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STATE OF SOUTH CAROLINA )


) IN THE COURT OF COMMON PLEAS
COUNTY OF CHEROKEE )
)
Shannon Burgess, individually and on )
behalf of all others similarly situated, )
)
Plaintiff, )
)
v. ) SUMMONS
) (JURY TRIAL DEMANDED)
Cherokee County School District; Cherokee )
County School District Board of Trustees; )
Cherokee County School District Office )
of Superintendent, and Principal Gavin )
Fisher, individually and in his official )
capacity, )
)
Defendants. )
____________________________________)

YOU ARE HEREBY SUMMONED and required to answer the Complaint in this action,

a copy of which is attached herewith served upon you, and to serve a copy of your answer to said

Complaint on the subscribers at their mailing address at Post Office Box 314, Mauldin, South

Carolina, 29662, within thirty (30) days after such service; and if you fail to answer the Complaint

within the time aforesaid, judgment by default will be rendered against you for the relief demanded

in this Complaint.

Respectfully Submitted,

S/ John G. Reckenbeil
John G. Reckenbeil, SC BAR NO. 68610
LAW OFFICE OF JOHN RECKENBEIL, LLC
Post Office Box 314
Mauldin, South Carolina 29662
Phone: (864) 248-0436
Fax: (864) 326-5940
Email: john@johnreckenbeillaw.com

Dated: August 7, 2019


Greenville, South Carolina
ELECTRONICALLY FILED - 2019 Aug 07 3:54 PM - CHEROKEE - COMMON PLEAS - CASE#2019CP1100546
STATE OF SOUTH CAROLINA )
) IN THE COURT OF COMMON PLEAS
COUNTY OF CHEROKEE )
)
Shannon Burgess, individually and on )
behalf of all others similarly situated, )
)
Plaintiff, )
) COMPLAINT
v. ) Class/Collective Action
) (JURY TRIAL DEMANDED)
Cherokee County School District; Cherokee )
County School District Board of Trustees; )
Cherokee County School District Office )
of Superintendent, and Principal Gavin )
Fisher, individually and in his official )
capacity, )
)
Defendants. )
____________________________________)

Plaintiff Shannon Burgess (“Burgess”), individually and on behalf of all others similarly

situated, (collectively “Plaintiff”) brings this class/collective action lawsuit against Cherokee

County School District, Cherokee County School District Board of Trustees, Cherokee County

School District Office of Superintendent and Principal Gavin Fisher, individually and in his

official capacity seeking to recover for Defendants’ violations of the Fair Labor Standards Act, 29

U.S.C. §§ 201 et seq., the South Carolina Payment of Wages Act, S.C. Code Ann. §§ 41-10-10 to

110 (Breach of Professional Services Contract (“Teacher”) on behalf of herself and all other

Teachers similarly situated in the Cherokee County School District and other statewide school

districts), allege as follows:

PARTIES AND JURISDICTION

1. Plaintiff Shannon Burgess is a resident of the State of North Carolina, County of

Rutherford. That Plaintiff qualifies as a continuing contract status Teacher under South Carolina

law S.C. Code Ann. § 59-26-40.

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2. Pursuant to 29 U.S.C. § 216(b), Plaintiff has consented in writing to be a party to

the FLSA claims asserted in this action, and Plaintiff’s signed consent form is attached. (See

Exhibit A – Plaintiff’s Consent to Sue Form).

3. Defendant Cherokee County School District is a political subdivision of the state

of South Carolina and a public educational establishment, to which the day-to-day operations are

carried out by the Cherokee County Board of Trustees and the Cherokee County Superintendent

(hereinafter collectively referred to as “Cherokee County School District”).

4. Both Defendant Cherokee County School District Board of Trustees (“Board”) and

Defendant Cherokee County School District Superintendent 1 (“Superintendent”), and at all times

material to this action, has regulated the employment of all persons employed by Cherokee County

School District, and acted directly and indirectly in interest in relation to said employees, and is

therefore both “employer(s)” of Plaintiff within the meaning of section 203(d) of the FLSA.

5. Defendant Principal Gavin Fisher (“Fisher”) at all times material to this action, has

regulated the employment of the Plaintiff and other employees of Cherokee County School District

of Granard Middle School and acted directly and indirectly in interest in relation to said employees,

and was therefore an “employer” of Plaintiff, and other employees similarly situated, within the

meaning of Section 203(d) of the FLSA.

6. In addition, Principal Fisher qualifies as an “employer” under the FLSA based upon

his supervisory authority over the employees and the daily operations of Granard Middle School,

his ability to enforce disciplinary actions against employees, and his authority over scheduling and

directing the employees’ daily assignments to include this named Plaintiff.

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Upon information and belief, Dr. Quincie Moore was Superintendent from approximately 2016
– January 2019; Mr. Donald Andrews was Superintendent from January 2019 – June 2019; and
Dr. Dana Fall became Superintendent July 1, 2019 – present.
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7. All above named Defendants (collectively 2) are subject to the laws under the

FLSA. That Defendants rely on the controlling force Professional Exemption of Teachers and the

Administrative Exemption of the support staff known as the “Educational Establishment” under

the FLSA. (29 CFR 541.204)

8. All above named Defendants are a single and joint employer due to their high

degree of interrelated and unified operations of the educational establishment.

9. During the relevant time period, Defendants’ employees who handled or sold goods

or materials that have been moved in, or produced in interstate commerce, at the Defendants’

concession stands which sell food and drink for profit at after school athletic competitions.

10. The state of South Carolina has set forth laws which incorporate the provisions of

the FLSA (i.e. SC Code 8-11-55; 8-11-140; 6-1-130) and therefore all schoolteachers and

personnel employed and/or working in public schools are afforded the protections under the FLSA.

(29 USC 201 et. seq.)

11. This Court has concurrent subject matter jurisdiction over this matter pursuant to

29 U.S.C. § 216(b).

12. This Court has jurisdiction on the subject matter as Plaintiff also asserts a state law

cause of action pursuant to South Carolina Payment of Wages Act (“PWA”). (SC Code 41-10-10

et. seq.)

13. This Court has concurrent jurisdiction over Plaintiff’s individual FMLA

Interference claim pursuant to 29 U.S.C. 2601 et. seq. because this claim derives from a common

nucleus of operative facts.

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Cherokee County School District, its Board, Superintendent and Principal Fisher, in his official
capacity, are collectively referred to herein as “Defendants”.
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14. Venue is proper because a substantial part of the acts or omissions giving rise to

this Plaintiff’s claims occurred within Cherokee County, and Defendants are subject to personal

jurisdiction in this judicial circuit.

SUMMARY OF CLAIMS

15. Plaintiff brings this action as a collective action to recover unpaid wages, (minimum

and overtime) pursuant to the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. §§ 201 et

seq. (“FLSA”).

16. In particular, Plaintiff brings this suit on behalf herself and of the following

similarly situated employees:

All current and former Teachers who have worked for Defendants (or other school
districts) in the state of South Carolina in the capacity of non-academic
nonexempt hourly employee function(s) within the statutory period covered by
this Complaint and were not paid the requisite minimum wage, and who elect to
opt-in to this action pursuant to FLSA, 29 U.S.C. § 216(b). (“FLSA Minimum
Wage Collective Class”)

17. In particular, Plaintiff brings this suit on behalf herself and of the following similarly

situated employees:

All current and former Teachers who have worked for Defendants (or other
school districts) in the state of South Carolina in the capacity of non-academic
nonexempt hourly employee function(s) within the statutory period covered by
this Complaint and were not paid the requisite overtime wage, and who elect to
opt-in to this action pursuant to FLSA, 29 U.S.C. § 216(b). (“FLSA Overtime
Collective Class”)

18. In addition, Plaintiff also brings an action as a class action to recover those unpaid

wages due and owed that fall outside the purview of the FLSA and are recoverable pursuant to

South Carolina Payment of Wages Act, S.C. Code Ann. §§ 41-10-10 to 110 (“SC PWA Class”).

19. Specifically, Plaintiff brings this suit on behalf herself and of a class of similarly

situated employees composed of:

All current and former Teachers who have worked for Defendants (or other
school districts) in the state of South Carolina in the capacity of non-academic
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nonexempt hourly employee function(s) within the statutory period covered by
this Complaint and failed to receive all due and owed wages pursuant to the
Payment of Wages Act. (“SC PWA Class”)

20. In addition, Plaintiff also brings an action as a class action to recover wages that

were not paid “Free and Clear” that remain due and owed under contract and are recoverable

pursuant to South Carolina Payment of Wages Act, S.C. Code Ann. §§ 41-10-10 to 110 (“SC Free

& Clear Class”).

21. Specifically, Plaintiff brings this suit on behalf of herself and a class of similarly

situated employees composed of:

All current and former Teachers who have worked for Defendants (or other
school districts) in the state of South Carolina in the capacity of non-academic
nonexempt hourly employee function(s) within the statutory period covered by
this Complaint and failed to receive all due and owed wages as a result of the
Defendants’ requirement of having to divert wages to kick-back monies for the
benefit of the employer or a third party of employer’s discretion. (“SC Free &
Clear Class”)

FACTUAL ALLEGATIONS

22. Plaintiff was hired by the Defendants to perform teaching functions in accordance

with a Teacher contract as defined in Section 59-26-40 of South Carolina Code.

23. Generally, Plaintiff is an employee of Defendants with a primary duty of teaching,

tutoring, instructing or lecturing in the activity of imparting knowledge and who is employed and

engaged in this activity as a Teacher in an educational establishment by which the employee is

employed. This also includes the teaching role of extracurricular activities as set forth and

described in 29 C.F.R. 541.303.

24. As part of Teacher daily assignments, Defendants required Plaintiff to teach

students core requirements in accordance with state and federal standards in an educational

establishment.

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25. That South Carolina law has set forth educator contracts. The legal contracting

requirements of the timing process for 2018-19 school year of all parties’ duties was outlined in a

memorandum by State Superintendent of Education, Molly M. Spearman. (See Exhibit B)

26. That this Plaintiff was contracted for the 2018-19 school year under the Continuing

Contract and is set forth as Exhibit C to this Complaint.

27. That this Plaintiff’s paycheck stub listed her as ELA Grade 6. That this Plaintiff

was in her thirteenth (13th) year of teaching and holds a master’s degree.

28. That the Defendants (and all other school districts in this state 3) as part of its annual

requirement set forth the 2018-2019 adopted salary schedules. (See Exhibit D).

29. That Plaintiff’s employment contract reads in pertinent part: “The District agrees

to pay the Employee according to the salary schedule adopted by the Board.” (See Exhibit C,

paragraph 3).

30. That the Defendants have set forth for Fiscal Year 2018-2019 the Budget

Development Calendar which sets forth in specific details the calendar dates by which each step

of the budget process is completed or its approximation. (See Exhibit E).

31. That this Plaintiff, and all others similarly situated, is and was classified, under the

FLSA, as an exempt learned professional on a semimonthly salary pay schedule.

32. However, despite being hired as a Teacher under the previous stated classification,

Defendants require Teachers, for no additional compensation, to work additional hours outside the

boundaries of the reasonable educational functions directly related to academic instructions or

training, and outside the normal hours of classroom teaching (“non-academic”).

3
As this lawsuit is a collective/class action it should be noted that “Defendants”, “school districts”,
and “Boards” are used interchangeably with the singular and plural context not only describing
Cherokee County School District and its Board but also those throughout the entire state as they
maybe later ruled similarly situated Defendants.
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33. That this Plaintiff, and those similarly situated, was required to work as a non-

compensated concession stand attendant at the Defendants’ after school sporting events. That at

these concession stands these non-compensated workers sold food and drink items to the public

for Defendants’ profit and displaced regular employed non-exempted employees. 4

34. Throughout the entire duration of Plaintiff’s employment, Principal Fisher required

Plaintiff, and other Teachers, to perform this non-academic non-exempt work for no additional

hourly compensation.

35. Defendants impermissibly avoided operating costs, whereby failing to pay

additional compensation such as mandated minimum and/or overtime wages.

36. It cannot be said that this Plaintiff, or those similarly situated, volunteered for these

services as the Teachers did not offer themselves for work freely and without coercion. In addition,

federal law, cognizant of undue influence, rarely recognizes an employee of an employer as a

“volunteer” of that same employer.

37. Defendants’ actions were not in good faith or based upon any reasonable belief that

they were not violating applicable wage and hour laws.

38. The Department of Labor has definitively stated that workers who perform work

for a non-profit organization are subject to the FLSA while engaged in commercial activities that

result in sales made or business done 5.

39 At no time can Defendants assert that any work time of a Teacher as a concession

attendant selling food or drink for the Defendants’ profit can be exempt work under the FLSA as

4
It should be noted that “lunchroom managers or dietitians do not perform academic
administrative functions” as specifically noted under 29 C.F.R 541.204(a)(2), the section that
defines educational establishment.
5
U.S. Department of Labor, Wage and Hour Division, Fact Sheet 14A: Non-Profit Organizations
under the FLSA. http://www.dol.gov/whd/regs/compliance/fairpay/fs14a_overview.htm
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deemed tasks that are “directly and closely related” to the Teachers learned profession exempt

work. 29 CFR 541.702; 29 CFR 541.703(a).

39. Nor can the Defendants claim that otherwise nonexempt tasks that are occasional

and infrequently reoccur may be considered exempt work if nonexempt employees cannot

practicably perform them.

40. Plaintiff had no control over the manner and method by which she was paid.

41. Plaintiff had no opportunity for profit and no risk of loss while selling at the

sporting event concession stands.

42. Plaintiff, and all those similarly situated, is clearly a nonexempt hourly employee

under the FLSA’s minimum wage and overtime requirements when working in a completely non-

academic capacity.

FIRST CAUSE OF ACTION


FAIR LABOR STANDARDS ACT MINIMUM WAGE VIOLATIONS
(FLSA Minimum Wage Collective Class)

43. Plaintiff, on behalf of herself and the putative collective class, re-alleges and

incorporates by reference the paragraphs above as if they were set forth herein.

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

engaged in interstate commerce within the meaning of the FLSA, 29 U.S.C. §§ 206(a).

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

Plaintiff and each putative member of the collective class within the meaning of FLSA.

46. That this Plaintiff, and all others similarly situated Teachers, are classified as an

exempt learned professional in an educational establishment and paid on a semimonthly pay

schedule.

47. However, despite being hired and contracted as a Teacher under the previously

stated classification, Defendants require Teachers, for no additional compensation, to work

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additional hours outside the boundaries of the reasonable educational functions directly related to

academic instructions or training and outside the normal hours of the classroom.

48. That this Plaintiff, and those similarly situated, was required to work as a non-

compensated concession stand attendant at the Defendants’ sporting events 6. That at these

concession stands, non-compensated workers sold food and drink (money and meals 7) items to the

public for Defendants’ profit and displaced regular employed non-exempted employees.

49. Further, the Defendants failed to pay any wages to Plaintiff for the time spent each

time working in a non-academic capacity such as a concession stand attendant. As such, this time

was compensable, and Plaintiff, and all those similarly situated, were deprived the requisite

minimum wage for this non-exempt work time.

50. To further demonstrate the Defendants’ blatant disregard for the law, Cherokee

County School District has a policy that on its face violates the FLSA. It reads: “All certified staff

are exempt, thus the time started and ended would not be required to ensure compliance with

FLSA.” (See Exhibit F). This demonstrates the clear willful disregard to the actual duties

performed on an hourly basis that are outside the academic educational establishment for which

these Teachers are mandated to perform on an unpaid hourly basis. That Defendants have violated,

and continue to violate, the FLSA, 29 U.S.C. §§ 206 et seq. The foregoing conduct, as alleged,

constitutes a willful violation of the FLSA within the meaning of 29 U.S.C. § 255(a).

51. Due to Defendants’ FLSA violations, Plaintiff, on behalf of herself and all other

similarly situated members of the putative collective class, are entitled to recover from the

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That concession stand attendant will not be the litmus test for membership to this putative class.
Rather, it will be a “Teacher” working non-compensated hours, in a truly non-academic capacity.
29 CFR 541.303 provides good guidance.
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US DOL generally considers employees in those particular areas are entitled to minimum wages
and overtime compensation.
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Defendants compensation for unpaid minimum wages; an additional equal amount as liquidated

damages; and reasonable attorneys’ fees and costs of this action pursuant to 29 U.S.C. § 216(b).

SECOND CAUSE OF ACTION


FAIR LABOR STANDARDS ACT OVERTIME WAGE VIOLATIONS
(FLSA Overtime Collective Class)

52. Plaintiff, on behalf herself and the putative collective class, re-alleges and

incorporates by reference the paragraphs above as if they were set forth herein.

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

engaged in interstate commerce within the meaning of the FLSA, 29 U.S.C. §§ 207(a).

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

of the putative collective class members within the meaning of FLSA.

55. At all relevant times in the period encompassed by this Complaint, Defendants had

and maintain a willful policy and practice of refusing to pay overtime compensation for all hours

worked in a non-academic non-exempt capacity as described above that combined with other work

hours were in excess of forty (40) hours per workweek.

56. As indicated in the previously stated paragraphs and as evidenced by Exhibit F,

Defendants have violated, and continue to violate, the FLSA, 29 U.S.C. §§ 207 et seq. The

foregoing conduct, as alleged, constitutes a willful violation of the FLSA within the meaning of

29 U.S.C. § 255(a).

57. Due to Defendants’ FLSA violations, Plaintiff, on behalf of herself and all other

similarly situated members of the putative collective class, is entitled to recover from the

Defendants compensation for unpaid overtime wages; an additional equal amount as liquidated

damages; and reasonable attorneys’ fees and costs of this action pursuant to 29 U.S.C. § 216(b).

THIRD CAUSE OF ACTION


SOUTH CAROLINA PAYMENT OF WAGES ACT
(SC PWA Class)

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58. Plaintiff, on behalf of herself and the putative members of the SC PWA Class, re-

alleges and incorporates by reference the paragraphs above as if they were set forth again herein.

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

Plaintiff and each of the putative SC PWA class members within the meaning of the South Carolina

Payment of Wages Act, S.C. Code Ann. §§ 41-10-10 to 110 (“PWA”). Plaintiff and the putative

SC PWA Class members are “employees” and are not free from the control and direction of

Defendants.

60. Plaintiff and the SC Class worked for Defendants with the clear understanding and

agreement by Defendants that their compensation would be consistent with all applicable laws,

including federal and state wage and hour laws.

61. That in addition to the First and Second Causes of Action, Plaintiff also brings an

action as a class action to recover those unpaid wages due and owed that fall outside the purview

and/or pre-emption of the FLSA and are recoverable pursuant to South Carolina Payment of Wages

Act, S.C. Code Ann. §§ 41-10-10 to 110 (“SCPWA Class”).

62. That Exhibit D sets forth the salary schedule/hourly rates of pay for non-academic

non-exempt employees of the school district. That this Plaintiff, and all those similarly situated,

has an employment contract that states “the District agrees to pay the Employee according to the

salary schedule adopted by the Board”. (See Exhibit C, paragraph 3).

63. That South Carolina has long recognized the Wage Payment Act as the vehicle to

recover wages due and owed from an employment contract that are not within the purview of the

FLSA.

64. Accordingly, Plaintiff, and all those other similarly situated members of the

putative SC PWA Class, are entitled to receive all compensation at their own specific regular rate

that are due and owed to them.

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65. As a result of Defendants’ unlawful policies and practices as set forth above,

Plaintiff, and the putative members of the SC PWA Class, have been deprived of compensation

due and owing which Defendants promised to pay in their commitment to abide by the employment

contract and applicable wage and hour laws.

66. As a direct and proximate result of Defendants’ conduct, Plaintiff, and all other

similarly situated employees of the putative SC PWA Class, have been deprived of compensation

to which they are entitled, including monetary damages in the amount of three (3) times the unpaid

wages as well as reasonable attorneys’ fees and costs.

FOURTH CAUSE OF ACTION


SOUTH CAROLINA PAYMENT OF WAGES ACT VIOLATION/ BREACH OF
EMPLOYMENT CONTRACT
(SC Free & Clear Class)

67. Plaintiff, on behalf of herself and all other similarly situated members of the

putative SC Free & Clear Class, re-alleges and incorporates by reference the paragraphs above as

if they were set forth again herein.

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

Plaintiff and each similarly situated member of the putative SC Free & Clear Class within the

meaning of the South Carolina Payment of Wages Act, S.C. Code Ann. §§ 41-10-10 to 110

(“PWA”).

69. Plaintiff and the SC Free & Clear Class putative members are for this cause of

action “employees” employed as a Teacher in an educational establishment paid a set salary on a

set qualitative and quantitative formula and are not free from the control and direction of

Defendants and other similarly situated school districts.

70. Plaintiff, and all other similarly situated putative members of the SC Free & Clear

Class, worked for Defendants and other similarly situated school districts under designated South

Carolina state law established a yearly Contract Status as a Teacher with the clear understanding
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and a contractual agreement with Defendants that their salary wage compensation would be set at

a specific amount “according to the salary schedule adopted by the Board” and that specific wage

amount paid “Free and Clear” consistent with all applicable laws, including federal and state wage

and hour laws.

71. Pursuant to the PWA, “[a]n employer shall not withhold or divert any portion of

the employee’s wages unless the employer is required or permitted to do so by state or federal law.

. . .” S.C. Code Ann. § 41-10-40(C).

72. Further, “any changes [to] the terms [of wages] must be made in writing at least

seven calendar days before they become effective.” S.C. Code Ann. § 41-10-30(A).

73. Pursuant to Federal Wage and Hour law,

…[‘Wages’] cannot be considered to have been paid by the employer and


received by the employee unless they are paid finally and unconditionally or
[‘Free and Clear’]. The wage requirements of the Act will not be met where the
employee ‘kicks-back’ directly or indirectly to the employer or to another person
for the employer’s benefit the whole or part of the wage delivered to the
employee. This is true whether the ‘kick-back’ is made in cash or in other than
cash. For example, if it is a requirement of the employer that the employee must
provide tools of the trade which will be used in or are specifically required for
the performance of the employer’s particular work… 29 C.F.R. 531.35.

74. In addition, “[a]n Employer who makes improper deductions from salary shall lose

the exemption if the facts demonstrate…” as set forth in 29 C.F.R. 541.603.

75. That it has long been a pattern of practice throughout this nation and the state of

South Carolina that school districts, to include Cherokee County, have unconscionably and

impermissibly shifted operating costs of the classrooms directly on the financial backs of our

Teachers. Cherokee County School District’s 2013 Accreditation Report (Exhibit G, pages 3-4),

reads of the strapped financial issues it encounters on a reoccurring basis. In addition, this report

sets forth what it claims as the budgeting process: “each school and department is provided an

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operational resource budget based upon student population and school characteristics”. (See

Exhibit G, pages 34-35).

76. The 2018-2019 Final Approved General Fund Budget is set forth as Exhibit H, with

a line item sum certain down to the dollar; the total salaries for all teachers combined, and the

“Total Supplies and Materials”.

77. That Plaintiff Burgess was required to divert and kick-back her teacher salary

wages to purchase items at the direction of Defendants all for the direct and/or indirect benefit of

the employer and/or employer’s chosen third party.

78. That by way of a specific example and basis of this cause of action, Plaintiff

Burgess was required by Defendant Fisher in both October 2017 and October 2018 to divert her

wages, “kick-back”, and purchase “classroom PTO raffle Gift Baskets”. This is indicated by the

asterisk on Plaintiff’s personal BB&T bank statements enclosed as Exhibit I. What these bank

statements illustrate is the direct deposit of her teacher salary and the funds paid out as the required

“kick-back” at the direction of the school district. Each gift basket was auctioned off as directed

by the Defendants with the proceeds benefiting and going to a third party known as the Parent

Teacher Organization (“PTO”).

79. That this specific “kick-back” was mandatory as Principal Fisher would constantly

hound each teacher to get the Gift Basket turned in for the auction. In addition, Principal Fisher

would make sure that each Gift Basket was labeled with each class name in clear view. To hinge

more on the teacher, Principal Fisher’s front office kept a list of those Teachers that had yet to turn

in a Gift Basket for their class. All these tactics described are Defendants’ undue influences of

public shaming techniques to accomplish this illegal kick-back.

80. That this specific Gift Basket “kick-back” was a known direct diverting of an

employee’s wages at the command of the employer to the benefit of a third party and the employer.

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81. That Defendants’ requirement that Plaintiff, and all those Teachers similarly

situated, divert their wages to purchase items and supplies amount to a breach of the Teacher

Contract and an improper reduction/kick-back without seven days advance notice of the set

specific annual salary due and owed has not been paid “Free and Clear” in its entirety, all in

violation of the Payment of Wages Act of SC.

82. In addition, the facts as outlined in this verified complaint more than raise

substantial common facts and issues of law as to whether this practice is so rampant as to destroy

the “salary basis” in which Teachers are compensated all in violation of 29 C.F.R 541.603.

83. Accordingly, Plaintiff, and the members of the SC Free & Clear Class, are entitled

to receive all compensation due and owing to them.

84. As a result of Defendants’ unlawful policies and practices as set forth above,

Plaintiff, and the members of the SC Free & Clear Class, have been deprived of compensation due

and owing which Defendants promised to pay not only in the Educator Contracts but also in their

commitment to abide by applicable federal and state wage and hour laws that includes outlawing

direct or indirect employer directed “kick-backs” and the PWA which mandates that no wages be

diverted unless required or permitted under applicable law.

85. Defendants have knowingly directly and indirectly required wages be diverted for

the benefits of the employers’ directed third parties without providing requisite advance written

notice of such amounts and absent any lawfully sufficient reason for such conduct.

86. As a direct and proximate result of Defendants’ conduct, Plaintiff, and the SC Free

& Clear Class, have suffered substantial losses and have been deprived all wage compensation to

which they are entitled, including monetary damages in the amount of three (3) times the unpaid

wages as well as reasonable attorneys’ fees and costs.

FIFTH CLAIM FOR RELIEF (Shannon Burgess, Individual Claim)


FMLA INTERFERENCE
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As to Cherokee County School District and Gavin Fisher, individually and in his
official capacity

87. Plaintiff re-alleges and incorporates by reference the paragraphs above as if they

were set forth herein.

88. Defendant is a covered “employer” under FMLA because it is a “Local Educational

Agency” in the fact it’s a public primary and/or secondary school. 29 U.S.C. § 2611(4)(A); 29

C.F.R. 825.104; 825.600

89. The Plaintiff is an “employee” for the purposes of FMLA because she was

“eligible” in that she was employed by the Defendant for at least twelve (12) months and in a

school district that had 50 or more employees. 29 U.S.C. § 2611(2)(A); 29 C.F.R 825.600(b)

90. “[A]ny violation of the [FMLA] or [its] regulations constitute interfering with,

restraining, or denying the exercise of rights provided by the [FMLA].” 29 C.F.R. § 825.220(b).

91. That Plaintiff’s FMLA leave did not fall into any special exception portions of the

FMLA for Teachers when it came to timing close to the end of a semester.

92. That Defendant Fisher made Plaintiff, as a condition of her FMLA continuous leave

and reinstatement, continue to provide daily lesson plans for her class for the entire duration of her

FMLA leave.

93. That Plaintiff, while caring for her own serious condition, did in fact provide the

lesson plans that Defendant Fisher required as a condition of her FMLA leave and reinstatement.

94. That Defendants’ actions constituted a deliberate interference with Plaintiff’s rights

afforded under 26 U.S.C 2601 et seq.

95. That Plaintiff was required to use banked sick time to be compensated for her

otherwise unpaid FMLA.

96. That due to Plaintiff performing her job duties, she would be entitled to full

compensation on those days she provided lesson plans.


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97. That Plaintiff seeks a declaration from this Court that the actions by Defendant

Fisher were unlawful and a specific interference of the FMLA. In addition, this Plaintiff seeks

equitable remedy of the prospective nature of recrediting her banked sick time account and

enjoining Defendant Fisher from requiring Teachers, as a condition of their FMLA time off and

ultimate reinstatement, to perform work during FMLA leave, such as providing daily lesson plans

for their class.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, individually and on behalf of herself and all others similarly

situated, pray that the Court grant the following relief:

A. Designation of the First and Second Causes of Action as collective actions on behalf

of the both the FLSA Minimum Wage Collective Class and FLSA Overtime

Collective Class and prompt issuance of notice pursuant to 29 U.S.C. § 216(b)

apprising class members of the pendency of this action and permitting them to

assert timely FLSA claims in these actions by filing individual consents to sue

pursuant to 29 U.S.C. § 216(b);

B. Designation of the Third and Fourth Causes of Action as class actions under

SCRCP 23 on behalf of the SC PWA Class and SC Free & Clear Class;

C. Appointment of the undersigned as Class(es) Counsel;

D. Find that Defendants’ FLSA violations were willful;

E. A declaratory judgment that the Defendants misclassified their employees as

exempt instead of non-exempt hourly employees when the Teachers were working

in a non-academic capacity and therefore committed practices that are unlawful

under the FLSA;

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F. An injunction under 26 USC 2601 et seq of the FMLA against Defendants to

specifically include Principal Fisher and their officers, agents, successors,

employees, representative and any and all persons acting in concert with it, as

provided by law, from engaging in each of the unlawful practices, policies and

patterns set forth herein in the future;

G. Awarding individual Plaintiff Shannon Burgess relief in requiring her banked sick

time be recredited along with any and all damages available under the FMLA to

include attorneys’ fees and costs;

H. An award of unpaid minimum wages to Plaintiff and the putative members of the

Classes;

I. An award of unpaid overtime wages to Plaintiff and the putative members of the

Classes;

J. Restitution and/or payment of all wages improperly diverted, “kicked-back” or

reduced by Defendants and other school districts;

K. An award of liquidated damages to Plaintiff and members of the Classes;

L. An award of treble damages to Plaintiff and members of the Classes to the extent

permitted by S.C. Code Ann. § 41-10-80(C);

M. An award of costs and expenses of this action together with reasonable attorneys’

fees; and

N. Such other and further relief as this Court deems just and proper and requested in

the body of this complaint.

[SIGNATURE PAGE FOLLOWS]

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Respectfully Submitted,

S/ John G. Reckenbeil
John G. Reckenbeil, SC BAR NO. 68610
LAW OFFICE OF JOHN RECKENBEIL, LLC
Post Office Box 314
Mauldin, South Carolina 29662
Phone: (864) 248-0436
Fax: (864) 326-5940
Email: john@johnreckenbeillaw.com

Dated: August 7, 2019


Greenville, South Carolina

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