1

In the United States District Court

for the Southern District of Ohio

Eastern Division at Columbus

Tina Lehman :

P.O. Box 110 :

Marion, OH 43301 :

:

Plaintiff, : Case No.: 2:17-CV-00954 

v. : 

: Judge:

Res-Care, Inc. :

10140 Linn Station Rd :

Louisville, KY 40223 : COMPLAINT 

:

Also serve the statutory agent :

:

CT Corporation System : JURY DEMAND ENDORSED HEREON

4400 Easton Commons Way, Suite 125 :

Columbus, Ohio 43219 :

 :

Defendant. : 

COMPLAINT 

Plaintiff Tina Lehman (hereinafter “Plaintiff”), for her Complaint against Defendant ResCare, Inc. (hereinafter “Defendant”), hereby alleges as follows: 

PRELIMINARY STATEMENT

Plaintiff brings this action against Defendant Res-Care, Inc. Plaintiff seeks appropriate 

monetary, declaratory, and equitable relief based on Defendant’s willful failure to compensate

Plaintiff with minimum wages as required by the Fair Labor Standards Act (“FLSA”), the Ohio 

Constitution, Article II, Section 34a (“Section 34a”), the Ohio Minimum Fair Wage Standards Act 

(“OMFWSA”), and the Ohio Prompt Pay Act, O.R.C. § 4113.15. Furthermore, Plaintiff was 

terminated by Defendant after Plaintiff complained of late payment of her wages, constituting 

unlawful retaliation under the FLSA, Section 34a, and OMFWSA. 

Case: 2:17-cv-00954-ALM-CMV Doc #: 1 Filed: 10/29/17 Page: 1 of 10 PAGEID #: 1
2

JURISDICTION AND VENUE

1. This Court has original jurisdiction pursuant to 28 U.S.C. § 1331 to hear this 

Complaint and to adjudicate these claims because this action is brought under the FLSA. 

2. This Court also has supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a) to hear 

Plaintiff’s state law claims. 

3. Venue is proper in the United States District Court for the Southern District of Ohio, 

Eastern Division, pursuant to 28 U.S.C. § 1391 because a substantial part of the events or omissions 

giving rise to the claims occurred in this district. 

PARTIES

Plaintiff

Tina Lehman 

4. Plaintiff Tina Lehman is an adult resident of Marion, Ohio. Plaintiff worked for Defendant

as a Direct Care Professional from approximately April 5, 2017, to April 25, 2017. 

5. At all times relevant, Lehman was an “employee” of Defendant as defined by the FLSA, 

Section 34a, and the OMFWSA.

Defendant

Res-care, Inc.

6. Defendant Res-care, Inc. (“Defendant”) is a foreign corporation organized and existing 

under the laws of the state of Kentucky. 

7. Defendant does business in Ohio at multiple locations, including at its office located at 

3700 Corporate Dr., Columbus, OH 43231.

8. Defendant is an “employer” of Plaintiff as that term is defined by the FLSA, Section 34a 

and the OMFWSA. 

Case: 2:17-cv-00954-ALM-CMV Doc #: 1 Filed: 10/29/17 Page: 2 of 10 PAGEID #: 2
3

9. At all relevant times, Defendant maintained control, oversight, and direction over Plaintiff, 

including, but not limited to, hiring, firing, disciplining, timekeeping, payroll, and other practices.

10. At all relevant times, Defendant has been and continues to be an enterprise engaged in “the 

production of goods for commerce” within the meaning of the phrase as used in the FLSA.

11. Defendant’s gross revenue exceeds $500,000 per year.

FACTUAL ALLEGATIONS

12. Plaintiff worked for Defendant as a Direct Care Professional from approximately April 5, 

2017, to April 25, 2017. 

13. Plaintiff’s duties consisted of assisting medical and nursing staff care for disabled 

residents at Defendant’s Marion, OH facility located at 340 James Way, Marion, OH 43302. See 

Exhibit A, Direct Care Professional Job Description. 

14. Plaintiff was told that she would be paid $9.00 as her regular pay rate.

15. Plaintiff was promised to be paid bi-monthly by Defendant.

16. Plaintiff was not paid on time by Defendant, and Plaintiff was not paid minimum wage 

for all hours worked. See Exhibit B, Tina Lehman Paystub and Time Records. 

17. On April 20, 2017, Plaintiff verbally complained to Shelly Persinger, who managed 

scheduling and payment processing at the Defendant’s Marion, Ohio facility, that she had not 

receive her pay check for the eight hours of training before starting her position. 

18. On April 20, 2017, Shelly Persinger stated that Plaintiff was not “in the system,” and told 

Plaintiff she would investigate and resolve the issue.

19. April 25, 2017 was pay day for the employees at the Defendant’s Marion, OH facility. 

When Plaintiff asked for her check, she was told by Shelly Persinger that there was no pay check 

for her, and that Plaintiff was still not in the system.

Case: 2:17-cv-00954-ALM-CMV Doc #: 1 Filed: 10/29/17 Page: 3 of 10 PAGEID #: 3
4

20. After Plaintiff finished her shift on April 25, 2017, Shelly Persinger informed Plaintiff

that she would not be scheduled for any additional hours. When Plaintiff asked why she would 

not be scheduled for additional hours, Persinger instructed Plaintiff to discuss her issue with Jon 

Kibler, HR Director for Defendant’s Marion and other Ohio facilities. 

21. On April 27, 2017, Plaintiff spoke with Jon Kibler regarding her pay and putting her in

the system. Jon Kibler told Plaintiff he would need to talk with his supervisor regarding putting 

Plaintiff in the system and paying her over-due paycheck. 

22. Jon Kibler never called Plaintiff back, and did not respond to any follow-up calls from 

Plaintiff. 

23. On May 25, Plaintiff was paid $455 for fifty-five (55) hours of work. See Exhibit B, Tina 

Lehman Paystub and Time Records. 

24. Defendant willfully and knowingly failed properly pay Plaintiff on time. 

CAUSES OF ACTION

Count I

Failure to Pay Minimum Wages - Fair Labor Standards Act

25. Plaintiff restates and incorporates the foregoing allegations as if fully rewritten herein.

26. Plaintiff was a non-exempt, hourly employee entitled to receive no less than minimum 

wage for all hours worked. See Exhibit A, Direct Care Professional Job Description. 

27. Defendant failed to pay Plaintiff minimum wage for all hours worked in a workweek 

because they failed to compensate Plaintiff for all hours worked when payment became due. See 

Exhibit B. 

28. By the acts and conduct described above, Defendant willfully violated the provisions of 

the FLSA and disregarded the rights of Plaintiff. 

Case: 2:17-cv-00954-ALM-CMV Doc #: 1 Filed: 10/29/17 Page: 4 of 10 PAGEID #: 4
5

29. Plaintiff has been damaged by Defendant's willful failure to pay minimum wage as 

required by law. 

30. As a result of Defendant’s violations, Plaintiff is entitled to damages, including, but not 

limited to, unpaid wages, liquidated damages, costs, and attorneys’ fees. 

Count II

Unlawful Retaliation – Fair Labor Standards Act 

31. Plaintiff restates and incorporates the foregoing allegations as if fully rewritten herein.

32. Section 215(a)(3) of the FLSA prohibits employers from discharging or retaliating 

against an employee for exercising his or her rights in complaint or protest of failing to receive 

minimum wage for hours worked. 

33. On April 20, 2017, Plaintiff verbally stated to Shelly Persinger that she had not received 

her paycheck yet for her eight hours of training, and Persinger alleged that Plaintiff was not in 

Defendant’s system. 

34. On April 25, 2017, Plaintiff complained to Persinger again for her paycheck since it was 

pay day at Defendant’s Marion, OH facility. Persinger said she did not have a paycheck for 

Plaintiff. 

35. On April 25, Persinger informed Plaintiff at the end of Plaintiff’s shift that she could not 

return to work until she spoke with Jon Kibler, HR Director responsible for the Marion and other 

Res-care locations. 

36. Despite repeated attempts by Plaintiff to contact Kibler after an initial conversation to

resolve the non-payment of her wages, Kibler never resolved the issue and did not reach out to 

Plaintiff after initially promising to Plaintiff to resolve the non-payment of wages. 

37. Plaintiff was never given any additional hours and has been constructively discharged for 

bringing her concerns for non-payment of wages. 

Case: 2:17-cv-00954-ALM-CMV Doc #: 1 Filed: 10/29/17 Page: 5 of 10 PAGEID #: 5
6

38. Plaintiff exercised her rights in complaint or protest of Defendant’s failure to pay her 

minimum wage for hours worked by verbally complaining to Shelly Persinger on two separate 

occasions.

39. Before Plaintiff complained of her non-payment of wages, Defendant scheduled Plaintiff

with consistent work hours.

40. After Plaintiff complained of the non-payment of her wages for all hours worked, 

Defendant refused to schedule Plaintiff for any work hours, and refused to resolve any payment 

disputes until May 25, 2017 when Defendant paid Plaintiff for 55 hours of work with a check for 

$455.00. 

41. By failing to schedule Plaintiff with work hours after she complained of non-payment of 

wages, Defendant retaliated against her in violation of the FLSA.

42. Because of Defendant’s retaliatory actions in violation of this section, Plaintiff is entitled 

to back wages, damages, costs and reasonable attorney's fees.

Count III

Failure to Pay Minimum Wages – Oh. Const., Art. II, Section 34a

43. Plaintiff restates and incorporates the foregoing allegations as if fully rewritten herein.

44. Defendant paid Plaintiff below minimum wage for the hours worked in a workweek by 

not paying Plaintiff. 

45. Article II § 34a of the Ohio Constitution requires that employees be paid not less than 

minimum wage as determined by an inflation index (currently $8.15/hour) for all hours worked.

46. Defendant failed pay Plaintiff minimum wage.

47. By not paying Plaintiff at least minimum wage for each hour worked, Defendant have 

violated the Ohio Constitution, Article II, § 34a.

Case: 2:17-cv-00954-ALM-CMV Doc #: 1 Filed: 10/29/17 Page: 6 of 10 PAGEID #: 6
7

48. As a result of Defendant’s violations, Plaintiff is entitled to damages, including, but not 

limited to, unpaid wages, an additional two times unpaid wages in damages under Section 34a, 

costs, and attorneys’ fees.

Count IV

Untimely Payment of Wages – Ohio Prompt Pay Act, O.R.C. § 4113.15

49. Plaintiff restates and incorporates the foregoing allegations as if fully rewritten herein.

50. During all relevant times, Defendant were entities covered by O.R.C. § 4113.15, and 

Plaintiff was an employee within the meaning of O.R.C. § 4113.15 and was not exempt from its 

protections.

51. O.R.C. § 4113.15(A) requires that Defendant pay Plaintiff all wages, including unpaid 

overtime, on or before the first day of each month, for wages earned during the first half of the 

preceding month ending with the fifteenth day thereof, and on or before the fifteenth day of each 

month, for wages earned during the last half of the preceding calendar month.

52. Plaintiff’s unpaid wages remained unpaid for thirty (30) days beyond their regularly 

scheduled payday. 

53. In violating Ohio law, Defendant acted willfully, without a good faith basis and with 

reckless disregard to Ohio law.

54. As a result of Defendant’s willful violation up to or exceeding 30 days past when 

Plaintiff’s wages should have been paid, Plaintiff is entitled to unpaid wages and liquidated 

damages, and the greater of either 6% of any unpaid amount or $200, as stated in O.R.C. § 

4113.15(B).

Count V

Unlawful Retaliation – Oh. Const., Art. II, Section 34a

Case: 2:17-cv-00954-ALM-CMV Doc #: 1 Filed: 10/29/17 Page: 7 of 10 PAGEID #: 7
8

55. Plaintiff restates and incorporates by reference the above paragraphs as if fully set forth 

herein. 

56. On April 20, 2017, Plaintiff verbally stated to Shelly Persinger that she had not received 

her paycheck yet for her eight hours of training, and Persinger alleged that Plaintiff was not in 

Defendant’s system. 

57. On April 25, 2017, Plaintiff asked Persinger if she had a paycheck since it was pay day 

for Defendant’s employees at the Marion, OH facility. Persinger told Plaintiff there was no 

check for her. 

58. On April 25, Persinger informed Plaintiff after Plaintiff’s shift that she could not return to 

work until she spoke with Jon Kibler, HR Director responsible for the Marion and other Res-care 

locations. 

59. Despite repeated attempts by Plaintiff to contact Kibler and resolve the non-payment of 

her wages, Kibler never resolved the issue and did not reach out to Plaintiff after an initial phone 

conversation where Kibler promised to resolve Plaintiff’s non-payment of wages. 

60. Plaintiff was never given any additional hours and has been constructively discharged for 

bringing her concerns for non-payment of wages. 

61. Plaintiff has suffered and continues to suffer damages by the late/none payment of wages 

and the retaliatory constructive discharge after complaining of non-payment of wages. Plaintiff is 

entitled to damages, including a minimum of one-hundred fifty dollars ($150) per day that 

Plaintiff’s rights have been violated by Defendant’s retaliatory conduct, interest thereon, as well 

as attorneys’ fees and costs, incurred in connection with this claim.

Count VI

Wrongful Discharge in Violation of Public Policy 

Case: 2:17-cv-00954-ALM-CMV Doc #: 1 Filed: 10/29/17 Page: 8 of 10 PAGEID #: 8
9

62. Plaintiff restates and incorporates by reference the above paragraphs as if fully set forth 

herein.

63. The elements for the tort of wrongful discharge in violation of public policy are: (1) that a 

clear public policy existed and was manifested in a state or federal constitution, statute, 

administrative regulation, or at common law, (2) that dismissing employees under circumstances 

like those involved in the Plaintiff’s dismissal would jeopardize the public policy, (3) the 

Plaintiff’s dismissal was motivated by conduct related to the public policy, and (4), the employer 

lacked the overriding legitimate business justification for the dismissal. 

64. Federal and Ohio law recognizes a public policy for employees to be paid minimum wage 

for all hours worked. Ohio law also recognizes an employee’s right to prompt payment of wages 

at regular intervals. 

65. By constructively dismissing Plaintiff from her employment by not scheduling her for 

any additional hours after Plaintiff complained of non-payment of her wages, Defendant 

jeopardized these public policies. 

66. Plaintiff’s dismissal was motivated by conduct related to the above public policies. 

67. The Defendant lacked overriding legitimate business justification for dismissing the 

Plaintiff. 

68. As a direct and proximate result of the foregoing unlawful actions by Defendant, Plaintiff 

has sustained and continues to sustain economic damages. 

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment against Defendant as follows: 

Case: 2:17-cv-00954-ALM-CMV Doc #: 1 Filed: 10/29/17 Page: 9 of 10 PAGEID #: 9
10

A. Unpaid minimum wages, and an additional and equal amount as 

liquidated damages pursuant to the FLSA and supporting regulations;

B. An award of unpaid minimum wages, and unreimbursed expenses due 

under §34a and the OMFWSA;

C. Liquidated damages under O.R.C. § 4113.15 and the OMFWSA; 

D. Minimum of $150 per day from April 25, 2017 to whenever a judgment 

is obtained against Defendant for retaliating against Plaintiff for 

asserting her right to payment of her wages, pursuant to OH. Const., Art. 

II, Section 34a. 

E. Judgment that Defendant’s violations of the FLSA were willful; 

F. Back pay for wrongfully terminating Plaintiff from her position. 

G. An award of prejudgment interest; 

H. An award of post-judgment interest; 

I. An award of costs and expenses of this action, together with reasonable 

attorney’s fees and expert fees; and 

J. For such other and further relief, in law or equity, as this Court may 

deem appropriate and just. 

 Respectfully submitted, 

 /s/ David B. Stouffer

 ____________________________ 

David B. Stouffer, Esq. (0093972)

 Law Office of D.B. Stouffer, LLC

6500 Emerald Pkwy. Ste. 100

Dublin, OH 43016

Phone: (614) 388-9446

 Email: dbstouffer@stoufferlaw.net

 Counsel for Plaintiff

JURY DEMAND

Plaintiff hereby demands a jury trial by the maximum persons permitted by law on all 

issues herein triable to a jury.

Case: 2:17-cv-00954-ALM-CMV Doc #: 1 Filed: 10/29/17 Page: 10 of 10 PAGEID #: 10