1 - Collective and Class Action Complaint

Alan J. Leiman (OSB No. 980746)

LEIMAN & JOHNSON, LLC

44 W. Broadway, Suite 326

Eugene, OR 97401

alan@leimanlaw.com

Drew G. Johnson (OSB No. 114289)

LEIMAN & JOHNSON, LLC

44 W. Broadway, Suite 326

Eugene, OR 97401

drew@leimanlaw.com

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

SHAWNA BELL, individually and on behalf 

of all others similarly situated,

Plaintiff, 

 v.

CONSUMER CELLULAR, 

INCORPORATED, an Oregon Domestic 

Business Corporation,

Defendant.

CASE NO.: 3:15-cv-00941

COLLECTIVE and CLASS 

ACTION ALLEGATION 

COMPLAINT; OREGON WAGE 

AND HOUR LAWS

Fair Labor Standards Act 29 U.S.C. § 

201 et seq.; Oregon Wage and Hour 

Laws (ORS Chapter 652)

DEMAND FOR JURY TRIAL

Plaintiff, SHAWNA BELL, on behalf of herself and all other similarly situated

employees of Defendant, brings this Fair Labor Standards Act (“FLSA”) collective action and 

Fed R. Civ. P. Rule 23 class action Complaint for violations of the FLSA and Oregon’s Wage 

and Hour laws against Defendant, CONSUMER CELLULAR, Inc., (hereinafter, “Consumer 

Cellular”). Plaintiff makes her allegations based upon personal knowledge, information, and 

belief.

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INTRODUCTION

1. This is a collective and class action suit to recover unpaid overtime brought under the 

Fair Labor Standards Act, 29 U.S.C. § 201 et seq. and Oregon Wage and Hour Laws, ORS 

Chapter 652 (“Oregon Wage and Hour Laws”).

2. The FLSA requires employers to include non-discretionary incentive pay and bonuses 

when determining an employee’s regular rate of pay for purposes of computing the employee’s 

overtime earnings. Plaintiff alleges that she and others are similarly situated as a result of

Defendant’s policy and practice of failing to include non-discretionary incentive pay and bonuses

in the computation and payment of the overtime premium as required by the FLSA, and by 

Defendant’s failure to pay all wages earned when due under Oregon Wage and Hour Laws.

3. This action seeks compensatory and liquidated damages, attorney's fees, taxable costs of 

court, pre- and post-judgment interest and penalty wages for Defendant’s willful failure to pay 

wages when due, including the correct amount of overtime wages, and other relief pursuant to 29 

U.S.C. § 216(b) and Oregon Wage and Hour Laws for Plaintiff and for all others similarly 

situated in the course of their employment with Defendant.

4. Plaintiff and all others similarly situated demand a jury trial on all issues that may be 

tried to a jury.

JURISDICTION AND VENUE

5. Jurisdiction is conferred on this Court by 29 U.S.C. § 216(b), as this action arises under 

the Fair Labor Standards Act, 29 U.S.C. § 201, et seq.; 28 U.S.C. § 1331; and 28 U.S.C. §1337, 

as it arises under acts of Congress regulating commerce. Jurisdiction of the state law claims is 

conferred on this Court by 28 U.S.C. § 1367 because the state law claims form a part of the same 

case or controversy as the federal claims under Article III of the United States Constitution.

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6. Venue is proper in this District Court pursuant to 28 U.S.C. § 1391 because a substantial 

part of the events giving rise to this complaint occurred in the District of Oregon.

PARTIES

7. Defendant Consumer Cellular is a privately held Portland, Oregon-based provider of 

cellular telephone products and services with its principal place of business in Portland, Oregon.

8. Consumer Cellular employs approximately 1,000 customer service representatives at 

three call centers located in Portland, Oregon; Redmond, Oregon; and Phoenix, Arizona. 

9. Consumer Cellular employs hourly non-exempt sales and non-sales Customer Service 

Representatives (“CSRs”) to sell Consumer Cellular products and services and provide customer 

service to its existing customers over the phone. 

10. Plaintiff Shawna Bell, a resident of Crook County, Oregon was employed as a CSR at the 

Consumer Cellular call center in Redmond, Oregon from May 5, 2014 to January 5, 2015.

FACTUAL ALLEGATIONS

11. Consumer Cellular pays its CSRs a set hourly rate of pay for each hour worked as well as 

additional compensation for meeting certain sales targets and/or productivity goals and quality 

measures (“Additional Compensation”).

12. It is the Consumer Cellular policy and practice to pay CSRs overtime at one and one-half 

times the employee’s hourly rate of pay without paying overtime on the Additional 

Compensation. 

13. The Additional Compensation paid by Consumer Cellular to its CSRs is promised pay 

that is paid to CSRs who meet certain production goals and/or performance and quality measures

as specified by Consumer Cellular in compensation policy materials that it provides to its CSRs.

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14. Additional Compensation is earned based on a CSRs’ work as measured continuously 

during all hours worked, but the amount of Additional Compensation earned and paid, if any, is 

determined on a monthly basis.

15. Consumer Cellular pays Additional Compensation earned by a CSR in the second 

paycheck of the month following the month in which the Additional Compensation was earned.

16. When paying Additional Compensation earned by its CSRs Consumer Cellular fails to 

apportion Additional Compensation back over the workweeks in which it was earned for 

purposes of computing overtime pay.

17. Consumer Cellular does not pay any overtime premium on the Additional Compensation 

earned by CSRs who worked overtime during the period in which the Additional Compensation 

was earned.

18. During her employment with Consumer Cellular, Plaintiff was not paid the correct 

amount of overtime premium earned because the Additional Compensation that she earned was 

not included in the computation of her regular rate of pay, and as a result, she was not paid the 

correct amount of overtime for those weeks in which she worked over 40 hours and earned 

Additional Compensation.

19. Plaintiff alleges she was underpaid each time she worked overtime and earned a bonus 

for work performed during the week in which she worked overtime. 

20. For example, in October and November 2014 Plaintiff earned overtime and Additional 

Compensation. The overtime was paid at one and one-half times her hourly rate of pay and the 

Additional Compensation, when paid in November and December, was not allocated over the 

workweeks in which overtime was earned for purposes of computing the amount of overtime 

owed. 

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21. Accordingly, consumer Cellular now owes Plaintiff unpaid overtime, liquidated damages, 

and penalty wages under the FLSA and Oregon Wage and Hour laws.

22. Plaintiff brings her claims individually, and on behalf of all other similarly situated 

individuals who worked over 40 hours in a workweek for Defendant at any time within three 

years of the filing of this action, and who were not paid time and one-half their correct regular 

rate of pay for all hours worked over 40 in a workweek when Additional Compensation was also 

earned. 

23. At all times material to this Complaint, Defendant acted, directly or indirectly, in the 

interest of an employer with respect to Plaintiff and all others similarly situated.

24. Defendant is subject to the FLSA, 29 U.S.C. § 201 et seq. and Oregon Wage and Hour 

Laws, ORS Chapters 652 and 653. 

25. Defendant employed Plaintiff and similarly situated current and former employees during 

the three-year period preceding the filing of this Complaint. 

26. At all material times, Defendant has been an employer within the meaning of 3(d) of the 

FLSA, 29 U.S.C. § 203(d). Defendant directly or indirectly acted in the interest of an employer 

toward the Plaintiff at all material times, including, without limitation, directly or indirectly 

controlling all employment terms and conditions of Plaintiff.

27. At all material times, Consumer Cellular has been an enterprise within the meaning of 29 

U.S.C. § 203(r). 

28. At all material times, Consumer Cellular has been an enterprise in commerce or in the 

production of goods for commerce within the meaning of 29 U.S.C. § 203(s)(1) because it had 

employees engaged in commerce. Based upon information and belief, the annual gross sales 

volume of Consumer Cellular was in excess of $500,000 per annum at all times material hereto. 

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Alternatively, Plaintiff and the similarly situated employees worked in interstate commerce so as 

to fall within the protections of the FLSA.

29. At all material times, Plaintiff was an individual employee who was engaged in 

commerce or in the production of goods for commerce as required by 29 U.S.C. §§ 206-207.

30. Plaintiff has retained the law firm of Leiman & Johnson, LLC to represent her 

individually, and has incurred attorneys’ fees and costs in bringing this action. Pursuant to 29 

U.S.C. § 216(b) and ORS 652.200, Plaintiff is entitled to recovery of reasonable attorneys’ fees 

and costs. 

FIRST CLAIM FOR RELIEF

(FLSA Overtime Violations - 29 U.S.C § 207; Collective Action)

31. Plaintiff re-alleges and incorporates herein by reference, all allegations contained in 

paragraphs 1 through 30 above.

32. At all material times, Plaintiff performed duties for the benefit of, and on behalf of 

Defendant, under employment terms and conditions set by Defendant.

33. At all material times, Defendant was required to pay Plaintiff and the hereinafter-defined

FLSA Class members in accordance with the overtime provisions of the FLSA.

34. At all material times, Defendant failed to apportion Additional Compensation earned by 

Plaintiff and other similarly situated employees when computing overtime pay when overtime 

and Additional Compensation were earned during the same workweek.

35. At all material times, Defendant failed to pay the correct amount of overtime pay to 

Plaintiff and other similarly situated employees because Defendant failed to compute each 

employee’s overtime based on a weekly regular rate of pay based on total compensation earned 

and total hours worked each week.

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36. Plaintiff brings this collective class action under § 216(b) of the FLSA and against 

Defendant for unpaid overtime compensation, and related penalties and damages on behalf of 

herself and the following persons:

All current and former hourly non-exempt Customer Service 

Representatives employed by Consumer Cellular, Incorporated

who received incentive pay and/or a sales bonus, and overtime pay 

since May 30, 2012 (the “FLSA Class”).

37. Plaintiff brings this FLSA claim for unpaid overtime and liquidated damages as an “optin” collective action pursuant to 29 U.S.C. § 216(b). The FLSA claims may be pursued by those 

FLSA Class members who opt-in to this case pursuant to 29 U.S.C. § 216(b).

38. Plaintiff individually, and on behalf of FLSA Class members, seeks relief on a collective 

basis alleging the FLSA was violated when she and others were not paid the correct amount of 

overtime pay due to them under the FLSA. Plaintiff and FLSA Class members are similarly 

situated because the underpayment of overtime was caused by an unlawful pay practice that was 

common to Defendant’s hourly non-exempt CSRs. 

39. The number and identity of the other members of the putative FLSA Class may be readily 

determined from the records of Defendant, and potential opt-in FLSA Class members may be 

easily and quickly notified of the pendency of this action. 

40. Defendant has not paid Plaintiff and FLSA Class members the correct amount of 

overtime pay for weeks in which they earned incentive and/or bonus pay and while working in 

excess of 40 hours in violation of 29 U.S.C. § 207.

41. Plaintiff and similarly situated FLSA Class members have not been paid all of the 

overtime wages owed to them by Defendant.

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42. Plaintiff and similarly situated FLSA Class members are owed overtime pay incentives 

and bonuses earned during weeks in which the employee worked over 40 hours in a workweek at 

a rate equal to one-half of their correctly computed regular rate of pay.

43. Records of all hours worked and all compensation paid to Plaintiff and similarly situated 

FLSA Class members are in the possession and control of Defendant.

44. Defendant’s records show that Defendant failed to pay FLSA Class members the correct 

amount of overtime pay by failing to include non-discretionary incentive and bonus pay when 

computing the amount of overtime pay due to its employees.

45. At all material times hereto, Defendant failed to comply with 29 U.S.C. §§ 201-209 in 

that Plaintiff and others performed services and labor for Defendant for which Defendant failed 

to pay the correct amount of overtime based on total compensation earned, including incentive 

and bonus pay, as required by the FLSA. 

46. Plaintiff brings this action on her own behalf, and on behalf of all similarly situated 

individuals seeking unpaid overtime compensation, liquidated damages, costs, penalty wages, 

and attorneys’ fees arising from the law violations set forth herein.

47. Defendant violated §207 of the FLSA when it willfully failed to pay overtime to Plaintiff 

and FLSA Class members at one and one-half times their regular rate of pay for all hours worked 

over 40 in a workweek during the applicable statutory period. 

48. Defendant’s failure to pay Plaintiff and FLSA Class members all overtime earned at one

and one-half times their regular rate of pay resulted from Defendant’s willful act of knowingly 

adopting a compensation policy that failed to include all compensation earned, including 

incentive and bonus pay, when computing an employee’s weekly regular rate of pay for purposes 

of paying overtime. Defendant’s policy thus violated the FLSA and resulted in the underpayment 

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of overtime pay to Plaintiff and each FLSA Class Member. Plaintiff and the FLSA Class 

members are entitled to liquidated damages for Defendant’s willful failure to pay the correct 

amount of overtime.

49. By reason of said intentional, willful, and unlawful acts of Defendant, Plaintiff and FLSA 

Class members have suffered damages and have also incurred costs and reasonable attorneys’ 

fees. 

SECOND CLAIM FOR RELIEF/CLASS ACTION ALLEGATIONS

(Failure to Pay Wages When Due –

Violation of Oregon Wage and Hour Laws)

50. Plaintiff, on behalf of herself and other similarly situated CSRs who were employed by 

Defendant in Oregon, re-alleges and incorporates herein by reference, all allegations contained in 

paragraphs 1 through 49 above.

51. As alleged herein, Defendant willfully failed to pay Plaintiff and similarly situated 

current and former employees all wages when due, whether during employment or upon 

termination thereby violating ORS 652.120 and/or ORS 652.140 and giving rise to a penalty 

under ORS 652.150 for all CSRs who were employed by Consumer Cellular at a call center in 

Oregon.

52. Plaintiff and similarly situated current and former employees are owed wages that were

earned but not paid when due, whether during employment or upon termination. 

53. The wages earned but not paid include, but are not limited to, the underpayment of 

overtime resulting from Defendant’s failure to include incentive pay and sales bonuses in the 

computation of overtime wages earned by Plaintiff and those similarly situated employees.

54. Records of hours worked and wages and other compensation paid to Plaintiff and others 

are in possession and control of Defendant.

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55. Defendant’s records show that Defendant failed to pay all wages earned when due to 

Plaintiff and similarly situated current and former employees.

56. Plaintiff brings a class action pursuant to Fed. R. Civ. P. 23(b)(3) on behalf of herself and 

the following class of persons:

All current and former hourly non-exempt Customer Service 

Representatives employed by Consumer Cellular, Incorporated at 

an Oregon call center who received incentive pay and/or a sales 

bonus, and overtime pay since May 30, 2012 (the “Oregon Wage 

Class”).

57. As a result of Defendant’s willful failure to pay Plaintiff and the Oregon Wage Class all 

wages when due, Defendant is liable to Plaintiff and the Oregon Wage Class for a penalty to be 

computed in accordance with ORS 652.150.

58. By reason of said intentional, willful, and unlawful acts of Defendant, Plaintiff and the 

similarly situated current and former employees have suffered damages and have also incurred 

costs and reasonable attorneys’ fees.

59. All members of the Oregon Wage Class who do not opt out may pursue the Oregon state 

law claim if that claim is certified for class-wide treatment.

60. Plaintiff’s state law claim satisfies the Fed. R. Civ. P. 23(a) class action prerequisites of 

numerosity of members, commonality of questions of law and fact, typicality of class claims, and 

fair and adequate representation of class member interests.

61. Numerosity (Fed. R. Civ. P 23(a)(1)): The Oregon Wage Class satisfies the numerosity 

standards. The Oregon Wage Class is believed to be in excess of 500 people. As a result,

joinder of all Class members in a single action is impracticable. The precise number of Oregon 

Wage Class members and their identities and contact information are unknown to Plaintiff but 

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can be easily ascertained from Defendant’s payroll records. Oregon Wage Class members may 

be notified of the pendency of the action by first-class mail. 

62. Commonality (Fed. R. Civ. P 23(a)(2)): Questions of law and fact common to the 

Oregon Wage Class predominate over any questions affecting only individual members. All 

Oregon Wage Class members were subject to the same payroll practices that resulted in the 

failure to pay wages when due. All Oregon Wage Class members received paychecks for more 

than 40 hours per week, but did not receive all incentive and/or bonus pay overtime 

compensation earned when the incentive and/or bonus pay was paid. Thus, all Oregon Wage 

Class Members have been paid incorrectly in the same manner, and all Oregon Wage Class 

members are owed additional compensation. 

63. Common questions of fact include but are not limited to: (a) whether Defendant’s policy 

and practice of failing to take into account the incentive and/or bonus pay earned when 

computing overtime compensation resulted in underpayment of wages and compensation; and 

(b) whether Defendant acted willfully in failing to pay the correct amount of overtime 

compensation when due. 

64. Common questions of law exist regarding: (a) whether Defendant paid overtime wages

when due in accordance with Oregon Wage and Hour Law, ORS Chapters 652; (b) whether such 

actions were willful and (c) whether former employees are owed penalties under ORS 652.

65. The common issues predominate over any questions affecting only individual persons, 

and a class action is superior with respect to considerations of consistency, economy, efficiency, 

fairness, and equity to other available methods for the fair and efficient adjudication of the 

Oregon state law claims. 

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66. Typicality (Fed. R. Civ. P. 23(a)(3)): Plaintiff’s claim is typical of Oregon Wage Class 

members’ claims because:

a. Defendant employed Plaintiff in the same or similar positions as the Oregon 

Wage Class members;

b. Plaintiff and the Oregon Wage Class members were subject to the same payroll 

policies and were affected in the same manner by those policies;

c. Plaintiff, together with all of the Oregon Wage Class members, did not receive all 

wages when due;

d. Plaintiff, together with all of the Oregon Wage Class members, is owed a penalty 

computed according to ORS 652.150;

e. Plaintiff’s claim is based on the same legal and remedial theories as those of the 

Oregon Wage Class and have similar factual circumstances; and

f. Plaintiff has suffered the same or similar injury, as did members of the Oregon 

Wage Class.

67. Adequacy of Plaintiff’s Representation (Fed. R. Civ. P. 23(a)(4)): Plaintiff will fairly 

and adequately represent and protect the interests of the Oregon Wage Class because:

a. There is no conflict between Plaintiff’s claim and the claims of the Oregon Wage

Class.

b. Plaintiff has retained counsel who are skilled and experienced, who specialize in 

wage and hour cases, and who will vigorously prosecute the litigation;

c. Plaintiff’s claim is typical of the claims of the Oregon Wage Class members; and

d. Plaintiff and her counsel will fairly and adequately protect the interests of the 

Oregon Wage Class members.

68. A class action is the superior procedural vehicle for the fair and efficient adjudication of 

the claims asserted herein given that: 

a. There is minimal interest of members of the Oregon Wage Class in individually 

controlling their prosecution of claims under Oregon Wage and Hour Laws;

b. It is desirable to concentrate the litigation of these claims in this forum; and 

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c. There are no unusual difficulties likely to be encountered in the management of 

this case as a class action.

69. The presentation of separate actions by individual Oregon Wage Class members creates 

the risk of inconsistent and varying adjudications, and may establish incompatible standards of 

conduct for Defendant and/or substantially impair or impede the ability of Oregon Wage Class 

members to protect their interests.

70. In the absence of a class action, Defendant would be unjustly enriched because it would 

be able to retain the benefits and fruits of wrongful violations of Oregon Wage and Hour Laws.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, on behalf of herself, the FLSA Class, and the Oregon Wage 

Class, respectfully asks the Court to grant the following relief:

1. On the First Claim for Relief, award Plaintiff and the FLSA Class members their

actual damages for unpaid overtime in an amount to be determined at trial, plus an 

equal amount as liquidated damages for failure to pay overtime pursuant to 29 

U.S.C. §207; or in the alternative, an Oregon Wage penalty computed pursuant to 

ORS 652.150, whichever is greater.

2. On the Second Claim for Relief, award Plaintiff and the Oregon Wage Class their 

penalty wages calculated according to ORS 652.150, in an amount to be 

determined at trial, plus pre-judgment interest in an amount to be determined at 

trial.

3. Award Plaintiff and other similarly situated individuals their reasonable attorney 

fees and costs;

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4. Award Plaintiff and other similarly situated individuals their pre-judgment and 

post-judgment interest; and 

5. Award Plaintiff and other similarly situated individuals any and all such other 

legal and equitable relief as this Court deems just and proper.

DATED May 30, 2015.

Respectfully submitted,

__/s Alan J. Leiman_________

Alan J. Leiman

E-mail: alan@leimanlaw.com

Oregon State Bar No.: 98074

44 W. Broadway, Suite 326

Eugene, OR 97401

Telephone: (541) 345-2376

Facsimile: (541) 345-2377

Of Attorneys for Plaintiffs

__/s Drew G. Johnson_______

Drew G. Johnson

E-mail: drew@leimanlaw.com

Oregon State Bar No.: 114289

44 W. Broadway, Suite 326

Eugene, OR 97401

Telephone: (541) 345-2376

Facsimile: (541) 345-2377

Of Attorneys for Plaintiffs

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