Saxon v. Southwest Airlines Co.

Filing 14

MEMORANDUM by Southwest Airlines Co. in support of motion to dismiss #13 (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Exhibit F)(Siebert, Melissa)

Exhibit A

Case: 1:18-cv-04822 Document #: 2 Filed: 07/13/18 Page 1 of 16 PageID #:3

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JEFF BATTLES, LEROME THOMAS,
STEVEN SPENCER, Individually, and on
Behalf of All Others Similarly Situated,
Plaintiffs,
v.
SOUTHWEST AIRLINES CO.,
Defendant.

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Case No. 18-cv-04822

Jury Trial Demanded

COLLECTIVE AND CLASS ACTION COMPLAINT
Representative Plaintiffs Jeff Battles, Lerome Thomas, and Steven Spencer, individually
and on behalf of all others similarly situated employees, through their counsel, bring claims as a
Collective Action pursuant to the Fair Labor Standards Act, 29 U.S.C. §§201 et seq. (the “FLSA”),
and as a Class Action pursuant to the Federal Rules of Civil Procedure, Rule 23 and in accordance
with the Illinois Minimum Wage Law (“IMWL”), 820 ILCS §§ 105/1, et seq., against Defendant
Southwest Airlines Co. (“Southwest” or “Defendant”), its subsidiaries and affiliates, and allege,
upon personal belief as to themselves and their own acts, and as for all other matters, upon
information and belief, and based upon the investigation made by their counsel, as follows:
NATURE OF THE ACTION
1.

This action arises out of Defendant’s systematic, company-wide policy of failing

to pay overtime compensation to its ramp supervisors for all time worked over 40 hours per week,
in violation of the FLSA and IMWL.

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2.

During the relevant statutory period, Defendant has maintained a corporate policy

and practice of requiring ramp supervisors to work before the start of their scheduled shifts each
day but failing to compensate them for this time worked.
3.

During the relevant statutory period, Defendant maintained a corporate policy and

practice of requiring ramp supervisors to work through their meal breaks despite Defendant
automatically deducting 30-minute unpaid meal breaks every shift.
4.

Accordingly, Defendant is liable for its failure to pay Plaintiffs and other similarly-

situated employees for time worked in excess of 40 hours in given workweeks.
JURISDICTION AND VENUE
5.

This Court has subject-matter jurisdiction over this action pursuant to 29 U.S.C. §

216(b), which provides that a suit under the FLSA “may be maintained against any employer… in
any Federal or State court of competent jurisdiction.” The Representative Plaintiffs have signed
opt-in consent forms to join this lawsuit. Ex. A.
6.

This Court has federal question jurisdiction over this action pursuant to 28 U.S.C.

§ 1331.
7.

This Court has supplemental jurisdiction over Plaintiffs’ state law claims pursuant

to 28 U.S.C. § 1367.
8.

Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) because Defendant

does business within this District. In addition, a substantial part of the events and omissions giving
rise to the claims pleaded in this Complaint occurred within this District.
PARTIES
9.

Representative Plaintiff Jeff Battles is a resident of Illinois who has worked, and

currently works, for Defendant as a non-exempt ramp supervisor during the applicable statute of

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limitations period and was not compensated for time spent working before his regularly scheduled
shifts and during meal breaks.
10.

At all relevant times, Jeff Battles was an “employee” of Defendant as defined by

the FLSA, 29 U.S.C. §203(e)(1) and IMWL, 820 ILCS § 105/3(d).
11.

Representative Plaintiff Lerome Thomas is a resident of Illinois who has worked,

and currently works, for Defendant as a non-exempt ramp supervisor during the applicable statute
of limitations period and was not compensated for time spent working before his regularly
scheduled shifts and during meal breaks.
12.

At all relevant times, Lerome Thomas was an “employee” of Defendant as defined

by the FLSA, 29 U.S.C. § 203(e)(1) and IMWL, 820 ILCS § 105/3(d).
13.

Representative Plaintiff Steven Spencer is a resident of Illinois who has worked,

and currently works, for Defendant as a non-exempt ramp supervisor during the applicable statute
of limitations period and was not compensated for time spent working before his regularly
scheduled shifts and during meal breaks.
14.

At all relevant times, Steven Spencer was an “employee” of Defendant as defined

by the FLSA, 29 U.S.C. § 203(e)(1) and IMWL, 820 ILCS § 105/3(d).
15.

At all relevant times, Defendant Southwest Airlines, Co. (“Southwest”) has been

a corporation organized under Texas law and doing business throughout this District.
16.

At all relevant times, Southwest has been an “employer” as defined by the FLSA,

29 U.S.C. § 203(d), and the IMWL, 820 ILCS 115/2.
FACTUAL BACKGROUND
17.

Plaintiffs, like those they seek to represent, are individuals who work or have

worked for Defendant as ramp supervisors, or any other similarly-titled position during the

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statutory period. Plaintiffs and putative class members all shared similar job titles, training, job
descriptions, job requirements, and compensation plans, among other things.
18.

Defendant managed Plaintiffs’ and putative class members’ work, including the

number of hours they worked. Defendant dictated, controlled and ratified the wage and hour and
all related employee compensation policies.
19.

Plaintiffs and others similarly situated were classified by Defendant as non-exempt

under the FLSA and Illinois wage laws and paid an hourly rate.
20.

Defendant encouraged, suffered, or permitted Plaintiffs and putative class members

to perform work before the start of their scheduled shift and during meal breaks, but did not pay
them for such time worked. Specifically, Defendant required Plaintiffs and other ramp supervisors
to arrive to work before the start of their scheduled shifts so they can login to Defendant’s computer
network, review and respond to emails; determine the number of flights for the day via OTIS
(employee database); ensure there is proper coverage for all scheduled flights for the day; and
performing other work. Although much of the above work was performed on the clock, Defendant
failed to compensate Plaintiffs and putative class members for this time worked before the start of
their scheduled shifts.
21.

Defendant failed to pay Plaintiffs and those similarly situated for all overtime hours

actually worked at a rate of 1.5 times their regular rate of pay.
22.

Defendant improperly failed to pay Plaintiffs and putative class members all

compensation rightfully due, including but not limited to, overtime pay and time spent working
before the start of their scheduled shifts and during unpaid meal breaks.
23.

Defendant knew and was aware at all times of the above-mentioned violations.

24.

The conduct alleged above reduced Defendant’s labor and payroll costs.

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25.

Plaintiffs and others similarly situated were subject to Defendant’s uniform policies

and practices and were victims of Defendant’s schemes to deprive them of wages and overtime
compensation. As a result of Defendant’s improper and willful failure to pay Plaintiffs and putative
class members in accordance with the requirements of state and federal wage and hour laws,
Plaintiffs and class members suffered lost wages and other damages.
FLSA COLLECTIVE ACTION ALLEGATONS
26.

Plaintiffs bring claims on their own behalf and as representatives of all other

similarly situated individuals pursuant to the FLSA, 29 U.S.C. § 216(b), to recover unpaid wages,
unpaid overtime compensation, liquidated damages, unlawfully withheld wages, statutory
penalties, prejudgment interest, attorneys’ fees and costs, and other damages owed.
27.

Plaintiffs bring this action under the FLSA on behalf of the following collective

class of similarly situated employees:
All individuals who were employed or are currently employed by the Defendant as
ramp supervisors, or any other similarly-titled position, at any time during the three
(3) years prior to the date of the commencement of this action through the date of
judgment in this action, and who were not properly compensated for time worked
in excess of 40 hours in given workweeks (the “FLSA Class”).
28.

This action is properly maintained as a collective action because the Representative

Plaintiffs are similarly situated to the members of the collective class with respect to job title, job
description, training requirements, and job duties, and are all subject to a common practice, policy,
or plan in which Defendant suffered and permitted them to perform work for the benefit of
Defendant in excess of 40 hours in given workweeks without compensation at time-and-a-half.
29.

Defendant knew or should have known that the Representative Plaintiffs and the

collective class performed work that required additional wages and overtime compensation to be

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paid. Nonetheless, Defendant operated under a scheme, as described above, to deprive the
Representative Plaintiffs and the collective class of wages and overtime compensation.
30.

Defendant’s conduct was willful.

31.

There are hundreds of similarly situated current and former ramp supervisors who

Defendant failed to properly compensate in violation of the FLSA and who would benefit from
the issuance of court-supervised notice and an opportunity to join the present action if they choose.
32.

The precise number of FLSA class members can be easily ascertained by using

Defendant’s payroll and personnel records. Given the composition and size of the class, members
of the FLSA class may be informed of the pendency of this action directly via U.S. Mail, email,
and otherwise.
IMWL CLASS ACTION ALLEGATIONS
33.

Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Representative

Plaintiffs Jeff Battles, Lerome Thomas, and Steven Spencer bring claims on their own behalf and
as representatives of all other similarly situated individuals pursuant to the IMWL, 820 ILCS
105/1, et seq., to recover unpaid wages, unpaid overtime compensation, unlawfully withheld
wages, statutory penalties, prejudgment interest, attorneys’ fees and costs, and other damages
owed.
34.

Section 105/4(a) of the IMWL requires employers to pay employees one and one-

half times their regular rate of pay for all hours worked over 40 per week. Section 105/12 of the
IMWL provides that employers who violate the provisions of this act are liable to affected
employees for unpaid wages, costs, attorneys’ fees, damages of 2% per month compounding
interest on the amount of any such underpayment for each month following the date of
underpayments, and other appropriate relief.

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35.

Plaintiffs seek class certification under Rule 23 of the Federal Rules of Civil

Procedure for the following class of similarly situated employees under the IMWL:
All individuals who were employed or are currently employed by the Defendant as
ramp supervisors, or any other similarly titled position, in the state of Illinois at any
time during the three (3) years prior to the date of the commencement of this action
through the date of judgment in this action, and who were not properly paid for
time worked in excess of 40 hours in given workweeks (the “IMWL Class”).
36.

This action is properly maintainable as a class action under Rules 23(a) and (b)

because:
a.

The class is so numerous that joinder of all members is impracticable;

b.

There are questions of law or fact that are common to the class;

c.

The claims or defenses of the Representative Plaintiffs are typical of the
claims or defenses of the class; and,

d.

The Representative Plaintiffs will fairly and adequately protect the interests
of the class.
Numerosity

37.

The total number of putative class members is well in excess of 50 individuals. The

exact number of class members may be determined from Defendant’s payroll and personnel
records.
Commonality
38.

There is a well-defined commonality of interest in the substantial questions of law

and fact concerning and affecting the IMWL Class in that Plaintiffs and all members of the class
have been harmed by Defendant’s failure to compensate current and former ramp supervisors for
all time worked in excess of 40 hours in given workweeks. The common questions of law and fact
include but are not limited to the following:
a.

Whether Defendant encouraged, suffered, or permitted Plaintiffs to work
before their scheduled shifts without pay;

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39.

b.

Whether Defendant encouraged, suffered, or permitted Plaintiffs to work
during their unpaid meal breaks;

c.

Whether Defendant failed to compensate class members for all the work
they encouraged, suffered, or permitted class members to perform;

d.

Whether Defendant failed to keep true and accurate time records for all
hours worked by the class members; and

e.

Whether Plaintiffs suffered damages and the proper measure of those
damages.

Plaintiffs anticipate that Defendant will raise defenses that are common to the class.
Adequacy

40.

The Representative Plaintiffs will fairly and adequately protect the interests of the

class, and there are no known conflicts of interest between Plaintiffs and class members. They
have retained experienced counsel that are competent in the prosecution of complex litigation and
who have experience acting as class counsel specifically in wage and hour litigation.
Typicality
41.

The claims asserted by the Representative Plaintiffs are typical of the class

members they seek to represent. The Representative Plaintiffs have the same interests and have
suffered from the same unlawful practices as the class members.
42.

Upon information and belief, there are no other IMWL class members who have an

interest individually controlling the prosecution of his or her individual claims, especially in light
of the relatively small value of each claim and the difficulties involved in bringing individual
litigation against one’s employer. However, if any such class member should become known, he
or she can “opt out” of this action pursuant to Rule 23.
Predominance and Superiority

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43.

The common questions identified above predominate over any individual issues,

which will relate solely to the quantum of relief due to individual class members. A class action is
superior to other available means for the fair and efficient adjudication of this controversy because
individual joinder of the parties is impracticable. Class action treatment will allow a large number
of similarly-situated persons to prosecute their common claims in a single forum simultaneously,
efficiently, and without the unnecessary duplication of effort and expense if these claims were
brought individually. Moreover, as the damages suffered by each class member are relatively small
in the sense pertinent to class action analysis, the expenses and burden of individual litigation
would make it difficult for individual class members to vindicate their claims.
44.

On the other hand, important public interests will be served by addressing the

matter as a class action. The cost to the court system and the public for the adjudication of
individual litigation and claims would be substantial and substantially more than if claims are
treated as a class action. Prosecution of separate actions by individual class members would create
a risk of inconsistent and vary adjudications, establish incompatible standards of conduct for
Defendant and/or substantially impair or impede the ability of class members to protect their
interests. The issues in this action can be decided by means of common, class-wide proof. In
addition, if appropriate, the Court can and is empowered to fashion methods to efficiently manage
this action as a class action.
COUNT I
VIOLATION OF THE FAIR LABOR STANDARDS ACT
(Unpaid Overtime wages)
45.

Plaintiffs incorporate by reference all preceding paragraphs.

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46.

Plaintiffs and the collective group members are “employees” of Defendant as

defined by the FLSA, 29 U.S.C. § 203(e)(1), and are not exempt from the FLSA’s protections for
any reason.
47.

The Representative Plaintiffs and other ramp supervisors or agents are similarly

situated individuals within the meaning of the FLSA, 29 U.S.C. § 216(b).
48.

Section 207(a)(1) of the FLSA states that an employee must be paid overtime, equal

to at least 1.5 times the employee’s regular rate of pay, for all hours worked in excess of 40 hours
per week.
49.

Defendant willfully engaged in a widespread pattern and practice of violating the

FLSA by failing to compensate Plaintiffs and similarly situated employees for all time worked
prior their regularly scheduled shifts and for work performed during unpaid meal breaks, thereby
failing and refusing to pay them the overtime wage compensation required by law and in
accordance with Sections 206 and 207 of the FLSA.
50.

While Plaintiffs and the collective group members were clocked in while

performing required pre-shift work, such as logging into Defendant’s computer network,
reviewing and responding to emails, determining the number of flights for the day via OTIS
(employee database), ensuring there is proper coverage for all scheduled flights for the day, and
other work, Defendant failed to compensate them for any time worked before the start of their
scheduled shift in violation of the FLSA, 29 U.S.C. § 211(c).
51.

Defendant also engaged in a widespread pattern and practice of violating the FLSA

by failing to compensate Plaintiffs and similarly situated employees for all time worked during
unpaid meal breaks.

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52.

Defendant maintains a written policy promising Plaintiffs and the collective group

members one 30-minute unpaid meal break per shift. Having made this promise, Defendant was
obligated to ensure either that Plaintiffs and the collective group members were completely
relieved from all work-related duties during their unpaid meal break, or that Plaintiffs and the
collective group members accurately tracked and recorded their interrupted meal breaks and
received all overtime wages due for each interrupted break.
53.

Defendant requires Plaintiffs and the collective group members to prioritize their

work-related responsibilities over their entitlement to an uninterrupted meal break.
54.

Defendant does not maintain adequate staffing levels or provide dedicated relief

workers to ensure Plaintiffs and the collective group members are completely relieved from workrelated duties, such as taking calls on the radio from the communication center, during their entire
unpaid meal break.
55.

Defendant does not maintain any policy or procedure requiring Plaintiffs and the

collective group members to track or report their interrupted meal breaks or allowing them to
request wages for an interrupted meal break.
56.

As a result of Defendant’s violations of the FLSA, Plaintiffs and the FLSA class

have suffered and will continue to suffer a loss of income and other damages.
57.

Defendant did not make a good faith effort to comply with the FLSA with respect

to the compensation of their ramp supervisors.
58.

As a result of Defendant’s unlawful acts, it is liable to Plaintiffs and the FLSA class

for actual damages, liquidated damages, and equitable relief pursuant to 29 U.S.C. § 216(b), as
well as reasonable attorneys’ fees, costs, and expenses.

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59.

Plaintiffs are also entitled to injunctive relief to prevent Defendant from continuing

its violation of the FLSA and other appropriate class-wide injunctive relief.
COUNT II
VIOLATION OF ILLINOIS MINIMUM WAGE LAW
(Unpaid Overtime wages)
65.

Plaintiffs incorporate by reference all preceding paragraphs.

66.

Plaintiffs Jeff Battles, Lerome Thomas, and Steven Spencer are members of a class

that meet the requirements for certification and maintenance of a class action pursuant to Rule 23.
67.

The IMWL, 820 ILCS §§ 105/1, et seq., requires employers to pay employees

minimum wages for all hours worked. Section 105/4(a) of the IMWL requires employers to pay
employees one and one-half times their regular rate of pay for all hours worked over 40 per work
week. Section 105/12 of the IMWL provides that employers who violate the provisions of this Act
are liable to affected employees for unpaid wages, costs, attorneys’ fees, damages of 2% per month
compounding interest on the amount of any such underpayment for each month following the date
of underpayments, and other appropriate relief.
68.

Defendant engaged in a widespread pattern and practice of violating the IMWL by

failing to compensate Plaintiffs and similarly situated employees for all time worked before their
regularly scheduled shifts and during unpaid meal breaks, thereby failing and refusing to pay them
the overtime wage compensation as required by law and in accordance with Section 105/4(a) of
the IMWL.
69.

Plaintiffs and members of the IMWL class are not subject to any exemption.

70.

While Plaintiffs and the collective group members were clocked in while

performing required pre-shift activities, such as logging into Defendant’s computer network,
reviewing and responding to emails, determining the number of flights for the day via OTIS

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(employee database), ensuring there is proper coverage for all scheduled flights for the day, and
other work, Defendant failed to compensate them for any time worked before the start of their
scheduled shift in violation of the IMWL, 820 ILCS 105/8.
71.

Defendant also engaged in a widespread pattern and practice of violating the IMWL

by failing to compensate Plaintiffs and similarly situated employees for all time worked during
unpaid meal breaks.
72.

Defendant maintains a written policy promising Plaintiffs and the collective group

members one 30-minute unpaid meal break per shift. Having made this promise, Defendant was
obligated to ensure either that Plaintiffs and the collective group members were completely
relieved from all work-related duties during their unpaid meal break, or that Plaintiffs and the
collective group members accurately tracked and recorded their interrupted meal breaks and
received all overtime wages due for each interrupted break.
73.

Defendant requires Plaintiffs and the collective group members to prioritize their

work-related responsibilities over their entitlement to an uninterrupted meal break.
74.

Defendant does not maintain adequate staffing levels or provide dedicated relief

workers to ensure Plaintiffs and the collective group members are completely relieved from workrelated duties, such as taking calls on the radio from the communication center, during their entire
unpaid meal break.
75.

Defendant does not maintain any policy or procedure requiring Plaintiffs and the

collective group members to track or report their interrupted meal breaks or allowing them to
request wages for an interrupted meal break
76.

As a result of Defendant’s violations of the IMWL, Plaintiffs and the IMWL class

have suffered and will continue to suffer a loss of income and other damages.

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77.

As a result of Defendant’s unlawful acts, it is liable to Plaintiffs and other IMWL

class members for actual damages, liquidated damages, and equitable relief, as well as reasonable
attorneys’ fees, costs, and expenses.
78.

Plaintiffs are also entitled to injunctive relief to prevent Defendant from continuing

its violation of the IMWL, and other appropriate class-wide injunctive relief.
PRAYER FOR RELIEF
WHEREFORE, the Representative Plaintiffs Jeff Battles, Lerome Thomas, and Steven
Spencer, individually and on behalf of all others similarly situated, through their attorneys, demand
judgment against the Defendant and in favor of the Plaintiffs and all others similarly situated, for
a sum that will properly, adequately, and completely compensate Plaintiffs for the nature, extent,
and duration of their damages, the costs of this action, and as follows:
A.

Certify a collective action under Count I and designate Plaintiffs as representatives
of all those employees similarly situated;

B.

Order the Defendant to file with this Court and furnish to counsel a list of all names,
telephone numbers, addresses, and e-mail addresses of all ramp supervisors, ramp
agents, or any other similarly titled position who have worked for the Defendant
within the last three years;

C.

Authorize Plaintiffs’ counsel to issue notice at the earliest possible time to all ramp
supervisors, ramp agents, or any other similarly titled position who have worked
for the Defendant within the last three years, informing them that this action has
been filed, of the nature of the action, and of their right to opt-in to this lawsuit;

D.

Certify a class for Count II;

E.

Appoint Stephan Zouras, LLP as counsel for the Plaintiffs under Rule 23(g);

F.

Declare and find that the Defendant committed one or more of the following acts:
i. Violated provisions of the FLSA by failing to pay regular wages, overtime
wages and other benefits to Plaintiffs and similarly situated persons who
opt-in to this action;
ii. Willfully violated provisions of the FLSA; and,

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iii. Violated the IMWL, by failing to pay overtime wages to Plaintiffs and class
members.
G.

Award compensatory damages in the amount of one and one-half times Plaintiffs’
and similarly situated persons’ regular rate of pay for all time they worked in excess
of 40 hours per week under the FLSA;

H.

Award 2% per month interest on all overtime compensation due accruing from the
date such amounts were due until it is paid under the IMWL;

I.

Award liquidated damages in an amount equal to the amount of unpaid overtime
compensation found due under the FLSA;

J.

Award all costs and reasonable attorneys’ fees incurred prosecuting this claim
under the FLSA and IMWL;

K.

Grant leave to amend to add claims under applicable state and federal laws;

L.

Grant leave to add additional Plaintiffs by motion, the filing of written consent
forms, or any other method approved by the Court; and,

M.

For such further relief as the Court deems just and equitable.
JURY DEMAND

Plaintiffs hereby demand a trial by jury.

Dated: July 13, 2018

Respectfully Submitted,

/s/ Ryan F. Stephan
Ryan F. Stephan
Haley R. Jenkins
STEPHAN ZOURAS, LLP
205 N. Michigan Avenue, Suite 2560
Chicago, Illinois 60601
312-233-1550
312-233-1560 f
www.stephanzouras.com
ATTORNEYS FOR THE PLAINTIFFS

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CERTIFICATE OF SERVICE
I, the attorney, hereby certify that on July 13, 2018, I filed the attached with the Clerk of
the Court using the electronic filing system which will send such filing to all attorneys of record.

/s/ Ryan F. Stephan

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Exhibit A

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