Professional Documents
Culture Documents
AMENDED COMPLAINT
Plaintiffs Regina Sergiyenko and Russell Joly worked for Defendants as Executive Vice
President and Vice President of Operations and Strategy. Defendants classified Plaintiffs as
exempt employees under the Fair Labor Standards Act (FLSA), meaning that Plaintiffs were not
Plaintiffs as exempt employees, because Defendants failed to pay Plaintiffs on a salary basis, as
compensation from Plaintiffs. Plaintiffs bring this case and seek recovery for violations of their
employment agreement, and consequently, for unpaid overtime compensation. In doing so,
Plaintiffs also seek 1) liquidated damages as set forth in the FLSA; 2) costs; 3) their attorneys
fees; and 4) any such other relief this Court deems just and equitable.
PARTIES
employed Sergiyenko as Executive Vice President from October 24, 2016 through March 10,
2017. Under the parties employment agreement, Sergiyenko was primarily responsible for
1
Case 2:17-cv-02321-DDC-KGG Document 3 Filed 06/02/17 Page 2 of 10
performing her job duties in the greater Kansas City area, and operated out of McCuskers
Vice President of Operations and Strategy from January 3, 2017 throughFebruary 15, 2017. After
February 15, 2017, Defendants reclassified Joly as an independent contractor, yet Joly still
performed the identical job duties and was subject to the same operational control of Defendants.
Under the parties employment agreement, Joly was primarily responsible for performing his job
national warranty company, and is a Nevada corporation, with its principal place of business in
Colleyville, Texas. Defendant maintains operations in each of the states alleged herein, including
locations in Kansas and Texas. McCusker is a warranty service product consulting &
development company, and is a leading developer of customer support solutions including fully
insured warranty and field service programs that are both scalable and cost-effective on an
international level. Defendant McCusker may be served via its registered agent, Willard L.
McCusker, located at 1210 Hall Johnson Road, Suite 200, Colleyville, TX 76034.
principal owner/officer of McCusker and has acted directly or indirectly in the interest of
McCusker with respect to Plaintiffs. At all relevant times, Defendant was the employer of
Plaintiffs, and is thus liable to Plaintiffs, as an employer, joint employer, single employer and/or
2
Case 2:17-cv-02321-DDC-KGG Document 3 Filed 06/02/17 Page 3 of 10
5. This Court has original federal question jurisdiction under 28 U.S.C. 1331
for the claim brought under the FLSA, 29 U.S.C. 201, et seq.
6. This Court has supplemental jurisdiction for the claim asserted under the Kansas
Wage Payment Act (KWPA) (codified at K.S.A. 44-313, et seq.) in that the claim is asserted
as part of the same case and controversy as the FLSA claim, the state and federal claims
derive from a common nucleus of operative facts, the state claim will not substantially
dominate over the FLSA claim, and exercising supplemental jurisdiction would be in the
7. This Court has supplemental jurisdiction for the common law claims asserted
herein in that the claims are asserted as part of the same case and controversy as the FLSA
claim, the state and federal claims derive from a common nucleus of operative facts, the state
claim will not substantially dominate over the FLSA claim, and exercising supplemental
jurisdiction would be in the interests of judicial economy, convenience, fairness, and comity.
Defendants have offices, conduct business, and can be found in this judicial district, and/or
the causes of action set forth herein have arisen and occurred in part in this judicial district.
Venue is also proper under 29 U.S.C. 1132(e)(2) because Defendants have substantial business
FACTUAL ALLEGATIONS
McCusker & Company is a leading developer of customer support solutions including fully
insured warranty and field service programs that are both scalable and cost-effective on an
3
Case 2:17-cv-02321-DDC-KGG Document 3 Filed 06/02/17 Page 4 of 10
international level. McCusker is operated by its CEO, Willard L. McCusker, and his wife,
10. At all relevant times, Defendants have been, and continue to be employers
engaged in interstate commerce and/or in the production of goods for commerce within
the meaning of the FLSA, 29 U.S.C. 203. At all relevant times, Defendants have employed,
and/or continue to employ, employee[s], including the Plaintiffs. At all relevant times,
11. At all relevant times, Defendants have been, and continue to be, an employer as
12. Regina Sergiyenko was employed by Defendants from approximately October 24,
2016 until approximately March 10, 2017. During this period, Plaintiff Sergiyenko was
employed as Executive Vice President and was paid, pursuant to a written employment
13. While working for Defendants, for the period of October 2016 through January
2017, Plaintiff Sergiyenko received her salary and expense reimbursements. However, beginning
in February, 2017, Defendants failed to pay Sergiyenko any salary. Sergiyenko continued to
perform work for Defendants during that period of time, despite not receiving any salary or
expense reimbursement.
14. During the course of her employment, Plaintiff Sergiyenko regularly worked in
excess of 40 hours in a workweek, yet received no overtime compensation for such work.
4
Case 2:17-cv-02321-DDC-KGG Document 3 Filed 06/02/17 Page 5 of 10
15. Plaintiff Russell Joly was hired by Defendants on or about January 3, 2017. At the
time of hire, Plaintiff was employed in the position of Vice President of Strategy and Operations.
Plaintiff Jolys contract provided that he would be paid on a salary plus commission basis.
16. Plaintiff Joly worked in this capacity through the term of his employment.
However, despite the written agreement, Plaintiff never received any compensation, including
salary or commission.
18. During the course of his employment, Plaintiff Joly regularly worked in excess of
19. Because, for the period of January 2017 through the end of their respective
employment with Defendants, Plaintiffs do not satisfy the criteria for exempt employees,
Defendants should classify them as non-exempt employees, thereby making them eligible for
overtime compensation when they work in excess of forty hours per week. In this respect,
20. Defendants failed to accurately record all of the actual time worked by
Plaintiffs. Defendants could easily and accurately record the actual time worked by all
Plaintiffs.
21. Plaintiffs regularly worked in excess of 40 hours per week, but were not
compensated at a rate of at least one and one half times her regular rate for hours worked in
excess of 40 in a workweek.
Defendants failed to provide accurate wage statements Plaintiffs Sergiyenko and Joly.
5
Case 2:17-cv-02321-DDC-KGG Document 3 Filed 06/02/17 Page 6 of 10
23. Plaintiffs regularly worked in excess of forty hours per week. On average, upon
information and belief, Plaintiffs worked between 60-70 hours per week. During periods in
which they worked in excess of 40 hours per week, Plaintiffs were not paid one and one half
times their regular rate of pay for all hours worked in excess of 40 in a workweek.
worked in excess of forty hours per week, Plaintiffs are entitled to overtime compensation.
COUNT I
26. During the relevant period, Plaintiffs did not receive their requisite salary.
Defendants classified Plaintiffs as exempt employees under the FLSA. Thus, Defendants did not
27. But Plaintiffs were not paid on a salary basis that would place them under any of
the FLSAs exemptions from overtime compensation. In this respect, Defendants misclassified
Plaintiffs.
28. Defendants policy and practice of classifying Plaintiffs as exempt employees and
29. Plaintiff brings this Complaint individually pursuant to 29 U.S.C. 216(b) of the
FLSA .
30. Defendants failed to compensate Plaintiffs for the relevant minimum wage, and
also at a rate of not less than one and one-half times the regular rate of pay for work performed in
and continue to violate, the FLSA, 29 U.S.C. 201, et seq., including 29 U.S.C. 207(a)(1).
6
Case 2:17-cv-02321-DDC-KGG Document 3 Filed 06/02/17 Page 7 of 10
31. The foregoing conduct, as alleged herein, constitutes a willful violation of the
32. Plaintiffs seek damages in the amount of all respective unpaid minimum wages
and overtime compensation at a rate of one and one-half times the regular rate of pay for work
performed in excess of forty hours in a work week, plus liquidated damages, as provided by
the FLSA, 29 U.S.C. 216(b), and such other legal and equitable relief as the Court deems just
and proper.
33. Plaintiffs seek recovery of all attorneys fees, costs, and expenses of this action,
COUNT II (SERGIYENKO)
Amended Complaint.
35. The Plaintiff, on behalf of herself and all others similarly situated, brings a claim
36. As far as said factual allegations are applicable to the claims made herein under
the KWPA, the Plaintiff hereby incorporates the foregoing paragraphs as if fully set forth herein.
37. At all relevant times, Defendants have been, and will continue to be an
38. At all relevant times, Defendants have employed, and/or continue to employ,
employee[s], within the meaning of the KWPA 44-313(b); including the Plaintiff.
39. Plaintiff brings a claim for Defendants violation of the KWPA, K.S.A. 44-313
et seq.
7
Case 2:17-cv-02321-DDC-KGG Document 3 Filed 06/02/17 Page 8 of 10
40. At all relevant times, Defendants have had a policy and practice of failing and
refusing to pay Sergiyenko for work performed failing to pay her earned salary, commissions,
and expense reimbursements, earned in violation of the KWPA, K.S.A. 44-314. Defendants
38. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint and assert
39. Defendants failure to pay Plaintiffs their wages, vacation, sick, holiday,
amounts to Plaintiffs in exchange for their work and other efforts. Plaintiffs accepted the offers
by performing work and otherwise meeting the obligations placed on them. Defendants
breached the agreement by failing to pay Plaintiffs as agreed and Plaintiffs have suffered
damages as a result.
contract. Pursuant to Texas Civil Practice & Remedies Code 38.001-002, Plaintiffs are also
entitled recover attorneys fees and expenses incurred in prosecuting this claim as they have
presented their claim for payment and Defendants have failed to pay Plaintiffs all amounts due
within thirty (30) days of the date the claim was presented.
8
Case 2:17-cv-02321-DDC-KGG Document 3 Filed 06/02/17 Page 9 of 10
2. An award of damages for minimum wage and overtime compensation due for
4. Costs and expenses of this action incurred herein, including reasonable attorneys
representatives, and any and all persons acting in concert with Defendants, as provided by law,
from engaging in each of the unlawful practices, policies, and patterns set forth herein;
4. Costs and expenses of this action incurred herein, including reasonable attorneys
5. Penalties for failing to timely pay wage and pre-judgment and post-judgment
9
Case 2:17-cv-02321-DDC-KGG Document 3 Filed 06/02/17 Page 10 of 10
representatives, and any and all persons acting in concert with Defendants, as provided by law,
from engaging in each of the unlawful practices, policies, and patterns set forth herein;
compensatory damages, and interest as allowed under Texas law, to be paid by Defendants;
4. Costs and expenses of this action incurred herein, including reasonable attorneys
5. Penalties for failing to timely pay wage and pre-judgment and post-judgment
Plaintiffs hereby designate the place of trial as the United States District Court for the
Respectfully Submitted,
10