STATE OF MAINE SUPERIOR COURT

CUMBERLAND, SS CIVIL ACTION

DOCKET NO. CV-

TRACY TANNOIA, individually and

on behalf of all those similarly situated,

Plaintiff,
v.

SOUTH PORTLAND SCHOOL DEPARTMENT

Defendant.

CLASS ACTION COMPLAINT

1. Plaintiff Tracy Tannoia, by and through her undersigned counsel, files this Class

Action Complaint on behalf of herself and those similarly situated current and former Educational

Technicians (“Ed Techs”) employed by Defendant South Portland School Department (“SPSD”)

for unpaid wages.

2. In addition, Plaintiff Tannoia seeks injunctive relief pursuant to 26 M.R.S. § 639 to

enjoin the SPSD’s policy and/or practice of failing to pay her and all Ed Techs it employs for all

hours worked.

3. Plaintiff Tannoia and similarly situated Ed Tech employees of the SPSD regularly

work more than their scheduled hours.

4. Unscheduled or otherwise unplanned for work hours, which happens on a routine

basis, must be handled by, among others, Plaintiff Tannoia and similarly situated Ed Tech

employees of SPSD. This necessarily means that Plaintiff Tannoia and similarly situated Ed Tech

employees are, due to the nature of their job, often required to work beyond their scheduled hours.
 5. Plaintiff Tannoia and similarly situated Ed Tech employees of SPSD are routinely

not paid for these additional unscheduled hours of work.

6. Nonetheless, Maine law does not allow an employer, even a school department like

SPSD, to permit or require its employees to work without monetary compensation. Even an

employee with a job as important as watching over Maine students cannot be compelled to work

without pay. Even when paying their employees would be difficult or expensive, Maine law does

not permit employers to shift this burden to their employees without monetary compensation.

7. Further exacerbating the problem is that the SPSD has, to date, failed to implement

a regular system through which it can track and collect its employees hours worked. This ensures

that the only hours it collects regarding the work of Tannoia and other similarly situated Ed Tech

employees of the SPSD are those that those employees self-report. And for the reasons described

further below, these reports fail to encompass all hours worked.

8. Plaintiff Tannoia asserts claims on behalf of herself and a group of similarly

situated individuals who are currently and were formerly employed by SPSD as Educational

Technicians, including claims based on: (i) failure to pay wages when due in violation of 26 M.R.S.

§ 621-A; and (ii) failure to pay for all hours worked in violation of 26 M.R.S. §§ 626-A and 629.

9. Further, to remedy and enjoin the SPSD’s continual violations of 26 M.R.S. §§ 621-

A, 626-A & 629, Tannoia seeks an injunction pursuant to 26 M.R.S. § 639 requiring the SPSD to

track all hours worked by its Ed Tech employees and compensate them for all hours worked.

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 STATEMENT OF THE CASE

10. Defendant South Portland School Department manages 9 schools: (i) Brown

Elementary; (ii) Dyer Elementary; (iii) Kaler Elementary; (iv) Skillin Elementary; (v) Small

Elementary; (vi) Mahoney Middle; (vii) Memorial Middle; (viii) South Portland High School; and

(ix) South Portland Adult Education.

11. Between these nine schools, the SPSD employs approximately 150 Ed Techs.

12. The SPSD pays its Ed Techs either for all hours scheduled in a workweek or on an

annualized basis.

13. When a Staff Employee is paid on an annualized basis their scheduled hours for the

school year are totaled and then their pay for those scheduled hours is distributed to them in twenty-

six roughly equal installments on a biweekly basis for the entirety of the year.

14. In calculating the pay for its Ed Techs that are paid on an annualized basis, the

SPSD assumes that they are working their scheduled hours and only their scheduled hours.

15. The SPSD maintains no regular and routine system across its schools to track and

record the actual hours its employees work, including its Staff Employees.

16. On a regular basis, the SPSD requires its Ed Techs to work beyond their regularly

scheduled work hours.

17. Each individual overage is often short, but when added together, SPSD permits or

requires Tannoia and similarly situated Ed Tech employees to work approximately an extra hour

or two per week beyond their regularly scheduled hours.

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 PARTIES

18. Plaintiff Tracy Tannoia is a resident of Cumberland County, Maine.

19. Defendant South Portland School Department is a Maine municipal school district

organized under the laws of the State of Maine, with a principal place of business in South

Portland, Cumberland County Maine.

FACTS

DEFENDANT SOUTH PORTLAND SCHOOL DEPARTMENT EMPLOYS ITS ED

TECHS

20. Defendant SPSD employs approximately one-hundred and fifty (150) Ed Techs at

its nine (9) schools.

21. The terms of SPSD’s employment of its Ed Techs have been governed over the

years by a series of Collective Bargaining Agreements by and between the Board of Education of

the City of South Portland and the South Portland Educational Support Professionals Association.

22. Each of the collective bargaining agreements, for the purposes of this action, is

substantially similar.

23. The most current version of these collective bargaining agreements is the 2022-25

Collective Bargaining Agreement (“22-25 CFB”).

24. Pursuant to the 22-25 CFB, the SPSD’s Ed Techs’ hourly pay is governed by an

agreed upon and clear wage scale.

25. Further, the 22-25 CFB specifies that the SPSD can pay its Ed Techs in one of two

ways, either they are “paid as earned on a weekly basis” or “averaging the employee’s pay over

twenty-six (26) pay periods.”

26. Moreover, the 22-25 CFB provides that the SPSD’s Ed Techs’ work week shall be

at least thirty-five (35) hours per week, but that the Superintendent shall have the discretion to

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increase those hours. Nonetheless, the 22-25 CFB later states that “[n]o hours in excess of thirty-

five (35) hours per week shall be worked except with prior approval of the employee’s supervisor.”

TRACY TANNOIA’S EMPLOYMENT WITH THE SOUTH PORTLAND SCHOOL

DEPARTMENT

27. Plaintiff Tannoia was hired by the SPSD in or around August 2000.

28. Tannoia has spent the entirety of her career as an Ed Tech working for the SPSD.

29. In her career as an Ed Tech, Tannoia worked at Dyer Elementary, Brown

Elementary, and Small Elementary.

30. On a regular basis and across all three of the elementary schools she worked at,

Tannoia was required to work beyond her scheduled hours.

31. Tannoia was generally scheduled for seven (7) hours a day, five (5) days per week,

from 8:15 A.M. through 3:15 P.M., with an unpaid twenty-five minute lunch break.

32. However, in order to perform her job at the appropriate level expected by SPSD,

Tannoia was required to spend additional time beyond her scheduled hours preparing and planning

for her time with the students.

33. Tannoia knows from speaking with other Ed Techs over the course of her career

knows that most, if not all, other similarly situated Ed Tech employees of the SPSD similarly spend

time beyond their scheduled hours to prepare and plan for their time with students.

34. Further, Tannoia was regularly expected to arrive at work early for meetings and

often stay late beyond her regularly scheduled hours to ensure that all students are picked up safely.

35. Tannoia knows from speaking with other Ed Techs over the course of her career

knows that most, if not all, other similarly situated Ed Tech employees of the SPSD similarly are

regularly expected to arrive early for meetings and stay late to ensure that all students are picked

up safely.

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 36. This preparation time, in addition to the time that Tannoia was required to arrive

early and stay late, totaled approximately one (1) to two (2) hours per week that Tannoia was

required to work beyond her scheduled hours.

37. Tannoia, from speaking with other similarly situated Ed Techs employed by the

SPSD over the course of her career, knows that her work overage time is standard among all

similarly situated Ed Techs employed by SPSD.

38. When Tannoia has complained about this additional work to her direct superiors,

she has been told that they don’t want to know about the overages or that it’s just a part of the job

and should be disregarded.

39. From speaking with other similarly situated Ed Techs employed by the SPSD,

Tannoia is aware that they have received similar responses when trying to address time overages

with their direct superiors.

40. Though the SPSD purports to require Tannoia and similarly situated Ed Tech

employees of SPSD to include time they work beyond their scheduled hours on a timesheet they

can then submit for payment, in practice Tannoia and similarly situated Ed Tech employees of

SPSD are rarely allowed or encouraged to submit such timesheets and are often told that such

additional hours are not approved for payment.

41. Because of these responses, Tannoia often just disregards this unpaid time as part

of the job and therefore does not receive payment for all of their hours worked.

42. Tannoia, from speaking with other similarly situated Ed Techs employed by the

SPSD over the course of her career that most, if not all, other Ed Techs employed by the SPSD

similarly disregard this unpaid time.

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 43. This system has ensured that the SPSD reaps the benefits of hundreds of hours of

unpaid labor by Tannoia and similarly situated Ed Tech employees of SPSD on an annual basis.

THE SOUTH PORTLAND SCHOOL DEPARTMENT HAS VIOLATED 26 M.R.S. § 629

AND THEREFORE HAS CAUSED DIRECT HARM TO TANNOIA AND ALL OF ITS
ED TECH EMPLOYEES

44. The SPSD has routinely and, as a matter of practice, required and/or permitted

Tannoia and similarly situated Ed Tech employees of the SPSD to work beyond their scheduled

hours, hours for which they are not paid in violation of 26 M.R.S. § 629.

45. Further, the SPSD’s practice of failing to pay Tannoia and similarly situated Ed

Tech employees of the SPSD for all hours worked has caused them direct harm through the loss

of wages.

TANNOIA SEEKS AN INJUNCTION COMPELLING THE SOUTH PORTLAND

SCHOOL DEPARTMENT TO ESTABLISH A RELIABLE METHOD OF TRACKING
AND RECORDING HOURS WORKED BY ITS STAFF EMPLOYEES.

46. Pursuant to 26 M.R.S. § 639, Tannoia seeks an injunction enjoining the SPSD’s

practice of requiring or permitting Tannoia and similarly situated Ed Tech employees of the SPSD

to work without pay in violation of 26 M.R.S. § 629.

47. To accomplish this goal, Tannoia recognizes that the SPSD must first ensure that it

is properly, diligently and completely tracking and recording all hours worked by its Ed Tech

employees.

48. Accordingly, and specifically, Tannoia seeks an injunction compelling the SPSD

to establish a system through which its Ed Tech employees can contemporaneously track and

submit their hours worked for compensation, separate and apart from any system in which they

are required to seek and obtain approval prior to completing that work.

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 SPSD FAILS TO CORRECT ITS FAILURE TO PAY

49. Named Plaintiff Tannoia personally requested all her unpaid wages, on her own

behalf and on behalf of all similarly situated Ed Tech employees of the SPSD, via letter dated

March 7, 2023.

50. SPSD have refused to correct their failure to pay named Plaintiff Tannoia and all

similarly situated Ed Tech employees of the SPSD.

RULE 23 CLASS ACTION ALLEGATIONS

51. Named Plaintiff Tannoia re-alleges each of the allegations in the paragraphs above,

and incorporates the same herein as though set out at length.

52. Named Plaintiff Tannoia asserts her claims as a class action pursuant to Rule 23(a)

and 23(b)(2) and (3) of the Maine Rules of Civil Procedure on her own behalf and on behalf of the

below defined classes.

53. This class action is brought on behalf of Plaintiff Tannoia and the putative class

members (defined below) to: recover damages, liquidated damages, attorneys’ fees and costs for

the SPSD’s failure to pay Plaintiff Tannoia and the putative class members all wages when due

and for all hours worked pursuant to 26 M.R.S. §§ 621-A, 626-A and 629.

54. Defendant injured Plaintiff Tannoia and the putative class members by illegally

failing to pay them all wages when due and failing to pay them for all hours worked, in violation

of 26 M.R.S. §§ 621-A, 626-A and 629.

55. Pending any modifications necessitated by discovery, the named Plaintiff Tannoia

defines the following class:

§ 629 Class: ALL CURRENT AND FORMER EMPLOYEES OF THE

SOUTH PORTLAND SCHOOL DEPARTMENT THAT
WORKED AS EDUCATIONAL TECHNICIANS AND
WERE NOT PAID FOR ALL WORK TIME.

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 56. The class is so numerous that joinder of all potential class members is

impracticable. Named Plaintiff Tannoia does not know the exact size of the class since that

information is within the control of Defendant.

57. Based upon the number of Ed Techs employed by the SPSD, the named Plaintiff

estimates that the classes are made up over one-hundred and fifty (150) current and former

employees of SPSD. The exact size of the class will be ascertainable from SPSD’s records.

58. There are questions of law and fact common to the class that predominate over any

individual issues that might exist. Common questions of law and fact include whether Defendant

failed to pay their Ed Techs for all time worked.

59. The class claims asserted by the named Plaintiff Tannoia are typical of the claims

of all of the potential class members of the putative class. This is an uncomplicated case of unpaid

wages that should be mathematically ascertainable from business records and the class claims are

typical of those pursued by victims of these violations. A class action is superior to other available

methods for the fair and efficient adjudication of this controversy because numerous identical

lawsuits alleging similar or identical causes of action would not serve the interests of judicial

economy.

60. The named Plaintiff Tannoia will fairly and adequately protect and represent the

interests of the class. She is both an employee of Defendant and a victim of the same violations of

law as other class members.

61. The named Plaintiff Tannoia is represented by counsel experienced in wage and

hour litigation.

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 62. The prosecution of separate actions by the individual potential class members

would create a risk of inconsistent or varying adjudications with respect to individual putative class

members that would establish incompatible standards of conduct for Defendant.

63. Each class member’s claim is relatively small. Thus, the interest of potential class

members in individually controlling the prosecution or defense of separate actions is slight. In

addition, public policy supports the broad remedial purposes of class actions in general and the

pertinent state laws are appropriate vehicles to vindicate the rights of those employees with small

claims as part of the larger class.

64. Named Plaintiff Tannoia is unaware of any members of the putative class who are

interested in presenting their claims in a separate action.

65. Named Plaintiff Tannoia is unaware of any pending litigation commenced by

members of the class concerning the instant controversy.

66. It is desirable to concentrate this litigation in one forum.

67. This class action will not be difficult to manage due to the uniformity of claims

among the class members and the susceptibility of wage and hour cases to both class litigation and

the use of representative testimony and representative documentary evidence.

68. The contours of the class will be easily defined by reference to payroll documents.

69. Defendant was legally required to create and maintain, pursuant to the Fair Labor

Standards Act and its regulations, including 29 C.F.R. § 516.2 along with analogous law in Maine,

detailed payroll records. Notice will be easily distributed as all members of the putative class are

or were recently employed by Defendant, who was required to create and maintain records

containing the mailing addresses of each such class member.

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 CLAIMS FOR RELIEF

COUNT I
INJUNCTION PURSUANT TO 26 M.R.S. § 639(2)
On behalf of Plaintiff Tannoia

70. Plaintiff Tannoia incorporates all previous paragraphs.

71. Plaintiff Tannoia brings this action on her own behalf.

72. Defendant SPSD employs approximately 150 Ed Tech employees, including

Plaintiff Tannoia.

73. Defendant SPSD, as a matter of policy and practice, has required and/or permitted

its Ed Tech employees, including Plaintiff Tannoia to work hours without ensuring proper tracking

and recordkeeping.

74. Defendant SPSD routinely requires and/or permits its Ed Tech employees,

including Plaintiff Tannoia, to work without monetary compensation by failing to pay them for all

hours worked in violation of 26 M.R.S. § 629.

75. Defendant SPSD’s failure to pay its Ed Tech employees, including Plaintiff

Tannoia, for all hours worked has caused them direct harm in the form of unpaid wages.

76. 26 M.R.S. § 639(1) includes 26 M.R.S. §§ 621-A & 629 in its definition of “wage

theft.”

77. Accordingly, Plaintiff Tannoia seeks an injunction pursuant to 26 M.R.S. § 639

compelling Defendant SPSD to establish a system for tracking and recording the hours its Staff

Employees work.

78. Further, should Plaintiff Tannoia prevail in this action, the Defendant SPSD is

liable for the cost of suit, including a reasonable attorney’s fee.

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 COUNT II
FAILURE TO PAY FOR ALL HOURS WORKED – 26 M.R.S. § 626-A
On behalf of named Plaintiff Tannoia and the § 629 Class

79. Named Plaintiff Tannoia incorporates all previous paragraphs.

80. The named Plaintiff Tannoia asserts this claim on her behalf and on behalf of the

§ 629 Class.

81. The Defendant employed Plaintiff Tannoia and the § 629 Class as Educational

Technicians.

82. The Defendant failed to pay Plaintiff Tannoia and the § 629 Class for all hours

worked as required by 26 M.R.S. § 629 paying them only for scheduled hours and failing to

account for actual hours worked.

83. The Defendant further failed to pay all wages due Plaintiff Tannoia and the § 629

Class on payday as required under 26 M.R.S. § 621-A.

84. Defendant indisputably owed Plaintiff Tannoia and the § 629 Class payment of all

wages due. Such payment was not made within eight days of the due date, nor within eight days

of the demand.

85. Accordingly, the Defendant is liable pursuant to 26 M.R.S. § 626-A for unpaid

wages, and, a reasonable rate of interest, costs of suit including reasonable attorneys’ fee, and an

additional amount equal to twice the amount of unpaid wages as liquidated damages.

DEMAND FOR JURY TRIAL

86. Plaintiff Tannoia demands a jury for all issues so triable.

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