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IN THE UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION - DAYTON

Mark Lindsey

P.O Box 178

Russellville, Ohio 45168

Plaintiff,

v.

Weiffenbach Marble & Tile Company

150 Lau Pkwy

Clayton, Ohio 45315

Defendant.

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Case No. 3:17-cv-302

JUDGE

MAGISTRATE JUDGE

COMPLAINT 

JURY DEMAND ENDORSED HEREON

Now comes Mark Lindsey (“Plaintiff”), by and through undersigned counsel, and proffers 

this Complaint for damages against the Weiffenbach Marble & Tile Company ("Defendant" or 

“WMTC”) as follows:

I. JURISDICTION AND VENUE

1. This action is brought pursuant to the Fair Labor Standards Act of 1938 (“FLSA”), 

29 U.S.C. §§ 201, et seq., the Ohio Minimum Fair Wage Standards Act, (the “Ohio Wage Act”), 

O.R.C. §§ 4111 et seq., and the Ohio Prompt Pay Act (“OPPA”), O.R.C. § 4113.15 (the Ohio 

Wage Act and the OPPA will be referred to collectively as “the Ohio Acts”).

2. This Court’s jurisdiction in this matter is also predicated upon 28 U.S.C. § 1367, as 

this Complaint raises additional claims pursuant to the laws of Ohio, over which this Court 

maintains supplemental subject matter jurisdiction because they form a part of the same case or 

controversy.

3. Venue properly lies in this forum pursuant to 28 U.S.C. § 1391, because Defendant

employed Plaintiff Lindsey in the Southern District of Ohio, a substantial part of the events or 

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omissions giving rise to Plaintiff’s claims occurred in this judicial district, and Defendant conduct 

substantial business in this judicial district. 

II. THE PARTIES

4. Plaintiff Mark Lindsey is an individual, United States citizen, and resident of the 

State of Ohio living in the Southern District of Ohio.

5. At all times relevant herein, Plaintiff was employed by Defendant from 

approximately March, 2015 through March, 2017 as a warehouse associate.

6. As a warehouse associate, Plaintiff was an hourly, non-exempt employee of 

Defendant as defined in the FLSA, the Ohio Wage Act, and the OPPA. 

7. As a warehouse associate, Plaintiff’s primary job duties consisted of general labor 

in the warehouse, including, but not limited to tracking incoming and outgoing shipments, review 

of inventory, preparation of materials for customer orders, and other miscellaneous tasks 

consisting of sweeping or cleaning the warehouse, and lawn work. 

8. Defendant WMTC is a domestic corporation for profit with its principal place of 

business located in Montgomery County, which is in the Southern District of Ohio.

9. Defendant is actively doing business in this judicial district. At all times relevant, 

Defendant has been an “employer” as that term is defined by the FLSA, the Ohio Wage Act, and 

the OPPA.

10. During relevant times, Defendant maintained control, oversight, and direction over 

Plaintiff and other similarly situated employees, including the promulgation and enforcement of 

policies affecting the payment of wages, including overtime compensation.

11. Upon information and belief, Defendant operates and controls an enterprise and 

employs employees engaged in commerce or in the production of goods for commerce, or has had 

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employees handling, selling, or otherwise working on goods or materials that have been moved in 

or produced for commerce by any person; and Defendant has had an annual gross volume of sales 

made or business done of not less than $500,000 per year (exclusive of excise taxes at the retail 

level).

12. Upon information and belief, Defendant, at all times relevant hereto, was fully 

aware of the fact that they were legally required to comply with the wage and overtime laws of the 

United States and of the State of Ohio, as well as recordkeeping laws of the State of Ohio.

III. STATEMENT OF FACTS

13. Plaintiff realleges the preceding paragraphs as if fully rewritten herein.

14. Plaintiff Mark Lindsey is an individual, United States citizen, and resident of the 

State of Ohio living in the Southern District of Ohio. 

15. At all times relevant herein, Plaintiff was employed by Defendant from 

approximately March, 2015 through March, 2017 as a warehouse associate.

16. As a warehouse associate, Plaintiff was an hourly, non-exempt employee of 

Defendant as defined in the FLSA, the Ohio Wage Act, and the OPPA. 

17. As a warehouse associate, Plaintiff’s primary job duties consisted of general labor 

in the warehouse, including, but not limited to tracking incoming and outgoing shipments, review 

of inventory, preparation of materials for customer orders, and other miscellaneous tasks 

consisting of sweeping or cleaning the warehouse, and lawn work.

18. At all times relevant, Plaintiff was paid on an hourly basis of approximately $15 to

$19 per hour.

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19. During the past two years preceding the filing of this Complaint, Plaintiff regularly 

worked from approximately 7:00 am until approximately 4:00 pm, Monday through Friday, which 

is in excess of forty (40) hours per week.

20. In addition, Defendant has an automatic meal deduction policy or practice whereby 

it deducts approximately thirty (30) minutes per day from each hourly, non-exempt employee, 

including Plaintiff, even though Plaintiff did not regularly receive an uninterrupted meal period 

each day.

21. During all times relevant, Plaintiff regularly worked in excess of forty (40) hours 

per week, but was not paid time-and-a-half (“overtime rate”) for all hours worked in excess of 

forty (40) resulting in unpaid overtime wages and other wages owed to Plaintiff due to a variety 

of reasons, including but not limited to: (1) not paying Plaintiff his overtime rate even though 

Defendant knew or should have known that Plaintiff regularly worked overtime because his work 

schedule was in excess of forty (40) compensable hours per week; and (2) because Defendant has 

an automatic meal deduction policy and/or practice whereby it deducts thirty (30) minutes per day 

from Plaintiff’s compensable time even though Plaintiff did not receive an uninterrupted meal 

period in the amount of 30 minutes each day.

22. Upon information and belief, Defendant does not have a method to keep track of 

Plaintiff’s compensable hours, such as a timeclock system where Plaintiff can clock in/out or 

record his compensable hours on a timesheet.

23. Instead, when Plaintiff works in excess of forty (40) hours in a workweek,

Plaintiff’s supervisor always reports that Plaintiff only worked a 40-hour workweek.

24. Because Plaintiff regularly worked over forty (40) hours in a workweek, Plaintiff 

requested at various times to be paid overtime for such hours.

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25. In response, Defendant refused to pay Plaintiff for any hour he worked in excess of 

forty (40) hours during any workweek.

26. As a result, Defendant paid Plaintiff his regular rate of pay for all hours worked 

even if he worked in excess of forty (40) hours in any workweek.

27. At all times relevant, Plaintiff was employed as a non-exempt hourly employee 

entitled to overtime wages for all hours worked in excess of forty (40) in any workweek.

28. Defendant knew or should have been aware that Plaintiff worked in excess of forty 

(40) hours in a workweek, but willfully elected not to compensate him for all hours worked in 

excess of forty (40) during his employment.

29. Defendant’s failure to pay Plaintiff resulted in unpaid overtime wages.

IV. CAUSES OF ACTION

COUNT I

(FLSA – Unpaid Overtime)

30. All of the preceding paragraphs are realleged as if fully rewritten herein.

31. This claim is brought pursuant to the Fair Labor Standards Act (“FLSA”), 29 U.S.C. 

§201, et seq.

32. The FLSA requires that covered employees be compensated for every hour worked 

in a workweek. See 29 U.S.C. § 206(b).

33. The FLSA requires that non-exempt employees receive overtime compensation for 

hours worked in excess of forty (40) per week. See 29 U.S.C. § 207(a)(1).

34. Plaintiff was not exempt from receiving FLSA overtime benefits because, inter 

alia, she was not “executive,” “administrative,” or “professional” employees, as those terms are 

defined under the FLSA. See 29 C.F.R. §§ 541.1, et seq.

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35. Plaintiff was not exempt from receiving FLSA overtime benefits because, inter 

alia, he was not a “learned professional” employee, as that term is defined under the FLSA. See

29 CFR § 541.301.

36. During his employment with Defendant, Plaintiff routinely worked in excess of 

forty hours per week during the two years preceding the filing date of this lawsuit.

37. Plaintiff should have been paid the overtime premium for all hours worked in 

excess of forty hours per workweek.

38. Defendant failed to pay Plaintiff the overtime premium required by the FLSA.

39. Defendant knew or should have known that Plaintiff regularly worked in excess of 

forty (40) hours per week.

40. Defendant knew or should have known that Plaintiff did not receive an 

uninterrupted meal period in the amount of thirty (30) minutes per day because he was performing 

substantial duties on behalf of Defendant.

41. Accordingly, Defendant knew or should have known of its overtime payment 

obligations to Plaintiff under the FLSA.

42. The exact total amount of compensation, including overtime compensation, that 

Defendants have failed to pay Plaintiff is unknown at this time, as many of the records necessary 

to make such precise calculations are in the possession of Defendant or were not kept by 

Defendant.

43. As a direct and proximate result of Defendant’s conduct, Plaintiff has suffered and 

continues to suffer damages in an amount not presently ascertainable. In addition, Plaintiff seeks 

liquidated damages, interest and attorneys’ fees, and all other remedies available, as result of 

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Defendant’s willful failure and refusal to pay overtime wages in violations of Sections 6 and 7 of 

the Act (29 U.S.C. §§206-207).

COUNT II

(Ohio Revised Code § 4111.03 – Unpaid Overtime)

44. All of the preceding paragraphs are realleged as if fully rewritten herein.

45. This claim is brought under Ohio law.

46. The Ohio Wage Act requires that covered employees be compensated for every 

hour worked in a workweek. See O.R.C. §§ 4111 et seq.; See also 29 U.S.C §206(b).

47. The Ohio Wage Act requires that employees receive overtime compensation “not 

less than one and one-half times” the employee’s regular rate of pay for all hours worked over 40 

in one workweek, “in the manner and methods provided in and subject to the exemptions of section 

7 and section 13 of the "Fair Labor Standards Act of 1938. See O.R. C. § 4111.03 (A), See also

29 U.S.C. § 207 (a)(1).

48. Plaintiff was a covered employee entitled to the Ohio Wage Act’s protections.

49. Plaintiff was not exempt from receiving Ohio Wage Act overtime benefits because 

he was not an exempt “executive,” “administrative,” or “professional” employee, as those terms 

are defined under the FLSA. See O.R.C. 4111.03(A); see also 29 C.F.R. §§ 541.0, et seq.

50. Plaintiff was not exempt from receiving FLSA overtime benefits because, inter 

alia, he was not a “learned professional” employee, as that term is defined under the FLSA. See

29 CFR §541.301.

51. Defendant is a covered employer required to comply with the Ohio Wage Act’s 

mandates.

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52. Defendant violated the Ohio Wage Act with respect to Plaintiff by failing to 

compensate him at the rate of one and one-half times his regular rate of pay for all hours worked 

in excess of 40 hours in a workweek.

53. In violating the Ohio Wage Act, Defendant acted willfully and with reckless 

disregard of clearly applicable Ohio Wage Act provisions.

54. For Defendant’s violations of the Ohio Wage Act, Plaintiff has suffered damages 

and is entitled to recover unpaid overtime and other compensation, liquidated damages, interest 

and attorneys’ fees, and all other remedies available.

COUNT III

(Ohio Revised Code § 4113.15 - Ohio Prompt Pay Act)

55. All of the preceding paragraphs are realleged as if fully rewritten herein.

56. During relevant times, Defendant was covered by the OPPA; and Plaintiff was

employed by Defendant within the meaning of the OPPA.

57. The OPPA requires that the Defendant pay Plaintiff all wages, including unpaid 

overtime, on or before the first day of each month, for wages earned by them 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 by them during the last half of the preceding calendar month. 

See O.R.C. § 4113.15(A).

58. During relevant times, Plaintiff was not paid overtime wages at one and one-half 

times his regular rate within thirty (30) days of performing the work. See O.R.C. §4113.15(B).

59. Plaintiff’s unpaid wages remain unpaid for more than thirty (30) days beyond his

regularly scheduled payday.

60. Plaintiff has been harmed and continues to be harmed by Defendant’s acts or 

omissions described herein.

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61. In violating the OPPA, Defendant acted willfully, without a good faith basis and 

with reckless disregard of clearly applicable Ohio law, and its actions entitle Plaintiff to liquidated 

damages in the amount of six percent of the amount of the unpaid overtime compensation owed 

or two hundred dollars, whichever is greater.

V. PRAYER FOR RELIEF

WHEREFORE, the Plaintiff requests judgment against Defendant as follows:

A. Finding that Defendant has failed to keep accurate records in accordance with the 

FLSA;

B. Finding that Plaintiff is entitled to prove his hours worked and damages with 

reasonable estimates;

C. Awarding Plaintiff unpaid compensation, including overtime wages as to be 

determined at trial together with any liquidated damages allowed by the FLSA;

D. Awarding Plaintiff unpaid compensation, including overtime wages as to be 

determined at trial together with any liquidated damages allowed by Ohio Law;

E. Awarding Plaintiff costs and disbursements and reasonable allowances for fees of 

counsel and experts, and reimbursement of expenses associated with this action;

F. Awarding Plaintiff reasonable attorneys’ fees associated with this action;

G. Issuing an injunction prohibiting Defendant from engaging in present, ongoing and 

future violations of the FLSA and Ohio Law;

H. Granting Plaintiff leave to amend to file additional claims for relief or different 

causes of action should information become available through investigation and discovery; and

I. Directing such other and further relief as the Court may deem just or appropriate.

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Respectfully submitted,

/s/ Matthew J.P. Coffman_______

Matthew J.P. Coffman (0085586) 

Coffman Legal, LLC

1457 S. High St.

Columbus, Ohio 43207

Telephone: (614) 949-1181

Facsimile: (614) 386-9964

Email: mcoffman@mcoffmanlegal.com

/s/ Daniel I. Bryant___________

Daniel I. Bryant (0090859)

BRYANT LEGAL, LLC

1457 S. High St.

Columbus, Ohio 43207

Telephone: (614) 704-0546

Facsimile: (614) 573-9826

Email: dbryant@bryantlegalllc.com

Attorneys for Plaintiff

JURY DEMAND

Plaintiff hereby demands a jury trial of eight (8) persons to hear all issues so triable.

/s/ Matthew J.P. Coffman

Matthew J.P. Coffman 

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