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Case 2:17-cv-02321-DDC-KGG Document 3 Filed 06/02/17 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE


DISTRICT OF KANSAS AT KANSAS CITY

Regina Sergiyenko and Russell Joly, )


)
Plaintiffs, )
)
v. ) Case No. 17-CV-2321
)
McCusker Holding Corp., and )
Willard L. McCusker, )
)
Defendants. )

AMENDED COMPLAINT

Plaintiffs Regina Sergiyenko and Russell Joly worked for Defendants as Executive Vice

President and Vice President of Operations and Strategy. Defendants classified Plaintiffs as

exempt employees under the Fair Labor Standards Act (FLSA), meaning that Plaintiffs were not

eligible to receive overtime compensation. As alleged herein, Defendants improperly classified

Plaintiffs as exempt employees, because Defendants failed to pay Plaintiffs on a salary basis, as

described in their employment contract, and Defendants improperly withheld overtime

compensation from Plaintiffs. Plaintiffs bring this case and seek recovery for violations of their

employment agreement, and consequently, for unpaid overtime compensation. In doing so,

Plaintiffs also seek 1) liquidated damages as set forth in the FLSA; 2) costs; 3) their attorneys

fees; and 4) any such other relief this Court deems just and equitable.

In support of their Complaint, Plaintiffs respectfully submit the following:

PARTIES

1. Plaintiff Regina Sergiyenko is a resident of Overland Park, Kansas. Defendants

employed Sergiyenko as Executive Vice President from October 24, 2016 through March 10,

2017. Under the parties employment agreement, Sergiyenko was primarily responsible for

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performing her job duties in the greater Kansas City area, and operated out of McCuskers

corporate office in Kansas City, Kansas.

2. Plaintiff Russell Joly is a resident of Elgin, Texas. Defendants employed Joly as

Vice President of Operations and Strategy from January 3, 2017 throughFebruary 15, 2017. After

February 15, 2017, Defendants reclassified Joly as an independent contractor, yet Joly still

performed the identical job duties and was subject to the same operational control of Defendants.

Under the parties employment agreement, Joly was primarily responsible for performing his job

duties at McCuskers Colleyville, Texas location.

3. Defendant McCusker Holding Corporation (McCuskeror Defendant McCusker) is a

national warranty company, and is a Nevada corporation, with its principal place of business in

Colleyville, Texas. Defendant maintains operations in each of the states alleged herein, including

locations in Kansas and Texas. McCusker is a warranty service product consulting &

development company, and is a leading developer of customer support solutions including fully

insured warranty and field service programs that are both scalable and cost-effective on an

international level. Defendant McCusker may be served via its registered agent, Willard L.

McCusker, located at 1210 Hall Johnson Road, Suite 200, Colleyville, TX 76034.

4. At all relevant times, Defendant Willard L. McCusker (Will) has been a

principal owner/officer of McCusker and has acted directly or indirectly in the interest of

McCusker with respect to Plaintiffs. At all relevant times, Defendant was the employer of

Plaintiffs, and is thus liable to Plaintiffs, as an employer, joint employer, single employer and/or

otherwise according to statutory and common law.

JURISDICTION AND VENUE

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5. This Court has original federal question jurisdiction under 28 U.S.C. 1331

for the claim brought under the FLSA, 29 U.S.C. 201, et seq.

6. This Court has supplemental jurisdiction for the claim asserted under the Kansas

Wage Payment Act (KWPA) (codified at K.S.A. 44-313, et seq.) in that the claim is asserted

as part of the same case and controversy as the FLSA claim, the state and federal claims

derive from a common nucleus of operative facts, the state claim will not substantially

dominate over the FLSA claim, and exercising supplemental jurisdiction would be in the

interests of judicial economy, convenience, fairness, and comity.

7. This Court has supplemental jurisdiction for the common law claims asserted

herein in that the claims are asserted as part of the same case and controversy as the FLSA

claim, the state and federal claims derive from a common nucleus of operative facts, the state

claim will not substantially dominate over the FLSA claim, and exercising supplemental

jurisdiction would be in the interests of judicial economy, convenience, fairness, and comity.

8. Venue is proper in this Court pursuant to 28 U.S.C. 1391(b), inasmuch as

Defendants have offices, conduct business, and can be found in this judicial district, and/or

the causes of action set forth herein have arisen and occurred in part in this judicial district.

Venue is also proper under 29 U.S.C. 1132(e)(2) because Defendants have substantial business

contacts within the state of Kansas.

FACTUAL ALLEGATIONS

9. Defendant McCusker Holding Corp. is a provider of warranty services to third parties.

McCusker & Company is a leading developer of customer support solutions including fully

insured warranty and field service programs that are both scalable and cost-effective on an

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international level. McCusker is operated by its CEO, Willard L. McCusker, and his wife,

Roxann McCusker aka Roxann McCusker Lee.

10. At all relevant times, Defendants have been, and continue to be employers

engaged in interstate commerce and/or in the production of goods for commerce within

the meaning of the FLSA, 29 U.S.C. 203. At all relevant times, Defendants have employed,

and/or continue to employ, employee[s], including the Plaintiffs. At all relevant times,

Defendants have had gross operating revenues in excess of $500,000.00.

11. At all relevant times, Defendants have been, and continue to be, an employer as

defined by the KWPA. At all relevant times, D e f e n d a n t s h a v e employed, and/or continue

to employ, employee[s], including Plaintiffs as defined by the KWPA.

FACTUAL ALLEGATIONS PERTAINING TO REGINA SERGIYENKO

12. Regina Sergiyenko was employed by Defendants from approximately October 24,

2016 until approximately March 10, 2017. During this period, Plaintiff Sergiyenko was

employed as Executive Vice President and was paid, pursuant to a written employment

agreement, on a salary plus commission basis.

13. While working for Defendants, for the period of October 2016 through January

2017, Plaintiff Sergiyenko received her salary and expense reimbursements. However, beginning

in February, 2017, Defendants failed to pay Sergiyenko any salary. Sergiyenko continued to

perform work for Defendants during that period of time, despite not receiving any salary or

expense reimbursement.

14. During the course of her employment, Plaintiff Sergiyenko regularly worked in

excess of 40 hours in a workweek, yet received no overtime compensation for such work.

FACTUAL ALLEGATIONS PERTAINING TO RUSSELL JOLY

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15. Plaintiff Russell Joly was hired by Defendants on or about January 3, 2017. At the

time of hire, Plaintiff was employed in the position of Vice President of Strategy and Operations.

Plaintiff Jolys contract provided that he would be paid on a salary plus commission basis.

16. Plaintiff Joly worked in this capacity through the term of his employment.

However, despite the written agreement, Plaintiff never received any compensation, including

salary or commission.

17. Plaintiff continued to work for Defendants until May, 2017.

18. During the course of his employment, Plaintiff Joly regularly worked in excess of

40 hours in a workweek, yet received no overtime compensation for such work.

FACTS COMMON TO SERGIYENKO AND JOLY

19. Because, for the period of January 2017 through the end of their respective

employment with Defendants, Plaintiffs do not satisfy the criteria for exempt employees,

Defendants should classify them as non-exempt employees, thereby making them eligible for

overtime compensation when they work in excess of forty hours per week. In this respect,

Plaintiffs are misclassified for compensation purposes.

20. Defendants failed to accurately record all of the actual time worked by

Plaintiffs. Defendants could easily and accurately record the actual time worked by all

Plaintiffs.

21. Plaintiffs regularly worked in excess of 40 hours per week, but were not

compensated at a rate of at least one and one half times her regular rate for hours worked in

excess of 40 in a workweek.

22. In light of Defendants failure to accurately record time worked by Plaintiffs,

Defendants failed to provide accurate wage statements Plaintiffs Sergiyenko and Joly.

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23. Plaintiffs regularly worked in excess of forty hours per week. On average, upon

information and belief, Plaintiffs worked between 60-70 hours per week. During periods in

which they worked in excess of 40 hours per week, Plaintiffs were not paid one and one half

times their regular rate of pay for all hours worked in excess of 40 in a workweek.

24. Because Defendants misclassified Plaintiffs as exempt employees and they

worked in excess of forty hours per week, Plaintiffs are entitled to overtime compensation.

COUNT I

Violation of the Fair Labor Standards Act

25. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint.

26. During the relevant period, Plaintiffs did not receive their requisite salary.

Defendants classified Plaintiffs as exempt employees under the FLSA. Thus, Defendants did not

pay Plaintiffs overtime compensation.

27. But Plaintiffs were not paid on a salary basis that would place them under any of

the FLSAs exemptions from overtime compensation. In this respect, Defendants misclassified

Plaintiffs.

28. Defendants policy and practice of classifying Plaintiffs as exempt employees and

denying them overtime compensation violates the FLSA.

29. Plaintiff brings this Complaint individually pursuant to 29 U.S.C. 216(b) of the

FLSA .

30. Defendants failed to compensate Plaintiffs for the relevant minimum wage, and

also at a rate of not less than one and one-half times the regular rate of pay for work performed in

excess of forty hours in a work week, and therefore, D e f e n d a n t s h a v e violated,

and continue to violate, the FLSA, 29 U.S.C. 201, et seq., including 29 U.S.C. 207(a)(1).

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31. The foregoing conduct, as alleged herein, constitutes a willful violation of the

FLSA within the meaning of 29 U.S.C. 255(a).

32. Plaintiffs seek damages in the amount of all respective unpaid minimum wages

and overtime compensation at a rate of one and one-half times the regular rate of pay for work

performed in excess of forty hours in a work week, plus liquidated damages, as provided by

the FLSA, 29 U.S.C. 216(b), and such other legal and equitable relief as the Court deems just

and proper.

33. Plaintiffs seek recovery of all attorneys fees, costs, and expenses of this action,

to be paid by Defendants, as provided by the FLSA, 29 U.S.C. 216(b).

COUNT II (SERGIYENKO)

Violation of the Kansas Wage Payment Act

34. Plaintiff Sergiyenko incorporates by reference the foregoing paragraphs of this

Amended Complaint.

35. The Plaintiff, on behalf of herself and all others similarly situated, brings a claim

for the Defendants violation of the KWPA.

36. As far as said factual allegations are applicable to the claims made herein under

the KWPA, the Plaintiff hereby incorporates the foregoing paragraphs as if fully set forth herein.

37. At all relevant times, Defendants have been, and will continue to be an

employer within the meaning of the KWPA, K.S.A. 44-313(a).

38. At all relevant times, Defendants have employed, and/or continue to employ,

employee[s], within the meaning of the KWPA 44-313(b); including the Plaintiff.

39. Plaintiff brings a claim for Defendants violation of the KWPA, K.S.A. 44-313

et seq.

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40. At all relevant times, Defendants have had a policy and practice of failing and

refusing to pay Sergiyenko for work performed failing to pay her earned salary, commissions,

and expense reimbursements, earned in violation of the KWPA, K.S.A. 44-314. Defendants

have violated the KWPA.

COUNT III (BREACH OF CONTRACT)

38. Plaintiffs incorporate by reference the foregoing paragraphs of this Complaint and assert

a claim for breach of contract.

39. Defendants failure to pay Plaintiffs their wages, vacation, sick, holiday,

reimbursements, bonuses, or severance pay was a breach of contract. Defendants offered

amounts to Plaintiffs in exchange for their work and other efforts. Plaintiffs accepted the offers

by performing work and otherwise meeting the obligations placed on them. Defendants

breached the agreement by failing to pay Plaintiffs as agreed and Plaintiffs have suffered

damages as a result.

40. Plaintiffs are entitled to compensatory damages for Defendants breach of

contract. Pursuant to Texas Civil Practice & Remedies Code 38.001-002, Plaintiffs are also

entitled recover attorneys fees and expenses incurred in prosecuting this claim as they have

presented their claim for payment and Defendants have failed to pay Plaintiffs all amounts due

within thirty (30) days of the date the claim was presented.

PRAYER FOR RELIEF

WHEREFORE, concerning Plaintiffs Count I for Defendants alleged violation of the

FLSA, Plaintiffs prays for relief as follows:

1. A declaratory judgment that the practices complained of herein are unlawful

under the FLSA;

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2. An award of damages for minimum wage and overtime compensation due for

Plaintiffs, including liquidated damages, to be paid by Defendants; and/or

3. Pre-judgment and post-judgment interest, as provided by law; and

4. Costs and expenses of this action incurred herein, including reasonable attorneys

fees and expert fees

WHEREFORE, concerning Plaintiffs Count II for Defendants alleged violation of the

KWPA, Plaintiff prays for relief as follows:

1. A declaratory judgment that the practices complained of herein are unlawful

under the KWPA;

2. An injunction against Defendants and its officers, agents, successors, employees,

representatives, and any and all persons acting in concert with Defendants, as provided by law,

from engaging in each of the unlawful practices, policies, and patterns set forth herein;

3. An award of damages for compensation due for Plaintiff Sergiyenko, including

double, or penalty damages, as allowed under the KWPA, to be paid by Defendants;

4. Costs and expenses of this action incurred herein, including reasonable attorneys

fees and expert fees; and

5. Penalties for failing to timely pay wage and pre-judgment and post-judgment

interest, as provided by Kansas law.

WHEREFORE, concerning Plaintiffs Count III for Defendants alleged breach of

contract, Plaintiffs pray for relief as follows:

1. A declaratory judgment that the practices complained of breached the contract

between Plaintiffs and Defendants;

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2. An injunction against Defendants and its officers, agents, successors, employees,

representatives, and any and all persons acting in concert with Defendants, as provided by law,

from engaging in each of the unlawful practices, policies, and patterns set forth herein;

3. An award of damages for compensation due for Plaintiffs, including

compensatory damages, and interest as allowed under Texas law, to be paid by Defendants;

4. Costs and expenses of this action incurred herein, including reasonable attorneys

fees and expert fees; and

5. Penalties for failing to timely pay wage and pre-judgment and post-judgment

interest, as provided by Texas law.

DESIGNATION OF PLACE OF TRIAL

Plaintiffs hereby designate the place of trial as the United States District Court for the

District of Kansas at Kansas City, Kansas.

Respectfully Submitted,

The Hodgson Law Firm, LLC

/s/ Michael Hodgson


Michael Hodgson KS Bar No. 21331

3699 SW Pryor Road


Lees Summit, MO 64082
Tel: 816.600.0117
Fax: 816.600.0137
mike@thehodgsonlawfirm.com

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