Texas company wants Wayne woman's case tossed

By Kelly Holleran | Feb 27, 2009

HUNTINGTON -- A Texas corporation has asked the federal court to dismiss a case against it in which a Wayne County woman claims the company harassed her because of her age and claims she was not paid for extra hours she worked.

Freda Eubanks began working for University Physicians and Surgeons-Pediatrics at Cabell Huntington Hospital as a receptionist in May 1991, according to the complaint filed Dec. 22 in Cabell Circuit Court.

When Perot Systems, the Texas Corporations, entered into an agreement with Cabell Huntington Hospital in June 2006, Eubanks became an employee of the company, the suit states.

After the company took over, though, it began to harass employees in an attempt to force them to leave, Eubanks claims.

"The plan was to harass these people, many of whom were over 40 years old, and whom had devoted over ten years of employment service, and to force them to leave," the suit states.

The employees would be replaced with "young, pretty receptionists at a significantly reduced hourly rate," the suit states.

Eubanks was constructively discharged from Perot Systems in May, according to the complaint.

Before her discharge, at the time of the takeover, Eubanks claims she was making $11.10 per hour and was working from 8 a.m. until 4:30 p.m. Mondays through Fridays.

However, in its answer to the complaint, Perot Systems denies Eubanks was making the hourly wage she claims.

Throughout her workday, Eubanks was entitled to a one-hour lunch break and two fifteen-minute breaks in the morning and afternoon, according to the complaint.

But throughout her employment, Eubanks claims she did not get an entire hour break for lunch or the two fifteen-minute breaks to which she was entitled.

"Moreover, plaintiff routinely showed up at work at approximately 7:30 a.m., at which time there were usually patients milling about in the reception area at University Physicians and Surgeons-Pediatrics," the suit states. "Although her actual shift did not begin until 8:00 a.m., plaintiff was expected to assist said patients, although she was not allowed to 'clock in' until 8:00 a.m."

Eubanks also often worked past her scheduled departure time of 4:30 p.m. and often did not leave until 4:50 or 5 p.m., according to the complaint.

Eubanks's supervisor, Debbie Jenkins, was aware of the extra hours receptionists normally worked, the suit states.

Because she worked over half-an-hour in the morning and in the evenings and because she was denied her two fifteen-minute breaks, Eubanks claims she worked one and a half hours of unpaid overtime each day.

Eubanks alleges she was underpaid $124.875 per week, which is equal to a yearly wage claim of $6,243.75.

"She is entitled to recovery up to four years of unpaid wages, which translates into a claim for $24,975," the suit states. "Under the Wage Payment and Collection Act, she is also entitled to three times those unpaid wages in liquidated damages, which equals $74,925."

Perot Systems also denies Eubanks was not paid and insists she was reimbursed for every hour she worked.

Because of the harassment she had to endure while working for Perot Systems, Eubanks was treated by a physician for depression and anxiety, according to the complaint.

After she was discharged, Eubanks claims she "nearly had a complete mental breakdown."

Because of her discharge, Eubanks claims she suffered a loss of past and future wages, pain, suffering, annoyance and inconvenience, mental depression and anxiety and medical bills.

Eubanks filed a claim for age discrimination, alleging Perot Systems "took adverse employment action against her for a non-legitimate and discriminatory reason."

However, in its answer to the complaint, Perot Systems denies Eubanks' allegations.

"All of Perot Systems' actions were taken for legitimate, non-discriminatory and non-retaliatory reasons," the company's answer states. "All of Perot Systems' actions toward Plaintiff were conducted in good faith."

It contends her complaint should be dismissed because she has failed to state a claim upon which relief may be granted.

In addition to the amount of her unpaid wages, Eubanks is seeking past and future wages, plus attorney's fees, costs, pre- and post-judgment interest and other relief the court deems just.

Perot Systems is seeking that Eubanks' complaint be dismissed or that it be awarded its costs and attorneys' fees and other relief the court deems appropriate.

Perot Systems removed the case to United States District Court because its principal offices are in Texas and Eubanks is a resident of West Virginia. Therefore a diversity of citizenship exists.

In addition, Eubanks is seeking more than $75,000.

Eubanks is represented by Timothy P. Rosinsky of Rosinsky Law Office in Huntington.

Perot Systems is represented by W. Scott Evans and Christopher M. Green of Jackson Kelly in Charleston.

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