Complaint

Kenny Schultz v. TBC Retail Group Inc.

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

KENNY SCHULTZ,

Plaintiffs,

v.

TBC RETAIL GROUP, INC.,

Defendants.

COMPLAINT

(Jury Trial Requested)

Plaintiff Kenny Schultz (“Mr. Schultz” or “Plaintiff”), by way of his Complaint in the 

above-captioned matter, brings the below claims against Defendant, TBC Retail Group, Inc. 

(“TBC”)

NATURE OF CLAIMS

1. Plaintiff brings this lawsuit seeking recovery against Defendant for Defendant’s

violation of the Fair Labor Standards Act, as amended (the “FLSA” or the “Act”), 29 U.S.C. 

§201 et. seq.

PARTIES, JURISDICTION AND VENUE

2. Plaintiff Kenny Schultz is over the age of nineteen (19) and is a resident of

Morriston, Florida.

3. Defendant, TBC, is a for-profit limited liability Florida Corporation, doing 

business in Florida and is registered with the Florida Secretary of State. 

4. This Court has jurisdiction over Plaintiff’s claims because they are brought

pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b), and because they raise a

federal question pursuant to 28 U.S.C. § 1331.

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Complaint

Kenny Schultz v. TBC Retail Group Inc.

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5. Venue is proper in this District because Defendant is a Florida corporation 

conducting business in the Northern District of Florida. Additionally, Defendant has conducted 

substantial, continuous, and systematic commercial activities in this state and the unlawful labor 

practices giving rise to Plaintiff’s claims were committed in the Northern District of Florida.

6. This Court has jurisdiction of the state claims alleged herein, and of the FLSA 

claim per 28 U.S.C. § 1331, and 29 U.S.C. § 216 (b).

7. In addition, this Court has supplemental jurisdiction, pursuant to 28 U.S.C. § 1367 

over any of Plaintiff’s pendent claims, which are brought pursuant to the laws of the Northern

District of Florida, because those claims arise out of the same transaction or occurrence as the 

federal claims alleged herein.

8. At all relevant times, Defendant TBC has been regularly engaged in interstate

commerce.

9. At all relevant times, TBC has been an enterprise within the meaning of § 3(r) and 

§ 3(s)(1) of the FLSA, 29 U.S.C. §§ 203(r) & (s).

10. At all times material, hereto, TBC managed, owned and/or operated an enterprise, 

and regularly exercised the authority to hire and fire employees, determine the work schedules of 

employees, set the rate of pay of employees, and control the finances and operations of such 

business. By virtue of such control and authority, the Defendant was an employer of Plaintiff as 

such term is defined by the Act. 29 U.S.C. §201 et seq.

11. Based upon information and belief, the annual gross sales volume of the 

Defendant’s business was in excess of $500,000.00 per annum at all times material hereto. 

Alternatively, the Plaintiff worked in interstate commerce so as to fall within the protections of 

the FLSA.

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Complaint

Kenny Schultz v. TBC Retail Group Inc.

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FACTS

12. TBC is one of the nation's largest vertically integrated marketers of tires in the 

automotive industry. The Company's retail operations include tire and automotive service centers 

under the following brands, and franchised stores: "Tire Kingdom", "Merchant's Tire & Auto 

Centers", and "National Tire & Battery" and "Big O Tires". 

13. Mr. Schultz worked as a Mechanic for Defendant at a Tire Kingdom store located 

at 2357 SW College Rd Ocala, FL 34471 and 2511 E Silver Springs Blvd. Ocala, FL 34470 in 

the Northern District of Florida, from approximately August 26, 2011 until June 26, 2015.

14. Plaintiff’s primary job duties were to inspect, diagnose, repair and service 

automobiles.

15. Plaintiff alleges he was misclassified as exempt under Defendant’s sham 

commission plan because he regularly worked overtime hours but was denied overtime 

compensation. 

16. Defendant argues that Plaintiff was paid under a bona fide flat-rate commission 

plan and was therefore not entitled to overtime compensation pursuant to Section 7(i) of the 

FLSA.

17. Plaintiff alleges his commission rate was not bona fide commission because it 

violated 29 CFR 779.416 in that Plaintiff always or almost always earned the same fixed rate for 

each workweek.

18. TBC pays its Mechanics the greater of $11.02 per hour or “commissions” 

generated by their flat rate hours, sales, and bonuses. Plaintiff’s flat rate was $18.00 hour.

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Kenny Schultz v. TBC Retail Group Inc.

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19. Additionally, TBC deducted a mandatory uniform cleaning fee from each pay 

check. After the cleaning fees were taken out Plaintiff was paid $10.88 per hour, one cent more 

than time and one-half the minimum wage rate.

20. The flat rate is an hourly pay rate TBC assigns to each mechanic based on that 

mechanic’s particular skill, experience, and certifications.

21. Plaintiff’s commission rate was not based on the actual clocked hours he worked, 

thus Plaintiff often worked over forty hours a week a week and was still only paid $11.02 per 

hour.

22. TBC regularly scheduled Plaintiff to work at least 50 hours a week. 

23. Plaintiff did not have control over the number of hours or the days he was 

required to work, as TBC required him to adhere to their scheduled times and dates. 

24. Plaintiff was almost always paid a fixed rate of $11.02 of all clocked hours and 

thus seldom received the commission rate. 

25. In fact, Plaintiff was paid a fixed rate of $11.02 for all clocked hours 94% of the 

time and thus seldom was paid the commission rate. 

26. Plaintiff worked for TBC a total of ninety-seven (97) weeks and ninety-one (91)

of those weeks his calculated hourly rate was $11.02 an hour, even though Plaintiff regularly 

worked over fifty (50) hours a week.

27. At all times relevant, the Defendant had the power to stop any illegal pay

practices that harmed Plaintiff.

RELEVANT PROCEDURAL HISTORY

28. This case arises from class action lawsuit 2:14-cv-03365-DCN Gordon et al v. 

TBC Retail Group Inc originally filed in District of South Carolina. In that case, both parties 

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moved for summary judgement. The court held TBC’s compensation plan did not utilize a bona 

fide commission rate as a matter of law for the plaintiffs that never exceeded the guarantee or 

only exceeded the guarantee one time. The court found there was a genuine dispute of fact for 

the plaintiffs that only exceeded the guarantee between 6%-10% of the time. Therefore, Plaintiff 

files this complaint because he only ever exceeded the draw 6% of the time, and 94% of the time 

he was paid $11.02 an hour for all hours worked. See Attached Exhibit “A” – SC District Court’s 

Order.

29. Plaintiff filed his consent to join in that case on December 11, 2015 thus the 

statute of limitations is tolled beginning on that date.

30. Plaintiff stipulated to decertification, pursuant to the TBC’s motion and thus files 

this action. See Attached Exhibit “B” – Notice of Stipulation to Decertify and Order.

FOR A FIRST CAUSE OF ACTION

(Fair Labor Standards Act–Failure to Pay Overtime Wages)

31. Plaintiff, realleges and incorporate by reference all preceding paragraphs as if 

they were set forth again herein.

32. Plaintiff was employee of TBC for purposes of the Fair Labor Standards Act 

during times relevant to this Complaint. Defendant failed to pay Plaintiff at the rate of one-and-ahalf times their normal rate of pay for all hours worked in excess of forty (40) hours per work 

week as required by section 7(a) of the FLSA, 29 U.S.C. § 207(a).

33. Plaintiff is entitled to back wages at the rate of one-and-a-half times his regular 

rate of pay for all overtime hours worked in excess of forty (40) hours per week, pursuant to 

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

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34. Plaintiff is also entitled to an award of back pay at their regular hourly rate or 

their overtime rate, as appropriate, as appropriate compensation for all time spent in working for 

Defendant, which was wrongfully excluded by Defendant in calculating his compensable time.

35. The failure of TBC to compensate Plaintiff for overtime work and for as required 

by the FLSA was knowing, willful, intentional, and done in bad faith.

36. The work and pay records of Plaintiff are in the possession, custody, and/or 

control of Defendant, and Defendant are under a duty pursuant to section 11(c) of the FLSA, 29 

U.S.C. § 211(c), and pursuant to the regulations of the United States Department of Labor to 

maintain and preserve such payroll and other employment records from which the amount of 

Defendant’s liability can be ascertained. Plaintiff requests an order of this Court requiring 

Defendant to preserve such records during the pendency of this action.

37. Plaintiff is also entitled to an award of reasonable attorneys’ fees and costs 

incurred in prosecuting this action, pursuant to 29 U.S.C. § 216(b).

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Kenny Schultz demands:

a. Declaratory Judgment against Defendant that they violated FLSA;

b. Judgment against Defendant for all overtime worked at time half of the hourly 

rate;

c. Attorneys’ fees and costs; and

d. All such further relief as the Court deems just and equitable.

JURY DEMANDED

Plaintiff Kenny Schultz hereby demand a trial by jury.

Respectfully submitted,

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 s/ Matthew Gunter

 Matthew Gunter, Esq.

 MORGAN AND MORGAN

 20 N Orange Ave, Suite 1600, 

 Orlando, FL 32801

 P: (407) 236-0946

 MGunter@forthepeople.com

 /s/ Marybeth Mullaney

 Marybeth Mullaney, Esq. 

 MULLANEY LAW 

 652 Rutledge Ave

 Charleston, South Carolina 29403

 P: (843) 588-5587

 marybeth@mullaneylaw.net

 Pro Hoc Application Pending

 Attorneys for Plaintiff

August 31, 2020

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