Whitaker v. Keystrokes Transcription Service, Inc. et al

Filing 1

COMPLAINT filed by Kimberly Whitaker; Jury Demand. Filing fee $ 350, receipt number 0752-6058360. (Attachments: # 1 Exhibit Consent to Join)(Faraci, Peter)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS – EASTERN DIVISION
KIMBERLY WHITAKER, on behalf of herself
and all others similarly situated,
Plaintiff,
v.
KEYSTROKES TRANSCRIPTION SERVICE,
INC., and LEE TKACHUK,
Defendants.

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Case No: ______________

JURY TRIAL DEMANDED

COMPLAINT
COMES NOW plaintiff Kimberly Whitaker, on behalf of herself and all others similarly
situated, by and through the undersigned counsel, and in support of her causes of action against
defendants in the above styled case, states as follows:
NATURE OF THE CLAIM
1.

Plaintiff seeks declaratory relief and monetary damages for defendants’ willful

violation of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201 et. seq.
(“FLSA”) by failing to pay proper overtime compensation.
JURISDICTION AND VENUE
2.

This Court has original jurisdiction under 28 U.S.C. § 1331, this action being

brought under the Fair Labor Standards Act, 29 U.S.C. § 201, et. seq.
3.

Venue is proper in this district because the defendants violated the statute at issue

in this district and the defendants maintain their principal place of business in this district.
PARTIES
4.

Plaintiff Kimberly Whitaker (“Whitaker”), an individual, is a resident and citizen

of the state of Indiana, who worked for defendants as a medical transcriptionist from

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approximately April 2008 until February 2011.
5.

Whitaker has consented to join this action (see Exhibit A hereto).

6.

Defendant Keystrokes Transcription Service, Inc. (“Keystrokes”) is a corporation

that maintains its principal place of business in Yorkville, Illinois and is a citizen and resident of
the State of Illinois.
7.

Keystrokes regularly conducts business in this district, including from an office

located at 220 Garden Street, Yorkville, IL 605.
8.

Keystrokes provides medical transcription services for clients across the country.

9.

Keystrokes has over $500,000 in annual revenues.

10.

Keystrokes is an “enterprise engaged in commerce” under the FLSA.

11.

Keystrokes is an “employer” under the FLSA.

12.

At all relevant times, plaintiff was an employee of Keystrokes as defined by the

13.

During the three years prior to the filing of this complaint, Keystrokes employed

FLSA.

other employees as medical transcriptionists.
14.

Defendant Lee Tkachuk (“Tkachuk”), upon information and belief, is the

principal owner of Keystrokes.
15.

Tkachuk, upon information and belief, is a citizen and resident of the State of

Illinois.
16.

Tkachuk is responsible for setting the policies that resulted in Whitaker and other

similarly situated employees not receiving proper overtime compensation.
17.

Tkachuk is an employer as defined by the FLSA.

18.

At all relevant times, Whitaker was an employee of Tkachuk as defined by the

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FLSA.
19.

The putative class is comprised of plaintiff and all other employees whom

defendants employ or employed as medical transcriptionists or other similar positions in the
United States but failed to properly compensate for hours worked above 40 hours in a workweek.
FACTS
20.

Plaintiff and Class Members were employed by defendants as medical

transcriptionists.
21.

Whitaker’s primary duty consisted of transcribing doctor’s notes, i.e., listening to

dictated notes and then typing them.
22.

All transcriptionists share the same primary duty.

23.

Whitaker generally worked approximately 48 hours per week, but also worked

weeks of approximately 80 hours.
24.

Plaintiff worked on several different accounts during her tenure.

25.

Plaintiff was paid differently for different accounts. Some accounts pay based on

time, others based on the number of lines typed, and still others based on the number of reports
typed.
26.

Despite the fact that plaintiff worked overtime in most weeks, upon information

and belief, she was paid overtime compensation for only four weeks.
27.

Tkachuk was aware that Whitaker was working overtime without proper

compensation.
28.

Upon information and belief, other transcriptionists also worked on average more

than forty (40) hours per week without proper overtime compensation.
29.

Defendants’ failure to pay proper overtime was willful.

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FLSA COLLECTIVE ACTION ALLEGATIONS
30.

Claims for violation of the FLSA are brought as a collective action pursuant to 29

U.S.C. § 216(b), on behalf of plaintiff and all other persons who are or have been employed by
defendants as a medical transcriptionist or similar position at any time between three years prior
to the filing, and the final disposition of this action (the “Class period”).
31.

The members of the proposed Class are similarly situated because they all

perform the same basic duties and assignments, and all are subject to defendants’ common policy
and practice of failing to pay overtime.
32.

The duties and responsibilities of the members of the Class were essentially the

same as the duties and activities of plaintiff described above.
33.

At all times during the Class Period, all of the members of the Class were paid in

the same manner and under the same standard employment procedures and practices as was
plaintiff.
34.

The members of the Class, like plaintiff, were all subject to the same unlawful

policy or plan to not pay overtime.
35.

While the exact number of members of the Class is unknown to plaintiff at the

present time, plaintiff believes that during the Class Period there were numerous, geographically
dispersed medical transcriptionists, similarly situated to plaintiff, who are or have been employed
by defendants. Furthermore, inasmuch as the damages suffered by individual Class Members
may be relatively small, the expense and burden of individual litigation make it virtually
impossible for the members of the collective action to individually seek redress for the wrongs
done to them. There will be no difficulty in the management of this action as a collective action.
Thus, a collective action is the most efficient mechanism for resolution of the FLSA claims of

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the Class.
FIRST CAUSE OF ACTION
Violation of the FLSA
Failure to Pay Overtime
36.

Plaintiff realleges the above paragraphs as if fully restated herein.

37.

The FLSA requires each covered employer to compensate all nonexempt

employees at a rate of not less than one and one-half times their regular rate of pay for work
performed in excess of 40 hours per workweek.
38.

During the applicable statute of limitations, plaintiff and Class Members routinely

performed work in excess of 40 hours per week without receiving overtime compensation.
39.

Defendants’ failure to pay proper overtime for all hours worked over forty in a

workweek violates the FLSA.
40.

Defendants knew or showed reckless disregard for the fact that they failed to pay

Plaintiff and Class Members the requisite overtime compensation, in violation of the FLSA.
41.

Defendants willfully violated the FLSA.
PRAYER FOR RELIEF

WHEREFORE, plaintiff demands judgment as follows:
(a)

An order preliminarily and permanently enjoining defendants from engaging in

the aforementioned wrongful conduct;
(b)

An order designating this action as a collective action on behalf of the Class and

issuance of notice pursuant to 29 U.S.C. § 216(b) to all similarly situated individuals;
(c)

Judgment against defendants for compensatory damages in the amount equal to

Plaintiff’s and the Class’ unpaid back wages at the applicable overtime rates, including
applicable fringe benefits;

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(d)

An equal amount in liquidated damages;

(e)

Reasonable attorneys’ fees and costs;

(f)

Pre-judgment interest; and

(g)

Such other and further legal and/or equitable relief as this Court deems just and

proper.
JURY DEMAND
Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff demands a jury
trial.
Dated: June 2, 2011
Respectfully submitted,
/s Peter S. Faraci
One of the Attorneys for Plaintiff
Peter S. Faraci (ARDC #6230899)
Faraci & Faraci
3 S. Prospect Ave., Suite 4
Park Ridge, IL 60068
[phone]
[e-mail]
Jeffrey D. Pollack
Mintz & Gold LLP
470 Park Ave. So., 10th Fl. North
New York, NY 10016
Tel. [phone]
Fax [phone]
[e-mail]
Pro Hac Vice application to be filed

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