Case: 2:21-cv-00892-EAS-CMV Doc #: 1 Filed: 03/02/21 Page: 1 of 10 PAGEID #: 1
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF OHIO
`EASTERN DIVISION
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`CASE NO.
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`JUDGE
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`PLAINTIFF’S COMPLAINT
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`(Jury Demand Endorsed Herein)
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`MARQUES DELONEY
`1007 Atlantic Ave
`Columbus, Ohio 43229
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`on behalf of himself and all others similarly
`situated,
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` Plaintiff,
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` vs.
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`SK FOOD GROUP, INC.
`c/o Statutory Agent Registered Agent
`Solutions, Inc.
`4568 Mayfield Rd. Suite 204
`Cleveland, OH 44121
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` Defendant.
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`Now comes Plaintiff Marques Deloney, by and through undersigned counsel, and for his
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`Complaint against SK Food Group, Inc. (“SK Food” or “Defendant”), states and alleges the
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`following:
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`INTRODUCTION
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`1.
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`This is a “collective action” instituted by Plaintiff as a result of Defendant’s
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`practices and policies of not paying its non-exempt employees, including Plaintiff and other
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`similarly situated employees, for all hours worked, including overtime compensation in violation
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`of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201-219, as well as a “class action”
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`pursuant to Fed. R. Civ. P. 23 to remedy violations of the Ohio Minimum Fair Wage Standards
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`Act (“OMFWSA”), R.C. § 4111.03.
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`JURISDICTION AND VENUE
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`The Court has jurisdiction over Plaintiff’s FLSA claims pursuant to 28 U.S.C. §
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`2.
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`1331 and 29 U.S.C. § 216(b).
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`3.
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`The Court has supplemental jurisdiction over Plaintiff’s OMFWSA claims pursuant
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`to 28 U.S.C. § 1367 because the claims are so related to the FLSA claims as to form part of the
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`same case or controversy.
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`4.
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`Venue is proper pursuant to 28 U.S.C. § 1391(b) because Defendant conducts
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`business throughout this District and Division and because a substantial part of the events and
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`omissions giving rise to the claims occurred in this District and Division.
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`PARTIES
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`5.
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`At all times relevant herein, Plaintiff was a citizen of the United States and a
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`resident of Franklin County, Ohio.
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`6.
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`At all times relevant herein, Plaintiff was an employee within the meaning of 29
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`U.S.C. § 203(e) and R.C. § 4111.03(D)(3).
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`7.
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`At all times relevant herein, Defendant was a foreign corporation, organized and
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`existing under the laws of the State of Washington, licensed to conduct business in the State of
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`Ohio, with a manufacturing operation at 3301 Toy Road, Groveport, Ohio 43125.
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`8.
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`At all times relevant herein, Defendant was an employer within the meaning of 29
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`U.S.C. § 203(d) and R.C. § 4111.03(D)(2).
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`9.
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`At times relevant herein, Defendant was an enterprise within the meaning of 29
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`U.S.C. § 203(r).
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`10.
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`At all times relevant herein, Defendant was an enterprise engaged in commerce or
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`in the production of goods for commerce within the meaning of 29 U.S.C. § 203(s)(1).
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`11.
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`At all times relevant herein, Plaintiff was an employee engaged in commerce or in
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`the production of goods for commerce within the meaning of 29 U.S.C. §§ 206-207.
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`12. Written consents to join this action as to Count One, as and when executed by other
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`individual plaintiffs, will be filed pursuant to 29 U.S.C. § 216(b).
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`FACTUAL ALLEGATIONS
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`Defendant manufactures custom food products for its customers.
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`Defendant employed Plaintiff between July 2018 and August 2019 as a production
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`13.
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`14.
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`employee at its Groveport, Ohio manufacturing facility.
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`15.
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`Other similarly situated employees were employed as production employees at
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`Defendant’s Groveport, Ohio facility.
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`16.
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`Defendant classified Plaintiff and other similarly situated production employees as
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`non-exempt employees.
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`17.
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`Defendant paid Plaintiff and other similarly situated production employees on an
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`hourly basis.
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`18.
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`Plaintiff and other similarly situated production employees frequently worked over
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`40 hours per week.
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`19.
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`Plaintiff worked on average over 40 hours per week.
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`(Failure to Pay for All Hours Worked)
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`20.
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`Plaintiff and other similarly situated production employees were only paid for work
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`performed between their scheduled start and stop times, and were not paid for the following work
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`performed before and after their scheduled start and stop times: a) changing into and out of their
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`personal protective equipment, including but not limited to a smock, hairnet, beard guard, gloves,
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`steel toe boots and/or safety glasses; b) getting their work assignments, washing their hands, and
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`walking to their assigned area of the production floor; and/or c) performing their production work.
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`21.
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`The time Plaintiff and other similarly situated production employees spent a)
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`changing into and out of their personal protective equipment, including but not limited to a smock,
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`hairnet, beard guard, gloves, steel toe boots and/or safety glasses; b) getting their work
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`assignments, washing their hands, and walking to their assigned area of the production floor;
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`and/or c) performing their production work was an integral and indispensable part of their principal
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`activities, was required by Defendant, and was performed for Defendant’s benefit.
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`22.
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`Changing into and out of their personal protective equipment, including but not
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`limited to a smock, hairnet, beard guard, gloves, steel toe boots and/or safety glasses; b) getting
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`their work assignments, washing their hands, and walking to their assigned area of the production
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`floor; and/or c) performing their production work are intrinsic elements of their principal activities
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`and ones with which Plaintiff and other similarly situated production employees cannot dispense
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`if they are to perform their principal activities.
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`23.
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`The time Plaintiff and other similarly situated employees spent donning their
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`personal protective equipment was not only an integral and indispensable part of their principal
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`activities, but it was also required by Defendant, the Occupational Safety and Health
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`Administration, and was performed for Defendant’s benefit in that it helped keep the production
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`floor safe and helped promote a more safe, hygienic, and efficient production process.
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`24.
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`Plaintiff and other similarly situated production employees were not paid for time
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`spent a) changing into and out of their personal protective equipment, including but not limited to
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`a smock, hairnet, beard guard, gloves, steel toe boots and/or safety glasses; b) getting their work
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`assignments, washing their hands, and walking to their assigned area of the production floor;
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`and/or c) performing their production work.
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`25.
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`The amount of time Plaintiff and other similarly situated production employees
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`spent on this required and unpaid work amounted to approximately 15 to 20 minutes per day.
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`26.
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`As a result of Defendant’s practices and policies, Plaintiff and other similarly
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`situated production employees were not compensated for all of the time they worked, including all
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`of the overtime hours they worked over 40 each workweek.
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`(Failure to Keep Accurate Records)
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`27.
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`Defendant failed to make, keep and preserve accurate records of the unpaid
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`overtime worked by Plaintiff and other similarly situated manufacturing employees.
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`(Defendant Willfully Violated the FLSA)
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`28.
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`Defendant knowingly and willfully engaged in the above-mentioned violations of
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`the FLSA.
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`COLLECTIVE ACTION ALLEGATIONS
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`29.
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`Plaintiff brings Count One of this action on his own behalf pursuant to 29 U.S.C. §
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`216(b), and on behalf of all other persons similarly situated who have been, are being, or will be
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`adversely affected by Defendant’s unlawful conduct.
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`30.
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`The class which Plaintiff seeks to represent and for whom Plaintiff seeks the right
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`to send “opt-in” notices for purposes of the collective action, and of which Plaintiff himself is a
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`member, is composed of and defined as follows:
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`All former and current non-exempt manufacturing employees of SK Food
`Group Inc. between March 2, 2018 and the present.
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`Plaintiff is unable to state at this time the exact size of the potential class, but upon
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`31.
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`information and belief, avers that it consists of at least several hundred persons.
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`32.
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`This action is maintainable as an “opt-in” collective action pursuant to 29 U.S.C. §
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`216(b) as to claims for unpaid overtime compensation, liquidated damages, attorneys’ fees and
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`costs under the FLSA. In addition to Plaintiff, numerous current and former employees are
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`similarly situated with regard to their claims for unpaid wages and damages. Plaintiff is
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`representative of those other employees and are acting on behalf of their interests as well as his
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`own in bringing this action.
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`33.
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`These similarly situated employees are known to Defendant and are readily
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`identifiable through Defendant’s payroll records. These individuals may readily be notified of this
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`action and allowed to opt in pursuant to 29 U.S.C. § 216(b), for the purpose of collectively
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`adjudicating their claims for unpaid overtime compensation, liquidated damages, attorneys’ fees
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`and costs under the FLSA.
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`CLASS ACTION ALLEGATIONS
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`34.
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`Plaintiff brings Count Two of this action pursuant to Fed. R. Civ. P. 23(a) and (b)(3)
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`on behalf of himself and all other members of the class (“the Ohio Class”) defined as:
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`All former and current non-exempt manufacturing employees of SK Food
`Group Inc. between March 2, 2018 and the present.
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`35.
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`The Ohio Class is so numerous that joinder of all class members is impracticable.
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`Plaintiff is unable to state at this time the exact size of the potential Ohio Class, but upon
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`information and belief, avers that it consists of at least several hundred persons.
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`36.
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`There are questions of law or fact common to the Ohio Class, including but not
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`limited to the following:
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`(a) whether Defendant failed to pay overtime compensation to its
`manufacturing employees for hours worked in excess of 40 each
`workweek; and
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`(b) what amount of monetary relief will compensate Plaintiff and other
`members of the class for Defendant’s violation of R.C. § 4111.03
`and § 4111.10.
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`37.
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`The claims of the named Plaintiff are typical of the claims of other members of the
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`Ohio Class. Named Plaintiff’s claims arise out of the same uniform course of conduct by
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`Defendant, and are based on the same legal theories, as the claims of the other Ohio Class
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`members.
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`38.
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`Named Plaintiff will fairly and adequately protect the interests of the Ohio Class.
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`His interests are not antagonistic to, but rather are in unison with, the interests of the other Ohio
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`Class members. The named Plaintiff’s counsel has broad experience in handling class action
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`wage-and-hour litigation, and is fully qualified to prosecute the claims of the Ohio Class in this
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`case.
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`39.
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`The questions of law or fact that are common to the Ohio Class predominate over
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`any questions affecting only individual members. The primary questions that will determine
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`Defendant’s liability to the Ohio Class, listed above, are common to the class as a whole, and
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`predominate over any questions affecting only individual class members.
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`40.
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`A class action is superior to other available methods for the fair and efficient
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`adjudication of this controversy. Requiring Ohio Class members to pursue their claims
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`individually would entail a host of separate suits, with concomitant duplication of costs, attorneys’
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`fees, and demands on court resources. Many Ohio Class members’ claims are sufficiently small
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`that they would be reluctant to incur the substantial cost, expense, and risk of pursuing their claims
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`individually. Certification of this case pursuant to Fed. R. Civ. P. 23 will enable the issues to be
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`adjudicated for all class members with the efficiencies of class litigation.
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`COUNT ONE
`(Fair Labor Standards Act Violations)
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`Plaintiff incorporates by reference the foregoing allegations as if fully rewritten
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`7
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`41.
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`herein.
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`42.
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`Defendant’s practice and policy of not paying Plaintiff and other similarly situated
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`production employees for all time worked and overtime compensation at a rate of one and one-
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`half times their regular rate of pay for all of the hours they worked over 40 each workweek violated
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`the FLSA, 29 U.S.C. § 207, 29 C.F.R. § 778.111.
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`43.
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`By engaging in the above-described practices and policies, Defendant willfully,
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`knowingly and/or recklessly violated the provisions of the FLSA.
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`44.
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`As a result of Defendant’s practices and policies, Plaintiff and other similarly
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`situated employees have been damaged in that they have not received wages due to them pursuant
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`to the FLSA.
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`45.
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`herein.
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`COUNT TWO
`(Violations of Ohio Revised Code § 4111.03)
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`Plaintiff incorporates by reference the foregoing allegations as if fully rewritten
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`46.
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`Defendant’s practice and policy of not paying Plaintiff and other similarly situated
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`production employees for all time worked and overtime compensation at a rate of one and one-
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`half times their regular rate of pay for all of the hours they worked over 40 each workweek violated
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`the OMFWSA, R.C. § 4111.03.
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`47.
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`As a result of Defendant’s practices and policies, Plaintiff and other similarly
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`situated production employees have been damaged in that they have not received wages due to
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`them pursuant to the OMFWSA.
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`PRAYER FOR RELIEF
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` WHEREFORE, Plaintiff, and all those similarly situated, collectively pray that this
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`Honorable Court:
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`A.
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`Issue an order permitting this litigation to proceed as a collective action and
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`certifying the class pursuant to Fed. R. Civ. R. 23(a) and (b)(3);
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`B.
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`Order prompt notice, pursuant to 29 U.S.C. § 216(b), to all class members that this
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`litigation is pending and that they have the right to “opt in” to this litigation;
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`C.
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`Award Plaintiff and the classes he represents actual damages for unpaid wages;
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`D.
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`Award Plaintiff and the classes he represents liquidated damages equal in amount
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`to the unpaid wages found due to Plaintiff and the class;
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`E.
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`Award Plaintiff and the classes he represents pre- and post-judgment interest at the
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`statutory rate;
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`F.
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`Award Plaintiff and the classes he represents attorneys’ fees, costs, and
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`disbursements; and
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`G.
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`Award Plaintiff and the classes he represents further and additional relief as this
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`Court deems just and proper.
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`Respectfully submitted,
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`/s/ Lori M. Griffin
`Lori M. Griffin (0085241)
`Anthony J. Lazzaro (0077962
`Chastity L. Christy (0076977)
`The Lazzaro Law Firm, LLC
`The Heritage Bldg., Suite 250
`34555 Chagrin Boulevard
`Moreland Hills, Ohio 44022
`Phone: 216-696-5000
`Facsimile: 216-696-7005
`lori@lazzarolawfirm.com
`chastity@lazzarolawfirm.com
`anthony@lazzarolawfirm.com
`Attorneys for Plaintiff
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`Case: 2:21-cv-00892-EAS-CMV Doc #: 1 Filed: 03/02/21 Page: 10 of 10 PAGEID #: 10
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`JURY DEMAND
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`Plaintiff hereby demands a trial by jury on all issues so triable.
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`/s/ Lori M. Griffin
`One of the Attorneys for Plaintiff
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`10
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