Perez v. Victory Residential Services, LLC et al
Filing
13
ORDER granting 12 Motion for Default Judgment. Signed by Senior Judge James C. Fox on 2/25/2016. (Grady, B.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DNISION
No. 5:15-CV-00028-F
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Plaintiff,
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v.
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VICTORY RESIDENTIAL SERVICES, LLC, )
and ISRAEL OJIMADU, an individual,
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Defendants.
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THOMAS E. PEREZ,
Secretary of Labor,
United States Department of Labor,
DEFAULT JUDGMENT
Upon Plaintiff's motion for judgment by default and considering the Clerk's entry of
default herein on August 5, 2015, Defendants' failures and refusals to plead or otherwise defend,
the affidavit filed by Plaintiff in support of said motion, and the Court being otherwise fully
advised, Plaintiffs motion for judgment by default is GRANTED. The Court enters its findings
of fact and conclusions oflaw, as follows:
FINDINGS OF FACT
1. Defendant Victory Residential Services, LLC, at all times hereinafter mentioned, has
been a corporation having a place of business and doing business in Wake County, North
Carolina, and is an employer within the meaning of§ 3(d) of the Fair Labor Standards
Act, 29 U.S.C. § 203(d).
2. Defendant Israel Ojimadu, an individual doing business in Wake County, North Carolina;
at all times hereinafter mentioned acted directly or indirectly in the interest of the
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aforesaid corporation in relation to its employees, and therefore is an employer within the
meaning of§ 3(d) of the Act, 29 U.S.C. § 203(d).
3. Defendants Victory Residential Services, LLC and Israel Ojimadu (collectively,
"Defendants"), engaged in related activities performed either through unified operation or
common control for a common business purpose, constitute an enterprise within the
meaning of§ 3(r) of the Act, 29 U.S.C. § 203(r); and Defendants operate a group home
for adults with developmental disabilities, and constitute an enterprise engaged in
commerce or in the production of goods for commerce within the meaning of§ 3(s)(l)(B)
ofthe Act, 29 U.S.C. § 203(s)(l)(B).
4. Since on or about October 22, 2011, Defendants repeatedly failed to pay employees
employed in an enterprise engaged in commerce or in the production of goods for
commerce, the applicable minimum hourly rate.
5. Since on or about October 22, 2011, Defendants repeatedly employed employees in an
enterprise engaged in commerce or in the production of goods for commerce, for
workweeks longer than 40 hours without compensating such employees for their
employment in excess of such hours at rates not less than one and one-halftimes the
regular rates at which they were employed.
6. As a result of the conduct described above, Defendants are wrongfully withholding back
wages in the amount $15,163.19 due and owed to five employees of Defendants. The
back wages due to each employee for this time period are set forth in Appendix A which
is attached to the Affidavit of Wage and Hour Investigator Linda Wilkerson.
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7. Since on or about October 22, 2011, Defendants repeatedly failed to make, keep and
preserve adequate and accurate records of the persons employed and of the wages, hours
and other conditions and practices of employment maintained by them.
CONCLUSIONS OF LAW
1. This Court has jurisdiction over this action pursuant to §§ 16(c) and 17 of the Act and 28
U.S.C. §§ 1331 and 1345.
2. Defendants repeatedly violated the provisions of§§ 6 and 15(a)(2) of the Act, 29 U.S.C.
§§ 206 and 215(a)(2) by failing to pay employees employed in an enterprise engaged in
commerce or in the production of goods for commerce, the applicable minimum hourly
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rate.
3. Defendants repeatedly violated the provisions of§§ 7 and 15(a)(2) of the Act, 29 U.S.C.
§§ 207 and 215(a)(2) by employing employees in an enterprise engaged in commerce or
in the production of goods for commerce, for workweeks longer than 40 hours without
compensating such employees for their employment in excess of such hours at rates not
less than one and one-halftimes the regular rates at which they were employed as
described in paragraph 5 above.
4. Defendants repeatedly violated the provisions of§§ ll(c) and 15(a)(5) of the Act, 29
U.S.C. §§ 211(c) and 215(a)(5), and Regulations found at 29 C.P.R.§ 516 by failing to
make, keep and preserve adequate and accurate records of the persons employed and of
the wages, hours and other conditions and practices of employment maintained by them
as described in paragraph 7 above.
5. Defendants have neither pleaded nor proven that: (1) the act or omission giving rise to
the violations of the Act were in good faith and (2) they had reasonable grounds for
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believing that their acts or omission were not a violation of the Act. See 29 U.S.C. § 260.
Accordingly, under §16(c) ofthe Act, the Secretary is authorized to recover not only back
wages for the wronged employees, but also an equal amount of liquidated damages. 29
U.S.C. § 216(c). The liquidated damages due each employee are set forth in the attached
Appendix A.
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Upon consideration of Plaintiffs motion for judgment by default, Defendants' having
failed to answer, plead, or otherwise defend as required by law since the Clerk's entry of default
herein on August 5, 2015, and it appearing that Plaintiff is entitled to the relief sought, and this
Court having entered its Findings of Fact, Conclusions of Law, and Order granting Plaintiffs
motion, now, therefore, in accordance therewith, it is hereby ORDERED, ADJUDGED and
DECREED that Defendants, their agents, servants, employees and all persons in active concert
or participation with them who receive actual notice hereof are permanently enjoined from
violating the provisions of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201,
et seq., hereinafter referred to as the Act, in any of the following manners:
A. They shall not, contrary to§§ 7 and 15(a)(2) of the Act, 29 U.S.C. §§ 207 and 215(a)(2),
employ any employee in commerce or in the production of goods for commerce, or in an
enterprise engaged in commerce or in the production of goods for commerce, within the
meaning of the Act, for more than 40 hours in a workweek unless such employee is
compensated for such hours in excess of 40 at an overtime rate of at least one and onehalf times the regular rate at which such employee is employed.
B. They shall not, contrary to§§ 6 and 15(a)(2) of the Act, 29 U.S.C. §§ 206 and 215(a)(2),
fail to pay employees employed in an enterprise engaged in commerce or in the
production of goods for commerce, the applicable minimum hourly rate.
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C. They shall not, contrary to§§ 11(c) and 15(a)(5) of the Act, 29 U.S.C. §§ 211(c) and
215(a)(5), fail to make, keep and preserve adequate and accurate employment records as
prescribed by Regulation folind at 29 C.F.R. § 516.
IT IS FURTHER ORDERED, ADJUDGED and DECREED that Defendants hereby are
restrained from withholding payment of back wages in the total amount of$15,163.19 and an
additional equal amount as liquidated damages due employees for the periods of employment
and in the amounts indicated with respect to each, as set forth in Appendix A attached hereto.
The private rights, under the Act, of any employee of Defendants not named or for periods not
stated in said Appendix A shall not be terminated or otherwise adversely affected by this
proceeding.
Defendants also shall provide Plaintiff's attorneys with an Appendix showing their
employer I.D. number and the last-known address and social security number as to each
employee listed on Appendix A.
Plaintiff, thereupon, shall distribute the back wages and liquidated damages owed to the
named employees, or to their personal representatives, and any amounts not so distributed by the
Plaintiffwithin the period ofthree (3) years after date ofthis Judgment, because of inability to
locate the proper persons or because of such persons' refusals to accept such sums, shall be
deposited into the Treasury of the United States as miscellaneous receipts.
It is FURTHER ORDERED that court costs of this action hereby are taxed to Defendants
for which execution may issue.
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SO ORDERED.
This, the ·J- ~ ·day of February, 2016.
JA0ESC.FOX
Senior United States District Judge
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AFFIDAVI'f OF LINDA WILKERSON
• ._I~ :Lillda Wilkerson, having been ~uly S\\(()p:t, S.liY=
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1.
I am employed as an Investigator by the Wage and Hour Division, United
States Department of Labor in Raleigh, North Carolina.
2.
During the period in my official capacity and pursuant to my official
duties as an Investigator, I personally made investigation under the Fair Labor Standards
Act of 1938 ("FLSA"), of Victory Residential Services, LLC and Israel Ojimadu
(collectively, "Defendants") in Raleigh, North Carolina.
3.
My investigation covered the period from December 21,2010 to
December 21, 2012. The investigation included examining time, payroll and other
employment records. In addition, I conducted an oral interview with Defendant Israel
Ojiinadu and had face to face interviews with several of Defendants' employees. I also
conducted a number of telephone interviews with former employees.
4.
Such investigation revealed to me, among other things, that:
Israel Oj@~4u
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.• failed to pay iime· aJ1J bne-Mlf for 1l()ursW~~ke~- in ~~cess of40
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did n()t proyide minim\nn wage to employees for hours worked.. Specifically, Defendants
p~id employees a flat rate which failed to compensate them at the applicable minimuril
wage for each hour worked.
e.
Timesheet records were not av~ilable for employees, so I
computed their missing pay rising e~timates from hotirs worked based on employee
interviews. I also utilized copies of employment contracts which listed a flat salary for
all hours worked. In addition, I reviewed copies of some of the employees' paychecks.
These paychecks revealed the applicable flat rate (or salary), as well as deductions to that
rate for absences.
f.
As set forth more fully in the attached Appendix A, I calculated the
number of hours worked per week for the relevant time period and, applying the
appropriate coefficient, _calculated the amount due each employee in back wages.
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··. LINDA WILKERSON .
. Irivestigator ·
alai r von Rarnrri,JII
NOTARY PUBL\C. ·
wake County,.NC
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·. APPENlliXA
·•• vicTo:Rv REsiDEN'I'AL·stRV'IcE:s. ilsc>··
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Period From _
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-·Hilda G. Echtumdson
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$2,533.50 ·.. :$~,53;3.50
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- . Robert Henderson
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·:
Herb~rt Suggs, Jr. ·
o7to7/I2to 11124/2012
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5067.00 ..
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10/22/llto 11117/2012
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o4ntio12to o6/212o12
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1272.10
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Shirl~y Wallace
09/1/2012 to 12/22/2012
1,884.84
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Linda Winstead -. ··
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3769;68
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04/07/12 to 12/22/2012
TOTAL
5,4~8.00
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5,408.oo·
10,816.00
$15,163.19 .. $15,163.19
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.$30,326.38 .
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