Case 4:10-cv Document 1 Filed in TXSD on 02/18/10 Page 1 of 9

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1 Case 4:10-cv Document 1 Filed in TXSD on 02/18/10 Page 1 of 9 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION ELSON AYOUB Plaintiff CIVIL ACTION NO. VS. THE CONSULATE GENERAL OF BRAZIL COLLECTIVE ACTION (JURY TRIAL) IN HOUSTON Defendant PLAINTIFF S ORIGINAL COMPLAINT TO THE HONORABLE UNITED STATES DISTRICT COURT: COMES NOW, Elson Ayoub ( Plaintiff ) on behalf of himself and all other similarly situated individuals, and files this Complaint against The Consulate General of Brazil in Houston and in support thereof would show the Court as follows: INTRODUCTION 1. Plaintiff, on behalf of himself and others similarly situated (the Class ) brings this collective action to recover unpaid overtime compensation, liquidated damages and attorney s fees from Defendant pursuant to the Fair Labor Standards Act ( FLSA ), 29 U.S.C. Section 201 et seq. 2. This case involves violations of Title 29, Chapter 8, of the FLSA. Specifically, the claims of Plaintiff and those similarly situated concern violations of Section 207 of the FLSA which provide that employees must be compensated at a rate of one and a half times the regular rate of compensation for all hours worked in excess of forty hours in a work week. 3. This action seeks equitable relief, compensatory and liquidated damages, attorney s fees, taxable costs of court, pre-judgment and post-judgment interest for Defendant s willful failure 1

2 Case 4:10-cv Document 1 Filed in TXSD on 02/18/10 Page 2 of 9 to pay overtime pursuant to 29 U.S.C. 216(b) for Plaintiff, and all others similarly situated, in the course of employment with Defendant. 4. Plaintiff and all others similarly situated demand a jury trial. 5. This action is authorized and instituted pursuant to the Fair Labor Standards Act, 29 U.S.C. Section 201 et seq. 6. This action is also brought by Plaintiff to recover salary owed to him under a written contract executed by the parties for a specific term. The Defendant breached its contractual obligations to pay Plaintiff resulting in monetary damages to him. 7. The Defendant also breached its legal obligation to Plaintiff to withhold certain monies required by the Federal Government to be withheld from an individual s pay resulting in monetary damages to Plaintiff. PARTIES 8. Plaintiff Elson Ayoub is an individual residing in Houston, Harris County, Texas. 9. Defendant, The Consulate General of Brazil in Houston, is an agency or instrumentality of a foreign state and thus may be served under 28 U.S.C by delivering a copy of the Summons and Complaint either to an officer, or a managing or general agent, or to any other agent authorized by appointment of law to receive service of process in the United States. The address for service of process for the Consulate General of Brazil in Houston is Park Tower North 1233 West Loop South, Suite 1150, Houston, Texas JURISDICTION AND VENUE 10. This Court has subject matter jurisdiction over the Plaintiff s FLSA claims pursuant to 28 U.S.C and

3 Case 4:10-cv Document 1 Filed in TXSD on 02/18/10 Page 3 of This Court also has supplemental jurisdiction over state law claims under 28 U.S.C. 1367(a). 12. Venue is proper in the Southern District of Texas, Houston Division, under 28 U.S.C. 1391(a) and (b). FACTUAL ALLEGATIONS 13. At all times relevant to this action, Defendant has been subject to the requirements of the Fair Labor Standards Act ( FLSA ), 29 U.S.C. 201 et seq. 14. Defendant is a foreign consulate providing services to the general public as well as to citizens of the country of Brazil. Plaintiff worked for Defendant in the capacity of Support Auxiliary, performing tasks including chaffer duties for the Consulate and his family as well as other assigned duties including clerical duties at the office of the Consulate of Brazil in Houston. 15. At all relevant times, Defendant has been and continues to be an employer engaged in interstate commerce and/or the production of goods for commerce within the meaning of the FLSA, 29 U.S.C For purposes of this action, the relevant period is defined as such period commencing on the date that is three years prior to the filing of this action. 17. Plaintiff Ayoub was employed by Defendant for over eight years, up to and including the period ending in November, Plaintiff performed work as a non-exempt employee. 18. While employed, Plaintiff routinely worked in excess of forty hours a week and was never paid overtime compensation. 19. The conduct of Defendant, as set out above, has been willful and in bad faith, and has caused significant damages to Plaintiff and the Class. 3

4 Case 4:10-cv Document 1 Filed in TXSD on 02/18/10 Page 4 of 9 CLAIM - VIOLATIONS OF FLSA 20. Each and ever allegation contained in the foregoing paragraphs is realleged as if fully rewritten herein. 21. Plaintiff and others similarly situated are considered non-exempt employees. 22. Plaintiff, and all others similarly situated are entitled to overtime pay for all hours in excess of forty hours worked during each seven day work week. 23. During Plaintiff s employment, he routinely worked more than forty hours per week. 24. Even though Plaintiff worked well in excess of forty hours per week for most weeks of his employment, Defendant has failed to pay Plaintiff, and all others similarly situated, overtime. 25. Defendant has violated 29 U.S.C. 201 et seq. by failing to pay Plaintiff, and all other similarly situated employees overtime pay for all hours worked in excess of forty hours per week. 26. Defendant has not made a good faith effort to comply with the FLSA. 27. Defendant s conduct was willful within the meaning of 29 U.S.C. 255(a). 28. No exemption excused the Defendant from paying Plaintiff, and all others similarly situated, overtime pay for all of the hours worked over forty hours per week. 29. Defendant knowingly, willfully, or with reckless disregard carried out their illegal pattern or practice regarding overtime compensation owed to Plaintiff and all other similarly situated employees. 30. Plaintiff and all others similarly situated seek all unpaid overtime compensation from Defendant, from the date they commenced employment for the Defendant until date of termination. 31. Plaintiff, and all others similarly situated seek an additional equal amount as liquidated damages, as well as attorneys fees and costs as provided for by 29 U.S.C. 216(b), along 4

5 Case 4:10-cv Document 1 Filed in TXSD on 02/18/10 Page 5 of 9 with pre and post-judgment interest at the highest rate allowed by law. CLASS/COLLECTIVE ACTION ALLEGATIONS 32. Each and every allegation contained in the foregoing paragraphs is realleged as if fully rewritten herein. 33. Other employees have been victimized by this pattern, practice, and policy of the Defendant that is in violation of the FLSA. 34. Plaintiff is aware that the illegal practices and policies of Defendant have been imposed on other workers. 35. Other similarly situated employees are being denied and have been denied their lawful wages. 36. Accordingly, each Defendant s pattern or practice of failing to pay the employee s overtime pay (at time and one-half) as required by the FLSA results from Defendant s general application of policies and practices, and does not depend on the personal circumstances of the Members of Class. 37. Thus, Plaintiff s experience is typical of the experience of the Members of the Class. 38. The specific job titles or job requirements of the various Members of the Class do not prevent collective treatment. 39. All employees, regardless of their job requirements or rates of pay, who are denied overtime compensation for hours worked in excess of forty per week, are similarly situated. 40. Although the issue of damages may be individual in character, there is no detraction from the common nucleus of liability facts. 41. All current and former non-exempt hourly employees of Defendant s who at any time 5

6 Case 4:10-cv Document 1 Filed in TXSD on 02/18/10 Page 6 of 9 during the three years prior to the date of filing of this action to the date of judgment who were denied overtime pay for hours worked in excess of forty in any given work week are properly included as Members of the Class. 42. Plaintiff files this case as an opt-in collective action as specifically allowed by 29 U.S.C. 216(b). 43. Plaintiff brings these claims for relief for violation of the FLSA as a collective action pursuant to 16(b) of the FLSA, 29 U.S.C. 216(b). Plaintiff brings these claims on behalf of all non-exempt hourly employees of Defendant who were, are, or will be employed during the period of three years prior to the commencement of this action through the date of judgment of this action, who have not been fully compensated for all work performed, time spent, and activities conducted for the benefit of the Defendant. 44. Plaintiff requests that Defendant identify all prospective Members of the Class in order that proper notice of their right to consent to participation in the class may be distributed, including their names, dates of employment, job title(s), last known address and phone number. 45. Plaintiff seeks to represent only those members of the above-described group who, after appropriate notice of their ability to opt into this action, have provided consent in writing to be represented by Plaintiff s counsel as required by 29 U.S.C. 216(b). 46. Those individuals who choose to opt in will be listed on subsequent pleadings and copies of the written consents to sue will be incorporated hereby by reference. 47. Plaintiff contends that this action is appropriate for class action status because Defendant herein has acted in the same manner with regard to all Members of the Class. 48. Plaintiff will fairly and adequately represent and protect the interests of the Members 6

7 Case 4:10-cv Document 1 Filed in TXSD on 02/18/10 Page 7 of 9 of the Class. Plaintiff has retained counsel competent and experienced in complex employment matters and class actions. STATE CLAIM 49. Plaintiff brings this claim against Defendant for breach of contract. 50. On or about November 2, 2009 the Defendant formally notified Plaintiff that he would was discharged, but acknowledged that Plaintiff had a yearly contract that would not be renewed in November The discharge letter states: In 2001, the employment contract renewable every 12 months was executed between Mr. Elson Ayoub and Consulate General of Brazil in Houston, stipulating that the former would exert the function of Support Auxiliary and Chauffeur. The Consulate General of Brazil is hereby communicating to Mr. Ayoub that as of this date the employment contract of Support Auxiliary is considered rescinded, without just cause Defendant is liable for Plaintiff s salary for the remaining months on his written contract which did not expire until sometime during the month of August, Additionally, the Defendant was obligated to provide its employees that worked in the capacity similar to Plaintiff a food allowance of, on information and belief, 15% of his monthly salary, which computes to approximately $ per month. Defendant never paid this monthly food allowance to Plaintiff and is liable to Plaintiff for its failure to do so for a period of four years from the date of his termination. 53. Additionally, in violation of its agreement with its employees and with an agreement with the United States Internal Revenue Service to withhold certain monies from the paycheck of its employees and make certain payments directly to the Internal Revenue Service for its employees. 7

8 Case 4:10-cv Document 1 Filed in TXSD on 02/18/10 Page 8 of 9 PRAYER WHEREFORE PREMISES CONSIDERED, Plaintiff Elson Ayoub respectfully prays that this Court follow the certification procedures previously established pursuant to 216 of the Fair Labor Standards Act and conditionally certify a class as described herein pending the identification of an receipt of consent from prospective Members of the Class, and that subsequent thereto Plaintiff and all other Members of the Class recover the following: a. Damages and restitution for all unpaid wages, unpaid overtime, and unpaid minimum wages and other injures, as provided by the FLSA; b. Liquidated damages for all hours worked, as provided by the FLSA; c. All applicable penalties for the violations set forth herein; d. Damages for breach of contract and all damages incident to his employment; e. Reasonable attorney s fees, with conditional awards in the event of appeal; f. Pre-judgment interest at the highest rate permitted by law; g. Post-judgment interest from the judgment until paid at the highest rate permitted by law; h. Costs, including expert fees, as provided by the FLSA; i. Such other and further relief, at law or in equity, as this Court deems necessary. 8

9 Case 4:10-cv Document 1 Filed in TXSD on 02/18/10 Page 9 of 9 Respectfully submitted, By: /s/ Glenn W. Patterson, Jr. Glenn W. Patterson, Jr. State Bar No Federal Bar No Greenway Plaza, Suite 2820 Houston, Texas (713) (713) (Fax) ATTORNEY FOR PLAINTIFF 9