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STATE OF NEW MEXICO COUNTY OF BERNALILLO SECOND JUDICIAL DISTRICT KEVIN OLEARY, and CITY OF ALBUQUERQUE, a Municipal Corporation,

and Plaintiffs, v. ROUTE 66 MALT SHOP & GRILL, L.L.C., ERIC SZEMAN, DIANE AVILA and ANDREW SZEMAN Defendants. NO. CV

FILED IN MY OFFICE DISTRICT COURT CLERK 2/28/2013 4:30:20 PM GREGORY T. IRELAND

Monica Baca

D-202-CV-2013-02058

COMPLAINT FOR UNPAID WAGES, RETALIATION, DAMAGES, AND INJUNCTIVE RELIEF Kevin OLeary and the City of Albuquerque (City), by and through Albuquerque City Attorney David Tourek (Assistant City Attorney Gregory S. Wheeler) allege and state the following in support of the cause of action herein contained. PARTIES AND JURISDICTION 1. The City is a municipal corporation organized and existing under the

Constitution and laws of the State of New Mexico and located within Bernalillo County, New Mexico. 2. Defendant Route 66 Malt Shop & Grill, L.L.C. (Malt Shop) is a

New Mexico domestic limited liability company in the restaurant business at 3800

Central Ave. S.E., Albuquerque, New Mexico, which is within the city limits of the City of Albuquerque. 3. Defendants Eric Szeman (Szeman) and Diane Avila (Avila) are,

upon information and belief, the owners of the Malt Shop. Defendant Andrew Szeman is the general manager of Malt Shop. 4. Plaintiff Kevin OLeary (OLeary) is a waiter formerly employed

by Malt Shop. 5. The action is brought for the refusal of Malt Shop, Avila and the

Szemans (collectively Defendants) to pay the minimum wage required by law under the Albuquerque Minimum Wage Ordinance (MWO) and for an award of punitive and compensatory damages for OLeary against Defendants for retaliation after OLeary voted for an increase in the minimum wage and demanded payment of the minimum wage. This Complaint also seeks injunctive relief to prohibit ongoing harassment of OLeary by Defendants, to stop Defendants from attempting to enforce a coercive illegal contract and to require Defendants to follow the law. 6. MWO allows the City Attorney to bring an action to enforce its terms

against an employer who refuses to pay an increase in the minimum wage. 7. OLeary is the real party in interest in the captioned matter who was

deprived of a fair and legal wage by Defendants and victimized by Defendants.

8.

A minimum wage increase benefits the community at large such that a

municipality in New Mexico has standing to sue a non-compliant employer for the benefit of the public and the individual wrongfully deprived of the legal minimum wage. 9. Wages insufficient to support basic needs are a public problem due to

the impact on the entire community. 10. When an employer refuses to comply with a municipal minimum

wage law, an actual case and controversy arises between the municipality and the employer as well as between the aggrieved employee and the employer. 11. The captioned matter is sufficiently acute for the Court to make an

informed decision on the merits. 12. A decision on the merits in the captioned matter will bring the

controversy to an end. 13. 14. The District Court has jurisdiction over the parties and subject matter. Venue is proper in the Second Judicial District Court. GENERAL ALLEGATIONS 15. The public voted to increase the minimum wage in Albuquerque at the

November 6, 2012 general election. 16. Shortly after November 6, 2012, Defendant Avila asked OLeary if he

voted for the increase in the minimum wage.

17.

OLeary told his employer, Defendant Avila, that he voted in favor of

the minimum wage increase. 18. Referring to her husband, co-owner Defendant Eric Szeman,

Defendant Avila told OLeary Eric knows and he is really pissed at you . . . I suppose you voted for Obama too. 19. Defendant Szeman is an outspoken conservative known to confront

staff, and even customers, regarding his political opinions. 20. Shortly after the general election, Malt Shop General Manager

Andrew Szeman told OLeary that it was wrong for OLeary to vote for an increase in the minimum wage and that, if the increase passed, all Malt Shop employees would lose their jobs. 21. After voters approved an increase in the minimum wage, the

Albuquerque City Council enacted MWO, which, as required by law, codified the minimum wage ballot proposition that passed during the general election. 22. 23. MWO went into effect on January 1, 2013. OLeary was employed by Defendants as a waiter at the Malt Shop

from June 27, 2011 through February 18, 2013. 24. The minimum wage for employees who do not receive any benefits

(as defined in MWO) is Eight Dollars and Fifty Cents per hour ($8.50/hr.).

25.

Defendants did not provide their employees with benefits (as defined

in MWO) during the time OLeary was employed by Defendants. 26. OLeary was a tipped employee while employed by Malt Shop as

that term is defined by MWO. 27. A tipped employee is required to be paid in cash by the employer at

the rate of at least Forty Per Cent (45%) of the minimum wage for non-tipped employees. 28. OLeary should have been paid at least Three Dollars and Eighty

Three Cents per hour ($3.83) by Defendants for each hour OLeary worked in 2013. 29. Defendants paid OLeary Two Dollars and Thirteen Cents per hour

($2.13/hr.) for hours worked by OLeary in 2013. 30. Defendants paid OLeary One Dollar and Seventy Cents per hour

($1.70/hr.) less than the amount required by law. 31. Approximately one week after the election, Defendant Szeman

presented a document to his employees, including OLeary, and told his employees that they had to sign the document and agree to work for $2.13/hr. rather than $3.83/hr. as required by MWO when MWO went into effect. 32. Defendant Szeman told OLeary and others that there is going to be

trouble if you dont sign.

33. Contract). 34.

The employees were not given a copy of the document (Illegal

Subsequently, Defendant Szeman appeared on television and openly

stated that he has entered an agreement with his employees where, in order to remain employed by Defendants, the employees, including OLeary, had to agree to accept the old minimum wage of $2.13 per hour and not demand the increased minimum wage of $3.83 per hour. 35. In early January, OLeary told a line cook at the Malt Shop that the

employees are not getting paid what the law requires and that one of the employees has to stand up for all of them. 36. Upon information and belief, the line cook told Defendants, or told

another person who told Defendants, that OLeary was trying to organize the employees in a joint demand for payment of the lawful wage. 37. At the time OLeary spoke to the line cook, OLeary worked

approximately Thirty Five (35) hours per week. 38. On January 15, 2013, OLeary complained to the manager that a table

of customers had walked off because of the delay occasioned by a faulty piece of equipment waiters have to use to turn in food orders. 39. On the same day, January 15, 2013, Defendants told OLeary to take a

week off without pay. No reason was given.

40.

OLeary had never seen a waiter at the Malt Shop punished because

customers left Malt Shop complaining about slow service. 41. During the course of OLearys employment with Defendants,

Defendant Szeman and the General Manager told OLeary many times that they reduce the hours an employee can work as a form of punishment to compel resignation of undesirable employees and prevent the undesirables from collecting unemployment benefits. 42. When OLeary returned to work on January 22, 2013, Defendant

Andrew Szeman told OLeary he was no longer assigned to a Thirty Five (35) hour week and would be working Four Hours (4) a week. 43. The reduction in hours was an attempt by Defendants to force

OLeary to quit and put him in a position where OLeary would not be eligible for unemployment benefits. 44. Any basis alleged by Malt Shop for the reduction in hours is pre-

textual and Defendants actually punished OLeary for voting for the minimum wage and trying to compel lawful payment of the minimum wage by Malt Shop. 45. OLeary contacted the media on February 17, 2013 and local

television news broadcasts reported that Defendants were violating MWO by not paying the legally required minimum wage.

46.

Later in the day on February 17, 2013, Defendant Andrew Szeman

went to OLearys residence carrying a machete and baseball bat. 47. 48. Neighbors intervened to assist in keeping the peace. The incident with the baseball bat and machete is the subject of a

collateral criminal matter. 49. The next day, OLeary called Defendant Eric Szeman and said he was

afraid to come to work and would not be coming to work at Malt Shop. 50. 51. Defendant Eric Szeman told OLeary we know where you live. On approximately February 18, 2013, Defendant Szeman told

OLeary you are going to cut your own throat. COUNT I UNPAID WAGES 52. The City incorporates the foregoing allegations as though fully

restated herein. 53. 53. MWO went into effect on January 1, 2013. OLeary was employed by Defendants as a waiter at the Malt Shop

from June 27, 2011 through February 18, 2013; therefore, OLeary is entitled to the minimum wage under MWO for every hour he worked for Defendants in the year 2013.

54.

The minimum wage for employees who do not receive any benefits

(as defined in MWO) is Eight Dollars and Fifty Cents per hour ($8.50/hr.). 55. Defendants did not provide their employees with benefits (as defined

in MWO) during the time OLeary was employed by Defendants. 56. OLeary was a tipped employee as that term is defined by MWO.

while employed by Malt Shop 57. A tipped employee is required to be paid in cash by the employer at

the rate of at least Forty Per Cent (45%) of the minimum wage for non-tipped employees. 58. OLeary should have been paid at least Three Dollars and Eighty

Three Cents per hour ($3.83) by Defendants for each hour OLeary worked in 2013. 59. Defendants paid OLeary Two Dollars and Thirteen Cents per hour

($2.13/hr.) for hours worked by OLeary in 2013. 60. Defendants paid OLeary One Dollar and Seventy Cents per hour

($1.70/hr.) less than the amount required by law (Arrearages). 61. Under MWO, OLeary is entitled to three times the amount of the

Arrearages, in an amount to be proven at trial, interest, attorneys fees and costs. WHEREFORE, Plaintiffs pray for an Order requiring Defendants to forthwith pay three times the amount of the Arrearages, for interest, attorneys

fees, costs and such other and further relief deemed appropriate under the circumstances. COUNT II RETALIATION 62. The City incorporates the foregoing allegations as though fully

restated herein. 63. MWO and common law prohibit retaliation by Defendants against

OLeary after OLeary asked Defendants to do what the law requires, which is pay the minimum wage. 64. Defendants attempted to subject OLeary to peer pressure and the

scorn of co-workers by stating OLeary and the others would lose their jobs for OLearys action in voting for and demanding payment of the minimum wage. 65. Defendants threatened OLearys safety and put OLeary in

reasonable fear of death or serious physical harm. 66. OLeary suffers from nightmares and poor sleep after being

threatened with a bat and machete by Defendant Andrew Szeman. 67. Defendants coerced OLeary and others into signing an Illegal

Contract whereby all Malt Shop employees, including OLeary, supposedly capitulated to Defendants illegal scheme to break the law.

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68.

After the incident with the bat and the machete, Defendant Eric

Szeman at least implied that there will be ongoing harassment by stating that Malt Shop management and staff know where OLeary lives. 69. Malt Shop drastically and wrongfully reduced OLearys work hours

by Thirty One (31) hours per week as the result of the exercise by OLeary of his right to vote and advocacy of compliance with the law by his employer. 70. An award of punitive damages is requested and is in order, in part, to deter other similar conduct by employers and to specifically deter Defendants in the future. WHEREFORE, Plaintiffs pray for a judgment in OLearys favor for compensatory damages to make OLeary whole for the wrongful reduction of his work hours, compensatory damages for stress induced loss of sleep, for punitive damages, attorneys fees, interest, costs and such other and further relief deemed appropriate under the circumstances. COUNT III INJUNCTIVE RELIEF 71. The City incorporates the foregoing allegations as though fully

restated herein. 72. Defendants have engaged in a pattern of illegal and wrongful actions

toward OLeary that cannot be remedied by an award of damages at law.

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73.

Neither Plaintiff has adequate legal remedies that will redress all the

wrongs herein alleged. 74. Defendants have threatened and continue to threaten OLeary with

irreparable bodily harm. 75. Defendants coerced OLeary and others into allegedly agreeing to an

Illegal Contract. 76. 77. 78. 79. Plaintiffs are likely to succeed on the merits. The balance of equities tips in favor of Plaintiffs. Defendants have unclean hands. The City has a duty to insure payment of an adequate wage to all

employees in the City, including Malt Shop employees, to preserve the health and safety of the community at large. WHEREFORE, Plaintiffs pray for an Order as follows: 1. Defendants shall not contact or speak with OLeary by phone,

electronic communication or otherwise. 2. Defendants shall remain at least One Hundred (100) yards away from

OLeary and his residence. 3. The Document Defendants required Malt Shop employees to sign

whereby employees supposedly agreed to allow Malt Shop to pay less than the minimum wage is an Illegal Contract employees do not have to follow.

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4.

Defendants shall post this Courts Order at the Malt Shop in a

conspicuous place and hand deliver the Order to each Malt Shop employee. 5. 6. 7. The legal issues are advanced to trial on the merits. Plaintiffs are not required to post bond. Defendants shall pay all Malt Shop employees three times the

difference between what they were paid and should have been paid under the Minimum Wage Ordinance. 8. Should Defendants fail or refuse to comply with the terms of the

Order, Defendants shall be subject to an Order to Show Cause that they should not be held in contempt by the Court. 9. Plaintiffs are entitled to attorneys fees, interest, costs and such other

and further relief deemed appropriate under the circumstances.

CITY OF ALBUQUERQUE David Tourek City Attorney

/s/ Gregory S. Wheeler________ Gregory S. Wheeler Assistant City Attorney P. O. Box 2248 Albuquerque, New Mexico 87103 (505) 768-4500

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