Interland shaved time from non-exempt employees in Technical Support cheated employees and screwed the customers even more Atlanta GA

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

PATRICK M. THOMAS, )
individually and on behalf )
of others similarly situated, )
)
Plaintiffs, )
) CIVIL ACTION FILE NO.
v. )
)
INTERLAND, INC. fka )
MICRON ELECTRONICS, INC., )
)
Defendant. )

COLLECTIVE ACTION COMPLAINT

NATURE OF CLAIM

This is a proceeding for damages against Defendant to redress the deprivation of rights secured to Plaintiff Patrick M. Thomas and other employees who are similarly situated who hereafter consent to join this collective action pursuant to the Fair Labor Standards Act, 29 U.S.C. 201 et seq. ("FLSA") and Georgia law.
JURISDICTION AND VENUE

1.Jurisdiction of this Court is invoked pursuant to 28 U.S.C. 1331 and 1367 and 29 U.S.C. 216(b).

2.This Court has venue for all causes of action stated herein pursuant to 28 U.S.C 1391(b)(2) as the acts alleged as a basis for the federal claims took place within this Court's jurisdictional boundaries.

3.Defendant is subject to the jurisdiction of this Court.
PARTIES

4.Defendant INTERLAND, INC. fka MICRON ELECTRONICS, INC. (hereinafter referred to as INTERLAND) is a corporation incorporated under the laws of the State of Minnesota, and is subject to personal service upon its registered agent, CT Corporation System, 1201 Peachtree Street, N.E., Atlanta, Georgia 30361.

FACTUAL ALLEGATIONS
5.Defendant INTERLAND and its subsidiaries provide computer and web hosting services to businesses, governments and other markets services throughout the world.

6.From approximately April 15, 2002 until November 1, 2002, Plaintiff Patrick M. Thomas worked as a Technical Support Specialist at the Atlanta, Georgia offices of Defendant, where he provided technical support services for Defendants web hosting clients.

7.At all times relevant, Plaintiff Patrick M. Thomas and all other similarly situated employees who hereafter consent to join this collective action (hereinafter collectively referred to as the Plaintiffs) were non-exempt employees within the meaning of the FLSA.

8.Throughout Plaintiff Patrick M. Thomas employment with Defendant, Defendant knowingly, intentionally and willfully violated the FLSA by failing to pay Plaintiff the regular and overtime compensation to which he was entitled by, inter alia, altering his time records.

9.For more than three years, Defendant knowingly, intentionally and willfully violated the FLSA by failing to pay persons similarly situated to Plaintiff Patrick M. Thomas the regular and overtime compensation to which they were entitled by, inter alia, altering employee time records.

10.At all relevant times, Plaintiffs kept time records on their computer using a software program known as PC Time Sheets.

11.PC Time Sheets automatically recorded employee work hours as well as the time date and nature of every alteration of such time records by supervisors, who regularly accessed and reviewed employee time records for the purpose of reducing regular and overtime hours.

12.Defendants business practices resulted in Plaintiffs being denied regular and overtime compensation in violation of the FLSA.

13.On or about the first week of October, 2002, Plaintiff Patrick M. Thomas confronted Dommonique L. Eberhart, Senior Manager of the Resource People Group (RPG) Technical Services Division, with audit trails which reflected that Plaintiffs supervisor, Bridgette Hallman, intentionally altered his time records on a regular basis to avoid paying regular and overtime compensation to which he was entitled.

14.Plaintiff subsequently discovered that Defendants other Technical Support Supervisors, including without limitation, Gary Kamikawa, Roger Sittler, Warith Niallah, Dana Steele, Edwin Hemmen, Vincent Sciukas, Yolanda Hampton and Drexel Nimmons, regularly altered hourly employee time records to avoid paying regular and overtime compensation, demonstrating that violations of the FLSA were a companywide problem.

15. Plaintiff Patrick M. Thomas requested that Mrs. Eberhart take appropriate steps to ensure that he and all other non-exempt employees were paid for all regular and overtime hours worked and that Defendant discontinue its practice of altering employee time records.

16. Following said meeting with Mrs. Eberhart, Plaintiff Patrick M. Thomas was written up and improperly accused of various infractions of company policy in retaliation for complaining of Defendant knowing, intentional and willful FLSA violations.

17. Shortly thereafter, Plaintiff was fired in retaliation for his complaints about Defendants knowing, intentional and willful violation of the FLSA.

18. Upon information and belief, Defendant continues to violate the FLSA by knowingly, intentionally and willfully altering employee time records of technical support specialists and other persons who perform technical services similar to those that Plaintiff Patrick M. Thomas performed and by failing to pay other non-exempt employees at Defendants Atlanta, Georgia offices the regular and overtime compensation to which they are entitled.

19. Plaintiff Patrick M. Thomas brings this action under 29 U.S.C. 201 et seq., on his own behalf and on behalf a class of other employees similarly situated pursuant to 29 U.S.C. 216(b).

20. Plaintiff Patrick M. Thomas seeks to represent a class including all current and former hourly employees of Defendant who, from November 22, 1999 to the present, (a) worked in technical support or provided technical services and/or other non-exempt functions similar to those that Plaintiff Patrick M. Thomas performed wheresoever located and (b) who worked in any other non-exempt function in the Atlanta, Georgia offices of the Defendant, whose rights were violated because of Defendants knowing, intentional and willful failure to pay them the regular and overtime compensation to which they were entitled.
CLASS ALLEGATIONS

21. Plaintiffs reallege paragraphs 1 through 20 above and incorporate them by reference as if fully set forth herein.

22. Plaintiff Patrick M. Thomas is an appropriate representative for employees of Defendant who worked in technical support or performed technical services and/or other non-exempt functions similar to those that Plaintiff Patrick M. Thomas performed, whose rights were violated because of the failure to pay them the regular and overtime compensation to which they were entitled by, inter alia, altering employee time records in knowing, intentional and willful violation of the FLSA.

23. The potential class of Plaintiffs consists of (a) all current and former employees of Defendant wheresoever located who were employed at any time during the applicable limitations period or during such period as the Court may designate pursuant to equitable tolling of the limitations period and who were or are assigned to duties as non-exempt technical support specialists or performed technical services and/or other non-exempt functions similar to those that Plaintiff Patrick M. Thomas performed, and who do not qualify for a statutory exemption to the overtime requirements of the FLSA and

(b) all employees who worked in any other non-exempt function in the Atlanta, Georgia offices of the Defendant, whose rights were violated because of Defendants failure to pay them the regular and overtime compensation to which they were entitled in knowing, intentional and willful violation of the FLSA ("the class").

24. Plaintiff Patrick M. Thomas and the above-described individuals of the class are "similarly-situated employees within the meaning of Section 16(b) of the FLSA.

25. Defendant is in possession of the names, addresses and employment records of those persons similarly situated to Plaintiff Patrick M. Thomas whom Plaintiff Patrick M. Thomas seeks to represent.

26. Pursuant to Section 16(b) of the FLSA, those individuals are entitled to court-administered notice of this lawsuit in order that they may elect to join Plaintiff in prosecution of this of this action.

27. The class of current and former employees of Defendant as described above is so numerous that joinder of all members is impracticable.

28. During the applicable periods of limitations prior to the commencement of this action, Defendant has employed several hundred technical support specialists and hundreds of other non-exempt employees in its Atlanta, Georgia offices.

29. There are questions of the law and fact common to the class.

30. The employment policies, practices and agreements of Defendant raise questions of law and fact common to the class, including, but not limited to:
(A) whether Defendant has engaged in a pattern or practice of failing to keep accurate records showing all the time Plaintiff Patrick M. Thomas and the class worked for Defendant and failing to provide true and correct wage statements itemizing all wages earned and all deductions from wages;
(B) whether Defendant engaged in a pattern or practice of permitting Plaintiff Patrick M. Thomas and the class to work without payment for all time worked at the agreed rates or the applicable federal and state overtime rates; and
(C) whether Defendant knowingly, intentional and willfully failed to pay Plaintiff Patrick M. Thomas and the class at the agreed wage or the applicable overtime rates for the work Defendant permitted them to perform.

31. The claims of Plaintiff Patrick M. Thomas as named representative are typical to the claims of the class.

32. Plaintiff Patrick Thomas claims encompass the challenged practices and course of conduct of Defendant.

33. The legal issues raised in this action apply equally to Plaintiff Patrick M. Thomas and the class members.

34. Plaintiff Patrick M. Thomas as named representative will fairly and adequately protect the interests of the class.

35. The prosecution of separate actions by individual members of the class would create a risk of inconsistencies or varying adjudication with respect to individual members of the class which would establish incompatible standards of conduct for Defendant.

36. The prosecution of separate actions by individual members of the class would create a risk of adjudication with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudication or substantially impair their ability to protect their interests.

37. Defendant has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.

38. Questions of law and fact common to the members of the class predominate over any questions affecting only individual members and a class action is superior to other available methods for the fair and efficient adjudication of this controversy.

FIRST CAUSE OF ACTION
Fair Labor Standards Act

39. Plaintiffs reallege paragraphs 1 through 38 above and incorporate them by reference as if fully set forth herein.

40. By engaging in the above-described conduct, Defendant knowing, intentionally and willfully violated the FLSA with respect to Plaintiff Patrick M. Thomas and those employees who are similarly situated to Plaintiff Patrick M. Thomas.

41. As a direct and proximate result of the above-described conduct, Plaintiff Patrick M. Thomas and those employees who are similarly situated to Plaintiff Patrick M. Thomas have lost wages and benefits.
SECOND CAUSE OF ACTION
Negligent Supervision, Training and Retention

42. Plaintiffs reallege paragraphs 1 through 38 above and incorporate them by reference as if fully set forth herein.

43. Defendant had the duty to properly supervise, train and retain employees so that the actions of said employees did not harm the Plaintiffs.

44. Defendant breached said duty by failing to properly supervise and train Dommonique Eberhart, Mrs. Eberharts supervisor, Melanie Shook, Area Vice President of Technical Support, and other supervisors in Defendants employ, including, without limitation, Gary Kamikawa, Roger Sittler, Warith Niallah, Dana Steele, Edwin Hemmen, Vincent Sciukas, Yolanda Hampton and Drexel Nimmons, after Defendant knew or should have known of their harmful conduct.

45. As a direct and proximate result of the above-described conduct of the Defendant, Plaintiff Patrick M. Thomas and other similarly situated employees have lost wages and benefits and suffered mental anguish and physical hardship.

46. Defendant has acted maliciously or with reckless indifference to Plaintiffs' rights and those of other similarly situated employees in having established and maintained illegal employment policies and practices.

47. Defendants actions demonstrate that entire want of care that raises the presumption of conscious indifference to the consequences of their actions, which resulted in damages to Plaintiffs and to other similarly situated employees.

48. Plaintiffs and other similarly situated employees are entitled to recover punitive damages as a result of the Defendants conscious indifference to the consequences of their actions.
THIRD CAUSE OF ACTION
Fair Labor standards Act Retaliation
By Plaintiff Patrick M. Thomas Only

49. Plaintiff Patrick M. Thomas realleges paragraphs 1 through 38 above and incorporate them by reference as if fully set forth herein.

50. By firing Plaintiff Patrick M. Thomas in retaliation for complaining about Defendants knowing, intentional and willful violation of the FLSA, Defendant violated 29 U.S.C. 215(a).

51.As a direct and proximate result of the above-described conduct, Plaintiff Patrick M. Thomas lost wages and benefits.
DECLARATORY RELIEF IS APPROPRIATE IN THIS CASE

52. Plaintiffs reallege paragraphs 1 through 38 above and incorporate them by reference as if fully set forth herein.

53. An actual controversy exists between the parities as to whether conduct as described above violates the FLSA and Georgia law.

54. Unless Defendant is restrained and enjoined from the conduct alleged in this Complaint, it will continue to engage in it and continue to harm others.

55. It is necessary and appropriate for the Court to issue a declaration of rights in this case in order that the parties can have a clear statement as to their respective rights, and so that in future litigation over similar incidents can be avoided. In this regard, Plaintiffs have no plain, speedy, or adequate remedy at law.
RELIEF
WHEREFORE, Plaintiffs respectfully pray that this Court do the following:
a. Enter an Order certifying the class and directing Notice to all eligible class members, including individual notice to all members who can be identified by reasonable effort on the part of Defendant;
b. Enter an Order requiring Defendant to pay Plaintiffs damages for lost compensation and job benefits that Plaintiffs would have received but for unlawful and tortious conduct;
c. Enter an Order requiring Defendant to pay Plaintiffs liquidated damages as provided for under the Fair Labor Standards Act;
d. Enter an Order requiring Defendant to pay Plaintiffs compensatory damages for mental anguish;
e. Enter an Order requiring Defendant to pay Plaintiffs exemplary and punitive damages commensurate with Defendants ability to pay and to deter future wrongful conduct;
f. Enter an Order providing for equitable relief to Plaintiffs, including a declaration that Defendant has engaged in unlawful and tortious employment practices in violation of the FLSA and Georgia law;
g. Enter an Order providing for reasonable attorneys' fees and costs and expenses of suit;
h. Enter an Order providing for pre and post-judgment interest; and
i. Provide such other and further relief as the Court may deem just and proper.
DEMAND FOR JURY TRIAL
Plaintiffs hereby demand a jury trial for each claim for which they have a right to a jury.
Respectfully submitted,
Alan H. Garber
Georgia State Bar No. 283840

THE GARBER LAW FIRM, P.C.
The Candler Building, Suite 1303
127 Peachtree Street, NE
Atlanta, Georgia 30303-1800
404-523-0296
404-523-2978 (fax)

Diane Cherry
Georgia State Bar No. 123391

THE CHERRY LAW FIRM, P.C.
1301 Shiloh Road, Suite 1620
Kennesaw, Georgia 30144
770-444-3399
770-444-3376 (fax)

Attorneys for Plaintiffs

Patrick
Marietta, Georgia
U.S.A.