UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No.

SHIRLEY MARISABEL GALLARDO, on 

behalf of herself and others similarly situated, in 

a collective action,

Plaintiff,

vs.

SOUTH BROWARD HOSPITAL DISTRICT

d/b/a MEMORIAL HEALTHCARE SYSTEM,

a Florida corporation,

Defendant.

_____________________________________/

COMPLAINT

Plaintiff, Shirley Marisabel Gallardo (“Gallardo” or “Plaintiff”) individually, on her

own behalf, and on behalf of all those similarly situated in a collective action, sues Defendant, 

South Broward Hospital District d/b/a Memorial Healthcare System (“Memorial” or 

“Defendant” ) and states:

GENERAL ALLEGATIONS

1. This is an action brought by a former employee of Defendant for declaratory 

judgment, to recover monetary damages in the form of unpaid overtime compensation, as well 

as an additional amount as liquidated damages, to redress the deprivation of rights secured to 

Plaintiff and other employees similarly situated by the Fair Labor Standards Act, as amended, 

29 U.S.C. § 201 et. seq. (“FLSA”) and for an award of attorneys’ and paralegal fees and costs. 

Jurisdiction

2. This Court has subject jurisdiction over this controversy pursuant to 29 U.S.C. 

§ 216(b), under the Fair Labor Standards Act (the “FLSA”). 

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3. At all times material hereto, Defendant was the employer or former employer 

of the Plaintiff and is conducting business in this judicial district and is 

otherwise ‘employer’ under the FLSA.

4. At all times material hereto, Defendant was and continues to be an ‘enterprise

engaged in commerce’ within the meaning of the FLSA.

5. Upon information and belief, at all times material hereto, Defendant’ annual 

gross revenue exceeded $500,000 per annum. 

6. The unlawful employment practices alleged herein occurred and/or were 

committed within this judicial district.

7. At all times material hereto, Plaintiff is/was a resident of this judicial district, 

an employee of the Defendant, sui juris and otherwise within the jurisdiction of 

this Court.

8. The Plaintiff was hired as a non-exempt employee by the Defendant.

9. Plaintiff was employed and treated as a non-exempt Medical Assistant for the 

Defendant hospital system and, during her employment, Plaintiff, worked in 

excess of forty (40) hours per work week, but Defendant willfully refused to

compensate Plaintiff properly for such work in violation of the FLSA.

10. Plaintiff was forced to work off the clock and not allowed to enter her true hours 

by her superiors. Records concerning the number of hours Plaintiff was directed 

to record (even though they were not her true complete hours worked) are

presumably in the exclusive possession and sole custody and control of the 

Defendant, and therefore, Plaintiff is unable to state at this time the exact 

amount due.

11. Plaintiff, however, will exert diligent efforts to obtain such information by 

appropriate discovery proceedings, to be taken promptly in this case, including, 

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but not limited to, from testimony of various co-workers, supervisors, 

physicians and Directors and along with her own testimony, if required, an 

amendment to this Complaint will be submitted to set forth an amounts due by 

the Plaintiff.

Venue

12. This Court is the appropriate venue based upon the following:

(a) The unlawful employment practices alleged herein occurred and/or were 

committed in the Southern District of Florida and,

(b) The Defendant did and continues to operate a company and employs 

many individuals doing business within the Southern District of Florida.

Parties

13. Plaintiff was and continues to be a resident of Miami-Dade County, Florida, 

from where she worked for the Defendant.

14. Defendant is located in and operates its business in the Southern District of 

Florida in Miami Dade County.

15. Plaintiff was required by Defendant to work off the clock and is entitled to 

recover overtime for all work performed. Plaintiff was directed not to clock in 

before 8:00 AM or clock out after 4:30 PM. Defendant knew and had every 

reason to know that Plaintiff was working before the punch in time and after the

punch out time. Defendant had Plaintiff work off of the clock to avoid incurring 

the expense of compensating Plaintiff and paying Plaintiff overtime. 

16. Plaintiff is owed additional overtime because Defendant automatically 

deducted 30 minutes each workday from Plaintiff’s recorded time on the 

incorrect assumption that Plaintiff took a 30-minute bona fide meal break each 

day even though Plaintiff did not. Most of the time, Plaintiff did not take any 

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bona fide meal break because, among other reasons, the demands on her time to 

perform her duties didn’t allow or permit her to do so. There was a heavy patient 

case load and so many patient appointments that she had no such time. Plaintiff

also had a myriad of duties that required her to spend significant time working. 

On the few occasions when she was able to attempt to have a bona fide meal 

period, she was constantly interrupted with work demands and Plaintiff was not 

completely relieved of duty. The attempted bona fide meal periods were not of 

sufficient duration or were constantly interrupted by work and co-workers such 

that and she is entitled to be compensated for all such time.

17. Defendant knew for a fact that Plaintiff rarely had a bona fide meal period and

that, essentially, she “worked through lunch”. On some occasions when 

Plaintiff informed her supervisor that she had not taken lunch, her supervisor 

did nothing to inform Memorial’s Payroll Department so Plaintiff could be paid 

for that time. Instead, her supervisor submitted her time to Payroll without 

indicating Plaintiff had not taken a bona fide meal break. The effect was that 

Plaintiff received no pay for the 30 minutes deducted from her pay each day for

the time she worked. Plaintiff’s supervisor made it clear to Plaintiff and others 

in their office that they should not do anything themselves to indicate they had 

not taken a bona fide meal break. because, among other reasons, the office, the 

supervisor, the Plaintiff and the physicians in the office would all get in trouble

if their reported hours rose above 40 hours for the week in question and overtime 

would need to be paid. The supervisor also retaliated against employees who 

disobeyed her to dissuade them from doing so again in the future. 

18. On occasion, Plaintiff was directed to travel to and from Boca Raton to work 

out of that office for the day. Plaintiff was expected and required to go to the 

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main office in Aventura before travelling to Boca Raton to collect equipment 

and supplies to bring them to the Boca office off the clock and return them to 

the main office and bring them back off the clock after being required to clock 

out at the end of the day. Plaintiff was not compensated for the time she spent 

doing this work or travelling between offices. 

19. Based on the foregoing and other reasons, notwithstanding the incomplete or 

non-existent timekeeping Defendant purported to keep of the time Plaintiff

spent working, the Defendant did not keep time records of all of the time worked 

by Plaintiff, or the other people similarly situated working for them, as it was 

required to do under the FLSA..

20. Defendant did not pay Plaintiff overtime even though she was non-exempt and 

worked more than 40 hours per week in the weeks she worked for Defendant.

21. Basically, the Defendant attempted to avoid its obligation to pay overtime by 

knowingly and intentionally forcing Plaintiff to work off the clock and not 

paying Plaintiff for all hours worked. Issues related to whether the Defendant

should have paid Plaintiff overtime for weeks in which she worked more than 

40 hours were considered by Defendant and, nevertheless, they followed a 

practice of denying Plaintiff overtime. Alternatively, Defendant acted with 

indifference as to whether it was paying Plaintiff for all hours worked and all 

overtime worked, when it knew or should have known with the exercise of 

reasonable effort, that Plaintiff was not being paid all to which she was entitled. 

22. Plaintiff complained she was not being paid for all of her time and she became 

the victim of retaliation, in part by being harassed, intimidated, threatened and 

bullied, and forced to work in an extremely toxic and hostile work environment.

Her complaints were ignored in part because the Director of the department and 

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the office manager (Plaintiff’s supervisor) were very close personal friends and 

the supervisor was insulated from being reported. Plaintiff was made to 

understand that complaining further and/or up the chain of command would 

result in her being fired, from job she needed. 

23. Plaintiff was marginalized and ultimately was forced to resign with the active 

involvement of her supervisor and the Director, who told Plaintiff the office was 

not large big enough for both the Plaintiff and her supervisor and that her 

supervisor (the Director’s very close friend) was no going anywhere. 

24. Demands were placed on Plaintiff to resign and to leave the office immediately 

and the Director even packed up Plaintiff’s belongings so that she would leave 

immediately, all of which constituted a constructive termination. Instead of

responding to Plaintiff’s complaints about her supervisor, the Director forced

Plaintiff out to get rid of her and to thwart any complaints going up the chain of 

command and implicating the supervisor and the Director. 

25. Defendant knowingly and willfully failed to pay Plaintiff and other employees 

similarly situated their lawfully earned wages and overtime compensation in 

conformance with the FLSA.

26. Plaintiff earned a performance bonus of approximately $7,000, due to be paid 

shortly. If it turns out that her constructive termination deprives her of the bonus, 

it will represent additional damages related to the retaliation she suffered 

because of her complaining about not being paid for all hours worked including

overtime. The payment of the overtime would increase Plaintiff’s regular rate

and overtime rate and recovery.

27. Defendant knew that Plaintiff’s duties and demands placed on her required her 

to work more than 40 hours per week, that she, in fact, was working more than 

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40 hours per week, that all of the time she was working was not being tracked 

by the Defendant, and that the Defendant was not paying Plaintiff overtime for 

hours worked more than 40 hours per week. 

28. Defendant knew, or, exercising reasonable diligence, would have gained 

knowledge and did gain knowledge that Plaintiff and their other employees 

similarly situated were not being compensated overtime, at the rate of one and 

a half times the regular rate for those hours that were worked in excess of forty 

(40) per week, or otherwise, as required by the FLSA. Defendant knew the 

amount of time Plaintiff spent performing work or, with the exercise of 

reasonable care, could have and should have known of the existence of all of 

the time worked by Plaintiff.

29. Defendant knowingly and willfully operated their business with a policy of not 

paying overtime compensation to Plaintiff, which was in violation of the FLSA.

30. Defendant knew or should have known they were in violation of the FLSA, 

sufficiently so as to warrant the extension of the applicable statute of limitations 

from two to at least three years.

31. Furthermore, the notice employers are required to post to inform employees of 

their rights under the FLSA was not posted and/or kept current and, therefore,

the applicable statute of limitation should be equitably tolled, including, but not 

limited to, Plaintiff and for others similarly situated who worked more than two 

years without receiving overtime. See, e.g., Cruz v. Maypa, 773 F.3d 138, 147 

(4th Cir. 2014) (extending failure-to-post tolling in the ADEA context to the 

FLSA); Yu G. Ke v. Saigon Grill, Inc., 595 F. Supp. 2d 240, 259 (S.D.N.Y. 

2008) (“Failure to provide required notice of the governing legal requirements 

may be a sufficient basis for tolling.”); Kamens v. Summit Stainless, Inc., 586 

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F. Supp. 324, 328 (E.D. Pa. 1984) ("An employer's failure to post a statutorily 

required notice of this type tolls the running of any period of limitations.”).

32. Defendant have violated Title 29 U.S.C. §206 and/or §207 in that, among other 

reasons:

(a) Plaintiff was not paid overtime to which she was entitled; and

(b) Defendant have failed to maintain proper time records as mandated by 

the FLSA.

33. Other employees similarly situated to Plaintiff were not paid overtime they had 

earned. 

34. Plaintiff has retained Schwarzberg & Associates, P.L. to represent her (and 

those who join in this collective action) and has agreed to pay the Firm 

reasonable attorneys’ and paralegal fees for its services on all levels. 

35. Plaintiff has fulfilled all conditions precedent to the filing of this lawsuit and/or 

such conditions have been waived.

COUNT I

UNPAID OVERTIME COMPENSATION – DECLARATION—

VIOLATION of 29 U.S.C. § 207

36. Plaintiff realleges and reavers the General Allegations as if fully set forth herein.

37. During Plaintiff’s employment with the Defendant, she worked hours in excess 

of forty (40) per week for which she was not compensated at the statutory rate 

of time and one-half.

38. Plaintiff was entitled to be paid at the rate of time and one-half for hours worked 

in excess of the maximum hours provided for in the FLSA.

39. Defendant failed to pay Plaintiff overtime compensation in the lawful amount 

for hours worked in excess of the maximum hours provided for in the FLSA.

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40. Plaintiff failed to keep records of time worked by Plaintiff. Records concerning 

the actual compensation paid to her are in the possession and custody of the 

Defendant. Plaintiff intends to obtain these records by appropriate discovery 

proceedings to be taken promptly in this case to determine the amount due to 

her.

41. Defendant knew of and/or showed a willful disregard for the provisions of the 

FLSA, as evidenced by their failure to compensate Plaintiff at the statutory rate 

of time and one-half for the hours worked in excess of forty (40) hours per week 

when they knew or should have known such was due.

42. Defendant failed to properly disclose or apprise Plaintiff of her rights under the 

FLSA.

43. Plaintiff has suffered damages in the amount not presently ascertainable of 

unpaid overtime wages, plus an equal amount as liquidated damages.

44. Plaintiff is entitled to an award of her reasonable attorneys’ fees and costs 

pursuant to 29 U.S.C. § 216(b).

WHEREFORE, Plaintiff, respectfully requests that judgment be entered in her favor 

and for all others similarly situated who join in the action against the Defendant jointly and 

severally:

a. Declaring that Defendant have violated the overtime provisions of 29 U.S.C. § 

207;

b. As to Plaintiff and others similarly situated:

i. Awarding overtime compensation in the amounts to be calculated;

ii. Awarding liquidated damages in the amounts calculated;

iii. Declaring that the statute of limitations should be extended to three years 

and/or that the statute of limitation be tolled;

iv. Awarding reasonable attorneys’ and paralegal fees and costs and 

expenses of this litigation pursuant to 29 U.S.C. § 216(b);

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v. Awarding post-judgment interest; and

c. Awarding Plaintiff damages Fees and costs for FLSA retaliation.

d. Ordering any other and further relief this Court deems to be just and proper.

JURY DEMAND

PLAINTIFF DEMANDS A TRIAL BY JURY ON ALL ISSUES SO TRIABLE FOR 

HERSELF AND ALL OTHERS SIMILARLY SITUATED.

SCHWARZBERG & ASSOCIATES

Attorneys for Plaintiff and for those who join the 

anticipated collective action class to be formed

2751 South Dixie Highway, Suite 400

West Palm Beach, FL 33405

Telephone: (561) 659-3300

Facsimile: (561) 693-4540

By: /s/ Steven L. Schwarzberg

STEVEN L. SCHWARZBERG

Florida Bar No. 306134

steve@schwarzberglaw.com

mail@schwarzberglaw.com

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