Case 3:17-cv-00582-MHL Document 1 Filed 08/22/17 Page 1 of 13 PageID# 1

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA
Richmond Division

Charles Battle, Errol Fernandez, Anthony Franklin, and Eric

Godfrey,

Plaintiffs,

v. Civil Action No.

City of Richmond, Virginia,

TRIAL BY JURY DEMANDED
Defendant.

COMPLAINT

COME NOW Plaintiffs Charles Battle, Errol Fernandez, Anthony Franklin, and Eric

Godfrey, (collectively Plaintiffs), by counsel, and make the following allegations:

PRELIMINARY STATEMENT

1. Plaintiffs are current employees of the City of Richmond, Virginias Police

Department (RPD) and all were formerly members of RPDs Executive Protection Unit

(EPU). This proceeding seeks unpaid overtime for Plaintiffs, under the federal and state laws

which establish the overtime compensation due to law enforcement officers.

2. Count One seeks to recover unpaid overtime compensation and liquidated

damages under the Fair Labor Standards Act, 29 U.S.C. 201 et seq., as amended (FLSA or

the Act).

3. Count Two is brought under this Courts supplemental jurisdiction, also seeking

unpaid overtime, but pursuant to the enhanced relief provided by Va. Code 9.1-700, et seq. for

Virginia law enforcement personnel (the Virginia Law). Count Two seeks declaratory relief,
 Case 3:17-cv-00582-MHL Document 1 Filed 08/22/17 Page 2 of 13 PageID# 2

injunctive relief, and to recover unpaid overtime compensation and liquidated damages pursuant

to Va. Code 9.1-700, et seq.

PARTIES

4. RPD is the primary law enforcement agency in the City of Richmond, Virginia

and is comprised of police officers and various clerical, administrative, and management

personnel. It employs approximately eight hundred (800) individuals, including approximately

seven hundred (700) sworn law enforcement officers.

5. Defendant is an employer both within the meaning of 29 U.S.C. 207(a)(1) and

Va. Code 9.1-700. Defendant was Plaintiffs employer within the meaning of 29 U.S.C.

203(d) and Va. Code 9.1-700 and at all times relevant hereto.

6. Plaintiffs are, or were, residents of Virginia and are, or were, officers employed

by Defendant and were assigned to the EPU. At all times relevant hereto, Plaintiffs were officers

who are, or have been, employed by Defendant within the meaning of the FLSA, 29 U.S.C.

203(e)(1) and law enforcement employees within the meaning of Va. Code 9.1-700.

7. As members of the EPU during the relevant timeframe Plaintiffs were subject to

the same uniform pay and timekeeping practices and policies.

JURISDICTION AND VENUE

8. This Court has jurisdiction over this matter pursuant to 29 U.S.C. 216(b), 28

U.S.C. 1331, 2201, 2202 and seeks this Courts supplemental jurisdiction pursuant to 28

U.S.C. 1367.

9. Venue is proper in this judicial district under 28 U.S.C. 1391(b).

10. Defendant is subject to personal jurisdiction in the Commonwealth of Virginia.

2
 Case 3:17-cv-00582-MHL Document 1 Filed 08/22/17 Page 3 of 13 PageID# 3

THE EXECUTIVE PROTECTION UNIT

11. The EPU was established in 2005 under Mayor Douglas Wilder. Under Mayor

Wilder, the EPU consisted of 11 officers.

12. When Mayor Dwight Jones came into office, staffing on the EPU was slashed.

However, EPU members hours of coverage actually increased as Mayor Jones required more

hours of coverage than the previous administration.

13. At all times relevant to this action, the EPU was never comprised of more than 5

officers.

14. Prior to its disbandment in January of 2017 following the inauguration of Mayor

Levar Stoney, the EPU was tasked with providing security and transportation needs for the then

Mayor, Dwight Jones. In addition to providing security and transportation while the Mayor was

conducting official City business, they were also required to work at Mayor Joness request and

provide coverage outside of office hours as well as perform various non-law enforcement duties.

15. EPU officers were also required to provide coverage to various dignitaries

whose status was generally determined solely by Mayor Jones.

16. Though their detail was markedly different from that of other RPD officers such

as Patrol, Narcotics, or Homicide, the officers comprising the EPU remained employees of RPD.

Their timekeeping and pay checks were all processed through RPD systems.

17. The EPUs daily coverage for Mayor Jones typically began at 7:30 or 8:00am

with a text message from the Mayor indicating that he was ready for immediate pickup and

would generally not conclude until the Mayor retired for the evening, which meant that EPU

officers often remained on duty until well after midnight.

3
 Case 3:17-cv-00582-MHL Document 1 Filed 08/22/17 Page 4 of 13 PageID# 4

18. Coverage for Mayor Jones was normally required 6 days a week. However,

coverage was at times required on Sundays as well. There were several occasions in which

Fernandez was required to provide transportation and security while Mayor Jones attended

Redskins games.

19. Prior to 2015, officers within the EPU were allowed to put in for overtime and did

so when appropriate. These officers accrued, and were paid for significant overtime.

20. During the Jones administration, the EPU was subject to considerable public

scrutiny due to both its cost, and presumably its conspicuousness. See for example Driving

Dwight Style Weekly, 11/2/2013; Mayor Jones security to be slashed Richmond Times-

Dispatch, 1/1/2016; Mayors security costs rise as police chief calls for more officers

Richmond Times-Dispatch 8/8/2015; Richmond City Council agrees to curtail mayors security

detail Richmond Times-Dispatch 4/28/2016.

21. On information and belief, RPD and the City each had a hypersensitivity to the

perception that overtime paid to EPU was an example of wasteful government spending.

However, rather than adequately staff the unit or simply reduce or eliminate coverage to Mayor

Jones, RPD decided instead to prohibit payment of overtime earned by EPU members.

22. In May of 2015, EPU members were told by Chief Alfred Durham that they could

no longer claim overtime hours and would not be allowed to input such hours into the POS

timekeeping system and even those few permitted overtime entries were often deleted after the

fact.

23. For instance, after receiving a FOIA request in November of 2015 RPD Chief

Durham removed eight hours of previously earned overtime from EPU member Franklin that he

had worked providing security to a dignitary. Franklin was initially paid for these overtime

4
 Case 3:17-cv-00582-MHL Document 1 Filed 08/22/17 Page 5 of 13 PageID# 5

hours. However, several months later, after receiving the FOIA request, Durham, or someone

acting on his behalf, retroactively deducted the hours from Franklins pay.

24. While this no overtime policy affected the number of hours EPU officers were

paid for, it had no effect on the number of hours they worked. EPU officers continued to work

far more than their nominally scheduled hours.

25. On January 24, 2016, Chief Durham softened the prohibition on overtime

payment to EPU members, informing them that they would be allowed to put in for K time

(i.e. Compensatory Time) for overtime, but asked that they just dont kill [him]. However, this

thaw was fleeting as Chief Dunham reversed his position and reinstated the prohibition on

inputting overtime just a few days later after having received another FOIA request.

26. Since at least May of 2015 until January of 2017, EPU members were not allowed

to enter their own time into POS. Rather the Department did so for them and only in very rare

instances were overtime hours input for members of the EPU, despite such overtime hours being

consistently worked.

27. Coverage for Mayor Jones typically required two EPU members at a time and

sometimes three.

28. The sheer volume of hours that required coverage (6 days a week, 12-18 hours a

day, 2-3 Officers at a time) juxtaposed with the unit level (no more than 5 officers) meant that

considerable overtime hours (that is over 40 in a single week) were worked between May of

2015 and January of 2017.

29. On information and belief, Plaintiffs Charles Battle, Errol Fernandez, and

Anthony Franklin all worked an average of 55 hours a week between May 2015 and January

2017, but were not paid for any hours in a week above 40. Plaintiff Eric Godfrey worked an

5
 Case 3:17-cv-00582-MHL Document 1 Filed 08/22/17 Page 6 of 13 PageID# 6

average of 51 hours a week between May 2015 and January 2017, but was not paid for any hours

in a week above 40.

30. At all times relevant to this action, Plaintiffs were classified by RPD as FLSA

non-exempt employees and were paid on an hourly basis.

31. Plaintiffs perform, and have performed, functions which entitle them to payment

of overtime compensation wages that they have not received.

32. Defendant compensated Plaintiffs on a uniform compensation basis.

33. On information and belief, all of Defendants operations are centrally managed as

a single enterprise, and Plaintiffs are subject to common, uniform time-keeping and payroll

practices. Defendant has additionally established certain uniform payroll policies and practices

with respect to the payment of overtime compensation which applied to all individuals in the

EPU.

34. Pursuant to a March 1, 2017 tolling agreement, the parties have agreed that

Plaintiffs claims were tolled as of that date, such that the claims brought herein are all brought

within the two year statute of limitations for non-willful violations of the FLSA and/or the

Virginia Law.

35. At all times relevant hereto, Defendant was a public agency as that term is

defined by 29 U.S.C. 203(e)(2)(C) and 203(x).

36. Plaintiffs titles and job duties are specifically not exempt from the coverage of

the FLSA.

37. At all relevant times, Plaintiffs and other similarly situated employees have been

entitled to the rights, protections, and benefits provided under the FLSA and/or the Virginia Law.

6
 Case 3:17-cv-00582-MHL Document 1 Filed 08/22/17 Page 7 of 13 PageID# 7

GENERAL FACTUAL AND LEGAL ALLEGATIONS

38. Defendant employed Plaintiffs as Police Officers within the EPU.

39. As members of the EPU, Plaintiffs duties consisted of providing security and

transportation to Mayor Jones and other designated dignitaries.

40. Defendant paid Plaintiffs on an hourly basis at all times pertinent to this action.

41. Plaintiffs worked regularly scheduled work hours which recurred each work week

or after each period of workweeks. Plaintiffs were generally scheduled to work based on a

twenty eight (28) day cycle. Federal law allows municipalities to diverge from the standard

FLSA overtime scheme under which employees are paid overtime for all hours worked over

forty (40) in a week. Pursuant to 29 U.S.C 207(k), municipalities are permitted to make an

election of a seven (7) to twenty eight (28) day cycle (with corresponding maximum hours

between 43 and 171). RPD has selected a 160 hour/28 day cycle.

42. In 2005, state law was amended to require that Virginia law enforcement officers

working for jurisdictions employing 100 or more law enforcement employees pay overtime

compensation for the difference in the regularly scheduled workweek, or, generally, one hundred

sixty (160) hours in a twenty-eight day period and the 171 hour federal maximum allowed by 29

U.S.C. 201(k). Va. Code 9.1-700 et seq.

43. Va. Code 9.1-701 further requires law enforcement employees be paid at an

overtime rate for all hours of work beyond the hours for which they are paid. In pertinent part

that statute states:

Employers shall pay[.]law-enforcement employees overtime compensation or leave, as

under the Fair Labor Standards Act, 29 U.S.C. 207(o), at a rate of not less than one and
one-half times the employee's regular rate of pay for all hours of work between the
statutory maximum permitted under 29 U.S.C. 207(k) and the hours for which an
employee receives his salary, or if paid on an hourly basis, the hours for which the
employee receives hourly compensation.

7
 Case 3:17-cv-00582-MHL Document 1 Filed 08/22/17 Page 8 of 13 PageID# 8

44. Unlike the FLSA, which only counts hours actually worked toward overtime

entitlement (See 29 USC 207(e)(2)), Va. Code 9.1-703, titled Hours of Work, determines

overtime entitlement by the hours spent in paid status. It dictates that [f]or purposes of

computing [.] law-enforcement employees' entitlement to overtime compensation, all hours

that an employee works or is in a paid status during his regularly scheduled work hours shall be

counted as hours of work. (emphasis added.)

45. From May 2015 through January 2017 Plaintiffs employment as members of the

EPU regularly required they work in excess of one hundred and sixty (160) hours in certain

twenty eight (28) day cycles, and/or alternately in excess of forty (40) hours in a seven (7) day

cycle.

46. From May 2015 through January 2017 Defendant did not pay Plaintiffs overtime

compensation for (a) all hours worked in excess of one hundred and sixty (160) hours in each

twenty eight (28) day period and (b) all paid status hours in excess of the one hundred and sixty

(160) hours for which they received hourly compensation.

47. Moreover, since at least May of 2015 through January 2017, the paychecks

provided to Plaintiffs inaccurately reflected only 160 hours paid status hours for each 28 day

cycle, despite numerous cycles where that information was clearly and objectively false and

Plaintiffs were in fact required to work hours over 160 in a 28 day cycle.

48. State and federal law require that employers maintain accurate records of

employees time worked or in paid status for compensation purposes. See, e.g. 29 C.F.R 516 et

seq., Va. Code 9.1-703. Defendants provision of inaccurate hours worked and/or paid status

hours on paychecks have prevented employees from fully understanding the existence, detail,

and extent, of the Defendants underpayment of overtime compensation. On information and

8
 Case 3:17-cv-00582-MHL Document 1 Filed 08/22/17 Page 9 of 13 PageID# 9

belief, Defendants misrepresentations of hours worked were knowingly made to avoid the

payment of overtime compensation due under state and/or federal law.

49. The City was well aware of the hours worked by Plaintiffs as well as its failure to

pay overtime. Plaintiffs, voicing concerns regarding the non-payment of overtime, have

approached Defendants senior management regarding the non-payment of overtime

compensation. On several occasions, Plaintiffs informed senior management that they were

required to work far more hours than they were being paid for, including typical security matters

as well as running errands for Mayor Joness family and transporting him on personal trips out of

state.

50. From May 2015 through January 2017, Defendant enforced a policy or practice of

suppressing the reporting of known hours worked beyond scheduled time by Plaintiffs. Efforts

to enforce this practice included instructing Plaintiffs not to submit overtime hours, supervisors

refusal to accept or submit overtime hours, chastising officers for attempted reporting of

overtime hours, and on at least one occasion retroactively deducting overtime that had already

been earned and paid.

COUNT ONE
VIOLATION OF THE FAIR LABOR STANDARDS ACT

51. At all times relevant to the matters alleged herein, Defendant engaged in a pattern,

practice or policy of not compensating Plaintiffs in accordance with state and federal mandates

for certain overtime work performed for Defendants benefit.

52. The FLSA requires covered employers such as Defendant to compensate Police

Officers at a rate of not less than one and one-half times the regular rate of pay for work

performed in excess of the elected cycle length, in this case one hundred and sixty (160) hours in

a twenty eight (28) day period, and/or alternately forty (40) in a seven (7) day cycle.

9
 Case 3:17-cv-00582-MHL Document 1 Filed 08/22/17 Page 10 of 13 PageID# 10

53. At all times relevant hereto, Defendant knew that federal wage laws, generally,

and the FLSA, specifically, applied to Plaintiffs and others similarly situated.

54. Defendant had knowledge of the FLSA requirements to pay Plaintiffs overtime

compensation for hours worked in excess of one hundred and sixty (160) hours in a twenty eight

(28) day period, and/or alternately forty (40) in a seven (7) day cycle.

55. Defendant had knowledge that Plaintiffs regularly worked well beyond the hours

RPD input into POS for them. Defendant required such off the clock work and freely accepted

the benefit of this time, and at a minimum suffered and permitted this practice.

56. Despite knowledge of their obligations under federal wage laws, including the

FLSA, Defendant required, suffered and permitted Plaintiffs to routinely work in excess of one

hundred and sixty (160) hours in a twenty eight (28) day period, and/or alternately forty (40) in a

seven (7) day cycle, without paying all overtime compensation due.

57. Defendant had an obligation under the FLSA to maintain accurate records of time

worked by employees.

58. Defendant failed to maintain accurate time records of the time Plaintiffs expended

efforts on their behalf as required by the FLSA.

59. Plaintiffs are entitled to statutory damages equal to the mandated overtime

premium pay within the three (3) years preceding the filing of this Complaint.

60. Defendant has not acted in good faith with respect to their failure to pay overtime

compensation. Defendant had no legitimate reason to believe their actions and omissions were

not a violation of the FLSA, thus entitling Plaintiffs to recover an award of liquidated damages in

an amount equal to the amount of unpaid overtime compensation described above.

10
 Case 3:17-cv-00582-MHL Document 1 Filed 08/22/17 Page 11 of 13 PageID# 11

COUNT TWO
VIOLATIONS OF VA. CODE 9.1-700 et seq.

61. Defendant has violated Va. Code 9.1-701 through 9.1-703 by depriving

Plaintiffs of earned overtime pay.

62. Defendants policy and practice of not allowing Plaintiffs to put in for overtime

for hours worked and/or in paid status above one hundred and sixty (160) in a twenty eight (28)

day cycle, and/or alternately forty (40) in a seven (7) day cycle, violates Va. Code 9.1-700 et

seq. deprived Plaintiffs of earned wages.

63. Pursuant to Va. Code 9.1-704, Plaintiffs are entitled to payment of the withheld

overtime compensation, an additional presumed doubling of that amount, and payment for

Plaintiffs attorneys fees and costs of this proceeding.

64. Defendants creation of manifestly false pay stubs served to actively conceal the

Defendants ongoing failure to account for and pay overtime compensation owed pursuant to Va.

Code 9.1-700 et seq.

PRAYER FOR RELIEF FOR COUNT ONE

(PLAINTIFFS FLSA CLAIMS)

WHEREFORE, Plaintiffs respectfully request that this Court:

A. Enter judgment declaring that the acts and practices complained of herein are

violations of the Fair Labor Standards Act, 29 U.S.C. 201 et seq.;

B. Enter judgment awarding Plaintiffs actual compensatory damages in the amount

shown to be due for unpaid overtime compensation, with pre-judgment interest, against

Defendant;

C. Enter judgment awarding Plaintiffs an amount equal to their overtime damages as

liquidated damages;

11
 Case 3:17-cv-00582-MHL Document 1 Filed 08/22/17 Page 12 of 13 PageID# 12

D. Enter judgment for post-judgment interest at the applicable legal rate;

E. Enter judgment awarding Plaintiffs reasonable attorney's fees and costs of this

suit;

F. Grant such other and further relief as this Court deems necessary and proper.

PRAYER FOR RELIEF FOR COUNT TWO

(PLAINTIFFS RULE 23 STATE LAW CLAIMS)

WHEREFORE, Plaintiffs respectfully request that this Court:

A. Award appropriate declaratory relief regarding Defendants unlawful acts and

practices, in violation of Va. Code 9.1-701 through 9.1-703;

B. Award appropriate injunctive relief to prevent such practices continuing in the

future;

C. Award appropriate back pay in amounts equivalent to Plaintiffs previously

deprived wages, and a doubling of the same pursuant to Va. Code 9.1-701 through 9.1-704.

D. For an award of reasonable attorneys fees and costs incurred on Plaintiffs

behalf, pursuant to Va. Code 9.1-704.

E. For such other and further relief to which Plaintiffs may show themselves justly

entitled.

12
 Case 3:17-cv-00582-MHL Document 1 Filed 08/22/17 Page 13 of 13 PageID# 13

Respectfully submitted,

Charles Battle, Errol Fernandez, Anthony Franklin,

and Eric Godfrey.

By:_____/s/________________________
Counsel
Harris D. Butler, III, (VSB No. 26483) Craig Juraj Curwood (VSB No. 43975)
Zev H. Antell (VSB No. 74634) Philip Justus Dean (VSB No. 86335)
Butler Royals, PLC Curwood Law Firm, PLC
140 Virginia Street, Ste 302 530 E. Main Street, Suite 710
Richmond, Virginia 23219 Richmond, VA 23219
Telephone: (804) 648-4848 Telephone: (804) 788-0808
Facsimile: (804) 237-0413 Fax: (804) 767-6777
harris.butler@butlerroyals.com ccurwood@curwoodlaw.com
zev.antell@butlerroyals.com pdean@curwoodlaw.com

13