Case 1:11-cv-03340-WJM-BNB Document 1 Filed 12/20/11 USDC Colorado Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. ________________________

TAMMY ARMSTRONG, Plaintiff, v. I-BEHAVIOR INC., Defendant.

COMPLAINT and JURY DEMAND

Plaintiff Tammy Armstrong, by and through her attorney, Keith A. Shandalow of the Law Offices of Keith A. Shandalow, P.C., for her Complaint and Jury Demand against Defendant I-Behavior Inc. (Defendant) for violations of the Fair Labor Standards Act (FLSA) arising from Defendants failure to pay overtime wages as mandated by the FLSA, and for pendent state law claims for Wrongful Discharge in Violation of Public Policy, Intentional Infliction of Emotional Distress, and Willful Violation of the Colorado Wage Claims Act, alleges the following: NATURE OF THE CASE 1. Plaintiff Tammy Armstrong was an employee of Defendant from November 2007 until her constructive discharge on August 2, 2011. During that time she held the position of Senior Accountant, and was regularly required to work far in excess of 40 hours per week. She was classified by Defendant as a salaried employee exempt from the FLSAs overtime regulations; however, this was a
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knowing and deliberate misclassification, as Ms. Armstrong did not fit into any of the exemptions to the FLSA overtime regulations. This deliberate and willful violation of the FLSA subjects Defendant to liabilities for the amount of overtime wages it should have paid, but did not pay, Ms. Armstrong for the three years prior to the filing of this Complaint; liquidated damages in an amount equal to the overtime amounts she should have been paid; and attorneys fees. In addition, Ms. Armstrong brings state law claims for Wrongful Discharge in Violation of Public Policy, Intentional Infliction of Emotional Distress, and Willful Violation of the Colorado Wage Claims Act. JURISDICTION AND VENUE 2. Jurisdiction is proper in this judicial district pursuant to 20 U.S.C. 216(b) and 28 U.S.C. 1331. This court has supplemental jurisdiction over Ms. Armstrongs state law claims pursuant to 42 U.S.C. 1367 since these claims arise out of a common nucleus of operative facts that give rise to Ms. Armstrongs federal claim. 3. Venue is proper within this District pursuant to 28 U.S.C. 1391(b). A substantial part of the events giving rise to Ms. Armstrongs claims occurred within the State of Colorado. PARTIES 4. Ms. Armstrong is currently a resident of Rapid City, South Dakota. 5. Defendant is a corporation organized under the laws of the State of Delaware, with its headquarters located in Louisville, Colorado.

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6.

At all times relevant to this Complaint, Defendant was an enterprise

engaged in commerce within the meaning of the FLSA, with gross sales in excess of $500,000 per year. GENERAL ALLEGATIONS 7. Ms. Armstrong began her employment at I-Behavior in November 2007 as a Senior Accountant. Defendant classified her as a salaried employee exempt from the FLSAs overtime provisions despite the fact that she did not fit into any of the exemptions to those provisions. 8. During her years at I-Behavior, Ms. Armstrongs duties included

accounts payable, accounts receivable, assisting with month-end and other financial reports, assisting with preparation of tax returns, assisting with banking accounts, and other basic accounting functions. 9. During her employment with Defendant, Ms. Armstrong did not have

supervisory responsibilities, nor was she allowed to exercise discretion or independent judgment with respect to matters of significance. 10. Ms. Armstrong did not have the authority or responsibility to:

formulate, interpret, or implement management policies or operating practices; commit the employer in matters having significant financial impact; waive or deviate from established policies and procedures without prior approval; negotiate or bind the company on significant matters; consult or provide expert advice to management; plan long or short-term business objectives; or investigate and resolve matters of significance on behalf of management.

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11.

Throughout Ms. Armstrongs employment, Defendant maintained a

hostile work environment that included verbal abuse, assault, and massive amounts of work heaped on Ms. Armstrong that necessitated her working many overtime hours, including nights and weekends, to get it all done. Ms. Armstrong frequently complained about the work environment and her workload, to no avail. 12. The stress and pressure caused by the work environment and the

workload caused Ms. Armstrong to experience serious negative physical problems, including heart problems that resulted in two trips to hospital emergency departments, on May 13, 2011 and July 29, 2011. Ms. Armstrong specifically requested accommodations and a relief in the stress and pressure that were placed on her since her cardiologist advised her that such stress and pressure could cause permanent damage to her heart. However, Defendant failed to make any accommodations to the significant physical symptoms Ms. Armstrong was experiencing as a direct and proximate result of Defendants work environment and the demands and pressure it placed on Ms. Armstrong. 13. On August 2, 2011, fearing that the increasing stress and pressure

placed on her by Defendant would cause her further and more severe heart problems, Ms. Armstrong was forced to resign her position in what amounted to a constructive discharge. FIRST CLAIM FOR RELIEF (Violation of the Fair Labor Standards Act) 14. Ms. Armstrong incorporates paragraphs 1 through 13, inclusive, by reference, as if fully set forth herein.

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15. At all times material to this matter, Ms. Armstrong was entitled to the rights, protections, and benefits provided under the FLSA, 29 U.S.C. 201, et. seq. 16. The FLSA regulates the payment of overtime pay by employers whose

employees are engaged in interstate commerce, or engaged in the production of goods for commerce, or employed in an enterprise engaged in commerce or the production of goods for commerce. 29 U.S.C. 207(a)(1). 17. Defendant is subject to the overtime pay requirements of the FLSA

because it is an enterprise engaged in interstate commerce, and its employees are engaged in commerce, with gross sales in excess of $500,000 per year. . 18. Defendant violated the FLSA by willfully failing to pay overtime for

work performed in excess of 40 hours in a work week. Defendants perpetration of these unlawful acts was deliberate and willful. 19. Section 13 of the FLSA, codified at 29 U.S.C. 213, exempts certain

categories of employees from overtime pay obligations. None of the exemptions set forth at 29 U.S.C. 213 apply to Ms. Armstrong. 20. Defendant acted neither in good faith nor with reasonable grounds to

believe that its actions in regard to classifying Ms. Armstrong as an employee exempt from the FLSAs overtime provisions, and as a result thereof, Ms. Armstrong is entitled to recover an amount equal to the amount of overtime wages not paid, and an additional equal amount in the form of liquidated damages. 29 U.S.C. 216(b).

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21.

The amount of overtime wages not paid is uncertain, and is subject to

further investigation through discovery in this action, but is believed to be approximately $28,000. 22. Further, pursuant to 29 U.S.C. 216(b), Ms. Armstrong is entitled to the

recovery of reasonable attorneys fees and cost of the action. SECOND CLAIM FOR RELIEF (Wrongful Discharge in Violation of Public Policy) 23. Ms. Armstrong incorporates paragraphs 1 through 22, inclusive, by

reference, as if fully set forth herein. 24. Federal law and state law prohibit discrimination against employees with

disabilities or those perceived to have disabilities. Under both federal and state law, employers are required to make reasonable accommodations for employees with disabilities. 25. The health problems that Ms. Armstrong was experiencing in the last few

months of her employment with Defendant constituted a disability under both federal and state law. 26. Ms. Armstrong duly notified Defendant of her health issues, but Defendant

failed to engage her in an interactive process to provide reasonable accommodations for her disability, and failed to provide such accommodations. 27. As a direct and proximate result of Defendants failure to accommodate

Ms. Armstrongs health issues, Ms. Armstrong was given no reasonable alternative other than to resign her position on August 2, 2011, in what was a constructive discharge.

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28.

Ms. Armstrongs discharge arising from her disability and Defendants

failure to reasonably accommodate her disability constitutes a wrongful discharge in violation of public policy. 29. Defendants actions were willful, wanton and were taken in reckless

disregard for Ms. Armstrongs rights and feelings. 30. As a direct and proximate result of her wrongful termination, Ms.

Armstrong has incurred damages for past and prospective wage and benefit losses, compensatory damages, noneconomic damages, punitive damages and prejudgment interest. THIRD CLAIM FOR RELIEF (Intentional Infliction of Emotional Distress) 31. Ms. Armstrong incorporates paragraphs 1 through 30, inclusive, by reference, as if fully set forth herein. 32. Defendants conduct towards Ms. Armstrong was extreme and outrageous. 33. Defendants conduct towards Ms. Armstrong was intentional or reckless. 34. As a direct and proximate result of Defendants conduct, Ms. Armstrong suffered severe emotional distress, which in turn caused her serious heart problems, among other things. FOURTH CLAIM FOR RELIEF (Willful Violation of C.R.S. 8-4-109) 35. Ms. Armstrong incorporates paragraphs 1-34, inclusive, by reference as if

fully set forth herein.

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36.

Defendant failed to pay Ms. Armstrong for overtime during her

employment with Defendant. 37. On or about September 29, 2011, Ms. Armstrong sent a Demand for

Payment of Wages to Defendant requesting an estimated $28,000 owed her in unpaid overtime wages. 38. her. 39. Defendants continued failure to pay Ms. Armstrong the monies owed her To date, Defendant has failed to pay Ms. Armstrong the amounts owed

is willful and wanton. 40. Defendants failure to pay Ms. Armstrong the amounts owed her is in

violation of the Colorado Wage Claim Act, C.R.S. 8-4-109. 41. As a direct and proximate result of Defendants failure to pay the

$28,000, and its violation of C.R.S. 8-4-109, Ms. Armstrong has incurred economic damages of $28,000 plus interest, and Defendant is subject to statutory penalties due to Ms. Armstrong because of its failure to pay, and its willful failure to pay, as well as attorneys fees in an amount to be proven at trial. PRAYER FOR RELIEF WHEREFORE, Ms. Armstrong respectfully requests that this Court enter judgment in her favor and against Defendant I-Behavior and to grant: (a) Damages in such an amount as will be proven at trial for unpaid overtime pay; (b) Liquidated damages in an amount equal to the amount of unpaid overtime pay;

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(c) All compensatory, consequential damages and non-economic damages on all claims allowed by law in an amount to be determined at trial; (d) Exemplary damages on all claims allowed by law and in an amount to be determined at trial; (e) Statutory penalties on all claims allowed by law and in an amount to be determined at trial; (f) Attorneys fees and costs and expenses associated with this action, on all claims allowed by law; (g) Pre- and post-judgment interest at the lawful rate; (h) Any further relief that this Court deems just and proper, and any other relief as allowed by law. JURY DEMAND Plaintiff Tammy Armstrong hereby demands a trial to a jury on all triable issues.

Dated: December 20, 2011 s/Keith A. Shandalow_____________ LAW OFFICES OF KEITH A. SHANDALOW, P.C. 1221 Pearl Street Boulder, Colorado 80302 Telephone: 303.443.0168 Facsimile: 303.443.6635 keith@shandalow.com Attorney for Plaintiff Tammy Armstrong Plaintiffs Address: P.O. Box 3262 Rapid City, SD 57709