U.S. Gypsum Unpaid Overtime Lawsuit

Case 7:18-cv-00029 Document 1 Filed 02/21/18 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS MIDLAND DIVISION LEXINGTON WREN, MICHAEL JOHNSON, AND ALL OTHERS SIMILARLY SITUATED UNDER 29 USC § 216(b), Plaintiffs, v.

Civil Action No. 7:18-cv-00029

UNITED STATES GYPSUM COMPANY, Defendant.

ORIGINAL COLLECTIVE ACTION COMPLAINT Plaintiffs Lexington Wren and Michael Johnson (collectively, “Plaintiffs”) individually and on behalf of those similarly situated, file this Original Collective Action Complaint against United States Gypsum Company (“Defendant”), and in support show the following: I. 1.

INTRODUCTORY FACTS AND SUMMARY

Defendant has been a leading manufacturer and distributor of building products

throughout the last three years. Defendant employs non-exempt, hourly-paid employees (“Hourly Paid Employees” or “HPEs”) to directly and indirectly help manufacture and distribute its products to customers, but fails to pay HPEs overtime at the rate required by the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. (“FLSA”).

2.

Defendant has violated and is violating the FLSA by miscalculating the

overtime pay owed to HPEs. Specifically, Defendant calculates the overtime rate paid to employees based solely on the employees’ hourly rate of pay. Defendant categorically fails to ORIGINAL COLLECTIVE ACTION COMPLAINT

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include in the overtime rate additional amounts paid to the employees as remuneration for employment (“Additional Pay”). The Additional Pay includes, without limitation, such payments as non-discretionary incentive bonuses and non-cash award pay. Defendant’s categorical exclusion of Additional Pay from the regular rate (“Overtime Miscalculation Policy”) violates the FLSA. II. 3.

PARTIES

Plaintiff Michael Johnson has worked for Defendant as an HPE from

approximately December 1998 to the present. His consent to participate is attached as Exhibit A. 4.

Plaintiff Lexington Wren has worked for Defendant as an HPE from

approximately April 2001 to the present. His consent to participate is attached as Exhibit B. 5.

The “FLSA Class Members” or “Class Members” are current and former

hourly-paid workers employed by the Defendant in the United States at any time over the last three years who received Additional Pay which was excluded from the regular rate of pay to calculate overtime.

6.

Defendant United States Gypsum Company is a Delaware Corporation with its

principal place of business in Illinois. It can be served through its registered agent, CT Corp System, at 1999 Bryan Street, Suite 900, Dallas, Texas 75201.

III. 7.

JURISDICTION AND VENUE

This Court has jurisdiction over the claims because Plaintiffs have asserted

claims arising under federal law and specifically the FLSA.

ORIGINAL COLLECTIVE ACTION COMPLAINT

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8.

Venue is proper in this District because a substantial portion of the events

forming the basis of this suit occurred in this District and because one or more parties resides in this District.

IV. 9.

COVERAGE FACTS

At all material times, Defendant acted, directly or indirectly, in the interest of

an employer or joint employer with respect to Plaintiffs and the FLSA Class Members.

10.

At all relevant times, Defendant has been an employer or joint employer

within the meaning of the Section 3(d) of the FLSA, 29 U.S.C. § 203(d).

11.

At all relevant times, Defendant has been an enterprise within the meaning of

Section 3(r) of the FLSA, 29 U.S.C. § 203(r).

12.

At all relevant times, Defendant has been an enterprise engaged in commerce or

in the production of goods for commerce within the meaning of Section 3(s)(1) of the FLSA, 29 U.S.C. § 203(s)(1), in that said enterprise has had employees engaged in commerce or in the production of goods for commerce, or employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person and in that said enterprise has had and has an annual gross volume of sales made or business done of not less than $500,000.00 (exclusive of excise taxes at the retail level which are separately stated).

13.

Plaintiffs and Class Members were individual employees engaged in commerce

or in the production of goods for commerce as required by 29 U.S.C. §§ 206-207 at all relevant times.

ORIGINAL COLLECTIVE ACTION COMPLAINT

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V. 14.

ADDITIONAL FACTUAL ALLEGATIONS

Plaintiffs incorporate all allegations previously made in this Complaint.

Plaintiffs bring their collective action allegations individually and on behalf of those similarly situated.

15.

Defendant has manufactured building products and provided those building

products to customers throughout the United States over the last three years. Defendant has done more than $500,000 per year in business during this time period. Plaintiffs handled materials in interstate commerce, including Defendant’s building products, during their employment with Defendant during the relevant statutory periods.

16.

Plaintiffs worked as HPEs for Defendant in the last three years.

17.

They received Additional Pay from Defendant within the last three years.

18.

Within the last three years, Defendant excluded this Additional Pay from

Plaintiffs’ regular rate of pay when paying them overtime wages. Consequently, Plaintiffs did not receive all of the overtime wages due to them as required by the FLSA. 19.

Defendant employed HPEs to directly and indirectly manufacture and

distribute Defendant’s building products to customers. HPEs regularly worked in excess of 40 hours per week, but were not paid in compliance with the FLSA. Defendant specifically violated the FLSA by paying HPEs pursuant to its Overtime Miscalculation Policy that categorically excluded Additional Pay received by HPEs from the regular rate to calculate overtime. Excluding Additional Pay from the regular rate resulted in Plaintiffs and the Class Members being paid overtime at a rate lower than required by the FLSA.

ORIGINAL COLLECTIVE ACTION COMPLAINT

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20.

Defendant was aware of the FLSA’s overtime requirements and yet did not pay

Plaintiffs and the Class Members overtime in compliance with the FLSA. Defendant knowingly, willfully, and with reckless disregard carried out its illegal pattern or practice of failing to pay Plaintiffs and the FLSA Class Members proper overtime compensation.

VI. 21.

COLLECTIVE ACTION ALLEGATIONS

The FLSA Class Members are similarly situated to Plaintiffs in terms of job

duties and pay provisions. Their job duties consisted of non-exempt work including directly and indirectly providing building products to Defendant’s customers. Defendant also subjected them all to the same Overtime Miscalculation Policy that fails to pay HPEs who received Additional Pay at one-and-one-half times their regular rate of pay for all overtime hours worked.

22.

Defendant’s failure to pay overtime compensation at the rates required by the

FLSA results from generally applicable policies or practices and does not depend on the personal circumstances of the Class Members: Plaintiffs’ experience is typical of the experience of the Class Members. All Class Members, regardless of their precise job requirements or rates of pay, are entitled to overtime compensation at a rate of one-and-onehalf their regular rate for all hours worked in excess of 40 per week. Although the issue of damages may be individual in character, there is no detraction from the common nucleus of liability facts. The questions of law and fact commonly apply to the Plaintiffs and Class Members who received Additional Pay that worked for Defendant during the statutory time period.

ORIGINAL COLLECTIVE ACTION COMPLAINT

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VII. COUNT I: FAILURE TO PAY WAGES IN ACCORDANCE WITH THE FAIR LABOR STANDARS ACT 23.

During the relevant time period, Defendant violated and continues to violate

the provisions of section 7 of the FLSA, 29 U.S.C § 207, and 215(a)(2), by employing employees in an enterprise engaged in commerce or in the production of goods for commerce within the meaning of the FLSA for weeks longer than 40 hours without compensating for work in excess of 40 hours per week at rates no less than one-and-a-half times their regular rates of pay. Defendant willfully failed to pay Plaintiffs and the FLSA Class Members in accordance with the law.

VIII. RELIEF SOUGHT 24.

Plaintiffs pray for judgment against Defendant as follows:

a.

For an Order pursuant to FLSA Section 16(b) finding Defendant liable for unpaid back wages due to Plaintiffs (and those who may join in the suit) and for liquidated damages equal in amount to the unpaid compensation found due to Plaintiffs (and those who may join the suit);

b.

For an Order awarding Plaintiffs (and those who may join in the suit) the costs of this action;

c.

For an Order awarding Plaintiffs (and those who may join in the suit) attorneys’ fees;

d.

For an Order awarding Plaintiffs (and those who may join in the suit) pre-judgment and post-judgment interest at the highest rates allowed by law; &

e.

For an Order granting such other and further relief as may be necessary and appropriate.

ORIGINAL COLLECTIVE ACTION COMPLAINT

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Respectfully submitted, /s/ J. Derek Braziel J. DEREK BRAZIEL Co-Attorney in Charge Texas Bar No. 00793380 jdbraziel@l-b-law.com TRAVIS GASPER Texas Bar No. 24096881 gasper@l-b-law.com Lee & Braziel, L.L.P. 1801 N. Lamar Street, Suite 325 Dallas, Texas 75202 (214) 749-1400 phone (214) 749-1010 fax www.overtimelawyer.com JACK SIEGEL Co-Attorney in Charge Texas Bar No. 24070621 jack@siegellawgroup.biz Siegel Law Group, PLLC 2820 McKinnon, Suite 5009 Dallas, Texas 75201 (214) 706-0834 phone (469) 339-0204 fax www.siegellawgroup.biz ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE This is the Original Complaint. Service of this Complaint will be made on Defendant with summons to be issued by the clerk according to the Federal Rules of Civil Procedure.

/s/ J. Derek Braziel J. DEREK BRAZIEL ORIGINAL COLLECTIVE ACTION COMPLAINT

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Case 7:18-cv-00029 Document 1-1 Filed 02/21/18 Page 1 of 1

CIVIL COVER SHEET

JS 44 (Rev. 11/15) 'LVWULFW RI &RORUDGR )RUP

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 NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS

Lexington Wren, Michael Johnson, and all others similarly situated under 29 USC § 216(b), (b) County of Residence of First Listed Plaintiff

DEFENDANTS

United States Gypsum Company,

County of Residence of First Listed Defendant

(EXCEPT IN U.S. PLAINTIFF CASES) NOTE:

(c) Attorneys (Firm Name, Address, and Telephone Number)

(IN U.S. PLAINTIFF CASES ONLY) IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

Attorneys (If Known)

J. Derek Braziel, Lee & Braziel, LLP, 1801 N. Lamar St., Suite 325, Dallas, Texas 75202, 214-749-1400

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) u 1

U.S. Government Plaintiff

u 3

Federal Question (U.S. Government Not a Party)

u 2

U.S. Government Defendant

u 4

Diversity (Indicate Citizenship of Parties in Item III)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff (For Diversity Cases Only) PTF Citizen of This State u 1

DEF u 1

and One Box for Defendant) PTF DEF Incorporated or Principal Place u 4 u 4 of Business In This State

Citizen of Another State

u 2

u

2

Incorporated and Principal Place of Business In Another State

u 5

u 5

Citizen or Subject of a Foreign Country

u 3

u

3

Foreign Nation

u 6

u 6

IV. NATURE OF SUIT (Place an “X” in One Box Only) CONTRACT u u u u u u u

u u u u u

TORTS

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 (Excludes Veterans) 153 Recovery of Overpayment of Veteran’s Benefits 160 Stockholders’ Suits 190 Other Contract 195 Contract Product Liability 196 Franchise

u u u u u u u u u u

u u u u u u

REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

u u u u u u u

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 362 Personal Injury Medical Malpractice CIVIL RIGHTS 440 Other Civil Rights 441 Voting 442 Employment 443 Housing/ Accommodations 445 Amer. w/Disabilities Employment 446 Amer. w/Disabilities Other 448 Education

FORFEITURE/PENALTY

PERSONAL INJURY u 365 Personal Injury Product Liability u 367 Health Care/ Pharmaceutical Personal Injury Product Liability u 368 Asbestos Personal Injury Product Liability PERSONAL PROPERTY u 370 Other Fraud u 371 Truth in Lending u 380 Other Personal Property Damage u 385 Property Damage Product Liability PRISONER PETITIONS Habeas Corpus: u 463 Alien Detainee u 510 Motions to Vacate Sentence u 530 General u 535 Death Penalty Other: u 540 Mandamus & Other u 550 Civil Rights u 555 Prison Condition u 560 Civil Detainee Conditions of Confinement

u 625 Drug Related Seizure of Property 21 USC 881 u 690 Other

BANKRUPTCY u 422 Appeal 28 USC 158 u 423 Withdrawal 28 USC 157 PROPERTY RIGHTS u 820 Copyrights u 830 Patent u 840 Trademark

LABOR u 710 Fair Labor Standards Act u 720 Labor/Management Relations u 740 Railway Labor Act u 751 Family and Medical Leave Act u 790 Other Labor Litigation u 791 Employee Retirement Income Security Act

u u u u u

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 u 870 Taxes (U.S. Plaintiff or Defendant) u 871 IRS—Third Party 26 USC 7609

IMMIGRATION u 462 Naturalization Application u 465 Other Immigration Actions

OTHER STATUTES u 375 False Claims Act u 376 Qui Tam (31 USC 3729(a)) u 400 State Reapportionment u 410 Antitrust u 430 Banks and Banking u 450 Commerce u 460 Deportation u 470 Racketeer Influenced and Corrupt Organizations u 480 Consumer Credit u 490 Cable/Sat TV u 850 Securities/Commodities/ Exchange u 890 Other Statutory Actions u 891 Agricultural Acts u 893 Environmental Matters u 895 Freedom of Information Act u 896 Arbitration u 899 Administrative Procedure Act/Review or Appeal of Agency Decision u 950 Constitutionality of State Statutes

V. ORIGIN (Place an “X” in One Box Only) u 1 Original Proceeding

u 2 Removed from State Court

u 3

Remanded from Appellate Court

u 4 Reinstated or Reopened

u 5 Transferred from Another District (specify)

u 6 Multidistrict Litigation

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

Fair Labor Standards Act, 29 U.S.C. Section 201, et seq.

VI. CAUSE OF ACTION Brief description of cause:

"1 %PDLFU

Unpaid overtime wages claim.

u CHECK IF THIS IS A CLASS ACTION VII. REQUESTED IN UNDER RULE 23, F.R.Cv.P. COMPLAINT: VIII. RELATED CASE(S) (See instructions): IF ANY JUDGE DATE

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

DEMAND $

DOCKET NUMBER

SIGNATURE OF ATTORNEY OF RECORD

/s/ J. Derek Braziel

02/21/2018 FOR OFFICE USE ONLY RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

DocuSign Envelope ID: 99551F26-FE8B-405C-9E51-99B865E97F6B

Case 7:18-cv-00029 Document 1-2 Filed 02/21/18 Page 1 of 1

NOTICE OF CONSENT I hereby consent to become a party plaintiff in the overtime lawsuit in which this consent is filed.

12/13/2017

Signature

michael johnson

Printed Name

Date

DocuSign Envelope ID: 6115D6B0-B052-461D-8277-802A0AF8AF32

Case 7:18-cv-00029 Document 1-3 Filed 02/21/18 Page 1 of 1

NOTICE OF CONSENT I hereby consent to become a party plaintiff in the overtime lawsuit in which this consent is filed.

12/16/2017

Signature

Lexington

Printed Name

Date