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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION BILLY HORTON, ROBERT MORRIS, ROBERT PRUNTY, ALAN SPURGIN, DAVID RATCLIFF, and SAM BIGHAM, individually and on behalf of similarly situated individuals, Plaintiffs, -vCITY OF PLANO, Defendant.

Civil No. 4:10-cv-372 ECF

PLAINTIFFS ORIGINAL COMPLAINT CLASS ACTION TO THE HONORABLE UNITED STATES DISTRICT COURT JUDGE: NOW COME Billy Horton, Robert Morris, Robert Prunty, Alan Spurgin, David Ratcliff, and Sam Bigham and file this Plaintiffs Original Complaint against the City of Plano. This case involves working off the clock. At issue is the fact that the Plano did not compensate Plaintiffs1 for purported breaks and purported on call time during which Plaintiffs were required to monitor their radio. Plaintiffs must listen to all messages relayed over the radio, and respond appropriately when a relevant message is relayed. Plaintiffs contend that such time is compensable time because they have to continuously listen for relevant messages. Pleading in the alternative, even if all such time is not compensable, Plano must at least compensate Plaintiffs for time spent actually listening to calls and responding to relevant calls. Furthermore, Plano promised to pay Plaintiffs the greater of one hour or the actual time worked when they perform work during on call hours. Plaintiff has failed to comply with this obligation. Plano also promised to pay Plaintiffs for lunch breaks where they are required to
1

Plaintiffs, as used in this pleading, refers to the Named Plaintiffs and the putative class.

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work through lunch.

Under both the FLSA and state law theories, Plano has failed to

compensate (1) Plaintiffs for at least one hour whenever they are called to work during on call time and for (2) lunch breaks. For these reasons, Plaintiffs seek unpaid wages, liquidated damages, attorney fees, court costs, interest, and any other relief provided by law. I. JURISDICTION & VENUE 1. This Court has subject matter jurisdiction to hear this complaint and to adjudicate

the claims stated herein under 28 U.S.C. 1331, this action being brought under the Federal Fair Labor Standards Act, 29 U.S.C. 201 et seq. (FLSA). jurisdiction over state law claims. 2. This Court has personal jurisdiction over the Defendant because it is a This Court has supplemental

municipality in the State of Texas. 3. Venue is appropriate because the Defendant employed one or more workers at

issue in this case in Collin County, Texas. II. PARTIES 4. Billy Horton, Robert Morris, Robert Prunty, Alan Spurgin, David Ratcliff, and

Sam Bigham, the Named Plaintiffs, are individuals who performed work for the Defendant during the past three years. 5. Plaintiffs brings this action on behalf of themselves and other similarly situated

employees pursuant to 29 U.S.C. 216(b). (See consent forms attached as Exhibit A.) Plaintiffs and the similarly situated employees are individuals who were, or are, (1) employed by the City

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of Plano within three years of this suit, (2) were paid hourly, and (3) were not paid for breaks or on call time where they were required to monitor their radio. 6. The City of Plano is a municipality in Texas. Plano is an employer within the

meaning of FLSA, 29 U.S.C. 203(d). III. CLASS ACTION ALLEGATIONS 7. At all times hereinafter mentioned, Defendant has been an employer within the

meaning of Section 3(d) of the FLSA, 29 U.S.C. 203(d). 8. At all times hereinafter mentioned, Defendant has been a public agency within the

meaning of Section 3(x) of the FLSA, 29 U.S.C. 203(x). 9. 10. 11. Defendant and Plaintiffs are covered by the overtime provisions of the FLSA. Plaintiffs are engaged in commerce. Plaintiffs are required to monitor their radios during working hours to respond to

relevant assignments and communications. 12. 13. 14. Not all communication on Plaintiffs radios is relevant to their specific work. Plaintiffs are required to monitor their radios over their lunch breaks. Because Plaintiffs must monitor their radios over lunch they are not relieved from

work and the lunchtime is compensable time. 15. hours. 16. Plano did not and has not compensated Plaintiffs for past lunch breaks that On or about the end of 2009, Plano began compensating Plaintiffs for lunchtime

occurred before the 2009 change in pay practices. 17. duties. Plaintiffs are required to work on call in weeks in which they are assigned on call

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18.

During on call time, Plaintiffs are required to (1) have a thirty minute response

time, (2) refrain from alcohol, and (3) constantly monitor their radio for relevant assignments and communications. 19. Because of the restrictions placed on Plaintiffs, they are not relieved from work

and on call time is compensable time. 20. Because Plaintiffs must constantly monitor their radio for relevant assignments,

they are not relieved from work and on call time is compensable time. 21. Even if the Court does not find that all on call time is compensable time, at the

very least time spent actually listening to messages broadcast on the radio and time spent actually responding to calls must be compensable. 22. Pursuant to City of Plano Policies & Procedures Manual 206.000 (III)(C),

Plaintiffs must be paid for lunch breaks where they are not completely relieved of their work duties. 23. During the past four years, Plano has failed to pay Plaintiffs for lunch breaks

where they were required to monitor their radios. 24. Pursuant to City of Plano Policies & Procedures Manual 206.000 (III)(D)(3),

Plaintiffs must be paid the greater of one hour or the actual time worked when they perform work during on call hours. 25. During the past four years, Plano has failed to pay Plaintiffs for the greater of one

hour or the actual time worked when they perform work during on call hours. 26. During the statutory period, Plaintiff and the similarly situated employees

routinely worked in excess of forty (40) hours per week without overtime compensation.

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27.

These practices violate the provisions of the Federal Fair Labor Standards Act,

which requires overtime pay at one and one-half the regular hourly rate for each hour over forty in a workweek. 28. 29. As a result of these unlawful practices, Plaintiffs suffered a loss of wages. Plano showed reckless disregard for the fact that its failure to pay workers

overtime compensation and minimum wages was in violation of these laws. 30. 31. 32. fulfilled. IV. OVERTIME PAY 33. For the reasons stated herein, the Named Plaintiffs and any opt-in Plaintiffs are Planos actions in violating the FLSA were willful. Plano failed to act in good faith to comply with the FLSA. All conditions precedent to the bringing of this suit have been satisfied or

owed unpaid overtime pay, any unpaid straight time in a week in which unpaid overtime is owed, liquidated damages, attorney fees, costs, and interest. 34. The Named Plaintiffs and any opt-in Plaintiffs also seek injunctive relief

enjoining future violations, enjoining retaliation, and requiring monitoring, training, and notice to all employees. 35. The Named Plaintiffs and any opt-in Plaintiffs seek to pursue their claims

collectively as allowed by the Fair Labor Standards Act. This includes notice, the opportunity to opt-in, and the ability to proceed collectively through discovery and litigation. 36. case. The Named Plaintiffs seek an appropriate incentive award for their work in this

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V. STATE LAW CLAIMS 37. Plaintiffs additionally seek damages for failure to properly pay them a minimum

of one hour for each time they were called to work during on call time. 38. Plaintiffs additionally seek damages for failure to properly pay them for their

lunch time hours. 39. The Named Plaintiffs, individually and on behalf of similarly situated workers,

assert causes of action for declaratory judgment, breach of contract, quantum meruit, promissory estoppel, common law debt, and the Texas Payday Act. 40. The Named Plaintiffs, individually and on behalf of similarly situated workers,

seek unpaid wages, attorney fees, costs, and interest. 41. The Named Plaintiffs, individually and on behalf of similarly situated workers,

also seek injunctive relief enjoining future violations, enjoining retaliation, and requiring monitoring, training, and notice to all employees. 42. CIV. P. 23. 43. case. VI. JURY DEMAND 44. Plaintiffs exercise the right to a jury. The Named Plaintiffs seek an appropriate incentive award for their work in this The Named Plaintiffs seek to pursue their claims as a class as allowed by FED. R.

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VII. PRAYER FOR RELIEF WHEREFORE, Plaintiffs and all employees similarly situated who join in this action demand: 1. Issuance of notice as soon as possible to all workers who: (1) were employed by the City of Plano within three years of this suit, (2) were paid hourly, and (3) were not paid for breaks or on call time where they were required to monitor their radio. Generally, this notice should inform them that this action has been filed, describe the nature of the action, and explain their right to opt into this lawsuit if they were not paid overtime wages for hours worked during lunch or while on call; 2. Judgment against Defendant for an amount equal to the Named Plaintiffs and the class unpaid overtime wages at the applicable overtime rate; 3. Judgment against Defendant for an amount equal to the Named Plaintiffs and the class unpaid straight wages at the applicable regular rate where overtime is also owed in the same workweek; 4. Judgment against Defendant for liquidated damages equal to the unpaid wages awarded; 5. 6. Judgment against Defendant that their violations of the FLSA were willful; Judgment against Defendant for economic damages compensating the Named Plaintiffs and the class so that they are compensated at least one hours pay for time spent working on call. 7. To the extent that liquidated damages are not awarded, an award of prejudgment interest;

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8.

All costs and reasonable attorneys fees for prosecuting these claims;

9.

Leave to add additional Plaintiffs by motion, the filing of written consent forms, or any other method approved by the Court;

10. 11.

Leave to amend to add claims under applicable state laws; and For such further relief as the Court deems just and equitable. Respectfully submitted, /s/ Robert J. Wiley Robert J. Wiley Texas Bar No. 24013750 Board Certified in Labor and Employment Law Texas Board of Legal Specialization Lindsey A. Watson Texas Bar No. 24067930 1825 Market Center Blvd., Ste. 385 Dallas, Texas 75207 Telephone: (214) 528-6500 Facsimile: (214) 528-6511 rwiley@robwiley.com Attorneys for Plaintiff

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JS 44 (Rev. 12/07)

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CIVIL COVER SHEET

DEFENDANTS !
The City of Plano
County of Residence of First Listed Defendant
(IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED.

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

! I. (a) PLAINTIFFS Billy Horton, Robert Morris, Robert Prunty, Alan Spurgin, David Ratcliff, and Sam Bigham

(b) County of Residence of First Listed Plaintiff Collin

(EXCEPT IN U.S. PLAINTIFF CASES)

(c) Attorneys (Firm Name, Address, and Telephone Number) ! Robert J. Wiley, Law Ofce of Rob Wiley, P.C., 1825 Market Center Blvd., Ste. 385, Dallas, TX 75207, (214) 528-6500, Fax: (214) 528-6511 II. BASIS OF JURISDICTION
1 U.S. Government Plaintiff U.S. Government Defendant (Place an X in One Box Only)

Attorneys (If Known)

III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an X in One Box for Plaintiff

(For Diversity Cases Only) PTF Citizen of This State 1 Citizen of Another State Citizen or Subject of a Foreign Country 2 3 DEF 1 2 3 and One Box for Defendant) PTF DEF Incorporated or Principal Place 4 4 of Business In This State Incorporated and Principal Place of Business In Another State Foreign Nation 5 6 5 6

3 Federal Question (U.S. Government Not a Party) 4 Diversity (Indicate Citizenship of Parties in Item III)

IV. NATURE OF SUIT

CONTRACT 110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excl. Veterans) 153 Recovery of Overpayment of Veterans Benefits 160 Stockholders Suits 190 Other Contract 195 Contract Product Liability 196 Franchise REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

(Place an X in One Box Only) TORTS PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury CIVIL RIGHTS 441 Voting 442 Employment 443 Housing/ Accommodations 444 Welfare 445 Amer. w/Disabilities Employment 446 Amer. w/Disabilities Other 440 Other Civil Rights PERSONAL INJURY 362 Personal Injury Med. Malpractice 365 Personal Injury Product Liability 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY 370 Other Fraud 371 Truth in Lending 380 Other Personal Property Damage 385 Property Damage Product Liability PRISONER PETITIONS 510 Motions to Vacate Sentence Habeas Corpus: 530 General 535 Death Penalty 540 Mandamus & Other 550 Civil Rights 555 Prison Condition

FORFEITURE/PENALTY 610 Agriculture 620 Other Food & Drug 625 Drug Related Seizure of Property 21 USC 881 630 Liquor Laws 640 R.R. & Truck 650 Airline Regs. 660 Occupational Safety/Health 690 Other LABOR 710 Fair Labor Standards Act 720 Labor/Mgmt. Relations 730 Labor/Mgmt.Reporting & Disclosure Act 740 Railway Labor Act 790 Other Labor Litigation 791 Empl. Ret. Inc. Security Act IMMIGRATION 462 Naturalization Application 463 Habeas Corpus Alien Detainee 465 Other Immigration Actions

BANKRUPTCY 422 Appeal 28 USC 158 423 Withdrawal 28 USC 157 PROPERTY RIGHTS 820 Copyrights 830 Patent 840 Trademark SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g)) FEDERAL TAX SUITS 870 Taxes (U.S. Plaintiff or Defendant) 871 IRSThird Party 26 USC 7609

OTHER STATUTES

400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and Corrupt Organizations 480 Consumer Credit 490 Cable/Sat TV 810 Selective Service 850 Securities/Commodities/ Exchange 875 Customer Challenge 12 USC 3410 890 Other Statutory Actions 891 Agricultural Acts 892 Economic Stabilization Act 893 Environmental Matters 894 Energy Allocation Act 895 Freedom of Information Act 900Appeal of Fee Determination Under Equal Access to Justice 950 Constitutionality of State Statutes

V. ORIGIN
1 Original
Proceeding

(Place an X in One Box Only)

2 Removed from
State Court

Litigation (specify) Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

3 Remanded from
Appellate Court

4 Reinstated or
Reopened

5 Transferred from another district

6 Multidistrict

7 Judge from Magistrate

Judgment

Appeal to District

Fair Labor Standards VI. CAUSE OF ACTION Brief description of cause: Act
CHECK IF THIS IS A CLASS ACTION VII. REQUESTED IN UNDER F.R.C.P. 23 COMPLAINT: VIII. RELATED CASE(S) (See instructions): JUDGE IF ANY
DATE

Unpaid wages

DEMAND $

CHECK YES only if demanded in complaint: Yes No JURY DEMAND: DOCKET NUMBER

SIGNATURE OF ATTORNEY OF RECORD

7/27/2010
FOR OFFICE USE ONLY RECEIPT # AMOUNT

/s/ Robert J. Wiley

APPLYING IFP JUDGE MAG. JUDGE

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JS 44 Reverse (Rev. 12/07)

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INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows:

I. (a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title.

(b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the defendant is the location of the tract of land involved.)

(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section (see attachment).

II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an X in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an X in this box.

Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked.

Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.)

III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party.

IV. Nature of Suit. Place an X in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive. V. Origin. Place an X in one of the seven boxes. Original Proceedings. (1) Cases which originate in the United States district courts.

Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date.

Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers.

Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above. Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judges decision.

VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service VII. Requested in Complaint. Class Action. Place an X in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded.

VIII. Related Cases. This section of the JS 44 is used to reference related pending cases if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases. Date and Attorney Signature. Date and sign the civil cover sheet.

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