figueroa v. no pressure roof cleaning llc et al - 9:17-cv ... · alex figueroa, on behalf of...

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

ALEX FIGUEROA,

on behalf of himself and others similarly

situated,

Plaintiff,

vs. COLLECTIVE ACTION

NO PRESSURE ROOF CLEANING LLC, a

Florida Limited Liability Company, and

PAUL B. GUITARD, an individual,

Defendants.

/

COMPLAINT

INTRODUCTION

1. This is a collective action brought pursuant to the Fair Labor Standards Act of 1938,

29 U.S.C. § 201, et seq. (hereinafter “FLSA”), to recover unpaid overtime compensation owed to

Plaintiff ALEX FIGUEROA, and all others similarly situated to him who were formerly or are

currently employed as spray technicians by Defendants NO PRESSURE ROOF CLEANING LLC,

(hereinafter, “NO PRESSURE”) and PAUL B. GUITARD.

2. Pursuant to the FLSA, Plaintiff, on behalf of himself and all others similarly

situated to them, seeks unpaid overtime compensation, liquidated damages or pre-judgment interest,

post-judgment interest, attorneys’ fees and costs from Defendants NO PRESSURE and PAUL B.

GUITARD. Plaintiff, on his own behalf, seeks damages for unlawful retaliation for being

terminated after complaining to Defendants about not receiving overtime compensation, in violation

of 29 U.S.C. § 215.

3. Plaintiff also requests the Court to authorize concurrent notice to all persons who

were formerly or are currently employed by Defendants NO PRESSURE and PAUL B. GUITARD,

Case 9:17-cv-80505-DMM Document 1 Entered on FLSD Docket 04/21/2017 of 8

and who were paid in a similar manner as Plaintiff, or who were so employed during the Liability

Period, informing them of the pendency of this action and their right to opt into this lawsuit

pursuant to the FLSA, 29 U.S.C. §216(b).

JURISDICTION

4. This Court has jurisdiction over this action pursuant to the Fair Labor Standards Act

of 1938 (“FLSA”), as amended, 29 U.S.C. §216(b), and 28 U.S.C. §1331 and 1337.

VENUE

5. Venue is proper in this Court under 28 U.S.C. §1391(b)(2) because a substantial part

of the events or omissions giving rise to the claims occurred in Palm Beach County, Florida and

within the Southern District of Florida.

PARTIES

6. Plaintiff ALEX FIGUEROA (hereinafter “Plaintiff” or “FIGUEROA”) was, at all

material times, a resident of Palm Beach County, Florida and was employed as an hourly wage

spray technician Defendants NO PRESSURE and PAUL B. GUITARD for their roof cleaning

business in Palm Beach County, Florida, until his separation from employment on January 23,

2017.

7. Defendant PAUL B. GUITARD, (hereinafter “GUITARD”), who resides in the

Southern District of Florida, was, and still is, an owner and/or operator of Defendant NO

PRESSURE.

8. Defendant GUITARD acted and acts directly in the interests of Defendant NO

PRESSURE, in relation to its employees, including the Plaintiff and all others similarly situated, in

that GUITARD hired spray technicians, set their pay rate, determined their work schedule, and

ultimately terminated many employees. Thus, GUITARD was and is an employer within the

meaning of Section 3(d) of the Act, 29 U.S.C. § 203(d).


9. At all times material, Plaintiff was an employee of Defendants NO PRESSURE and

GUITARD within the meaning of the FLSA.

10. At all times material, during Plaintiff’s employment with Defendants NO

PRESSURE and GUITARD, Plaintiff was engaged in commerce or in the production of goods for

commerce. To wit: Plaintiff handled goods and materials that traveled in interstate commerce and

utilized tools and equipment that were manufactured in other states outside of Florida.

11. At all times material, Defendant NO PRESSURE was an “enterprise engaged in

commerce” within the meaning of 29 U.S.C. § 203(s)(1) with annual gross sales in excess of

$500,000 within the meaning of the FLSA. Defendant, NO PRESSURE is a Florida Limited

Liability Company doing business throughout South Florida, and is an enterprise engaged in an

industry affecting commerce, is an employer as defined by 29 U.S.C. § 203(d) and (s)(1), in that it

has employees engaged in commerce or in the production of goods for commerce, or that has

employees handling, selling, or otherwise working on goods or materials that have been moved in

or produced for commerce by any person; and it is an enterprise whose annual gross volume of sales

made or business done is not less than $500,000 (exclusive of excise taxes at the retail level that are

separately stated) which has employees subject to the provisions of the FLSA, 29 U.S.C. § 207. At

all times pertinent to this Complaint, NO PRESSURE operates as an organization which sells and/or

markets its services and/or goods to customers throughout the United States and also provides its

services for goods sold and transported from across state lines of other states, and NO PRESSURE

obtains and solicits funds from non-Florida sources, accepts funds from non-Florida sources, uses

telephonic transmissions going over state lines to do their business, transmit funds outside the State

of Florida, and otherwise regularly engages in interstate commerce, particularly with respect to its

employees.


FACTUAL ALLEGATIONS

12. The allegations in Paragraphs 1 through 11 are incorporated as if fully stated herein.

13. Plaintiff is a non-exempt former employee of Defendants NO PRESSURE and

GUITARD who worked as an hourly wage spray technician for Defendants’ roof cleaning business

located in Palm Beach County, Florida.

14. From on or about December 2011 until January 23, 2017, Plaintiff worked more than

40 hours per week during nearly every week of his employment, without being paid the federally

mandated wage for overtime. Specifically, Plaintiff was paid only straight time and Plaintiff was not

paid for all hours worked.

15. Defendants violated the FLSA by failing to pay Plaintiff for all overtime hours

worked in excess of forty per week at the applicable time and one-half rate.

16. Defendants pay all of their hourly wage employees in the same fashion. There are at

least fifty other current and former employees who were paid only straight time for overtime hours,

and are thus owed the half-time premium as well. In addition, these similarly situated individuals

were not paid for all hours worked, and are therefore owed the full time and half overtime rate for

many, if not all of these hours.

17. Defendants’ time keeping practices do not comply with the FLSA because their

workers are not paid for certain pre-shift and post-shift activities that are required to be performed

by Defendants, are not de minimis, and ultimately are compensable because the work performed

benefits the Defendants’ business. Such pre-shift and post-shift activities include cleaning the

company work truck and equipment, filling the company work truck with water and chemicals, and

reconciling payments received from customers.


LEGAL CLAIMS

COUNT I (as to Plaintiff and those similarly situated):

Failure to Pay Overtime Wages in Violation of 29 U.S.C. § 207 by All Defendants

18. The allegations in Paragraphs 1 through 17 are realleged and fully incorporated by

reference herein.

19. By its actions alleged above, Defendants NO PRESSURE and GUITARD, willfully,

knowingly and/or recklessly violated the provisions of FLSA, which requires overtime wages to be

paid to non-exempt employees, including those set forth in the provisions of 29 U.S.C. § 207.

20. As a result of the unlawful acts of Defendants Plaintiff and all persons similarly

situated to him have been deprived of overtime wages in amounts to be determined at trial, and are

entitled to recovery of such amounts in addition to liquidated damages or prejudgment interest,

post-judgment interest, attorneys’ fees and costs.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff and all employees similarly situated who join in this action pray for

this Court to enter an order certifying a collective action pursuant to section 216(b) for violations of

the FLSA, and pray for this Court to grant the following relief:

A. To authorize the issuance of notice at the earliest possible time to all current and

former spray technician employees who were employed by Defendants, and who were paid hourly.

This notice should inform them that this action has been filed, describe the nature of the action, and

explain their right to opt into this lawsuit if they were not paid overtime wages as required by the

FLSA;

B. To declare that Defendants have violated the overtime provisions of the FLSA, 29

U.S.C. § 207, as to Plaintiff and persons similarly situated;

C. To declare that Defendants’ violations of the FLSA were willful;

D. To award Plaintiff and other similarly situated current and former employees of


Defendants adequate damages for the amount of unpaid overtime wage compensation they are

owed, subject to proof at trial;

E. To award Plaintiff and other similarly situated current and former employees of

Defendants liquidated damages in an amount equal to the unpaid overtime compensation shown to

be owed pursuant to 29 U.S.C. §216(b);

F. If liquidated damages are not awarded, then the Court should award, in the

alternative, prejudgment interest;

G. To make the same declarations and awards as prayed for in paragraphs A-F above as

to all persons who opt into this action pursuant to 29 U.S.C. §216(b); and

H. To award Plaintiff and other similarly situated current and former employees of

Defendants their reasonable attorneys’ fees and costs pursuant to 29 U.S.C. §216(b).

COUNT II (as to Plaintiff FIGUEROA only)

Retaliatory Discharge in Violation of 29 U.S.C. § 215 by All Defendants

21. Plaintiff realleges, as if fully set forth in Count II, the allegations of Paragraphs 1

through 20 above.

22. Plaintiff, at several times during the course of his employment with Defendant,

complained about not receiving compensation for all compensable hours.

23.. On or about January 22, 2017, Plaintiff advised GUITARD that he owed him and all

other employees overtime compensation.

24. The very next day, Plaintiff was taken off of the schedule and effectively terminated

by Defendants.

25. Defendants’ actions as more particularly described above were directly related to and

in response to Plaintiff’s various complaints about his pay, since there are no other justifiable

reasons for Defendants’ adverse employment action.

26. Plaintiff’s complaints about his pay constitute statutorily protected conduct under


Section 15(a)(3) of the FLSA.

27. Defendants’ adverse treatment of Plaintiff was a direct result of Plaintiff’s public

opposition to Defendant’s pay practices.

28. The conduct more specifically alleged above violated Plaintiff’s rights against

retaliation for opposing unlawful employment actions, which retaliation is proscribed by the FLSA.

29. Plaintiff is entitled pursuant to 29 U.S.C. § 216(b), to recover from Defendant:

a. All lost wages that are due, including pre-judgment interest;

b. As liquidated damages, an amount equal to lost wages

c. The costs of this action, and;

d. A reasonable attorney’s fee.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays that this court will grant judgment against Defendant:

A. awarding Plaintiff all lost wages found by the court to be due to him, including

pre-judgment interest;

B. awarding Plaintiff payment of liquidated damages in an amount equal to the lost

wages due to him;

C. reinstatement to his previous position at the same rate of pay;

D. awarding Plaintiff his costs, including a reasonable attorney’s fee; and

E. granting such other and further relief as is just.

JURY DEMAND

Plaintiff demands trial by jury on all issues so triable.


Dated: April 21, 2017

Plantation, Florida

Respectfully submitted,

/s/Robert S. Norell

Robert S. Norell, Esq. (Fla. Bar No. 996777)

E-Mail: [email protected]

ROBERT S. NORELL, P.A.

300 N.W. 70th

Avenue

Suite 305

Plantation, Florida 33317

Telephone: (954) 617-6017

Facsimile: (954) 617-6018

Counsel for Plaintiff ALEX FIGUEROA


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Case 9:17-cv-80505-DMM Document 1-1 Entered on FLSD Docket 04/21/2017 Page 1 of 1

. KO 440 |'Rcv. \'J5»'|1‘.] Summons in a Civil Action

UNITED STATES DISTRICT COURTfor the

Southern District of Florida

\ /\._r\._/\ _I\ r\ r\ d / /\_r\ _v\ /

Alex Figueroa

Plaintiflis)v. Civil Action No.

Ne Pressure Roof Cleaning LLC, and Paul B. Guitarci

Dejéndanrfs)

SUMMONS IN A CIVIL ACTION

T02 ffiefeiidnrif Ls‘ name and address) NO Press“ re Roof Cleaning LLC

cio Paul B. Guitard, Registered Agent14768 64th Ct. NorthLoxahatchee, FL 33470

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days lf}'0l1are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Cfiv.P. 12 {a)(2] or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 ofthe Fetlerai Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney.x most. name and address are. Robert SI More“. Esq

ROBERT S. NORELL, P.A.300 NW 70th AvenueSuite 305Plantation, FL 3331?

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.You also must file your answer or motion with the court.

CLERK OF COURT

Date:Signature ofC't‘erk or Depmy Clerk

. KO 440 |'Rcv. \'J5»'|1‘.] Summons in a Civil Action


Southern District of Florida

\ /\._r\._/\ _I\ r\ r\ d / /\_r\ _v\ /

Alex Figueroa

Plaintiflis)v. Civil Action No.

Ne Pressure Roof Cleaning LLC, and Paul B. Guitarci

Dejéndanrfs)


T02 ffiefeiidnrif Ls‘ name and address) NO Press“ re Roof Cleaning LLC

cio Paul B. Guitard, Registered Agent14768 64th Ct. NorthLoxahatchee, FL 33470


Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days lf}'0l1are the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Cfiv.P. 12 {a)(2] or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 ofthe Fetlerai Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney.x most. name and address are. Robert SI More“. Esq

ROBERT S. NORELL, P.A.300 NW 70th AvenueSuite 305Plantation, FL 3331?

If you fail to respond, judgment by default will be entered against you for the relief demanded in the complaint.You also must file your answer or motion with the court.

CLERK OF COURT

Date:Signature ofC't‘erk or Depmy Clerk


.\.O 4.40 tfllcv. 06"l 2) Summons in a Civil Ac1ion(Page 2]

Civil .1\t:tionNo.

PROOF OF SERVICE(This section should not befited with the court unless reqttired by Fed. R. Civ. P. 4 (1))

Tl'llS S|.1IT!l’1'10I1S f0l' (home rgfittdiiritfttol and title, any}

was received by me on (date)

El I personally served the summons on the individual at (place)

OH (date) I, 01'

Cl l left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,on (date) , and mailed a copy to the individual’s last known address: or

El served the summons on (home offttdi1‘idttm') , who isdesignated by law to accept service of process on behalf of (mime oforgattizatiott}

on (date) ; 01'

El l returned the summons uncxecuted because ; or

Cl Other (.spect','_"11):

My fees are S for travel and $ for services, for a total of $ []_Q[|

I declare under penalty ofperjury that this information is true.

Date:Server ‘s signature

Printed name and title

Server 's address

Additional information regarding attempted service, etc:

.\.O 4.40 tfllcv. 06"l 2) Summons in a Civil Ac1ion(Page 2]

Civil .1\t:tionNo.

PROOF OF SERVICE(This section should not befited with the court unless reqttired by Fed. R. Civ. P. 4 (1))

Tl'llS S|.1IT!l’1'10I1S f0l' (home rgfittdiiritfttol and title, any}

was received by me on (date)

El I personally served the summons on the individual at (place)

OH (date) I, 01'

Cl l left the summons at the individual’s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,on (date) , and mailed a copy to the individual’s last known address: or

El served the summons on (home offttdi1‘idttm') , who isdesignated by law to accept service of process on behalf of (mime oforgattizatiott}

on (date) ; 01'

El l returned the summons uncxecuted because ; or

Cl Other (.spect','_"11):

My fees are S for travel and $ for services, for a total of $ []_Q[|

I declare under penalty ofperjury that this information is true.



Server 's address



A0 4401Re\'.{l5r’1I‘.) Summons in a Civil Action


Southern District ofFlorida

/\ ¢\ /\ ¢\ v\ _/\ . 1* d /\ v\ d\ I

Alex Figueroa

Piairrrzflfs)

Civil Action No.

No Pressure Roof Cleaning LLC, and Paul B. Guitard

Daffendan.'(s)


T0! {IJ¢g;’enn’rzn! 's name and address} Paul BI Guitard

14768 64th Ct. NorthLoxahatchee, FL 33470


Within 21 days after service of this summons on you (not counting the day you received it) — or 60 days if youare the United States or a United States agency, or an officer or employee of the United States described in Fed. R. Civ.P. 12 {_a]{2} or (3) — you must serve on the plaintiff an answer to the attached complaint or a motion under Rule l2 ofthe Fetleraé Rules of Civil Procedure. The answer or motion must be served on the plaintiffor plaintifFs attorney.whose name and address are: Ruben S_ Nora"! Esq

ROBERT S. NORELL, P.A.300 NW 70th AvenueSuite 305Plantation, FL 33317

ll‘;/ou fail to respond, judgment by default will he entered against you for the relief demanded in the complaint.You also must file your answer or motion with the court.

CLERK OF COURT

Date:Signature ofCl'erk or Depmy Clerk


1.0 4.40 ifltev. 06" l 2) Summons in a Civil Action (Page 2]

Civil Aetiori No.

PROOF OF SERVICE(This section should not befiied with the court unless required by Fed. R. Civ. P. 4 (1))

This SLlm11'10I1S f0l' (name qfilidivia’nm' and titie, ifan_1=)'

was received by me on (dare)

U l personally served the summons on the individual at (prime)

OH (dare) ; OI‘

Cl I. left the summons at the individual‘s residence or usual place of abode with (name)

, a person of suitable age and discretion who resides there,on (date) , and mailed a copy to the individual‘s last known address; or

El 1 S€l'VBCi I116 SIJITIITIOIIS OH (name 0findi1*idttm') , Whfl l5

designated by law to accept service of process on behalf of (name oforganizarion)

OH (date) ; or

II l returned the summons uncxecuted because _; or

1:| Olhftl‘ (specljfilj:

lviy fees are S for travel and $ for services, for a total of $ Q_(][p

1 declare under penalty ofperjury that this infomlation is true.



Server ‘s address



ClassAction.orgThis complaint is part of ClassAction.org's searchable class action lawsuit database and can be found in this post: Former Employee of Roof Cleaning Company Claims Unpaid OT, Retaliation

https://www.classaction.org/news/former-employee-of-roof-cleaning-company-claims-unpaid-ot-retaliation

figueroa v. no pressure roof cleaning llc et al - 9:17-cv ... · alex figueroa, on behalf of...

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