.S.C. 206(b).

91. The FLSA requires that covered Correctional Officers receive overtime

compensation not less than one and one-half times their regular rate of pay. See 29 U.S.C.

207.

92. Pursuant to Defendants common business policies and/or practices, the FLSA

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. Defendant has violated the FLSA by failing to compensate Correctional Officers

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

after their scheduled shifts ended.


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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

clearly applicable FLSA provisions.

II. Collective Unjust Enrichment Claim for Off-the-Clock Work 98. 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. Collective Breach of Contract Claim for Off-the-Clock Work 102. 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

mutual obligations and valid consideration.


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105. The members of the FLSA Class have performed all conditions precedent, if any,

required of them under the agreement.

106. 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. Collective Tennessee Wage Regulation Claim for Off-the-Clock Work 107. 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. Claims for Unjust Enrichment Under Rule 23

111. 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.


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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

enrichment claims is six years. See T.C.A. 28-3-109(a)(3).

115. 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

the Rule 23 Class.

117. Defendant is obligated to pay the members of the Rule 23 Class in accordance

with the Metro Pay Plan.

118. 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.


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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

entitled to all appropriate relief.

II. Claims for Breach of Contract Under Rule 23

122. 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

claim for unjust enrichment.

124. Defendant has maintained and/or currently maintains a contractual employment

relationship with each of the members of the Rule 23 Class.

125. 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. Employers in Tennessee, including Defendant, are required to inform employees,

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

Plan is identical for all Rule 23 Class members.

128. 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.


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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-

pled breach of contract claims is six years. See T.C.A. 28-3-109(a)(3).

131. 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. An order permitting this litigation to proceed as a collective action through trial

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. A declaration that Defendant has violated the FLSA;

C. A declaration that Defendants violation of the FLSA was willful and knowing;


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D. A judgment against Defendants in favor of Plaintiff and others similarly situated,

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. An order permitting this litigation to proceed as a class action pursuant to Rule 23

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. Liquidated damages to the fullest extent permitted under the law;

I. Litigation costs, expenses, and attorneys fees to be paid by Defendant to the

fullest extent permitted under the law, including under 29 U.S.C. 216(b);

J. Injunctive relief, including a permanent injunction, requiring Defendant to pay the

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.

Dated: February 22, 2013 Respectfully submitted,

/s/ David W. Garrison _ GEORGE E. BARRETT DAVID W. GARRISON SCOTT P. TIFT SETH M. HYATT BARRETT JOHNSTON, LLC 217 Second Avenue North


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Nashville, TN 37201 (615) 244-2202 [email protected] [email protected] [email protected] [email protected]


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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 [email protected] [email protected] [email protected] Attorneys for Defendants on this the 22nd day of February, 2013

/s/ David W. Garrison _ DAVID W. GARRISON BARRETT JOHNSTON, LLC


JURISDICTION AND VENUEPARTIESFACTS AND ALLEGATIONS PERTAINING TO THEFLSA CLASS COLLECTIVE ACTION CLAIMS

Documents

Corrections officers sue Metro for overdue wages