E7r - Consumer Rights | Nichols Kaster, PLLP · Tech Mahindra has enjoyed ill-gained proJits at the...

Case: 4:16-cv-00905-JAR Doc. #: 16 Filed: 10/05/16 Page: 1 of 17 PageID #: 68

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRI CT OF MISSOURI

EASTERN DfVISION

PANKA.I KUMAR individually and on behalf of all other similarly situated individuals,

Plaintiff,

V.

) ) ) ) ) ) ) )

Case No. 4:16-cv-00905-JAR

JURY TRJAL DEMANDED TECH MJ\HlNDRA (AMERICAS), INC., )

Defendant. ) )

FIRST AMENDED COMPLAINT

PRELIMINARY STATEMENT

I. This is a collective and class action brought by individual and representative

plaintiff Pankaj Kumar ("Kumar'' or "Missouri Class Representative") on his own behalf and on

behalf of the proposed classes. Plaintiff and the putative class members are or were employed by

Defendant Tech Mahindra (Americas), Inc. ("Tech Mahindra'') and are or were denied overtime

pay required by state and federal wage and hour laws. These employees are similarly situated

under Rule 23 of the Federal Rules of Civil Procedure and the Fair Labor Standards Act of 1938,

as amended, 29 U.S.C. § 201, et seq. ("FLSA").

2. The FLSA Collective Class is made up of all persons who arc, have been, or will

be employed by Tech Mahindra as "Software Test Engineers" or "Software Engineers" (and

other titles that provide computer application and network cnviromnent support) during the

applicable statutory period. and whose job it was to troubleshoot issues raised by test teams,

deploy code and compile production plans.

E7r I _ _,: _ _;__ __


3. The Missouri Rule 23 Class is made up of all persons who arc, have been, or will

be employed by Tech Mahindra as "Software Test Engineers" or "Software Engineers'' (and

other titles that provide computer application and network environment support) within the Stale

of Missouri at any lime during the applicable statutory period.

4. During the applicable statutory period, Tech Mahindra failed to pay overtime

compensation to each member of the respective classes as required by federal and state law.

Plaintiff seeks relief for the Collective Class under the FLSA and for the Missouri Class lll1der

Missouri wage and hour laws lo remedy Tech Mah indra's failure to pay appropriate overtime

compensation.

5. Tech Mahindra is an information technology consulting, business process

outsourcing, and network technology services company that operates in Missouri and across the

nation. Tech Mahindra's practice is to deny overtime pay to its workforce that provides

computer application and network environment support by misclassifying them as exempt from

overtime laws, and causing or permitting them to work in excess of forty (40) hours per week.

Tech Mahindra's deliberate failure to pay its sortware engineers earned overtime pay violates the

FLSA and Missouri overtime law.

JURISDICTION AND VENUE

6. The FLSA authorizes court actions by private parties to recover damages for

violation of the FLSA 'swage and hour provisions. Jurisdiction over this action is based upon 29

U.S.C. § 216(b) and 28 U.S.C. § 1331. This Court has personal jurisdiction over Tech Mahindra

because Tech Mahindra conducts business within this District. This Court has jurisdiction over

Kumar's state law claims pmsuant to 28 U.S.C. § 1367 because the state law claims are so

related to the FLSA claims that they form part of the same case or controversy.

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7. Venue in this District is proper pursuant to 28 U.S.C. § 1391 (b)(2) because a

substantial part of the events giving rise to this claim occurred in this District.

PARTIES

8. Tech Mahindra is a New Jersey corporation registered to conduct business in

Missouri and is doing business in this District. Tech Mahindra's principal place ofbusiness is

4965 Preston Park Boulevard, Plano, Texas.

9. Tech Mahi nclra operates in interstate commerce by, among other things, providing

computer application and network environment support to companies in various states, including

Missouri and Texas.

I 0. Tech Mahindra's gross amlllal sales made or business done have been in excess of

$500,000.00 at al l relevant times.

] 1. At all relevant times, Tech Mahindra is, and has been, an "employer" engaged in

interstate commerce and/or the production of goods for commerce within the meaning of the

FLSA, 29 U.S.C. § 203(d).

12. Kumar is a resident of St. Louis County, Missouri. At relevant times over the past

three (3) years, Kumar was employed by Tech Mahindra as a Software Test Engineer in St.

Louis, Missouri.

FACTUAL ALLEGATIONS COMMON TO ALL CLAIMS

13. At all times relevant herein, Defendant operated a willful scheme to deprive their

"Software Test Engineers" or "Software Engineers'' (and other titles that provide computer

application and network environment support) of overtime compensation.

14. Kumar and other similarly situated individuals performed computer application

and network environment support under the Software Test Engineer or Software Engineer job

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titles. In this role, Kumar and putative class members primarily troubleshot issues raised by the

test teams, who monitor computer test environments to ensure that computer applications,

systems and servers function properly for Tech Mahindra's customers.

15. Kumar's and putative class members' troubleshooting work primaril y consisted of

rote tasks that required neither independent discretion nor specialized skill. They mainly

encountered issues with testers not using correct environment parameters, which could be

addressed by checking a matrix document and passing the correct values from that document to

the test team. The other prominent issues they addressed were the test environment not

functioning, which they fixed by re-starting the servers in accordance with written procedures,

and configuration problems, which were resolved by getting help Ii·om the appli cation

programmers and Tech MahindJa's development team.

1 6. Kumar's and putative class members' other primary duties consisted of code

deployment and compiling production p lans. For the code deployment work function, they

simply copied the code provided by application programmers and the development team to the

test environment. They did not design, develop, analyze, modify or write any code.

17. For the production plans component of their job, Kumar and similarly situated

individuals reduced instructions provided by the development team into a document that

production support teams follow to make changes in the environment. They did not design,

develop, analyze, modify o r create any of the instructions that comprised the production plan

document- they merely compiled the information into a working document.

18. Over the past tlu·ee (3) years, Tech Mahindra required or permitted Kumar and

putative class members to work in exce::;s of forty ( 40) hours per week on a regu lar basis.

19. Kumar and the putative class members were paid a salary with no overtime pay.

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20. Tech Mahindra wrongly classified Kumar and putative class members as exempt

from federal and state federal overtime laws.

21. The FLSA requires covered employers, such as Tech Mahindra, to compensate all

non-exempt employees fo r services performed and to compensate them at a rate of not less than

one and one-half the regular rate of pay for work performed in excess of forty ( 40) hours in a

work week.

22. Kumar and putative class members d id not perform duties during the statutory

period that would fa ll under the computer employee exemption as set forth in 29 C.F.R.

§ 541.400(b). They did not engage in systems analysis, and they certainly did not do so to

determine hard\vare, software or system functional specifications. Similarly, they did not design,

deve lop, document, analyze, test, modify or crea te computer systems or programs.

23. The United States Department of Labor's Wage and I lour Division has stated that

"[m]aintaining a computer system and testing by vari ous systematic routines to see that a

particular piece of computer equipment o r computer application is working properly according to

the specifications designed by others are examples of work that lacks the requisite exercise of

discretion and independent judgment within the meaning of the administrative exemption." WH

Admin. Op. FLSA 2006--12 (Oct. 26, 2006).

24. This description encapsulates Kumar's and putative class members' work during

the statutory period - the ir primary duties did not require the exercise of discretion or

independent judgment with respect to matters of' significance to Tech Mahindra. They primarily

fo llowed written procedures established by o thers to resolve issues or effect changes to the test

environment.

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25. During the period April 4, 2014 and January 4, 20 I 5, Kumar repeatedly raised the

issue of overtime work and pay with his supervisor, Alok Ranjan ("Ranjan"). Ranjan put Kumar

off again and again , responding that he would address the issue with Kumar later. After Ranjan

failed to address the matter with Kumar, be contacted Tech Mahindra 's Jlurnan Resources

department.

26. Kumar contacted Amit Suryawanshi in I Iuman Resources to inquire as to whether

Tech Mahindra would pay him overtime compensation for the substantial overtime he worked.

In response, Tech Mahindra declared that the work Kumar performed is only non-exempt for

employees ajier November 9, 2015.

27. At one point in Kumar's process of trying to get Tech Mabindra to address the

issue of unpaid overtime compensation, Ranjan emailed Kumar and stated "I suggest you, not to

[sic] document any OT separately as it actually has no relevance."

28. Tech Mahinclra has not properly compensated Kumar and putative class members

for their overtime work during the last three (3) years.

29. Tech Mahindra knew or had reason to know that Kumar and the putative class

members performed non-exempt work that required payment of overtime compensation. Tech

Mahindra knew or should have known of its obligation to pay Kumar and the putative class

members at a rate of not less than one and one-half his regular rate of pay for work performed in

excess offorty (40) hours in a work week. Nevertheless, Tech Mahindra failed to properly

compensate Kumar and the putative class members for their overtime work.

30. Tech Mahindra wilJfully failed to pay overtime compensation and, upon

information and belief, willfully failed to keep accurate time records to reduce payroll costs.

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Tech Mahindra has enjoyed ill-gained proJits at the expense of Kumar and the putative class

members.

COLLECTIVE ACTION ALLEGATIONS

31. Kumar, on behalf of himself nnd all similarly situated individuals, restates and

incorporates by reference each and every averment of this Complaint as though fully set forth

herein.

32. Kumar fi les th is action on behalf of himself and all similarly situated individuals.

Pursuant to 29 U.S.C. § 216(b), Kumar's signed consent form is attached as Exhibit A.

33. The employees similarly situated are:

FLSA Collective Class: All persons who are, have been or will be employed by

Tech Mahindra as "Software Test Engineers" or "Software Engineers" (and other

titles that provide computer application and network environment support) at any

time from three (3) years prior to filing this action through the entry of judgment,

and whose job it was to troubleshoot issues raised by test teams, deploy code and

compile production plans.

34. Kumar and the FLSA Collective Class worked or work in excess of fo rty (40)

hours during workweeks within the applicable statutory period.

35. Tech Mahindra did not pay Kumar or the FLSA Collective Class overtime

premiums for their overtime hours worked.

36. Tech Mahindra willfully engaged in a pattern of violating the FLSA as described

in this First Amended Complaint in ways included, but not limited to, failing to pay its

employees overtime compensation.

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37. Tech Mahindra's conduct constitutes a willful violation of the FLSA within the

meaning of29 U.S.C. § 255(a).

38. Tech Mahinclra is liable under the FLS/\ fo r fa iling to properly compensate

Kumar and the similarly situated individuals. Accordingly, notice should be sent to the FLSA

Collective Class members. There are number similarly situated current and former employees of

Tech Mahindra who have suffered from its practice of denying overtime pay, and who would

benefit from the issuance of court-supervised. notice of th is lawsui t and the opportunity to join.

Those similarly situated employees are known to Tech Mahindra, and arc readily identifiable

though Tech Mahindra 's records.

CLASS ALLEGATIONS

39. Kumar, as the Missouri Class Representative, brings this action as a class action

pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of the following defined

class:

Missouri Class: All persons who are, have been, or will be employed by Tech

Mahindra as ·'Software Test Engineers'' or "Software Engineers" (and other titles

that provide computer application and network environment support) at any time

from three (3) years prior to filing this action through the entry ofjudgment, and

whose job it was to troubleshoot issues raised by test teams, deploy code and

compile production plans.

40. Upon information and belief, the proposed Missouri Class is so numerous that

joinder of all members is impracticable. Kumar is informed and believes, and on that basis

alleges, that during the applicable statutory period, Tech Mahindra employed over 20 people

who satisfy the definition of the proposed Missouri Class.

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41. lYRical ity: The Missouri Class Representative's claims are typical of the

members of the Missouri Class. The Missouri Class Representative had the same duties and

responsibilities as other class members. Other class members worked unpaid overtime hours.

The Missouri Class Representative and the Missouri Class were subject to Tech Mahindra's

policy and practice of improperly treating and classifying its "Software Test Engineers" or

"Software Engineers" (and other titles that provide computer application and network

environment support) as exempt from overtime laws and failing to pay appropriate overtime

compensation.

42. Superiori ty: A class action is superior to other available methods for the fair and

efficient adjudication of the controversy, particularly in the context of wage and hour litigation

where individual plaintif'fs lack the financial resources to vigorously prosecute separate lawsuits

in federal court against large corporate defendants.

43. Adequacy: The Missouri Class Representative will fairly and adequately protect

the interests of the Missouri Class and have retained counsel experienced in complex wage and

hour and collective action litigation.

44. Commonality: Common questions of law and fact exist to all members of the

Missouri Class and predominate over any questions solely affecting individual members of the

Class, including but not limited to:

A. Whether Tech Mahindra improperly classified and treated the Missouri

Class Representative and members ofthe Missouri Class as exempt from Missouri wage and

hour laws~

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B. Whether Tech Mabindra unlawfully failed to pay overtime compensation

to the Missouri Class Representative and the members of the Missouri Class in violation of

Missouri wage and hour laws~

C. Whether Tech Mahindra fa iled to keep accurate time records for all hours

worked by the Missouri Class Representative and the Missouri Class;

D. Whether Tech Mahindra's actions were will ful; and

E. The proper measure of damages sustained by the Missouri Class

Representative and the Missouri Class.

45. The case is maintainable as a class action under Rule 23(b)(l) because questions

of law and fact common to the Missouri Class predominate over any questions a{Tecting

individual members of the class, and because a class action is superior to other avai lable methods

for the fai r and efficient adjudication of this litigation. Tech Mahindra's common and uniform

policies and practices denied the members of the Missouri Class the overtime pay to which they

are entitled. The damages suffered by the Missouri Class members are small compared to the

expense and burden of individual prosecution of this litigation. In addition, class certification is

superior because it will obviate the need for unduly duplicative litigation that might result in

inconsistent judgments about Tech Mahindra 's practices.

46. Kumar intends to send notice to all members of the Missouri Class to the extent

required by Rule 23. The names and addresses of the members of the Missouri Class are

available from Tech Mahindra.

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COUNT I

VIOLATION OF THE FAIR LABOR STANDARDS ACT OF 1938

(On behalf of Plaintiff and the similarly situated individuals)

4 7. Kumar and the FLSA Collective Class re-allege and incorporate by reference each

and every averment of this First Amended Complaint as though fully set forth herein.

48. At all times relevant herein, Kumar and the FLSA Collective Class have been

entitled to the rights, protections, and benefits provided under the fLSA, 29 U.S.C. §§ 201, el

seq.

49. The FLSA regulates. among other things, the payment of overtime pay by

employers whose employees are employed in an enterprise engaged in commerce or in the

production of goods for commerce. 29 U.S.C. § 207(a)(l ).

50. At all relevant times, Tech Mahindra has been an "employer" 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, Tech Mahindra has or had employed

"employeelsJ," including Kumar and the FLSJ\ Collective Class. At all relevant times, Kumar

and the FLSA Collective Class were engaged in commerce and/or worked for Tech Mahindra,

which was an enterprise engaged in commerce.

51. Tech Mahindra violated the FLSA by failing to pay Kumar and the FLSA

Collective Class overtime compensation in the amount of one and one-halftitnes their regular

rate of pay in accordance with 29 U.S. C. § 207(a)( 1 ).

52. Upon in formation and belief. in the course ofpei-pctraling these unlawful

practices on Kumar and the FLSA Collective Class, Tech Mahindra willfully failed to keep

accurate records of all hours worked by Kumar and the FLSA Collective Class.

II


53. Section 13 of the FLSA, codified at 29 U.S.C. § 213, exempts certain categories

of employees from overtime pay obligations. None of the FLSA exemptions apply to Kumar and

the FLSA Collect ive Class.

54. Kumar and the FLSA Collective Class are entitled to damages equal to the

mandated overtime premium pay within the three (3) years preceding the filing of this action,

plus periods of equitable tolling, because Tech Mahindra acted willfully and knew that its

conduct was prohibi ted by the FLSA, or displayed reckless disregard of whether its conduct was

unlawf1tl.

55. Tech Mahindra has acted neither in good faith nor with reasonable grounds to

believe that its actions and omissions were not a violation of the FLSA, and as a result thereof,

Kumar and the FLSA Collective Class arc entitled to recover an award of liquidated damages, in

an amotmt equal to the amount of unpaid overtime pay described above, pursuant to Section

16(b) of the FLSA, codified at 29 U.S.C. § 216(b).

56. Kumar and the FLSA Collective Class seek damages in the amount of all

respective unpaid overtime compensations at a rate of one and one-half times the regular rate of

pay for work performed in excess of torty (40) 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.

57. Kumar and the FLSA Collective Class seek recovery of all attorneys' fees, costs,

and expenses of th is action, to be paid by Tech Mahindra, as provided by the FLSA, 29 U.S.C.

§216(b).

WHEREFORE, Kumar and the FLSA Collective Class pray for judgment against Tech

Mahindra under Count 1 of the First Amended Complaint and pray for:

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(I) designating this action as a collective action on behalfofthc FLSA Collective Class

and prompt issuance of notice pursuant to 29 U.S.C. § 216(b) to all similarly situated individuals

apprising them of the pendency of this action, and permitting them to assert FLSA claims in this

action by filing individual consent forms pursuant to 29 U.S.C. § 21 G(b);

(2) compensatory damages for all overtime compensation due;

(3) liquidated damages;

( 4) attorneys' fees and costs as allowed by Section l6(b) of the fLSJ\;

(5) pre-judgment and post-judgment interest as provided by law; and

(6) such other relief as this Court deems fair and equitable.

COUNT II

UNJUST ENRIC HMENT

(On behalf of H1e Missouri Class R epresentative and the Missouri Class)

58. Kumar and the Missouri Class members re-allege and incorporate by reference

each and every averment of this First Amended Complaint as though fully set forth herein.

59. Tech Mahindra has been enriched through making deficient payments for work

performed by Kumar and the rvrissouri Class Members. Tech Mahincl ra was enriched at the

expense of Kumar and the Missouri Class Members because Kumar and the Missouri Class

Members were not properly compensated for their work.

60. Tech Mahindra intentionally refused to pay Kumar and the Missouri Class

Members at the proper rate for all hours worked and for time worked in excess of forty (40)

hours per week. Tech Mahindra knows or should know the proper rate or pay for Kumar and the

Missouri Class Members. Such wrongful conduct demonstrates bad faith on the part of Tech

Mahindra.

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61. Jt is unjust for Tech Mahindra to retain the benefits from the unpaid work

performed by Kumar and the Missouri C lass Members.

WHEREFORE, Plaintiff, as Missouri Class Representative, and the Missou ri Class

members pray for judgment against Tech Mahindra on Count II of the First Amended Complaint;

for certification of this action as a class action pursuant to Rule 23 of the Federal Rules of Civil

Procedure~ for an award of compensatory damages: for pre-judgment and post-judgment interest

as provided by law; fo r attorneys' fees and costs of li tigation; and for such other orders and

further relief as this Court deems just and equitable.

COUNT III

FAILURE TO PAY EARNED OVERTIME IN VIOLATION OF MISSOURI LAW (Mo. Rev. Stat. § 290.500 et seq.)

(On behalf of the Missoud Class Representative and the Missom·i Class)

62. Kumar and the Missouri C lass Members re-allege and incorporate by reference

each and every averment of this First Amended Complaint as though fully set forth therein.

63. At all times material herein, Kumar and the Missouri Class Members have been

entitled to the rights, protections, and benefits provided under Mo. Rev. Stat. § 290.500 el seq.

64. Mo. Rev. Stat. § 290.505 regulates the payment of overtime compensation by

Missomi employers.

65. Tech Mahindra is subject to the overtime pay requ irements of Mo. Rev. Stat. §

290.505 because it is an employer in the state of Missouri under Mo. Rev. Stat.§ 290.500(4) and

Kumar and the Missouri Class Members arc employees under Mo. Rev. Stat. § 290.500(3).

66. Tech Mahindra violated Mo. Rev. Stat. § 290.505 by failing to pay Kumar and the

Missouri Class Members for ove1timc work.

67. Upon information and be lief, 111 the course of perpetrating these unlawful

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practices, Tech Mahindra willfully failed to keep accurate records of all hours worked by

employees as required by Mo. Rev. Stat. § 290.520.

68. Kumar and the Missouri Class Members are entitled to damages equal to the

amount of unpaid wages for overtime premium pay wi thin the three (3) years preceding the filing

of this action, plus periods of equitable tolling, because Tech Mahindra acted wi llfully and knew

or showed reckless disregard for the matter of whether its conduct was prohibited.

69. Tech Mahindra acted in bad faith and without reasonable grounds to believe its

actions and omissions were compliant with Mo. Rev. Stat.§ 290.505. As a result thereof, Kumar

and the Missouri Class Members arc entitled to recover an award of liquidated damages in an

amount equal to the amount of unpaid overtime pay pursuant to Mo. Rev. Stat. § 290.527.

70. As a resu lt of these willful violations of the overtime provisions under Mo. Rev.

Stat. § 290.505, overtime compensation has been unlawflllly withheld by Tech Mahindra from

Kumar and the Missouri Class Members for which Tech Mabindra is liable pursuant to Mo. Rev.

Stat. §§ 290.505 and 290.527, along with an addi tional equal amount as liquidated damages,

pre-judgment and post-judgment interest, reasonable attorneys' fees and costs of this action.

WHEREFORE, Kumar and the Missouri Class Members pray for judgment against Tech

Mahindra under Count J JI of the Complaint and pray for:

( 1) certification of this action as a class action pursuant to Rule 23 of the Federal Rules of

Civil Procedure;

(2) compensatory damages for all overtime compensation due;

(3) liquidated damages under Mo. Rev. Stat. § 290.527;

(4) attorneys' fees and costs as al lowed by Mo. Rev. Stat. § 290.527;

(5) prejudgment and post-judgment interest as provided by law; and

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(6) such other relief the Comi deems fair and equitable.

DEMAND FOR JURY TRIAL

Plaintiff Kumar and those similarly situated request a trial by jury as to all issues triable

by jury.

Respectfully Submitted,

SEDEY HARPER WESTHOFF, P.C. Attorneys for Plaintiff and those Similarly Situated

Is/ Benjamin F. Westhoff' Benjamin F. Westhoff, #53047 Jessica M. Scales, #64136 2711 Clifton Ave. St. Louis, MO 63139 314/773-3566 (phone) 314/773-3615 (fax) [email protected] [email protected]

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IN THE UNITED STATES DISTRlCT COURT EASTERN DISTRICT OF MISSOURI

EASTERN DJVISJON

PA NKAJ KUMAR individually and on behalf of al l other similarly situated individuals.

Plaintiff,

v.

) ) ) ) ) ) ) )

Case No.4: 16-cv-00905-JAR

JURY TRIAL DEMANDED TECH MAl JINDRA (AMERICAS), INC., )

Defendant. ) )

NOTICE OF CONSENT

I, the undersigned, a current or former employee of the above-named defendant, hereby consent to participate as a party plaintiff in a collect ive action lawsuit under the Fa ir Labor Standards Act ("FLSA") seeking any and all overtime pay and all other damages and amounts that I may be owed under the FLSA. By joining this col lective action, I agree to be a class representative. I choose to be represented by Scdey Harper Westhoff, P.C., and any other attorneys with whom they may associate in this lawsuit. I agree to be bound by the outcome of this proceeding.

PANKAJ KUMAR

Fu ll Name (Print)

Signature

9/29/16

Date

EXHIBIT

B

E7r - Consumer Rights | Nichols Kaster, PLLP · Tech Mahindra has enjoyed ill-gained proJits at the...

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