1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ZOLDAN LAW GROUP, P

L

L

C

14500 N. Northsight Blvd. Suite 213 Scottsdale, Arizona 85260

Tel & Fax: 480.442.3410 – mzoldan@zoldangroup.com

Michael Zoldan; AZ Bar No. 028128

Jason Barrat; AZ Bar No. 029086

Jessica Miller; AZ Bar No. 031005

ZOLDAN LAW GROUP, PLLC

14500 N. Northsight Blvd., Suite 213

Scottsdale, AZ 85260

Tel & Fax: 480.442.3410

mzoldan@zoldangroup.com

jbarrat@zoldangroup.com

jmiller@zoldangroup.com

Attorneys for Plaintiff 

John Radford

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

John Radford, an Arizona resident, 

Plaintiff, 

v.

Berg Homes, LLC d/b/a Berg Group 

Home, a limited liability company; and

Connie Scwichtenberg, an Arizona 

resident,

Defendants.

Case No. 

VERIFIED COMPLAINT

(Jury Trial Requested)

Plaintiff John Radford, for his Verified Complaint against Defendants Berg Homes, 

LLC d/b/a Berg Group Home and Connie Scwichtenberg, hereby allege as follows:

NATURE OF THE CASE

1. Plaintiff brings this action against Defendants for their unlawful failure to 

pay overtime in violation of the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 

(hereinafter “FLSA”).

2. This action is brought to recover unpaid overtime wage compensation, 

Case 2:18-cv-00287-JJT Document 1 Filed 01/26/18 Page 1 of 8
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ZOLDAN LAW GROUP, P

L

L

C

14500 N. Northsight Blvd. Suite 213 Scottsdale, Arizona 85260

Tel & Fax: 480.442.3410 – mzoldan@zoldangroup.com

liquidated damages, and statutory penalties resulting from Defendants’ violations of the 

FLSA.

JURISDICTION AND VENUE

3. This Court has jurisdiction over the subject matter and the parties hereto 

pursuant to 29 U.S.C. § 216(b) and 28 U.S.C. § 1331.

4. Venue is proper in this District under 28 U.S.C. §§ 1391(b) and (c) because 

all or a substantial part of the acts or omissions giving rise to the claims occurred in the 

state of Arizona. Plaintiff was employed by Defendants in this District.

PARTIES

5. At all relevant times to the matters alleged herein, Plaintiff John Radford

resided in the District of Arizona. 

6. Plaintiff has been a full-time employee of Defendants from in or around April 

2009 and is still currently employed.

7. At all relevant times, Plaintiff is an employee of Defendants as defined by 29 

U.S.C. § 203(e)(1).

8. Defendant Berg Homes, LLC d/b/a Berg Group Home is a limited liability 

company, authorized to do business in Arizona, and is Plaintiff’s employer as defined by 

29 U.S.C. § 203(d).

9. Defendant Connie Scwichtenberg is an Arizona resident. She has directly 

caused events to take place giving rise to this action. Connie Scwichtenberg is the owner 

of the previously identified corporate entity and has been at all relevant times Plaintiff’s 

employer as defined by 29 U.S.C. § 203(d).

10. Under the FLSA, Defendant Connie Scwichtenberg is an employer. The 

Case 2:18-cv-00287-JJT Document 1 Filed 01/26/18 Page 2 of 8
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ZOLDAN LAW GROUP, P

L

L

C

14500 N. Northsight Blvd. Suite 213 Scottsdale, Arizona 85260

Tel & Fax: 480.442.3410 – mzoldan@zoldangroup.com

FLSA defines “employer” as any individual who acts directly or indirectly in the interest 

of an employer in relation to an employee. Defendant Connie Scwichtenberg determined 

the method and rate of Plaintiff’s payment of wages. As person who acted in the interest 

of the previously identified corporate entity in relation to the company’s employees, 

Connie Scwichtenberg is subject to individual and personal liability under the FLSA.

11. Plaintiff is further informed, believes, and thereon alleges that each of the 

Defendants herein gave consent to, ratified, and authorized the acts of all other Defendants,

as alleged herein.

12. Defendants, and each of them, are sued in both their individual and corporate

capacities.

13. Defendants are jointly and severally liable for the injuries and damages 

sustained by Plaintiff.

14. At all relevant times, Defendants have been engaged in interstate commerce 

and / or have been an enterprise whose gross annual volume of sales made or business done 

is greater than $500,000. 

FACTUAL ALLEGATIONS

15. Defendant Berg Homes, LLC d/b/a Berg Group Home is an assisted living 

facility that provides help to people in need.

16. In or around April 2009, Plaintiff commenced employment with Defendants

as a Caregiver.

17. Plaintiff’s pimary job duties include the cooking, cleaning, washing, 

clothing, feeding, and medicating of patients.

18. From April 2009 until December 31, 2016, Plaintiff was a non-exempt 

Case 2:18-cv-00287-JJT Document 1 Filed 01/26/18 Page 3 of 8
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ZOLDAN LAW GROUP, P

L

L

C

14500 N. Northsight Blvd. Suite 213 Scottsdale, Arizona 85260

Tel & Fax: 480.442.3410 – mzoldan@zoldangroup.com

employee paid a salary rate of $800 per week.

19. Plaintiff does not exercise discretion or independent judgment with respect 

to matters of significance.

20. Plaintiff does not have authority to formulate, affect, interpret, or implement 

Defendants’ management policies or operating practices.

21. Plaintiff does not carry out major assignments in conducting the operations 

of Defendants’ business.

22. Plaintiff does not perform work that affects business operations to a 

substantial degree.

23. Plaintiff does not have the authority or discretion to commit the Defendants 

in matters of significant financial importance.

24. Plaintiff does not have authority to waive or otherwise deviate from 

Defendants’ established policies and procedures without prior approval.

25. Plaintiff does not provide consultation or expert advice to management.

26. Plaintiff is not involved in planning long-term or short-term business 

objectives.

27. Plaintiff does not investigate and/or resolve matters of significance on behalf 

of Defendants. 

28. Plaintiff does not represent Defendants in handling complaints, arbitrating 

disputes, or resolving grievances.

29. Plaintiff’s primary duty is not the management of Defendants in which he is

employed.

30. Plaintiff does not customarily and/or regularly direct work of two or more 

Case 2:18-cv-00287-JJT Document 1 Filed 01/26/18 Page 4 of 8
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ZOLDAN LAW GROUP, P

L

L

C

14500 N. Northsight Blvd. Suite 213 Scottsdale, Arizona 85260

Tel & Fax: 480.442.3410 – mzoldan@zoldangroup.com

employees.

31. Plaintiff does not have the authority to, nor has he, hired or fired other 

employees.

32. Between January 1, 2015 through December 31, 2016, Defendants failed to 

properly compensate Plaintiff for all his overtime hours.

33. Plaintiff routinely worked in excess of 40 hours per week, and was not 

provided with the required one and one-half times pay premium as required by the FLSA 

for all his worked overtime hours from January 1, 2015 through December 31, 2016.

34. At all relevant times during Plaintiff’s employment, Defendants failed to 

properly compensate Plaintiff for all his overtime hours.

35. Defendants were aware that Plaintiff’s working hours routinely exceeded 40 

hours, and required him to work overtime as a condition of his employment.

36. Defendants wrongfully withheld wages from Plaintiff by failing to pay all 

wages due for overtime hours Plaintiff worked.

37. Defendants refused and/or failed to properly disclose or apprise Plaintiff of 

his rights under the FLSA.

38. Defendants’ failure and/or refusal to compensate Plaintiff at the rates and 

amounts required by the FLSA were willful.

COUNT I

(FAILURE TO PAY OVERTIME WAGES – FLSA – 29 U.S.C. § 207) 

39. Plaintiff incorporates by reference all of the above allegations as though fully 

set forth herein.

40. At all relevant times, Plaintiff has been employed by Defendants within the 

meaning of the FLSA.

Case 2:18-cv-00287-JJT Document 1 Filed 01/26/18 Page 5 of 8
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ZOLDAN LAW GROUP, P

L

L

C

14500 N. Northsight Blvd. Suite 213 Scottsdale, Arizona 85260

Tel & Fax: 480.442.3410 – mzoldan@zoldangroup.com

41. Plaintiff is an employee entitled to the statutorily mandated overtime wages.

42. Defendants have intentionally failed and/or refused to pay Plaintiff overtime

wages according to the provisions of the FLSA.

43. As a direct result of Defendants’ violations of the FLSA, Plaintiff has 

suffered damages by not receiving compensation in accordance with 29 U.S.C.§ 207.

44. In addition to the amount of unpaid overtime wages owed to Plaintiff, he is 

entitled to recover an additional equal amount as liquidated damages pursuant to 29 U.S.C. 

§ 216(b). 

45. Defendants’ actions in failing to compensate Plaintiff, in violation of the 

FLSA, were willful. Defendants knew Plaintiff was not being compensated overtime for 

time worked in excess of 40 hours in a given workweek between January 1, 2015 through 

December 31, 2016, and failed to pay proper overtime wages. Defendants knew their 

failure to pay overtime wages was a violation of the FLSA.

46. Defendants have not made a good faith effort to comply with the FLSA.

47. Plaintiff is also entitled to an award of attorneys’ fees and other statutory 

damages pursuant to 29 U.S.C. § 216(b). 

CONCLUSION AND PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays:

A. For the Court to declare and find that the Defendants committed the 

following acts:

i. violated overtime wage provisions of the FLSA, 29 U.S.C. § 207, by 

failing to pay overtime;

ii. willfully violated the Arizona Wage Statute by failing to timely pay all 

Case 2:18-cv-00287-JJT Document 1 Filed 01/26/18 Page 6 of 8
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ZOLDAN LAW GROUP, P

L

L

C

14500 N. Northsight Blvd. Suite 213 Scottsdale, Arizona 85260

Tel & Fax: 480.442.3410 – mzoldan@zoldangroup.com

wages due to Plaintiff;

B. For the Court to award compensatory damages, including liquidated damages 

pursuant to 29 U.S.C. § 216(b), to be determined at trial;

C. For the Court to award interest on all wage compensation due accruing from 

the date such amounts were due under all causes of action set forth herein;

D. For the Court to award such other monetary, injunctive, equitable, and 

declaratory relief as the Court deems just and proper;

E. For the Court to award Plaintiff’s reasonable attorneys' fees and costs 

pursuant to 29 U.S.C. § 216(b) and A.R.S. § 12-341.01 and all other causes 

of action set forth herein;

F. Any other remedies or judgments deemed just and equitable by this Court

JURY DEMAND

Plaintiff hereby demands a trial by jury of all issues so triable.

RESPECTFULLY SUBMITTED January 26, 2018.

ZOLDAN LAW GROUP, PLLC

By: /s/ Jason Barrat 

14500 N. Northsight Blvd, Suite 213

Scottsdale, AZ 85260

Attorneys for Plaintiff John Radford

Case 2:18-cv-00287-JJT Document 1 Filed 01/26/18 Page 7 of 8
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

C,) ~ 

....:! ::l< 11 ~ ::3 tJ... • ~ 

!3" !! 12 

0 ~~ l3 ~ li: 

0 ;:;; 14 t.:E 

~ !~ 15 

t-4 ~~ 

-· 

....:10~ !; :~ ~t: 

N ~ 18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

p. 1 

VERIFICATION 

Plaintiff John Radford declares under penalty of petjury that he has read the 

foregoing Verified Complaint and is familiar with the contents thereof. The matters asserted 

therein are true and based on his personal knowledge, except as to those matters stated upon 

information and belief, and as to those matters, he believes them to be true. 

Case 2:18-cv-00287-JJT Document 1 Filed 01/26/18 Page 8 of 8