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Mazen Diab, et al. v. Synergy One Lending, Inc., et al.

U.S.D.C. (W.D. Tex.) Case No. 1:20-cv-536

Original Complaint—Collective Action

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

MAZEN DIAB, Individually and on PLAINTIFF

Behalf of All Others Similarly Situated

vs. No. 1:20-cv-536

SYNERGY ONE LENDING, INC., and DEFENDANTS

MUTUAL OF OMAHA MORTGAGE, INC. 

ORIGINAL COMPLAINT—COLLECTIVE ACTION

COMES NOW Plaintiff Mazen Diab (“Plaintiff”), individually and on behalf

of all others similarly situated, by and through his attorney Josh Sanford of 

Sanford Law Firm, PLLC, and for his Original Complaint—Collective Action 

(“Complaint”) against Defendants Synergy One Lending, Inc., and Mutual of 

Omaha Mortgage, Inc. (collectively “Defendant” or “Defendants”), he does state 

and allege as follows:

I. PRELIMINARY STATEMENTS

1. Plaintiff, individually and on behalf of all others similarly situated, 

brings this action under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq.

(“FLSA”), for declaratory judgment, monetary damages, liquidated damages, 

prejudgment interest, and costs, including reasonable attorneys’ fees as a result 

of Defendants’ failure to pay Plaintiff and all others similarly situated a proper 

overtime compensation for all hours that Plaintiff and all others similarly situated 

worked.

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Original Complaint—Collective Action

2. Upon information and belief, for at least three years prior to the

filing of this Complaint, Defendant has willfully and intentionally violated the FLSA 

as described, infra.

II. JURISDICTION AND VENUE

3. The United States District Court for the Western District of Texas

has subject matter jurisdiction over this suit under the provisions of 28 U.S.C. § 

1331 because this suit raises federal questions under the FLSA.

4. This Complaint also alleges Texas Labor Code violations, which 

arise out of the same set of operative facts as the federal cause of action herein 

alleged; accordingly, this Court has supplemental jurisdiction over Plaintiff’s

Texas Labor Code claims pursuant to 28 U.S.C. § 1367(a).

5. Defendants conduct business within the State of Texas.

6. Venue lies properly within this Court under 28 U.S.C. § 1391(b)(1)

and (c)(2), because the State of Texas has personal jurisdiction over Defendants, 

and Defendants therefore “reside” in Texas.

7. Plaintiff was employed by Defendants at one of their branches

located in the Austin Division of the Western District of Texas.

8. The acts alleged in this Complaint had their principal effect within 

the Austin Division of the Western District of Texas, and venue is proper in this 

Court pursuant to 28 U.S.C. § 1391.

III. THE PARTIES

9. Plaintiff is an individual resident and domiciliary of the State of

Texas.

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U.S.D.C. (W.D. Tex.) Case No. 1:20-cv-536

Original Complaint—Collective Action

10. Separate Defendant Synergy One Lending, Inc. (“Synergy One”), is 

a foreign, for-profit corporation, registered to do business in Texas.

11. Synergy One’s registered agent for service in Texas is Paracorp 

Incorporated, at 3610-2 North Josey Lane, Suite 223, Carrollton, Texas 75007. 

12. Synergy One maintains a website at https://s1lending.com/.

13. Separate Defendant Mutual of Omaha Mortgage, Inc. (“Mutual of 

Omaha”), is a foreign, for-profit corporation, registered to do business in Texas. 

14. Mutual’s registered agent for service in Texas is Paracorp 

Incorporated, at 3610-2 North Josey Lane, Suite 223, Carrollton, Texas 75007.

15. Mutual maintains a website at https://www.mutualmortgage.com/.

IV. FACTUAL ALLEGATIONS

16. Plaintiff repeats and re-alleges all previous paragraphs of this 

Complaint as though fully incorporated in this section.

17. Defendants have unified operational control and management, as 

well as control over employees, including shared power to supervise, hire and 

fire, establish wages and wage policies and set schedules for their employees 

through unified management.

18. Upon information and belief, the revenue generated from Mutual of 

Omaha and Synergy One is merged and managed in a unified manner.

19. As a result of this unified operation, control and management, 

through shared employees and ownership with the authority to establish wages 

and wage policy, Defendants operate as a single enterprise.

20. During each of the three years preceding the filing of this 

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U.S.D.C. (W.D. Tex.) Case No. 1:20-cv-536

Original Complaint—Collective Action

Complaint, Defendant employed at least two individuals who were engaged in 

interstate commerce or in the production of goods for interstate commerce, or 

had employees handling, selling, or otherwise working on goods or materials that 

had been moved in or produced for commerce by any person.

21. Defendant’s annual gross volume of sales made or business done 

was not less than $500,000.00 (exclusive of excise taxes at the retail level that

are separately stated) during each of the three calendar years preceding the 

filing of this complaint.

22. At all times material herein, Defendant was an “employer” of 

Plaintiff and similarly situated employees within the meaning of the FLSA.

23. Defendant owns and operates a mortgage and loan company.

24. At all times material herein, Defendant classified Plaintiff as nonexempt from the overtime requirements of the FLSA and paid him an hourly 

wage.

25. At all times material herein, Plaintiff and those similarly situated 

have been entitled to the rights, protections and benefits of the FLSA.

26. Defendant employed Plaintiff as an hourly-paid Loan Officer from 

May of 2018 to April of 2020.

27. At all relevant times herein, Defendant directly hired Loan Officers

to work in its offices, paid them wages and benefits, controlled their work 

schedules, duties, protocols, applications, assignments and employment 

conditions, and kept at least some records regarding their employment.

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Original Complaint—Collective Action

28. As a Loan Officer, Plaintiff’s duties included originating loans, 

following up with clients and real estate agents, and ensuring that loan 

paperwork is progressing pursuant to certain deadlines.

29. Plaintiff and similarly situated employees regularly worked in 

excess of 40 hours per week while working for Defendant.

30. In addition to their hourly rate, Plaintiff and similarly situated 

employees were paid commission based on sending referrals to real estate 

agents, funding loans and selling mortgages.

31. During weeks in which Plaintiff and similarly situated employees 

worked over forty (40) hours, Defendant paid an improper overtime rate because 

Defendant determined the regular rate of pay solely based on employees’ hourly 

rate, without including the value of the commissions that Defendant provided to

Plaintiff and similarly situated employees. 

32. Section 778.117 of Title 29 of the CFR states that commissions

“are payments for hours worked and must be included in the regular rate,”

regardless of the basis for them or their frequency.

33. Therefore, Defendant violated the FLSA by not including all forms 

of compensation, such as commissions, in the regular rate when calculating 

Plaintiff’s and similarly situated employees’ overtime pay.

34. Upon information and belief, Defendant’s pay policy was the same 

at all of its locations.

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U.S.D.C. (W.D. Tex.) Case No. 1:20-cv-536

Original Complaint—Collective Action

35. At all relevant times herein, Defendant has deprived Plaintiff and 

similarly situated employees of proper overtime compensation for all of the hours

worked over forty (40) per week.

36. Plaintiff was regularly required to answer work-related phone calls

from home in the evenings and on weekends while he was not clocked in.

37. Plaintiff spent at least ten (10) hours per week working off the clock.

38. Defendant was aware that Plaintiff was working off the clock but 

refused to compensate him for that time.

39. Defendant required Loan Officers to hit certain metrics, such as 

making a certain number of calls per week or performing a certain number of 

credit checks per week. 

40. Loan Officers were generally unable to hit their metrics without 

working over forty hours per week. 

41. Defendant refused to approve some overtime requests from Loan 

Officers. 

42. Defendant was or should have been aware that Plaintiff’s job duties 

required him to perform work outside of his recorded hours.

43. Defendant’s failure to compensate Plaintiff for his off-the-clock work 

resulted in additional overtime violations.

44. To date, Plaintiff has not received his final paycheck, which 

included commission for referrals. 

45. Defendant knew or showed reckless disregard for whether its

actions violated the FLSA. 

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Original Complaint—Collective Action

V. REPRESENTATIVE ACTION ALLEGATIONS

46. Plaintiff repeats and re-alleges all previous paragraphs of this 

Complaint as though fully incorporated in this section. 

47. Plaintiff brings his FLSA claim on behalf of all other Loan Officers

who were paid commission and were employed by Defendant at any time within 

the applicable statute of limitations period, who were classified by Defendant as 

non-exempt from the overtime requirements of the FLSA, and who are entitled to 

payment of the following types of damages:

A. Payment of a lawful overtime premium for all hours worked for 

Defendant in excess of forty (40) hours in a week; 

B. Liquidated damages; and

C. Attorney’s fees and costs 

47. Plaintiff proposes the following collective under the FLSA:

All hourly-paid Loan Officers who earned a commission in

connection with work performed in any week in which they 

worked more than forty hours within the past three years.

48. In conformity with the requirements of FLSA Section 16(b), Plaintiff

has filed or will soon file a written Consent to Join this lawsuit.

49. The relevant time period dates back three years from the date on 

which Plaintiff’s Original Complaint—Collective Action was filed herein and 

continues forward through the date of judgment pursuant to 29 U.S.C. § 255(a),

except as set forth herein below.

50. The proposed FLSA collective members are similarly situated in 

that they share these traits:

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U.S.D.C. (W.D. Tex.) Case No. 1:20-cv-536

Original Complaint—Collective Action

A. They were classified by Defendant as non-exempt from the 

overtime requirements of the FLSA;

B. They were paid hourly rates;

C. They were eligible for and received commission;

D. They had the same or substantially similar job duties, requirements

and pay provisions;

E. They worked over forty (40) hours in at least one week in which

they performed work related to receiving commission; and

F. They were subject to Defendant’s common policy of improperly

calculating overtime pay for hours worked over forty (40) per week.

51. Plaintiff is unable to state the exact number of the class but 

believes that there are at least one hundred (100) other employees who worked 

as Loan Officers and received an improperly calculated overtime rate.

52. Defendant can readily identify the members of the Section 16(b)

class which encompasses all hourly Loan Officers who received a commission in 

connection with work performed in any week in which they worked over forty 

hours.

53. The names and physical and mailing addresses of the FLSA 

collective action plaintiffs are available from Defendant, and a Court-approved 

Notice should be provided to the FLSA collective action plaintiffs via first class 

mail and email to their last known physical and electronic mailing addresses as 

soon as possible, together with other documents and information descriptive of 

Plaintiff’s FLSA claim.

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U.S.D.C. (W.D. Tex.) Case No. 1:20-cv-536

Original Complaint—Collective Action

VI. FIRST CLAIM FOR RELIEF

(Individual Claim for Violation of the FLSA)

54. Plaintiff repeats and re-alleges all the preceding paragraphs of this 

Complaint as if fully set forth in this section.

55. Plaintiff asserts this claim for damages and declaratory relief 

pursuant to the FLSA, 29 U.S.C. § 201, et seq.

56. 29 U.S.C. § 207 requires employers to pay employees one and 

one-half (1.5) times the employee’s regular rate for all hours that the employee 

works in excess of forty (40) per week. 

57. Defendant classified Plaintiff as non-exempt from the overtime 

requirements of the FLSA. 

58. Defendant violated 29 U.S.C. § 207 by not paying Plaintiff a proper 

overtime rate of compensation for all hours worked in excess of 40 per week. 

59. Defendant violated Section 778.117 of Title 29 of the CFR by not 

including commissions paid to Plaintiff in his regular rate when calculating his

overtime pay.

60. Defendant failed to pay Plaintiff for all hours worked.

61. Defendant failed to pay Plaintiff an overtime rate of 1.5x his regular 

rate for all hours worked over forty in a week. 

62. Defendant’s conduct and practice, as described above, has been 

and is willful, intentional, unreasonable, arbitrary and in bad faith.

63. By reason of the unlawful acts alleged in this Complaint, Defendant 

is liable to Plaintiff for, and Plaintiff seeks, unpaid overtime wages, liquidated 

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U.S.D.C. (W.D. Tex.) Case No. 1:20-cv-536

Original Complaint—Collective Action

damages, and costs, including reasonable attorney’s fees as provided by the 

FLSA.

64. Alternatively, should the Court find that Defendant acted in good 

faith in failing to pay Plaintiff as provided by the FLSA, Plaintiff is entitled to an 

award of prejudgment interest at the applicable legal rate.

VII. SECOND CLAIM FOR RELIEF

(Collective Action Claim for Violation of the FLSA)

65. Plaintiff repeats and re-alleges all the preceding paragraphs of this 

Complaint as if fully set forth in this section.

66. Plaintiff brings this collective action on behalf of himself and all 

hourly Loan Officers who were employed by Defendant and received 

commission, to recover monetary damages owed by Defendant to Plaintiff and 

members of the putative collective for overtime compensation for all the hours he

and they worked in excess of forty (40) each week. 

67. 29 U.S.C. § 207 requires employers to pay employees one and 

one-half (1.5) times the employee’s regular rate for all hours that the employee 

works in excess of forty (40) per week. 

68. Defendant violated Section 778.117 of Title 29 of the CFR by not

including all forms of compensation, such as commissions, given to Plaintiff and 

those similarly situated in their regular rate when calculating their overtime pay.

69. In the past three years, Defendant has employed more than one

hundred (100) hourly Loan Officers who were eligible for nondiscretionary 

bonuses.

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Original Complaint—Collective Action

70. Upon information and belief, Plaintiff and almost all Loan Officers

who received commissions regularly worked more than 40 hours in a week.

71. Defendant failed to pay Plaintiff and similarly situated employees at 

the proper overtime rate. 

72. Defendant’s conduct and practice, as described above, has been 

and is willful, intentional, unreasonable, arbitrary and in bad faith.

73. By reason of the unlawful acts alleged in this Complaint, Defendant 

is liable to Plaintiff and all those similarly situated for, and Plaintiff and all those 

similarly situated seek, unpaid overtime wages, liquidated damages, and costs,

including reasonable attorney’s fees as provided by the FLSA.

74. Alternatively, should the Court find that Defendant acted in good 

faith in failing to pay Plaintiff and all those similarly situated as provided for by the 

FLSA, Plaintiff and all those similarly situated are entitled to an award of 

prejudgment interest at the applicable legal rate.

VIII. THIRD CLAIM FOR RELIEF

(Individual Claim for Violation of Texas Labor Code)

75. Plaintiff repeats and realleges all previous paragraphs of this 

Complaint as though fully incorporated in this section.

76. Plaintiff asserts this claim for damages and declaratory relief 

pursuant to the Texas Labor Code. 

77. At all relevant times, Defendant was Plaintiffs’ “employer” within the 

meaning of the Texas Labor Code, § 61.001.

78. Tex. Labor Code § 61.014 requires employers to pay terminated 

employees in full within six days after the date of discharge and requires 

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Original Complaint—Collective Action

employers to pay an employee who leaves voluntarily within the date of the next 

scheduled payday. 

79. To date, Defendant has failed to pay Plaintiff his final paycheck, 

and the time period specified in Tex. Labor Code § 61.014 has expired.

IX. PRAYER FOR RELIEF

WHEREFORE, premises considered, Plaintiff Mazen Diab, individually on 

behalf of all others similarly situated, respectfully prays as follows:

A. That each Defendant be summoned to appear and answer this 

Complaint; 

B. A declaratory judgment that Defendant’s practices alleged herein 

violate the FLSA;

C. Certification of, and proper notice to, together with an opportunity to 

participate in the litigation, all qualifying current and former employees;

D. Judgment for damages for all unpaid overtime wage compensation

owed under the FLSA and the attendant regulations;

E. Judgment for liquidated damages under the FLSA and the 

attendant regulations;

F. Judgment for damages pursuant to the Texas Labor Code, § 

61.014;

G. For a reasonable attorney’s fee, costs, and pre-judgment interest; 

and 

H. Such other relief as this Court may deem just and proper. 

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U.S.D.C. (W.D. Tex.) Case No. 1:20-cv-536

Original Complaint—Collective Action

Respectfully submitted,

MAZEN DIAB, Individually 

and on Behalf of All Others

Similarly Situated, PLAINTIFF

SANFORD LAW FIRM, PLLC

ONE FINANCIAL CENTER

650 SOUTH SHACKLEFORD, SUITE 411

LITTLE ROCK, ARKANSAS 72211

TELEPHONE: (501) 221-0088

FACSIMILE: (888) 787-2040

/s/ Josh Sanford

Josh Sanford

Tex. Bar No. 24077858

josh@sanfordlawfirm.com

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