PLAINTIFF S ORIGINAL COMPLAINT

Case 1:18-cv-00965 Document 1 Filed 10/18/18 Page 1 of 10 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO ALBUQUERQUE DIVISION GLORIA BRINGAS, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED Plaintiffs, v. ATENCION FAMILY SERVICES, AND JENNIFER MULLER, Civil Action No. 1:18-CV-965 Defendants. PLAINTIFF S ORIGINAL COMPLAINT Plaintiff Gloria Bringas, individually and on behalf of all others similarly situated files this Original Complaint, and in support shows the Court the following: I. SUMMARY 1. This is a collective action brought pursuant to the Fair Labor Standards Act, 29 U.S.C. 201, et seq. (the FLSA ) and New Mexico common law. 2. Plaintiff was employed by Defendants as a caregiver. Her primary responsibilities included providing companionship services to Defendants clients in their homes. Plaintiff helped clients around their home, took them to appointments, and provided general care pursuant to Defendants policies. Plaintiff did not conduct any hands-on medical work or nursing duties. 3. Plaintiff routinely worked in excess of 40 hours per week. In violation of the FLSA, Defendants refused to pay her overtime for the hours she worked in excess of 40 per week. Defendants also failed to pay Plaintiff for all hours worked in violation of New Mexico common law. Plaintiff s Original Complaint Page - 1

Case 1:18-cv-00965 Document 1 Filed 10/18/18 Page 2 of 10 II. PARTIES 4. Plaintiff Gloria Bringas is and was at all time relevant to this action a resident of the State of New Mexico. She has consented to be a party in this action and her consent form is attached hereto. See Exhibit A. 5. Plaintiff and the Class Members are Defendants current and former caregiver employees whose primary responsibilities included providing general companionship care to Defendants clientele. 2. Defendant Atención Family Services, Inc. ( Atención ) is a New Mexico company that is authorized to do business in New Mexico and that is, in fact, doing business throughout New Mexico. Atención may be served with process by service on its registered agent for service, Jennifer P. Muller, 6300 Montano Road NW, Ste H, Albuquerque, New Mexico 87120 or wherever she may be found. 3. Defendant Jennifer Muller is a natural person residing in Bernalillo County and is the owner and operator of Atención. She may be served with process at 6300 Montano Road NW, Ste H, Albuquerque, New Mexico 87120 or wherever she may be found. III. JURISDICTION AND VENUE 4. This Court has subject matter jurisdiction in this matter because Plaintiff asserts claims arising under federal law. Specifically, Plaintiff asserts claims arising under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. 201, et seq. This Court has jurisdiction pursuant to 28 U.S.C. 1331. 5. Plaintiff requests that this Court exercise supplemental jurisdiction over her claims arising under New Mexico law pursuant to 28 U.S.C. 1367. Plaintiff s Original Complaint Page - 2

Case 1:18-cv-00965 Document 1 Filed 10/18/18 Page 3 of 10 6. Venue is proper in the Albuquerque Division of the United States District Court for the District of New Mexico. All or a substantial part of the events forming the basis of this suit occurred in this Division. Venue in this Court is proper under 28 U.S.C. 1391(b). IV. FACTUAL ALLEGATIONS RELEVANT TO ALL CLAIMS 7. Defendants, through their Atención companionship services enterprise, have enjoyed revenues in excess of $500,000.00 each year relevant to this action. 8. Muller individually and as an agent of Atención is directly responsible for all aspects of Plaintiff and Class Members employment. She controlled when Plaintiff and Class Members would receive pay, set their pay rates, set Plaintiff and Class Members schedules, approved their payroll prior to payment and decided when they would be able to take leave. 9. Muller also created Atención s pay policies and was in control of hiring or firing of all caregivers. Muller maintained Atención s pay records during the relevant periods of employment and participated in the decision not to pay her employees overtime wages and wages for all hours worked. 10. Plaintiff worked for Defendants from March 9, 2012 to the present. 11. Plaintiff and Class Members worked as caregivers for Defendants within the last three years. 12. In their capacity as caregivers, Plaintiff and Class Members primary duties included providing companionship services to Defendants clients in their homes. Plaintiff and Class Members help clients around their home, take them to appointments, and provide general care according to Defendants policies. Plaintiff and Class Members provide no hands-on medical work or nursing duties. 13. Plaintiff and Class Members job duties were routine and rote and did not include the exercise of discretion and independent judgment with respect to matters of significance. Plaintiff s Original Complaint Page - 3

Case 1:18-cv-00965 Document 1 Filed 10/18/18 Page 4 of 10 14. Defendants pay Plaintiff and Class Members by the hour for their work. Plaintiff and Class Members measure their time by clocking in when they arrive at a client s home using the client s telephone. They clock out when they leave. The time measured through this telephonic system represents the actual time worked by each Plaintiff and Class Member. This time worked as recorded in the clock-in/out system is also the time reported by Defendants to state agencies and insurance companies. 15. However, Defendants paid Plaintiff for fewer hours per week than the hours that she actually worked, as documented by Defendants. 16. Defendants retained the benefit of Plaintiff s labor without paying Plaintiff for her labor. 17. Finally, Plaintiff and Class Members routinely worked over 40 hours per week. However, they were not properly paid overtime for all hours they worked in excess of 40 hours every week in which they worked. Defendants knew that Plaintiff and Class Members worked in excess of 40 hours per week and allowed and directed them to do so. Defendants refused to pay Plaintiff and Class Members one and a half times the agreed-upon hourly rate for all hours worked over 40 hours per week. 18. Plaintiff and Class Members are entitled to receive overtime pay for all the hours worked in excess of 40 per workweek. Defendants were aware of the FLSA s overtime requirements and chose not to pay overtime to these individuals. Defendants willfully misclassified Plaintiff and the Class Members as exempt and refused to pay them overtime wages. 19. Defendants willfully failed to pay overtime compensation to Plaintiff and Class Members. Plaintiff s Original Complaint Page - 4

Case 1:18-cv-00965 Document 1 Filed 10/18/18 Page 5 of 10 V. COLLECTIVE ACTION ALLEGATIONS 20. Plaintiff and Class Members perform the same or similar job duties as one another as described in the preceding paragraphs in that Class Members are employees whose primary duties included providing companionship services to Defendants consumers in their home. Plaintiff and Class Members help consumers around their home, take them to appointments, and provide general care according to Defendants policies. Further, Plaintiff and Class Members are all paid on an hourly basis. Finally, Plaintiff and Class Members are subjected to the same illegal pay plan in that Defendants fail to pay them at time-and-one-half their regular rates of pay for hours worked in excess of 40 hours in a workweek. Accordingly, the Class Members victimized by Defendants unlawful pattern and practices are similarly situated to Plaintiff in terms of job duties and pay provisions. 21. Pursuant to 29 U.S.C. 216(b), Plaintiffs will seek collective action recognition and notice to the Class Members who may wish to join this action as soon as practicable after the commencement of this action and in accord with the Local Rules of this Court. 22. Pending any modifications necessitated by discovery, Plaintiff preliminarily defines the collective action class as encompassing: All caregivers who worked on or after October 18, 2015. 23. The relevant time period dates back three years from the date on which this Complaint was filed and continues forward through the date of judgment because the FLSA provides a three-year statute of limitations for claims of willful violations of the Act. 29 U.S.C. 255(a). VI. FIRST CAUSE OF ACTION: FAILURE TO PAY WAGES IN ACCORDANCE WITH THE FAIR LABOR STANDARDS ACT 24. Plaintiff repeats and realleges each of the allegations above as if fully set forth herein. Plaintiff s Original Complaint Page - 5

Case 1:18-cv-00965 Document 1 Filed 10/18/18 Page 6 of 10 25. Plaintiff asserts this count on her own behalf and on behalf of all others similarly situated. 29 U.S.C. 216(b). 26. Plaintiff and others were employees as that term is defined by the FLSA. 29 U.S.C. 203(e). 27. Defendants employed the Plaintiff and others as that term is defined by the FLSA. 29 U.S.C. 203(g). 28. Defendants were Plaintiff s and others employers as that term is defined by the FLSA. 29 U.S.C. 203(d). 29. Defendants violated the FLSA when they refused to pay Plaintiff and others overtime premiums for hours worked beyond forty in each given workweek. 29 U.S.C. 207. 30. Defendants violations of the FLSA were willful. 29 U.S.C. 255(a). 31. Plaintiff and others have suffered lost wages and lost use of those wages in an amount to be determined at trial. 32. Plaintiff and others are entitled to recover unpaid overtime premiums, liquidated damages, attorney fees and costs. 29 U.S.C. 216(b). VII. SECOND CAUSE OF ACTION: UNJUST ENRICHMENT 33. Plaintiff repeats and realleges each of the allegations above as if fully set forth herein. 34. By failing to pay Plaintiff for all hours worked, Defendant was unjustly enriched at the expense of and to the detriment of Plaintiff. 35. Defendant s retention of any benefit collected directly and indirectly from Plaintiff s labor violated principles of justice, equity, and good conscience. As a result, Defendant has been unjustly enriched. Plaintiff s Original Complaint Page - 6

Case 1:18-cv-00965 Document 1 Filed 10/18/18 Page 7 of 10 36. Plaintiff is entitled to recover from Defendant all amounts that Defendant has wrongfully and improperly obtained, and Defendant should be required to disgorge to Plaintiff the benefits it has unjustly obtained. 37. Plaintiff is entitled to recover actual and exemplary damages. VIII. RELIEF SOUGHT WHEREFORE, Plaintiff prays, as to her FIRST CLAIM, that: a. This case be certified to proceed as a collective action under 29 U.S.C. 216(b) and that appropriate notice of this suit and the opportunity to opt into it be provided to all potential class members; b. She and the Class be awarded unpaid overtime premiums; c. She and the Class be awarded liquidated damages as required by law; d. She and the Class be awarded pre-judgment and post-judgment interest as permitted by law; e. She and the Class be awarded costs and attorney fees as per 29 U.S.C. 216(b); and f. She and the Class be awarded such other and further relief as may be necessary and appropriate. And as to her SECOND CLAIM, that: a. Plaintiff be awarded compensatory and exemplary damages. b. Plaintiff be awarded such other and further relief as may be necessary and appropriate. Signed this 18 th of October, 2018. Respectfully submitted, THE LAW OFFICE OF LYNN COYLE, P.L.L.C. 2515 North Stanton El Paso, Texas 79902 (915) 532-5544 (915) 532-5566 Fax /s/ Christopher Benoit Christopher Benoit New Mexico Bar No. 150497 chris@coylefirm.com Plaintiff s Original Complaint Page - 7

Case 1:18-cv-00965 Document 1 Filed 10/18/18 Page 8 of 10 /s/ Brandt Milstein Brandt Milstein MILSTEIN LAW OFFICE 1123 Spruce Street, Suite 200 Boulder, CO 80302 (303) 440-8780 (303) 957-5754 Fax brandt@milsteinlawoffice.com Plaintiff s Original Complaint Page - 8

Case 1:18-cv-00965 Document 1 Filed 10/18/18 Page 9 of 10 EXHIBIT A

Case 1:18-cv-00965 Document 1 Filed 10/18/18 Page 10 of 10 NOTICE OF CONSENT I hereby consent to become a party plaintiff in the overtime lawsuit in which this consent is filed pursuant to the Fair Labor Standards Act, 29 U.S.C. 201 et seq. I authorize The Law Office of Lynn Coyle, PLLC and Milstein Law Office to represent and proceed on my behalf and others similarly situated with regards to our claims. GLORIA BRINGAS DATE 1 I

JS 44 (Rev. 06/17) Case 1:18-cv-00965 Document 1-1 Filed 10/18/18 Page 1 of 1 CIVIL COVER SHEET The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) I. (a) PLAINTIFFS DEFENDANTS GLORIA BRINGAS, On Behalf of Herself and All Others Similarly Situated, (b) County of Residence of First Listed Plaintiff (EXCEPT IN U.S. PLAINTIFF CASES) ATENCION FAMILY SERVICES, and JENNIFER MULLER, County of Residence of First Listed Defendant (IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. (c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known) Christopher Benoit, The Law Office of Lynn Coyle, PLLC, 2515 N Stanton St, El Paso, TX 79902, Tel 915.532.5544; and Brandt Milstein, Milstein Law Office, 1123 Spruce St, Ste 200, Boulder, CO 80302 Civil Action No. 1:18-CV-965 II. BASIS OF JURISDICTION (Place an X in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an X in One Box for Plaintiff (For Diversity Cases Only) and One Box for Defendant) 1 U.S. Government 3 Federal Question PTF DEF PTF DEF Plaintiff (U.S. Government Not a Party) Citizen of This State 1 1 Incorporated or Principal Place 4 4 of Business In This State 2 U.S. Government 4 Diversity Citizen of Another State 2 2 Incorporated and Principal Place 5 5 Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State Citizen or Subject of a 3 3 Foreign Nation 6 6 Foreign Country IV. NATURE OF SUIT (Place an X in One Box Only) Click here for: Nature of Suit Code Descriptions. CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES 110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act 120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC 130 Miller Act 315 Airplane Product Product Liability 690 Other 28 USC 157 3729(a)) 140 Negotiable Instrument Liability 367 Health Care/ 400 State Reapportionment 150 Recovery of Overpayment 320 Assault, Libel & Pharmaceutical PROPERTY RIGHTS 410 Antitrust & Enforcement of Judgment Slander Personal Injury 820 Copyrights 430 Banks and Banking 151 Medicare Act 330 Federal Employers Product Liability 830 Patent 450 Commerce 152 Recovery of Defaulted Liability 368 Asbestos Personal 835 Patent - Abbreviated 460 Deportation Student Loans 340 Marine Injury Product New Drug Application 470 Racketeer Influenced and (Excludes Veterans) 345 Marine Product Liability 840 Trademark Corrupt Organizations 153 Recovery of Overpayment Liability PERSONAL PROPERTY LABOR SOCIAL SECURITY 480 Consumer Credit of Veteran s Benefits 350 Motor Vehicle 370 Other Fraud 710 Fair Labor Standards 861 HIA (1395ff) 490 Cable/Sat TV 160 Stockholders Suits 355 Motor Vehicle 371 Truth in Lending Act 862 Black Lung (923) 850 Securities/Commodities/ 190 Other Contract Product Liability 380 Other Personal 720 Labor/Management 863 DIWC/DIWW (405(g)) Exchange 195 Contract Product Liability 360 Other Personal Property Damage Relations 864 SSID Title XVI 890 Other Statutory Actions 196 Franchise Injury 385 Property Damage 740 Railway Labor Act 865 RSI (405(g)) 891 Agricultural Acts 362 Personal Injury - Product Liability 751 Family and Medical 893 Environmental Matters Medical Malpractice Leave Act 895 Freedom of Information REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 790 Other Labor Litigation FEDERAL TAX SUITS Act 210 Land Condemnation 440 Other Civil Rights Habeas Corpus: 791 Employee Retirement 870 Taxes (U.S. Plaintiff 896 Arbitration 220 Foreclosure 441 Voting 463 Alien Detainee Income Security Act or Defendant) 899 Administrative Procedure 230 Rent Lease & Ejectment 442 Employment 510 Motions to Vacate 871 IRS Third Party Act/Review or Appeal of 240 Torts to Land 443 Housing/ Sentence 26 USC 7609 Agency Decision 245 Tort Product Liability Accommodations 530 General 950 Constitutionality of 290 All Other Real Property 445 Amer. w/disabilities - 535 Death Penalty IMMIGRATION State Statutes Employment Other: 462 Naturalization Application 446 Amer. w/disabilities - 540 Mandamus & Other 465 Other Immigration Other 550 Civil Rights Actions 448 Education 555 Prison Condition 560 Civil Detainee - Conditions of Confinement V. ORIGIN (Place an X in One Box Only) 1 Original 2 Removed from Proceeding State Court VI. CAUSE OF ACTION VII. REQUESTED IN COMPLAINT: VIII. RELATED CASE(S) IF ANY DATE 10/18/2018 FOR OFFICE USE ONLY 3 Remanded from 4 Reinstated or 5 Transferred from 6 Appellate Court Reopened Another District (specify) Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): 29 USC 201 et seq Brief description of cause: Overtime claims CHECK IF THIS IS A CLASS ACTION UNDER RULE 23, F.R.Cv.P. (See instructions): DEMAND $ JUDGE SIGNATURE OF ATTORNEY OF RECORD Multidistrict Litigation - Transfer 8 Multidistrict Litigation - Direct File CHECK YES only if demanded in complaint: JURY DEMAND: Yes No DOCKET NUMBER RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

ClassAction.org This complaint is part of ClassAction.org's searchable class action lawsuit database and can be found in this post: Caregiver Sues Atencion Family Services for Allegedly Unpaid Wages