IN THE CIRCUIT COURT FOR THE EIGHTEENTH JUDICIAL CIRCUIT
IN AND FOR BREVARD COUNTY, FLORIDA
EDWARD BARNES,
Plaintiff,
v. Case No.:
NATIONAL SERVICE SOURCE, INC,
d/b/a UNITED SERVICE SOURCE, INC.
Defendant.
_____________________________/
COMPLAINT AND DEMAND FOR JURY TRIAL
Plaintiff, EDWARD BARNES, by and through his undersigned counsel, sues Defendant, NATIONAL SERVICE SOURCE, INC., d/b/a UNITED SERVICE SOURCE, INC. (hereinafter “USSI”), and alleges as follows:
1. This is an action for damages that exceed $15,000.00, exclusive of costs, interest, and attorney’s fees.
2. The unlawful employment practices alleged below were committed within Brevard County, Florida.
3. Plaintiff, EDWARD BARNES, is a resident of Brevard County, Florida.
4. Defendant, NATIONAL SERVICE SOURCE, INC. is a Florida corporation, doing business as UNITED SERVICE SOURCE, INC. in Brevard County, Florida.
5. Plaintiff was employed by Defendant from July 2000 to November 11, 2001.
6. Plaintiff was terminated after he requested a raise that was promised to him in return for writing and installing a computer program for the Accounting Department. Features of the computer program he wrote included paperless fax retrieval, instant data reporting, instant e-mail communications, and a data/file storage system, which met the industry standard required by ISO 9002.
7. Plaintiff has not received compensation for writing the computer program and thus there are unpaid wages owed by Defendant to Plaintiff.
8. Plaintiff has retained the undersigned attorneys and agreed to pay them a reasonable fee.
COUNT I
VIOLATION OF FAIR LABOR STANDARDS ACT
FAILURE TO PAY OVERTIME WAGES
9. Plaintiff realleges and incorporates paragraphs 1 through 8 of this Complaint as if set forth in full herein.
10. This action is brought pursuant to the Fair Labor Standards Act of 1938, as amended (29 USC § 201 et. seq.), hereinafter “FLSA”, to recover unpaid back wages, an additional equal amount as liquidated damages, reasonable attorney’s fees and costs.
11. Jurisdiction of this action is conferred upon this Court by Section 16(b) of the FLSA (29 USC 216(b)).
12. Defendant is an enterprise engaged in commerce or in the production of goods for commerce within the meaning of Section 3(r) and (s) of the FLSA (29 USC § 203(r) and (s)) and at all time relevant hereto Defendant was engaged in related activities performed through unified operation or common control for a common business purpose; had employees engaged in commerce or in the production of goods for commerce, or employees handling, receiving, selling or otherwise working on goods or materials that have been moved in or produced for commerce; and had annual gross volume of sales made or business done of not less than $500,000.00, exclusive of excise taxes at the retail level.
13. During the period from approximately November 2000 to November 11, 2001 Defendant employed Plaintiff as a full-time Quality Assurance Manager for 40 hours per week and during the same time period Defendant also retained Plaintiff’s services as a computer programmer. The two combined assignments made Plaintiff’s workweeks longer than 40 hours. The Defendant has failed to compensate Plaintiff for his employment in excess of 40 hours per week at a rate of at least one and one-half (1 and 1/2) times the regular rate at which he was employed, contrary to the requirements of Section 7 of the FLSA (29 USC § 207).
14. Defendant USSI knowingly and willfully failed to pay Plaintiff overtime compensation to which he was entitled, in violation of the FLSA, and therefore is liable to Plaintiff for liquidated damages in an amount equal to Plaintiff’s unpaid overtime, for a willful violation of the FLSA.
WHEREFORE, Plaintiff demands Judgment against Defendant USSI for his unpaid overtime and an additional equal amount as liquidated damages, and reasonable attorney’s fees and costs.
COUNT II
UNPAID WAGES
15. Plaintiff realleges and incorporates paragraphs 1 through 8 of this Complaint as if set forth in full herein.
16. During the period from approximately November 2000 to November 11, 2001, Defendant employed Plaintiff as a full-time Quality Assurance Manager as well as a computer programmer after normal business hours and Defendant did not compensate Plaintiff for the hours he worked as a computer programmer.
17. Plaintiff is also owed compensation for his accrued earned vacation pay, personal leave pay and sick leave pay.
18. This action is for unpaid wages brought pursuant to Section 448.08, Florida Statutes, and Plaintiff requests the court to award his costs incurred in bringing this action and his attorney’s fees.
WHEREFORE, Plaintiff prays for judgment against the Defendant for damages, including unpaid wages, accrued vacation pay, personal leave pay and sick leave pay, costs, attorney’s fees and interest.
COUNT III
BREACH OF ORAL CONTRACT
19. Plaintiff realleges and incorporates paragraphs 1 through 8 of this Complaint as if set forth in full herein.
20. Plaintiff and the Defendant corporation entered into an oral contract on or about November 2000 for Plaintiff to write a computer program for USSI’s Accounting Department, which would reduce the amount of paper in the workplace and meet the industry certification standard required by ISO 9002. The parties agreed that if Plaintiff created the computer program that Plaintiff would receive a raise, which would increase his salary to a total of $52,000.00 per year as soon as the program was implemented.
21. Plaintiff accepted the offer and began writing the computer program at home after work. Features of the computer program included paperless fax retrieval, instant data reporting, instant e-mail communications, and data/file storage system, which met the industry standard required by ISO 9002. Plaintiff primarily wrote the program at home on a laptop computer, which was provided to him by USSI to utilize while writing the program. Plaintiff completed the computer program and installed it by October 2001.
22. After the program was completed Plaintiff did not receive a salary increase to $52,000.00 as he was promised. In November 2001, Defendant USSI increased Plaintiff’s yearly pay to a total of $35,000.00. Plaintiff asked for the increase to $52,000.00 per year that was promised to him. The day after Plaintiff requested the promised increase USSI laid off Plaintiff.
23. Defendant has failed and refused to pay Plaintiff for Plaintiff’s computer programming work for Defendant corporation as the parties agreed.
WHEREFORE, Plaintiff demands judgment for damages against Defendant, together with interest and the costs of this action.
COUNT IV
QUANTUM MERUIT
24. Plaintiff realleges and incorporates herein paragraphs 1 through 8 of this Complaint as if set forth in full herein.
25. Plaintiff performed the duties of computer programmer in addition to his duties of Quality Assurance Manager in a professional and competent manner in exchange for a raise in his annual salary to Fifty-two Thousand ($52,000.00) dollars, when the computer program was completed and installed thereby conferring a benefit upon Defendant corporation.
26. Plaintiff performed these duties upon the instruction, direction and request of Defendant corporation, which received the benefits of Plaintiff’s services for the benefit of Defendant corporation.
27. In the ordinary course of common events, a reasonable corporation receiving the benefit of such professional and competent computer programming services would reasonably expect to pay a computer programmer for services rendered.
WHEREFORE, Plaintiff demands judgment for damages against Defendant, together with interest and the costs of this action.
COUNT V
PROMISSORY ESTOPPEL
28. Plaintiff realleges and incorporates herein paragraphs 1 through 8 of this Complaint as if set forth in full herein.
29. Plaintiff detrimentally relied on promises made by Defendant corporation that Plaintiff’s salary would be increased to Fifty-two Thousand ($52,000.00) dollars when Plaintiff completed and installed the computer program.
30. At all times material hereto, Defendant corporation knew that Plaintiff was relying on its promise to increase Plaintiff’s salary.
31. Defendant corporation should have reasonably expected its promise to increase Plaintiff’s salary to induce Plaintiff’s reliance and thereby cause Plaintiff to perform the duties of computer programmer in addition to his duties of Quality Assurance Manager.
32. Performance of this promise is necessary to prevent injustice.
WHEREFORE, Plaintiff demands judgment for damages against Defendant, together with interest and the costs of this action.
COUNT VI
UNJUST ENRICHMENT
33. Plaintiff realleges and incorporates herein paragraphs 1 through 8 of this Complaint as if set forth in full herein.
34. Plaintiff performed the duties of computer programmer in addition to his duties as Quality Assurance Manager for Defendant corporation, in a professional and competent manner in exchange for a promised increase in his annual salary to Fifty-two Thousand ($52,000.00) dollars, thereby conferring a benefit upon the Defendant corporation.
35. The Defendant corporation requested Plaintiff perform the computer programming work and knowingly and voluntarily accepted the benefits of Plaintiff’s services.
36. It would be inequitable for the Defendant to retain the benefit of the computer programming performed by Plaintiff without paying for the value thereof.
WHEREFORE, Plaintiff demands judgment for damages against Defendant, together with interest and the costs of this action.
DEMAND FOR JURY TRIAL
Plaintiff demands a jury trial on all issues herein triable by jury.
DATED this _____day of January, 2003.
________________________
Wayne L. Allen, Esquire
Florida Bar No. 110025
Adrienne E. Trent, Esquire
Florida Bar No. 0060119
WAYNE L. ALLEN & ASSOCIATES, P.A.
Attorneys for Plaintiff
700 N. Wickham Road, Suite 107
Melbourne, Florida 32935
Phone: (321) 254-7550
Fax: (321) 242-1681
