IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT
IN AND FOR BREVARD COUNTY, FLORIDA
DAWN HAWKINS,
Plaintiff,
vs. CASE NO.:
GAMES PRODUCTIONS, INC.
Defendant.
___________________________/
COMPLAINT AND DEMAND FOR JURY TRIAL
JURISDICTION AND VENUE
Plaintiff, DAWN HAWKINS, by and through her undersigned counsel, sues Defendant, GAMES PRODUCTIONS, INC., 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.
PARTIES
3. Plaintiff resides in Brevard County, Florida, and has at all times material herein resided in Brevard County, Florida.
4. Defendant Games Productions, Inc. is a Delaware corporation, and at all times material herein was registered and authorized to do business in the State of Florida as Games Productions, Inc.
STATEMENT OF CLAIM
5. Plaintiff has retained the undersigned attorneys and agreed to pay them a reasonable fee.
6. Plaintiff has exhausted her administrative remedies prior to bringing this action.
7. Plaintiff has complied with all conditions precedent prior to bringing this action.
8. Plaintiff was hired by Defendant on or about December 1997.
9. At the time of her termination on or about November 7, 2002, Plaintiff was employed by Defendant in the position of Chat Host and Message Board Editor/Moderator, from Plaintiff’s Barefoot Bay, Florida home.
10. At all times during her employment with Defendant, Plaintiff performed all duties assigned to her in a professionally competent manner, faithfully followed all instructions given to her by her supervisors, and abided by all the rules and regulations of Defendant.
11. Plaintiff has suffered and continues to suffer grave and severe damage to her financial welfare and her employment prospects by reason of Defendant’s unlawful and discriminatory actions against Plaintiff.
12. Plaintiff has suffered severe mental anguish and emotional distress as a result of Defendant’s actions.
COUNT I
VIOLATION OF FAIR LABOR STANDARDS ACT
FAILURE TO PAY MINIMUM WAGE AND OVERTIME WAGES
13. Plaintiff realleges and incorporates paragraphs 1 through 12 of this Complaint as if set forth in full herein.
14. 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 including minimum wages and overtime, and an additional equal amount as liquidated damages, reasonable attorney’s fees and costs.
15. Jurisdiction of this action is conferred upon this Court by Section 16(b) of the FLSA (29 USC 216(b)).
16. At all times hereinafter mentioned, Defendant having been engaged in related activities performed through unified operation or common control for a common business purpose; having 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 having annual gross volume of sales made or business done of not less than $500,000.00, exclusive of excise taxes at the retail level, therefore constitutes 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)).
17. During the period from approximately December 1997 to November 7, 2003, Defendant willfully employed Plaintiff as a Chat Host and Message Board Editor in the aforesaid enterprise and at times failed to compensate her the minimum wage of $5.15 per hour for each hour of work contrary to the requirements of Section 6 of the FLSA (29 USC § 206).
18. During the period from approximately December 1997 to November 7, 2003, Defendant willfully employed Plaintiff as a Chat Host and Message Board Editor in the aforesaid enterprise for workweeks longer than 40 hours and failed to compensate her for her employment in excess of 40 hours per week at a rate of at least one and one-half (1½) times the regular rate at which she was employed, contrary to the requirements of Section 7 of the FLSA (29 USC § 207).
19. In February 2003, Plaintiff received a check from Defendant for $15,000.00 minus applicable taxes and withholding for overtime worked above and beyond Plaintiff’s regularly scheduled hours during 2002. The amount paid to Plaintiff was only part of what was owed to her, and at the present time there remains outstanding a portion of the amount of unpaid overtime wages which Defendant owes to Plaintiff.
20. The Defendant was aware of the amount of time Plaintiff worked from Plaintiff’s time cards, which were submitted to and recorded by Plaintiff’s supervisor and Defendant willfully refused to properly compensate Plaintiff for the hours that Plaintiff worked for Defendant.
21. Defendant 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 as follows: for her unpaid overtime and an additional equal amount as liquidated damages and reasonable attorney’s fees and costs.
A. Compensation for lost wages, benefits, and other remuneration and an additional equal amount as liquidated damages.
B. An award of reasonable attorney’s fees and all costs
incurred herein.
C. Such other and further relief as the Court deems proper.
COUNT II
VIOLATION OF FAIR LABOR STANDARDS ACT
RETALIATION
22. Plaintiff realleges and incorporates paragraphs 1 through 12 and paragraphs 16 through 20 of this Complaint as if set forth in full herein.
23. This action is brought pursuant to the Fair Labor Standards Act of 1938, as amended (29 USC § 201 et. seq.), hereinafter “FLSA”, to recover back wages, an additional equal amount as liquidated damages, reasonable attorney’s fees and costs.
24. Jurisdiction of this action is conferred upon this Court by Section 16(b) of the FLSA (29 USC 216(b)).
25. On or about November 6, 2003 Plaintiff advised Defendant in a written email of her objections to working overtime without being properly compensated, a violation of the Fair Labor Standard Act.
26. On or about November 7, 2003, Plaintiff was terminated as a result of making objections to working overtime without being properly compensated.
27. Defendant, in terminating Plaintiff for making a complaint of a violation of the Fair Labor Standards Act, has committed a willful violation of 29 U.S.C. §215(a)(3), which prohibits an employer from “discharg[ing] or discriminat[ing] against any employee because such employee has filed any complaint under or related to” the FLSA.
28. Defendant is liable to Plaintiff for liquidated damages in an amount equal to Plaintiff’s back pay, had she not been illegally discharged in retaliation for filing a complaint in regard to Defendant’s failure to pay overtime wages, because Defendant’s violation of the FLSA was willful.
WHEREFORE, Plaintiff demands Judgment against Defendant as follows:
A. Compensation for lost wages, benefits, and other remuneration and an additional equal amount as liquidated damages.
B. Reinstatement.
C. An award of reasonable attorney’s fees and all costs
incurred herein.
D. Such other and further relief as the Court deems proper.
COUNT III
VIOLATION OF FLORIDA STATUTES, SECTIONS 448.101-448.105
29. Plaintiff realleges and incorporates paragraphs 1 through 12, paragraphs 16 through 20 and paragraphs 25 to 26 of this Complaint as if set forth in full herein.
30. This is an action for damages for violation of Sections 448.101-448.105, Florida Statutes.
31. Defendant is an “employer” as defined by Section 448.101, Florida Statutes.
32. Defendant has committed a “retaliatory personnel action”, as prohibited by Sections 448.101-448.105, Florida Statutes, against Plaintiff.
33. Plaintiff was terminated by Defendant as a result of a retaliatory personnel action because she informed Defendant that it was in violation of federal laws regarding the payment of overtime wages, specifically, the Fair Labor Standards Act.
34. The actions taken by Defendant in terminating Plaintiff are prohibited actions under Section 448.102, Florida Statutes, and Plaintiff was retaliated against by Defendant in violation of Plaintiff’s rights under that section.
35. The Defendant’s termination of Plaintiff in retaliation for reporting the Fair Labor Standard Act violation was the result of intentional willful misconduct or at a minimum, gross negligence.
36. Plaintiff has retained the services of the undersigned attorneys to represent Plaintiff in this action and has agreed to pay a reasonable fee.
WHEREFORE, Plaintiff prays for damages against Defendant, as follows:
A. Compensation for lost wages, benefits, interest and other remuneration.
B. Compensatory damages including mental anguish.
C. Reinstatement.
D. An award of reasonable attorney’s fees and all costs
incurred herein.
E. Such other and further relief as the Court deems proper.
DEMAND FOR JURY TRIAL
Plaintiff demands a jury trial on all issues herein triable by jury.
DATED this _____day of November, 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
