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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

 

JEMIMA   KOMBET,Plaintiff,v.

 

USV OPTICAL,   INC., d/b/a

U.S.   VISION,

 

Defendant.

 

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Civil Action No.JURY TRIAL DEMANDED

 

 

COMPLAINT FOR DAMAGES

 

COMES NOW Plaintiff Jemima Kombet (hereinafter “Plaintiff”), and files this lawsuit against Defendant USV Optical, Inc. d/b/a/ U.S. Vision (hereinafter “Defendant”), and shows the following:

 

JURISDICTION AND VENUE

1.

Plaintiff brings this action to obtain full and complete relief and to redress the unlawful employment practices described herein.

 

2.

This action seeks declaratory relief, liquidated and actual damages, and reasonable attorneys’ fees and costs for Defendant’s failure to pay federally mandated overtime wages to Plaintiff in violation of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. §201 et seq. (hereinafter “FLSA”) during Plaintiff’s employment with Defendant (hereinafter referred to as the “relevant time period”).  Plaintiff also brings this action for damages for Defendant’s violations of the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et. seq. (“FMLA”).

3.

The jurisdiction of this Court is invoked pursuant to 29 U.S.C. §216(b), and 28 U.S.C. §1331 and § 1337, and 28 U.S.C. §1343(4).

4.

Defendant USV Optical, Inc. is registered and licensed to do business in Georgia, and the unlawful employment practices described herein occurred at 1300 Cumberland Mall Southeast, Atlanta GA 30339 and 5000 North Point Circle, Alpharetta, GA 30022.  Accordingly, venue in this Court is proper pursuant to 29 U.S.C. §216(b); LR 3, Northern District of Georgia.  Venue is also appropriate in this Court in accordance with 28 U.S.C. § 1391 and 29 USC § 216(b), as Defendant USV Optical, Inc.’s registered agent is located in the Northern District of Georgia.

PARTIES

5.

Plaintiff is a female citizen of the United States of America and a resident of the State of Georgia.  Plaintiff is subject to the jurisdiction of this Court.

6.

          At all times relevant to this Complaint, Plaintiff was employed by and was an “employee” of Defendants, as defined under 29 U.S.C. § 203(e).

7.

During her employment with Defendant, Plaintiff worked an amount of time that was more than forty (40) hours per workweek and was not paid an overtime wage differential.

8.

At the time Plaintiff requested a medical leave of absence for October 2012, Plaintiff was an “eligible employee” under the FMLA, subject to the protections of the FMLA.

 

 

9.

As of the date Plaintiff requested her medical leave of absence in September 2012, Plaintiff was employed by Defendant for at least 12 months. Plaintiff was also employed by Defendant for at least 1,250 hours of service during the 12-month period immediately preceding commencement of the leave.

10.

Plaintiff was employed at a worksite where Defendant employed at least 50 employees within a 75-mile radius for each working day during each of 20 or more calendar work weeks in the 2011 and 2012 calendar year.

11.

Defendant USV Optical, Inc. is a foreign corporation that is registered in Georgia and entitled to do business in Georgia.

12.

Defendant USV Optical, Inc. is an “employer” within the definition of the FLSA, 29 U.S.C. § 203(d).  Defendant USV Optical, Inc. is governed by and subject to the FLSA, 29 U.S.C. § 204 and § 207.

 

 

 

13.

Defendant USV Optical, Inc. is an “enterprise engaged in commerce or in the production of goods for commerce” within the definition of 29 U.S.C. § 203(r) and (s).

14.

Defendant USV Optical, Inc.’s gross revenues exceed $500,000 per year.

15.

Defendant USV Optical, Inc. has employees engaged in commerce or in the production of goods for commerce, or has employees handling, selling or otherwise working on goods or materials that have been moved in or produced for commerce.

16.

Defendant USV Optical, Inc. has employees that regularly make use of optical supplies and tools produced outside the state of Georgia when performing services for Defendant USV Optical, Inc.’s customers.

17.

Defendant USV Optical, Inc. at all relevant times hereto, has employed more than the requisite number of persons for the requisite duration under the FMLA to be considered a “covered employer” as defined by the FMLA, 29 U.S.C. § 2601 et seq. Defendant USV Optical is governed by and subject to the FMLA.

18.

          Defendant USV Optical, Inc. may be served with process by delivering a copy of the Summons and Complaint to its Registered Agent, CT Corporation, 1201 Peachtree St. NE, Atlanta, Georgia 30361.

FACTUAL ALLEGATIONS

19.

Plaintiff worked for the Defendants from May 2006, through September 28, 2012, as an optician and store manager.

20.

Plaintiff’s job duties included assisting customers shopping at U.S. Vision.

21.

Plaintiff performed non-exempt labor for the Defendant within the last three years.

22.

          Defendant required Plaintiff to clock out during her lunch break.

 

 

23.

          Defendant required Plaintiff to perform work duties, such as servicing customers, during her lunch break.

24.

          Plaintiff was not compensated for the time that she worked during her lunch breaks.

25.

          The time that Plaintiff worked during her lunch break caused Plaintiff’s work hours to exceed 40 hours each week.

26.

Two times per year, Defendant required Plaintiff to work at the company’s local trunk show.

27.

          The time that Plaintiff worked during the company’s trunk shows caused Plaintiff’s work hours to exceed 40 hours in each of those weeks.

28.

          Plaintiff was not compensated for all of the hours that she worked during the trunk shows.

 

29.

          Plaintiff was often required to work several hours after her scheduled shift ended in order to complete the work that Defendant assigned to her.

30.

The time that Plaintiff worked after her scheduled shift ended caused Plaintiff’s work hours to exceed 40 hours each week.

31.

          Plaintiff was not compensated for all of the hours that she worked each day that she was required to stay after her shift ended in order to complete her work.

32.

          Defendant required Plaintiff to work one extra day per week during weeks that contained a company holiday.

33.

The time that Plaintiff worked during holidays caused Plaintiff’s work hours to exceed 40 hours in each of those weeks.

34.

          Despite that the holiday time caused Plaintiff’s work hours to exceed 40 hours in each of those weeks, Defendant compensated Plaintiff using her regular rate of pay, and did not compensate her at one and one half times her regular rate of pay.

35.

Members of management told Plaintiff that she was not permitted to include more than 40 hours per week on her timesheets.

36.

District Manager Danny Sizemore told Plaintiff, “Make sure you do not get overtime.”

37.

          Plaintiff complained to District Manager Danny Sizemore that the workload the company assigned to her required her to work more than 40 hours each week.

38.

During Plaintiff’s employment with the Defendants, Plaintiff was not paid the overtime wage differential required by FLSA §7, 29 U.S.C. §207 on the occasions that Plaintiff worked over forty (40) hours in a workweek.

39.

In late March, 2012, Plaintiff announced her pregnancy.

 

 

40.

Almost immediately after this announcement, Plaintiff began to notice weird things around the store.  For example, mail came to the store addressed to someone else even though it had previously been addressed to Plaintiff.

41.

 

In the middle of May of 2012, Plaintiff was demoted.

42.

While Plaintiff was informed that she was demoted because she failed an Optician Practical Exam, the reason is clearly pretextual as Plaintiff failed the same exam in 2010 and 2011 and was not demoted.

43.

Additionally, the company was on notice in February that Plaintiff did not pass the exam and did not demote Plaintiff at that time.  In fact, Plaintiff received a raise from $15 per hour to $17 per hour.

44.

Plaintiff was not demoted until after she disclosed her pregnancy.

45.

Plaintiff submitted paperwork requesting FMLA leave in mid-September 2012.

46.

The company approved her FMLA leave beginning on October 17, 2012, the day before Plaintiff was scheduled for a caesarian section surgery.

47.

After receiving notice of her approval, Plaintiff called the benefits department and requested to take her leave starting October 3, 2012, as she was extremely fatigued due to her pregnancy.

48.

On September 27, 2012, Plaintiff found that she was not able to access Defendant’s computer system.

49.

The company responded to Plaintiff’s request by terminating her employment on September 28, 2012, only three days before her requested FMLA leave.

COUNT ONE

VIOLATION OF THE OVERTIME PROVISIONS

OF THE FAIR LABOR STANDARDS ACT

50.

Defendant has violated FLSA §7, 29 U.S.C. §207, by failing to pay overtime wages for time that Plaintiff worked in excess of forty (40) hours in a workweek.

51.

          Defendant suffered and permitted Plaintiff to routinely work more than forty (40) hours per week without overtime compensation.

52.

          Defendant’s actions, policies and/or practices violate the FLSA’s overtime requirement by regularly and repeatedly failing to compensate Plaintiff at the required overtime rate.

53.

Defendant knew, or showed reckless disregard for the fact that it failed to pay Plaintiff overtime compensation in violation of the FLSA.

54.

          Defendant failed to accurately report, record and/or preserve records of hours worked by Plaintiff, and thus has failed to make, keep and preserve records with respect to Plaintiff sufficient to determine her wages, hours and other conditions and practices of employment, in violation of the FLSA.

55.

          Defendant’s conduct was willful and in bad faith.

56.

Pursuant to FLSA §16, 29 U.S.C. §216, Plaintiff brings this lawsuit to recover overtime wage differential, liquidated damages in an equal amount, attorneys’ fees, and the costs of this litigation.

COUNT TWO

TERMINATION IN INTERFERENCE
WITH RIGHTS UNDER THE
FAMILY AND MEDICAL LEAVE ACT

 

57.

Plaintiff was qualified and eligible for a leave of absence due to her pregnancy.

 

58.

Plaintiff had been employed by Defendant for longer than 12 months prior to requesting a medical leave of absence and worked at least 1,250 hours of service for Defendant during the 12 months preceding her October 2012 requested medical leave of absence.

59.

In requesting medical leave for her pregnancy, Plaintiff engaged in conduct protected under the FMLA, entitling her to all appropriate relief under the statute.

60.

Defendant terminated Plaintiff for taking medical leave.

 

61.

Defendant’s conduct in terminating Plaintiff was in bad faith.

62.

In terminating Plaintiff for requesting medical leave, Defendant interfered with Plaintiff’s rights under the FMLA in violation of the FMLA.  Plaintiff is therefore entitled to all appropriate relief under the statute.

COUNT THREE

RETALIATION FOR EXERCISING RIGHTS
AND ENGAGING IN PROTECTED CONDUCT UNDER
THE FAMILY AND MEDICAL LEAVE ACT

 

63.

As stated above, Plaintiff anticipated being unable to work because of her pregnancy and the birth of her child.

64.

 

At the time Plaintiff requested a medical leave due to her pregnancy and birth of her child, Plaintiff was qualified and eligible for a leave of absence.

65.

Plaintiff had been employed by Defendant for longer than 12 months prior to requesting a medical leave of absence and worked at least 1,250 hours of service for Defendant during the 12 months preceding her October 2012 requested medical leave of absence.

67.

In requesting medical leave for her pregnancy and the birth of her child, Plaintiff engaged in conduct protected under the FMLA, entitling her to all appropriate relief under the statute.

68.

Defendant terminated Plaintiff for requesting medical leave.

69.

          Defendant’s conduct in terminating Plaintiff was in bad faith.

70.

In terminating Plaintiff for requesting medical leave, Defendant retaliated against Plaintiff for exercising her rights and engaging in protected conduct under the FMLA in violation of the FMLA.  Plaintiff is therefore entitled to all appropriate relief under the statute.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that this Court:

(A)              Grant Plaintiff a trial by jury as to all Counts in the Complaint;

(B)     Enter judgment awarding Plaintiff unpaid wages pursuant to the FLSA, 29 USC §§ 207 and 206(d); liquidated damages as provided by FLSA, 29 USC § 216; prejudgment interest on unpaid wages pursuant to FLSA, 29 § 216; and court costs, expert witness fees, and reasonable attorneys’ fees as provided under FLSA, 29 USC § 216, and all other remedies allowed under the FLSA, including but not limited to punitive damages, should they be permitted;

(C)     Enter judgment awarding Plaintiff back wages, liquidated damages, compensatory damages, reinstatement and/or front pay, and the costs of litigation, including court costs, expert witness fees, and reasonable attorneys’ fees, and all other remedies allowed under the FMLA;

(D)     Grant declaratory relief to the effect that Defendant violated Plaintiff’s statutory rights; and

(E)     Award Plaintiff such further and additional relief as may be just and appropriate.

Respectfully submitted the 11th day of May, 2013.

BARRETT & FARAHANY, LLP

 

/s/ Abigail Larimer            

Benjamin F. Barrett

GeorgiaBar No. 039586

Amanda A. Farahany

Georgia Bar No. 646135

Abigail Larimer

Georgia Bar No. 999229

Attorneys for Jemima Kombet

 

1100 Peachtree Street

Suite500

Atlanta,GA30309

(404) 214-0120

(404) 214-0125 facsimile

abigail@bf-llp.com

 

 

 

 

 

 

CERTIFICATE OF COMPLIANCE

 

The undersigned counsel hereby certifies that this document complies with the type-volume limitations set forth in Rule 5.1 of the Local Rules of the Northern District of Georgia, and has been typed in Times New Roman 14 point.

/s/ Abigail Larimer                      

Abigail Larimer

Georgia Bar No. 999229

 

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