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PH I L L I P S DA Y E S

NATIONAL EMPLOYMENT LAW FIRM

A Professional Corporation

3101 North Central Avenue, Suite 1500

Phoenix, Arizona 85012

Telephone: 1-800-JOB-LAWS

docket@phillipsdayeslaw.com

TREY DAYES, No. 020805

DAVID DAVIS, No. 030754

(602) 288-1610 ext. 301

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

Sheri Kane; 

 Plaintiff,

 vs.

Foothills Rehabilitation Center, LLC, an

Arizona limited liability company; and 

William Rothner and Jane Doe Rothner, 

husband and wife

Case No.: ________________________

COMPLAINT

Plaintiff Sheri Kane, for her Complaint against Defendants, alleges as follows:

NATURE OF THE CASE

1. The Fair Labor Standards Act is designed to eliminate “labor conditions 

detrimental to the maintenance of the minimum standard of living necessary for health, 

efficiency and general well-being of workers.” 29 U.S.C. § 202(a). To achieve its goals, 

the FLSA sets minimum wage and overtime pay requirements for covered employers. See 

29 U.S.C. §§ 206(a), 207(a).

2. Employers must compensate employees for all work that employers permit 

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employees to perform. See 29 C.F.R. § 785.11. In such cases, it is the responsibility of 

employers’ management to ensure that work is not performed if management does not 

desire for such work to be performed. See 29 C.F.R. § 785.13. Employers may not accept 

the benefits of employees performing work without compensating the employees for their 

work. Id.

3. Plaintiff brings this action against Defendants for unlawful failure to pay 

overtime wages in direct violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et 

seq. (“FLSA”).

4. Defendants had a consistent policy and practice of requiring its employees to 

work well in excess of forty (40) hours per week without paying them time and a half for 

hours worked over forty (40) hours per week.

5. Plaintiff seeks to recover unpaid overtime compensation and an equal amount 

of liquidated damages, including interest thereon, statutory penalties, attorneys’ fees, and 

costs pursuant to 29 U.S.C. § 216(b).

JURISDICTION AND VENUE

6. 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.

7. Venue is proper under 28 U.S.C. § 1391(b) because the Corporate Defendant

resides within the State in which this District Court is located and because a substantial 

part of the events or omissions giving rise to this matter occurred in this District.

8. The named Defendants, by virtue of their own acts and omissions or by 

virtue of the acts and omissions committed by one or more of their agents, employees or 

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representatives, as described herein, have conducted business or caused events to occur 

within the District of Arizona and, more particularly, within Pima County, Arizona, as 

more particularly described herein so as to give rise to both subject matter and personal 

jurisdiction of this Court.

PARTIES

9. At all times material hereto, Plaintiff was a resident of Pima County, 

Arizona. 

10. At all times material hereto, Foothills Rehabilitation Center, LLC was 

incorporated in the State of Arizona with its principal place of business in Pima County, 

Arizona.

11. Upon information and belief, at all times material hereto, Defendant 

William Rothner, was and continues to be a resident of the State of Illinois.

12. Defendant William Rothner is one of the owners of the corporate 

Defendant.

13. Defendant William Rothner on many occasions was in the State of Arizona 

to manage and supervise the Corporate Defendant. 

14. Jane Doe Rothner is William Rothner’s wife. William and Jane Doe 

Rothner have caused events to take place giving rise to this Complaint as to which their 

marital community is fully liable.

15. Upon information and belief, and consistent with the information available 

from the Arizona Corporation Commission, Defendant William Rothner is the owner of 

Foothills Rehabilitation Center, LLC

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16. At all relevant times, Plaintiff was an “employee” of Defendants, as defined 

by 29 U.S.C. § 203(e)(1). 

17. The provisions set forth in 29 U.S.C. § 207 of the FLSA apply to Defendants.

18. At all relevant times, each of the Defendants was and continues to be an 

“employer” as defined in 29 U.S.C. § 203(d).

19. Each of the Defendants should be deemed an “employer” for purposes of the 

FLSA including, without limitation, 29 U.S.C. § 216.

20. Defendant William Rothner is deemed an “employer” for purposes of the 

FLSA, including, without limitation, 29 U.S.C. §216.

21. All Defendants are co-equally liable for all matters.

22. Defendant William Rothner made all decisions on the daily activities of her

employees.

23. Defendant William Rothner makes all decisions regarding pay policies for 

Foothills Rehabilitation Center, LLC

24. Defendant William Rothner exerted financial control over Foothills 

Rehabilitation Center, LLC

25. Defendant William Rothner exerted operative control over Foothills 

Rehabilitation Center, LLC

26. Defendant William Rothner has the power to close Foothills Rehabilitation 

Center, LLC 

27. Defendant William Rothner has the power to hire and fire employees. 

28. Defendant William Rothner hired managerial employees. 

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29. On information and belief, Defendant William Rothner maintained 

employment records. 

30. On information and belief, Defendant William Rothner dictated the corporate 

message in pending labor investigations. 

31. Defendant William Rothner profited from the FLSA violations detailed in 

this complaint. 

32. At all times material to this action, each of the Defendants was and continues

to be an “enterprise engaged in commerce or in the production of goods for commerce” 

as defined by 29 U.S.C. § 203(s)(1).

33. As a social services administrator, Plaintiff assisted clientele that came from 

outside the state of Arizona.

34. As a social services administrator, Plaintiff used equipment that originated 

out of state.

35. Plaintiff engaged in commerce or in the production of goods for commerce 

and is therefore individually covered under the FLSA pursuant to 29 U.S.C. §§206(a), 

207(a)(1), 212(c).

36. Plaintiff was involved in transacting business across state lines via interstate 

telephone calls or the U. S. Mail which included taking new orders from customers.

37. Plaintiff was involved in ordering or receiving goods from out-of-state 

suppliers.

38. Plaintiff was involved in handling the accounting or bookkeeping for the 

ordering or receiving of goods from out-of-state suppliers.

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39. Plaintiff also handled credit card transactions that involved the interstate 

banking and finance systems.

40. On information and belief, at all relevant times, the annual gross revenue of 

Defendants exceeded, and continues to exceed, $500,000.00.

FACTUAL BACKGROUND

41. Foothills Rehabilitation Center, LLC is a rehabilitation center and skilled 

nursing facility in Tucson, Arizona. 

42. Foothills Rehabilitation Center, LLC hired Plaintiff in September of 2014 as 

a social services administrator. 

43. Plaintiff’s job duties and responsibilities included completing assessments on 

residents of the facility, arranging for family meetings, and helping residents with predischarge planning. 

44. Foothills Rehabilitation Center, LLC compensated Plaintiff with a supposed 

hourly rate.

45. Plaintiff however would only be paid for 40 hours each week. Even when her 

work schedule fluctuated, she was always paid for 40 hours. 

46. Plaintiff was actually paid a salary. 

47. Defendants withheld taxes out of Plaintiff’s paycheck pursuant to IRS 

regulations. 

48. Plaintiff was a non-exempt employee. 

49. Plaintiff had no real supervision or management responsibilities. 

50. Plaintiff could neither hire nor fire employees.

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51. Plaintiff had no authority to exercise significant independent judgment on 

issues that affect the whole company when carrying out her job responsibilities.

52. Defendants managed, supervised, and directed all aspects of Plaintiff’s job 

duties and responsibilities.

53. Plaintiff’s primary duty was not the performance of work directly related to 

the management or general business operations of Foothills Rehabilitation Center, LLC

or its’ customers. 

54. Plaintiff’s primary duty was not the performance of work requiring advanced 

knowledge in a field of science or learning that was acquired by a prolonged course of 

specialized intellectual instruction. 

55. Plaintiff did not perform work requiring advanced knowledge. 

56. Plaintiff did not perform work in a field of science or learning. 

57. Plaintiff did not have an advanced degree and was not required to have one to 

perform the work.

58. The knowledge required performing the work of social services administrator

is not acquired by a prolonged course of specialized intellectual study.

59. Plaintiff’s work did not require consistent exercise of discretion and 

judgment without prior administration approval. 

60. Plaintiff’s work did not require her to analyze, interpret, or make deductions 

from varying facts or circumstances for the organization.

61. Plaintiff’s duties were carried out in a mechanical and routine manner and 

she had no authority to make independent decisions in performing those duties. 

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62. Plaintiff’s work did not require invention, imagination, originality, or talent

without administration approval.

63. Plaintiff’s work did not require creative or original analysis and 

interpretation. 

64. Plaintiff’s regular schedule consisted of at least five days of work each week 

but she regularly worked six to seven days per week. 

65. Plaintiff would have to arrive before 7:30 am every day she was on the 

schedule and was not able to leave work until at least 4:00 p.m. each day that she was on 

the schedule even though she constantly worked until 6 or 7 p.m. 

66. Each and every week that Plaintiff has worked her regular schedule, she has 

worked over forty hours in a week. 

67. By improperly classifying Plaintiff as an exempt employee, Defendants are 

depriving Plaintiff upwards of twenty five hours of overtime pay each and every week. 

68. Defendants did not pay Plaintiff overtime. 

69. Plaintiff was not a commissioned employee. 

70. Plaintiff has retained the law firm of Phillips Dayes National Employment 

Law Firm to prosecute her claims against Defendants on her behalf and has agreed to pay 

reasonable costs and attorney’s fees in the prosecution of this matter.

COUNT ONE

OVERTIME VIOLATION—29 U.S.C. § 207

71. Plaintiff incorporates and adopts paragraphs 1 through 70 above as if fully set 

forth herein.

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72. While employed by Defendants, Plaintiff regularly worked multiple hours of 

overtime per week.

73. Plaintiff was a non-exempt employee.

74. Defendants have intentionally and willfully failed and refused to pay Plaintiff 

overtime according to the provisions of the FLSA.

75. On information and belief, Defendants further engaged in a widespread 

pattern and practice of violating the provisions of the FLSA by failing to pay Plaintiff in 

accordance with 29 U.S.C. § 207.

76. As the direct and proximate result of Defendants’ violations of the FLSA, 

Plaintiff has suffered damages by failing to receive compensation in accordance with 29 

U.S.C. § 207.

77. Pursuant to 29 U.S.C. § 216, Defendants are liable to Plaintiff for an amount 

equal to one and one-half times her regular pay rate for each hour of overtime worked per

week.

78. In addition to the amount of unpaid wages owed to Plaintiff, she is also 

entitled to recover an additional equal amount as liquidated damages pursuant to 29 

U.S.C. § 216(b).

79. On information and belief, Defendants’ conduct in failing to properly 

compensate Plaintiff, in violation of the FLSA, was willful.

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

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Plaintiff has been required to bring this action to recover her overtime compensation, and 

her statutory liquidated damages, and as the direct and foreseeable result of Defendants’

conduct, Plaintiff has incurred costs and attorneys’ fees.

WHEREFORE, Plaintiff respectfully requests that judgment be entered in her

favor against Defendants:

a. Awarding Plaintiff overtime compensation in the amount due for all of 

her time worked in excess of forty (40) hours per week at a pay rate 

equal to one and one-half times Plaintiff’s regular rate of pay while at 

work for Defendants, in an amount proved at trial;

b. Awarding Plaintiff liquidated damages in an amount equal to the 

overtime award;

c. Awarding Plaintiff reasonable attorneys’ fees, costs, and expenses of the 

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

d. Awarding Plaintiff pre-judgment interest, at the highest legal rate, on all 

amounts awarded under subsections (a) and (b) above from the date of 

the payment due for that pay period until paid in full;

e. Awarding Plaintiff post-judgment interest, at the highest legal rate, on 

all awards from the date of such award until paid in full; and

f. For such other and further relief as the Court deems just and proper.

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COUNT TWO

DECLARATORY JUDGMENT

81. Plaintiff incorporates and adopts paragraphs 1 through 80 above as if fully set 

forth herein.

82. Plaintiff and Defendants have an overtime compensation dispute pending.

83. The Court has jurisdiction to hear Plaintiff’s request for declaratory relief 

pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201–02.

84. Plaintiff is entitled to declarations, and requests that the Court make 

declarations as to the following matters and as to other matters deemed appropriate by the 

Court:

a. Defendants employed Plaintiff.

b. Defendants are engaged in an enterprise covered by the overtime provisions 

of the FLSA.

c. Plaintiff individually is covered by the overtime provisions of the FLSA.

d. Plaintiff was not an exempt employee pursuant to the FLSA.

e. Defendants failed and refused to make payments of overtime compensation 

to Plaintiff, in violation of the provisions of the FLSA.

f. Defendants’ failures to pay overtime compensation to Plaintiff were willful.

g. Plaintiff is entitled to damages in the amount of overtime compensation not 

paid by Defendants at the rate of one and one-half times Plaintiff’s regular 

rate of pay.

h. Plaintiff is entitled to an equal amount as liquidated damages.

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i. Plaintiff is entitled to recover her costs and a reasonable attorney’s fee 

incurred in prosecuting her claim.

85. It is in the public interest to have these declarations of rights recorded as 

Plaintiff’s declaratory judgment action serves the useful purposes of clarifying and 

settling the legal relations at issue, preventing future harm, and promoting the remedial 

purposes of the FLSA.

86. The declaratory judgment action further terminates and affords relief from 

uncertainty, insecurity, and controversy giving rise to the proceeding.

WHEREFORE, Plaintiff respectfully requests that judgment be entered in her

favor against Defendants:

a. Declaring, pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 

2201–02, that the acts and practices complained of herein are in 

violation of the overtime and wage provisions of the FLSA;

b. Awarding Plaintiff her reasonable attorney’s fees and the costs and 

expenses of the litigation pursuant to the FLSA; and

c. For such other and further relief as the Court deems just and proper

Dated: November 5, 2015

Respectfully submitted,

PHILLIPS DAYES NATIONAL EMPLOYMENT LAW 

FIRM PC

By: /s/ Trey Dayes

Trey Dayes

Attorney for Plaintiff

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