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, § Civil Action No. 4:10-cv-372
Plaintiffs, § ECF
-v- §
§
CITY OF PLANO, §
Defendant. §

PLAINTIFFS’ MOTION AND SUPPORTING BRIEF FOR CONDITIONAL

CERTIFICATION OF THE PLAINTIFF CLASS AND TO APPROVE NOTICE OF
SUIT TO POTENTIAL CLASS MEMBERS

ROBERT J. WILEY
Texas Bar No. 24013750
Board Certified in Labor & Employment
Law, Texas Board of Legal Specialization
GREGORY PLACZEK
Texas Bar No. 24070424
JUSTIN G. MANCHESTER
Texas Bar No. 24070207

Law Office of Rob Wiley, P.C.

1825 Market Center Blvd., Ste. 385
Dallas, TX 75207
Telephone: (214) 528-6500
Facsimile: (214) 528-6511
jmanchester@robwiley.com
www.robwiley.com
Attorneys for Plaintiffs
 TABLE OF CONTENTS

Table of Contents...................................................................................................... i

Table of Authorities.................................................................................................. iii

I. Summary........................................................................................................ 2

A. The Class and Subclass...................................................................... 2

B. The Violation....................................................................................... 3

II. Procedural History......................................................................................... 3

III. Evidence Submitted....................................................................................... 4

IV. Statement of Facts......................................................................................... 5

A. The Parties.......................................................................................... 5

B. The Plaintiffs and the putative class performed similar job

duties................................................................................................... 6

C. The Plaintiffs allege that Plano violated the FLSA with respect to
lunchtime hours in a nearly identical way for all Plaintiffs and
putative class members....................................................................... 7

1. Supervisors and crewmembers were not fully relieved of

job duties over lunch................................................................ 8

2. Plano automatically deducted thirty minutes of time daily,

regardless of whether supervisors and crewmembers were
able to take an uninterrupted lunch....................................... 9

D. A subclass of Plaintiffs and putative class members allege that

Plano violated the FLSA with respect to so called “on call”
time...................................................................................................... 9

E. Potential Plaintiffs are unaware of their rights and would join

this action if given notice of the suit and an opportunity to join...... 10

V. The Court Should Grant Conditional Class Certification........................... 11

PLAINTIFFS’ MOTION AND SUPPORTING BRIEF FOR CONDITIONAL CERTIFICATION OF

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 A. This Court should follow the two-step approach (the Lusardi
approach) to FLSA certification......................................................... 12

B. The facts proffered by Plaintiffs satisfy the lenient Lusardi test

for conditional class certification....................................................... 14

1. Plaintiffs have produced declarations showing they

received similar treatment...................................................... 16

2. Plaintiffs have produced declarations showing a common

policy or plan creating the underlying violation.................... 17

3. Plaintiffs have shown a reasonable basis to believe that

aggrieved individuals exist...................................................... 17

4. Plaintiffs have shown that putative class members would

be similar to the Plaintiffs....................................................... 18

5. Plaintiffs have shown that putative class members would

want to opt-in to the lawsuit................................................... 18

C. The Court should certify a subclass of members that monitored

radios after hours................................................................................ 19

D. If this Court does not grant conditional class certification, the

Court should enter an order tolling the statute of limitations
and allow the eleven potential opt-in plaintiffs to file individual
suits...................................................................................................... 21

VI. This Court Should Approve Plaintiffs’ Proposed Notice.............................. 21

A. Plaintiff’s proposed notice is accurate and informative.................... 22

B. This Court should promptly approve the proposed notice so that

similarly situated employees can join before the statute of
limitations runs on their unpaid wages............................................. 23

C. Approval of the proposed notice will promote judicial economies..... 23

D. The proposed notice will ensure only those similarly situated join.. 24

VII. Conclusion...................................................................................................... 24

PLAINTIFFS’ MOTION AND SUPPORTING BRIEF FOR CONDITIONAL CERTIFICATION OF

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MEMBERS – Page ii
 TABLE OF AUTHORITIES

CASES

Acevedo v. Allsup’s Convenience Stores, Inc.,

600 F.3d 516, 519 (5th Cir. 2010)........................................................... 21

Bankston v. Illinois,
60 F.3d 1249 (7th Cir. 1995)................................................................... 22

Coan v. Nightengale Home Healthcare, Inc.,

2006 WL 1994772 (S.D.Ind. July 14, 2006)............................................ 19

Donohue v. Francis Services, Inc.,

2004 WL 1161366 (E.D.La. May 24, 2004)............................................ 14

Fowler v. Land Mgmt. Groupe,

978 F.2d 158 (4th Cir. 1992)................................................................... 22

Garner v. G.D. Searle Pharm.,

802 F.Supp. 418 (M.D. Ala. 1991)........................................................... 11

Gjurovich v. Emmanuel’s Marketplace, Inc.,

282 F.Supp.2d 91 (S.D.N.Y. 2003).......................................................... 19

Hickson v. U.S. Postal Serv.,

2010 WL 3835887 (E.D.Tex. July 22, 2010)........................................... 12-13

Hipp v. Liberty Nat’l Life Ins. Co.,

252 F.3d 1208 (11th Cir. 2001)............................................................... 11

Hoffman-La Roche, Inc. v. Sperling, 11-14,

493 U.S. 165 (1989)................................................................................. 21-24

Larsen v. Crème de la Crème, Inc.,

2011 WL 335171 (E.D. Tex. Jan. 26, 2011)............................................ 12-15

Lusardi v. Xerox Corp.,

118 F.R.D. 351 (D.N.J. 1987).................................................................. passim

PLAINTIFFS’ MOTION AND SUPPORTING BRIEF FOR CONDITIONAL CERTIFICATION OF

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Maynor v. Dow Chemical Co.,
671 F.Supp.2d 902 (S.D.Tex. 2009)........................................................ 20

McLaughlin v. Richland Shoe Co.,

486 U.S. 128 (1988)................................................................................. 23

Mooney v. Aramco Services Co.,

54 F.3d 1207 (5th Cir. 1995)................................................................... 12-15

Moreau v. Klevenhagen,
956 F.2d 516 (5th Cir. 1992)................................................................... 20

Rawls v. Augustine Home Health Care, Inc.,

244 F.R.D. 298 (D. Md. 2007)................................................................. 19

Redman v. U.S. West Business Resources, Inc.,

153 F.3d 691 (8th Cir. 1998)................................................................... 23

Ryan v. Staff Care, Inc., 11-12,

497 F.Supp.2d 820 (N.D.Tex. 2007)........................................................ 14

Schewd v. Gen. Elec. Co.,

159 F.R.D. 373 (N.D.N.Y. 1995).............................................................. 23

Sperling v. Hoffmann-La Roche, Inc.,

118 F.R.D. 392 (D.N.J. 1988).................................................................. 14
Takacs v. Hahn Auto. Corp.,
1999 WL 33127976 (S.D.Ohio Jan. 25, 1999)........................................ 19

Thiebes v. Wal-Mart Stores, Inc.,

1999 WL 1081357 (D.Or. Dec. 1, 1999).................................................. 19

Valcho v. Dallas Cnty. Hosp. Dist.,

574 F.Supp.2d 618 (N.D.Tex. 2008)........................................................ 12-13

Whitworth v. Chiles Offshore Corp.,

1992 WL 235907 (E.D.La. Sept. 2, 1992)............................................... 14

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THE PLAINTIFF CLASS AND TO APPROVE NOTICE OF SUIT TO POTENTIAL CLASS
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STATUTES

29 U.S.C. § 216(b).................................................................................... passim

29 U.S.C. § 255(a).................................................................................... 22

RULES & REGULATIONS

29 C.F.R. § 541.602.................................................................................. 2

29 C.F.R. § 521.100.................................................................................. 7

FED.R.CIV.P. 23....................................................................................... 11

PLAINTIFFS’ MOTION AND SUPPORTING BRIEF FOR CONDITIONAL CERTIFICATION OF

THE PLAINTIFF CLASS AND TO APPROVE NOTICE OF SUIT TO POTENTIAL CLASS
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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, § Civil Action No. 4:10-cv-372
Plaintiffs, § ECF
-v- §
§
CITY OF PLANO, §
Defendant. §

PLAINTIFFS’ MOTION AND SUPPORTING BRIEF FOR CONDITIONAL

CERTIFICATION OF THE PLAINTIFF CLASS AND TO APPROVE NOTICE OF
SUIT TO POTENTIAL CLASS MEMBERS

TO THE HONORABLE UNITED STATES MAGISTRATE DON BUSH:

Plaintiffs move to conditionally certify a class and a subclass under Section

216(b) of the Fair Labor Standards Act and to approve notice of the action so that

workers with similar claims have the opportunity to “opt in.” The class consists of

workers that had lunchtime improperly deducted from their compensable hours.

The subclass consists of a subset of workers who additionally monitored radios

afterhours without pay. The proposed notice describes the action and allows

relevant employees to join.

The Court should grant this motion if the Court finds that (1) Plaintiffs

provide evidence that tends to show the Plaintiffs and the putative class are

“similarly situated” and (2) the proposed notice is fair and informative.

PLAINTIFFS’ MOTION AND SUPPORTING BRIEF FOR CONDITIONAL CERTIFICATION OF

THE PLAINTIFF CLASS AND TO APPROVE NOTICE OF SUIT TO POTENTIAL CLASS
MEMBERS – Page 1
 I.
SUMMARY

Plaintiffs and the putative class are (1) current and former crewmembers and

supervisors, (2) employed by the Public Works Department of the City of Plano (3)

within the three year statutory period, (4) who were paid by the hour, and (5) were

issued a radio and/or a cellular phone by Plano.

A. The Class and Subclass

This suit was brought by six named Plaintiffs. Subsequently, an additional

ten employees have filed consent forms with this Court seeking to join the action.

The Plaintiffs contend that even more similarly situated employees exist who would

also join the suit if given notice and opportunity.

The Court should note that Plaintiffs have narrowly defined the class and

have not overreached. The first three factors limit the class to a specific department

with a single municipality. The fourth factor ensures that only individuals entitled

to overtime are included in the action.1 The fifth factor goes to the heart of the

claim: that individuals were expected to be available outside of work hours to

perform work. Importantly, employees who meet all five factors suffered violations

arising under a uniform practice that affects these workers in the same way. By

requiring participants to meet all five factors, the class is narrowly tailored.

1
Employees paid on a salary basis, particularly supervisors, may be exempt from the overtime requirements of the
FLSA. See, e.g. 29 C.F.R. § 541.602. This factor ensures that only hourly workers are allowed to join.

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B. The Violation

In a nutshell, the FLSA provides that hourly workers must be paid overtime

pay at one and one-half times their regular hourly rate when they work more than

forty hours in a workweek. In this case, Plaintiffs allege that Plano violated the

FLSA by failing to count all hours worked. Such violations occurred in two

principle ways. First, Plano automatically deducted Plaintiffs’ and the putative

class’ work time by thirty minutes a day for lunch. However, lunchtime was rarely,

if ever, uninterrupted. Because workers were not completely relieved of work over

lunchtime, this time should not have been deducted. This claim concerns all class

members. Second, a subclass of Plaintiffs and the putative class were sometimes

assigned to work afterhours, under the misnomer of “on call” time. Rather than

merely being available for work if needed, Plaintiffs and putative class members

were required to actively monitor the radio for relevant transmissions that would

require a response by the employee.

II.
PROCEDURAL HISTORY

1. This case was filed on July 27, 2010.

2. On August 18, 2010, Defendant filed its first answer.

3. On November 19, 2010, the Parties filed their Rule 26(f) report.

4. On November 23, 2010, the Court entered a scheduling order.

5. On December 7, 2010, Plaintiffs filed an amended complaint.

6. On December 22, 2010, Defendant filed an amended answer.

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 7. On March 16, 2011, Plaintiffs took the deposition of the Corporate

Representative for the City of Plano.

8. The final pretrial conference and trial scheduling are set for November

7, 2011.

III.
EVIDENCE SUBMITTED

Plaintiffs submit the following evidence in support of this Motion:

1. Declaration of Billy Horton (Horton Decl.)

2. Declaration of Alan Spurgin (Spurgin Decl.)

3. Declaration of David Ratcliff (Ratcliff Decl.)

4. Declaration of Sam Bigham (Bigham Decl.)

5. Declaration of Dale Pettit (Pettit Decl.)

6. Declaration of Homer Goode (Goode Decl.)

7. Declaration of Herschel Toberman (Toberman Decl.)

8. Declaration of Richard A. Coughlin (Coughlin Decl.)

9. Declaration of Jeff Turner [Sr.] (Turner Sr. Decl.)

10. Declaration of Robert Prunty (Prunty Decl.)

11. Declaration of Eugene Robbins (Robbins Decl.)

12. Declaration of Frederick Miles (Miles Decl.)

13. Declaration of Jeff Turner, Jr. (Turner, Jr. Decl.)

14. Deposition of Alan Upchuch, Corporate Representative for the City of

Plano (Upchurch Dep.)

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 15. Affidavit of Robert J. Wiley with City of Plano discovery responses

attached (Employee Spreadsheet);

16. Proposed Notice.

IV.
STATEMENT OF FACTS

A. The Parties

Plaintiffs seek to certify a class that meets all of the following five factors: (1)

current and former crewmembers2 and supervisors, (2) employed by the Public

Works Department of the City of Plano (3) within the three year statutory period,

(4) who were paid by the hour, and (5) were issued a radio and/or a cellular phone

by Plano.

The six Named Plaintiffs, the ten employees filing consents to join this

action, and the putative class members are current and former employees of the

City of Plano in the public works department. (Horton Decl. ¶ 5, Spurgin Decl. ¶ 5,

Ratcliff Decl. ¶ 5, Bigham Decl. ¶ 5, Pettit Decl. ¶ 5, Goode Decl. ¶ 5, Toberman

Decl. ¶ 5, Coughlin Decl. ¶ 5, Turner Sr. Decl. ¶ 5, Prunty Decl. ¶ 5, Robbins Decl. ¶

5, Miles Decl. ¶ 5, Turner Jr. Decl. ¶ 4.) The six Named Plaintiffs, the ten

employees filing consents to join this action, and the putative class members were

paid by the hour. (Horton Decl. ¶ 7, Spurgin Decl. ¶ 8, Ratcliff Decl. ¶ 7, Bigham

Decl. ¶ 7, Pettit Decl. ¶ 7, Goode Decl. ¶ 7, Toberman Decl. ¶ 7, Coughlin Decl. ¶ 7,

Turner Sr. Decl. ¶ 7, Prunty Decl. ¶ 7, Robbins Decl. ¶ 7, Miles Decl. ¶ 7, Turner Jr.

2 Plaintiffs have chosen to describe non-supervisors as “crewmembers.” Other synonyms could

include artisans, journeymen, craftsmen, technicians, or trade workers.

PLAINTIFFS’ MOTION AND SUPPORTING BRIEF FOR CONDITIONAL CERTIFICATION OF

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Decl. ¶ 7.) The six Named Plaintiffs, the ten employees filing consents to join this

action, and the putative class members were required to monitor a radio and/or took

calls on a cellular phone during lunch. (Horton Decl. ¶ 9, Spurgin Decl. ¶ 10,

Ratcliff Decl. ¶¶ 9-10, Bigham Decl. ¶¶ 9-10, Pettit Decl. ¶¶ 9-10, Goode Decl. ¶ 9,

Toberman Decl. ¶¶ 9-10, Coughlin Decl. ¶ 9, Turner Sr. Decl. ¶¶ 9-10, Prunty Decl.

¶¶ 9-10, Robbins Decl. ¶¶ 9-10, Miles Decl. ¶ 9, Turner Jr. Decl. ¶¶ 9-10.)

Additionally, Plaintiffs seek to certify a subclass that meets the following

additional factor: (6) was required to monitor a radio after hours. The subclass

consists of five Named Plaintiffs Horton, Bigham, Ratcliff, Prunty, and Spurgin

(Horton Decl. ¶ 12, Spurgin Decl. ¶ 13, Ratcliff Decl. ¶ 13, Bigham Decl. ¶ 13), three

opt-in members Coughlin, Toberman, and Turner, Sr. (Toberman Decl. ¶ 13,

Coughlin Decl. ¶ 12, Turner Sr. Decl. ¶ 13), and putative class members who also

meet this requirement.

The Defendant is a municipality in the State of Texas, technically a “home-

rule municipal corporation.” (Def.’s 1st Am. Answer, ¶ 3.)

B. The Plaintiffs and the putative class performed similar job duties.

Supervisors and crewmembers in the public works department performed

similar work. (Horton Decl. ¶ 6, Spurgin Decl. ¶ 7, Ratcliff Decl. ¶ 6, Bigham Decl.

¶ 6, Pettit Decl. ¶ 6, Goode Decl. ¶ 6, Toberman Decl. ¶ 6, Coughlin Decl. ¶ 6,

Turner Sr. Decl. ¶ 6, Prunty Decl. ¶ 6, Robbins Decl. ¶ 6, Miles Decl. ¶ 6, Turner Jr.

Decl. ¶ 6.) All of these employees were involved in maintaining parts of the

infrastructure of the City of Plano. (Horton Decl. ¶ 6, Spurgin Decl. ¶ 7, Ratcliff

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Decl. ¶ 6, Bigham Decl. ¶ 6, Pettit Decl. ¶ 6, Goode Decl. ¶ 6, Toberman Decl. ¶ 6,

Coughlin Decl. ¶ 6, Turner Sr. Decl. ¶ 6, Prunty Decl. ¶ 6, Robbins Decl. ¶ 6, Miles

Decl. ¶ 6, Turner Jr. Decl. ¶ 6.) Regardless of whether they were crewmembers or

supervisors, Plano paid these workers on an hourly basis.3 (Horton Decl. ¶ 7,

Spurgin Decl. ¶ 8, Ratcliff Decl. ¶ 7, Bigham Decl. ¶ 7, Pettit Decl. ¶ 7, Goode Decl.

¶ 7, Toberman Decl. ¶ 7, Coughlin Decl. ¶ 7, Turner Sr. Decl. ¶ 7, Prunty Decl. ¶ 7,

Robbins Decl. ¶ 7, Miles Decl. ¶ 7, Turner Jr. Decl. ¶ 7.) Plano has a public works

office, located on Plano Parkway. (Upchurch Dep. 17:19-21.) Generally, all public

works supervisors and crewmembers clock in and out at this facility. (Upchurch

Dep. 18:5-9.) Plaintiffs and the putative class worked full forty-hour work weeks,

meaning the additional time claimed in this suit would be overtime hours. (Horton

Decl. ¶ 21, Spurgin Decl. ¶ 18, Ratcliff Decl. ¶ 22, Bigham Decl. ¶ 18, Goode Decl. ¶

15, Toberman Decl. ¶ 18, Coughlin Decl. ¶ 17, Turner Sr. Decl. ¶ 18, Prunty Decl. ¶

22, Robbins Decl. ¶ 16, Miles Decl. ¶ 15, Turner Jr. Decl. ¶ 16.)

C. The Plaintiffs allege that Plano violated the FLSA with respect to lunchtime
hours in a nearly identical way for all Plaintiffs and putative class members.

The City of Plano maintained a uniform policy, practice, and procedure

concerning lunchtime that applied to all Plaintiffs and the putative class. Plano

improperly excluded lunchtime of thirty minutes a day, even though supervisors

and crewmembers were not fully relieved of their job duties over lunch. Indeed,

Plano had a practice of simply deducting thirty minutes a day for lunch.

3
Because they were paid on an hourly, rather than a salary basis, supervisors are eligible for overtime pay. 29
C.F.R. § 541.100.

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 1. Supervisors and crewmembers were not fully relieved of job duties over
lunch.

Plaintiffs and putative class members were required to actively monitor their

radio over lunch. (Ratcliff Decl. ¶ 9, Bigham Decl. ¶ 9, Pettit Decl. ¶ 9, Toberman

Decl. ¶ 9, Turner Sr. Decl. ¶ 9, Prunty Decl. ¶ 9, Robbins Decl. ¶ 9, Turner Jr. Decl.

¶ 9.) Plaintiffs and the putative class members were also required to keep the cell

phone available and turned on over lunch. (Horton Decl. ¶ 9, Spurgin Decl. ¶ 10,

Ratcliff Decl. ¶ 10, Bigham Decl. ¶ 10, Pettit Decl. ¶ 10, Goode Decl. ¶ 9, Toberman

Decl. ¶ 10, Coughlin Decl. ¶ 9, Turner Sr. Decl. ¶ 10, Prunty Decl. ¶ 10, Robbins

Decl. ¶ 10, Miles Decl. ¶ 9, Turner Jr. Decl. ¶ 10.) Plaintiffs and the putative class

members report having been frequently interrupted during lunch by work-related

cell phone calls. (Horton Decl. ¶ 9, Spurgin Decl. ¶ 10, Ratcliff Decl. ¶ 10, Bigham

Decl. ¶ 10, Pettit Decl. ¶ 10, Goode Decl. ¶ 9, Toberman Decl. ¶ 10, Coughlin Decl. ¶

9, Turner Sr. Decl. ¶ 10, Prunty Decl. ¶ 10, Robbins Decl. ¶ 10, Miles Decl. ¶ 9,

Turner Jr. Decl. ¶ 10.)

Plano agrees that supervisors and crewmembers were required to carry a

radio or cell phone, and that most had radios. (Upchurch Dep. 59:12-19.) Plano

agrees that the radios broadcast messages “frequently.” (Upchurch Dep. 62:8-11.)

Plano agrees that monitoring the radio is a job duty. (Upchurch 68:16-18.) This

included listening to hear whether the radio is squawking with routine traffic.

(Upchurch 68:19-22.)

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 2. Plano automatically deducted thirty minutes of time daily, regardless
of whether supervisors and crewmembers were able to take an
uninterrupted lunch.

Instead of having supervisors and crewmembers clock out and in for lunch

breaks, Plano simply deducted an automatic thirty minutes from their daily shifts.

(Horton Decl. ¶ 10, Spurgin Decl. ¶ 11, Ratcliff Decl. ¶ 11, Bigham Decl. ¶ 11, Pettit

Decl. ¶ 11, Goode Decl. ¶ 10, Toberman Decl. ¶ 11, Coughlin Decl. ¶ 10, Turner Sr.

Decl. ¶ 11, Prunty Decl. ¶ 11, Robbins Decl. ¶ 11, Miles Decl. ¶ 10, Turner Jr. Decl.

¶ 11.) Regardless of whether or not lunch is actually taken or interrupted,

supervisors are to assume that the employee only worked eight hours in a day.

(Upchurch Dep. 21:6-13.)

D. A subclass of Plaintiffs and putative class members allege that Plano violated
the FLSA with respect to so called “on call” time.

A number of employees within the description of the class were also required

to work outside of regular hours without compensation. Plano designated certain

weeks that an employee would have to work after hours as “on call” time. (Horton

Decl. ¶ 12, Spurgin Decl. ¶ 13, Ratcliff Decl. ¶ 13, Bigham Decl. ¶ 13, Toberman

Decl. ¶ 13, Coughlin Decl. ¶ 12, Turner, Sr. Decl. ¶ 13, Prunty Decl. ¶ 13.) The

employee would then have to monitor the radio after hours. (Horton Decl. ¶ 12,

Spurgin Decl. ¶ 13, Ratcliff Decl. ¶ 13, Bigham Decl. ¶ 13, Toberman Decl. ¶ 13,

Coughlin Decl. ¶ 12, Turner, Sr. Decl. ¶ 13, Prunty Decl. ¶ 13.) This meant that the

radio would have to be on and the employee would have to listen to all traffic to

determine if a particular transmission would be relevant. (Horton Decl. ¶ 14,

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Spurgin Decl. ¶¶ 15-16, Ratcliff Decl. ¶¶ 15-16, Bigham Decl. ¶¶ 15-16, Toberman

Decl. ¶¶ 15-16, Coughlin Decl. ¶¶ 14-15, Turner, Sr. Decl. ¶¶ 15-16, Prunty Decl. ¶¶

15-16.) These Plaintiffs and members of the putative class were not paid for this

time spent actively monitoring the radio. (Horton Decl. ¶ 16, Spurgin Decl. ¶ 17,

Ratcliff Decl. ¶ 17, Bigham Decl. ¶ 17, Toberman Decl. ¶ 17, Coughlin Decl. ¶ 16,

Turner, Sr. Decl. ¶ 17, Prunty Decl. ¶ 17.)

E. Potential Plaintiffs are unaware of their rights and would join this action if
given notice of the suit and an opportunity to join.

Plaintiffs and potential opt in Plaintiffs were unaware that they might be

entitled to overtime pay until consulting with an attorney. (Horton Decl. ¶ 22,

Spurgin Decl. ¶ 23, Ratcliff Decl. ¶ 25, Bigham Decl. ¶ 23, Pettit Decl. ¶ 12, Goode

Decl. ¶ 16, Toberman Decl. ¶ 23, Coughlin Decl. ¶ 22, Turner Sr. Decl. ¶ 25, Prunty

Decl. ¶ 23, Robbins Decl. ¶ 19, Miles Decl. ¶ 18, Turner Jr. Decl. ¶ 19.) The

Plaintiffs and the potential opt in Plaintiffs state that, based on their observations

and experiences, other employees do not know that their right to overtime pay is

being violated. (Horton Decl. ¶ 22, Spurgin Decl. ¶ 23, Ratcliff Decl. ¶ 25, Bigham

Decl. ¶ 23, Pettit Decl. ¶ 12, Goode Decl. ¶ 16, Toberman Decl. ¶ 23, Coughlin Decl.

¶ 22, Turner Sr. Decl. ¶ 25, Prunty Decl. ¶ 23, Robbins Decl. ¶ 19, Miles Decl. ¶ 18,

Turner Jr. Decl. ¶ 19.) The Plaintiffs and the potential opt in Plaintiffs also state

that, based on their observations and experiences, these employees would join the

action if informed of their rights and given an opportunity to participate. (Horton

Decl. ¶ 22, Spurgin Decl. ¶ 23, Ratcliff Decl. ¶ 25, Bigham Decl. ¶ 23, Pettit Decl. ¶

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12, Goode Decl. ¶ 16, Toberman Decl. ¶ 23, Coughlin Decl. ¶ 22, Turner Sr. Decl. ¶

25, Prunty Decl. ¶ 23, Robbins Decl. ¶ 19, Miles Decl. ¶ 18, Turner Jr. Decl. ¶ 19.)

V.
THE COURT SHOULD GRANT CONDITIONAL CLASS CERTIFICATION

Plaintiffs seek conditional class certification and judicial notice in this

collective action pursuant to the FLSA, 29 U.S.C. § 216(b), on behalf of all (1)

current and former crewmembers and supervisors, (2) employed by the Public

Works Department of the City of Plano (3) within the three year statutory period,

(4) who were paid by the hour, and (5) were issued a radio and/or a cellular phone

by Plano.4

Section 216(b) provides for “similarly situated” employees to proceed

collectively in pursuit of wages unlawfully withheld. In such cases, the District

Court has discretionary power to authorize judicial notice to potential class

members to inform them of the action and give them an opportunity to participate

by opting in. Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165, 169-70 (1989).

“Collective actions under the FLSA are generally favored because such actions

reduce litigation costs for the individual plaintiffs and create judicial efficiency by

resolving in one proceeding of ‘common issues of law and fact arising from the same

4 Section 216(b) collective actions differ from Rule 23 of the Federal Rules of Civil Procedure class
actions in that, under section 216(b), a person who wishes to join the collective action must
affirmatively “opt-in” by filing written consent with the court. Under Rule 23, however, a person
must affirmatively “opt-out” if he or she wishes to abstain from the lawsuit. 29 U.S.C. § 216(b); see
also Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1216 (11th Cir. 2001); Garner v. G.D. Searle
Pharm., 802 F.Supp. 418, 421 (M.D. Ala. 1991).

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alleged ... activity.’” Ryan v. Staff Care, Inc., 497 F.Supp.2d 820, 823 (N.D.Tex.

2007) (Fish, C.J.) (quoting Hoffman-La Roche, 493 U.S. at 170).

In Hoffman-La Roche, the Supreme Court identified the main benefits of a

collective action under section 216(b): “A collective action allows . . . Plaintiffs the

advantage of lower individual costs to vindicate rights by the pooling of resources.

The judicial system benefits by efficient resolution in one proceeding of common

issues of law and fact arising from the same alleged . . . activity.” Id., at 170.

Ultimately the purpose of judicial notice is to give employees accurate and timely

notice concerning the pendency of the collective action so they can make an

informed decision about whether to participate. Id.

A. This Court should follow the two step approach (the Lusardi approach) to
FLSA certification.

This Court should follow the Lusardi two-step approach to determining

whether a case should be certified outlined in Mooney v. Aramco Services Co., 54

F.3d 1207, 1212 (5th Cir. 1995) (citing Lusardi v. Xerox Corp., 118 F.R.D. 351

(D.N.J. 1987)). As this Court has previously noted, “The Lusardi two-step approach

is the more generally accepted method of analysis among federal courts and is the

one the Court will apply in this case.” Larsen v. Crème de la Crème, Inc., Civ. No.

4:09-cv-613, 2011 WL 335171, *2 (E.D. Tex. Jan. 26, 2011) (Bush, M.J.) (citation

string omitted); see also Ryan, 497 F.Supp.2d at 824 (summarizing cases in the

Northern District of Texas and reaching the same conclusion).

In Larsen, this Court summarized the Lusardi two stage approach as follows:

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 Under this approach, certification for collective action is divided into
two phases: (1) the notice stage; and (2) the opt-in, or merits, stage.
Mooney, 54 F.3d at 1213-14. [Footnote omitted.]

In the notice stage, the Court must determine whether the plaintiff has
provided sufficient evidence of similarly-situated plaintiffs to warrant
court-facilitated notice of the proposed class. Valcho v. Dallas Cnty.
Hosp. Dist., 574 F.Supp.2d 618, 621 (N.D.Tex. 2008). If the plaintiff
has, the court “conditionally certifies” the class and facilitates notice to
the potential plaintiffs. Id. This standard is “fairly lenient” and
usually results in conditional certification. Mooney, 54 F.3d at 1213.
The plaintiff bears the burden of presenting preliminary facts to show
that there is a similarly situated group of potential plaintiffs. See
Hickson [v. U.S. Postal Serv.], 2010 WL 3835887 at 6 [(E.D.Tex. July
22, 2010)].

Then, after discovery has taken place and after potential class
members have the opportunity to opt-in, the court reexamines the
class, typically in response to a motion for decertification. Valcho, 574
F.Supp.2d at 621. If the court finds that the class is no longer made up
of similarly-situated persons, the class is decertified. Id.

Larsen, at *2.

The Fifth Circuit has stated unequivocally that the Lusardi “standard is

‘fairly lenient’ and usually results in conditional certification.” Mooney, 54 F.3d at

1213. This Court should keep in mind this statement by the Fifth Circuit and be

inherently suspicious of defense arguments indicating burdens that plaintiffs must

satisfy. Indeed, it makes sense to presume that a FLSA class should be certified

because (1) only those employees interested in joining “opt in” (unlike a Rule 23

class action where putative class members “opt out”), (2) questions about the merits

of certification are reserved for a later stage (the second step), and (3) the statute of

limitations continues to run on claims of individuals who have not opted-in,

favoring quick action. Further, because requesting an overly broad class favors

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decertification at the second step, plaintiffs will presumably not overreach. This is

certainly true in the instant case where the class is limited to specific workers in

just one city department.

B. The facts proffered by Plaintiffs satisfy the lenient Lusardi test for conditional
class certification.

The ultimate test for whether to conditionally certify a class is as follows: are

there “substantial allegations that the putative class members were together the

victims of a single decision, policy, or plan.” Mooney, 54 F.3d at 1214 n. 8 (quoting

Sperling v. Hoffmann-La Roche, Inc., 118 F.R.D. 392, 407 (D.N.J. 1988)). If the

Court finds reason to believe that Plaintiffs and the putative class were subjected to

a common practice that shorted their compensable hours, the action should be

certified. “A court may deny a plaintiff's right to proceed collectively only if the

action arises from circumstances purely personal to the plaintiff, and not from any

generally applicable rule, policy, or practice.” Ryan, 497 F.Supp.2d at 824-25;

Donohue v. Francis Services, Inc., Civ. A. No. 041-170, 2004 WL 1161366, at *1

(E.D.La. May 24, 2004) (quoting Whitworth v. Chiles Offshore Corp., Civ. A. No. 92-

1504, 1992 WL 235907, at *1 (E.D.La. Sept. 2, 1992)).

In the instant case, the City of Plano had a policy of not having employees

clock in and out for lunch. Rather, the City of Plano would simply deduct thirty

minutes for lunch each day. The Plaintiffs and potential opt-in Plaintiffs have

provided declarations showing that these purported lunch breaks did not meet the

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criteria set forth in the FLSA for off-the-clock breaks because Plaintiffs were never

fully relieved of duty.

In Larsen, this Court noted that Lusardi’s lenient standard stops short of

requiring automatic certification. Larsen, at *2. In its Larsen order, this Court

reviewed the approaches of other district courts in determining whether named

plaintiffs and putative class members are truly similarly situated. Importantly, to

the extent that various district courts have adopted factors or subtests, they are

attempts to get at this cardinal issue: whether there are substantial allegations

that the putative class members were together the victims of a single decision,

policy, or plan. Mooney, 54 F.3d at 1214 n. 8. In the Larsen case, this Court

reviewed other district court cases and identified the following criteria that

mitigates for or against certification:

• Whether affidavits of potential plaintiffs were submitted showing a fact

pattern indicating similar treatment;

• Whether affidavits of potential plaintiffs were submitted showing a

widespread policy;

• Whether there is reasonable basis to believe that aggrieved individuals exist;

• Whether those aggrieved individuals are similarly situated to the Plaintiff;

• Whether those individuals would want to opt-in to the lawsuit.

Larsen, at *2. Plaintiffs examine each of these factors in turn.

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 1. Plaintiffs have produced declarations showing they received similar
treatment.

Plaintiffs and the potential opt in Plaintiffs have provided declarations under

oath in support of their claims and this motion. These declarations identify nearly

identical treatment concerning their lunch breaks. (Horton Decl. ¶¶ 8-10, Spurgin

Decl. ¶¶ 9-11, Ratcliff Decl. ¶¶ 8-11, Bigham Decl. ¶¶ 8-11, Pettit Decl. ¶¶ 8-11,

Goode Decl. ¶¶ 8-10, Toberman Decl. ¶¶ 8-11, Coughlin Decl. ¶¶ 8-10, Turner Sr.

Decl. ¶¶ 8-11, Prunty Decl. ¶¶ 8-11, Robbins Decl. ¶¶ 8-11, Miles Decl. ¶¶ 8-10,

Turner Jr. Decl. ¶¶ 8-11.) These declarations establish that Plaintiffs and the

putative class did not check out and check in for lunch times. (Horton Decl. ¶ 10,

Spurgin Decl. ¶ 11, Ratcliff Decl. ¶ 11, Bigham Decl. ¶ 11, Pettit Decl. ¶ 11, Goode

Decl. ¶ 10, Toberman Decl. ¶ 11, Coughlin Decl. ¶ 10, Turner Sr. Decl. ¶ 11, Prunty

Decl. ¶ 11, Robbins Decl. ¶ 11, Miles Decl. ¶ 10, Turner Jr. Decl. ¶ 11.) Rather,

Plano automatically deducted this lunch time. (Horton Decl. ¶ 9, Spurgin Decl. ¶

10, Ratcliff Decl. ¶ 10, Bigham Decl. ¶ 10, Pettit Decl. ¶ 10, Goode Decl. ¶ 9,

Toberman Decl. ¶ 10, Coughlin Decl. ¶ 9, Turner Sr. Decl. ¶ 10, Prunty Decl. ¶ 10,

Robbins Decl. ¶ 10, Miles Decl. ¶ 9, Turner Jr. Decl. ¶ 10.) All of the Plaintiffs

report routine interruptions of lunch that were uncompensated. (Horton Decl. ¶ 9,

Spurgin Decl. ¶ 10, Ratcliff Decl. ¶¶ 9-10, Bigham Decl. ¶¶ 9-10, Pettit Decl. ¶¶ 9-

10, Goode Decl. ¶ 9, Toberman Decl. ¶ 10, Coughlin Decl. ¶ 9, Turner Sr. Decl. ¶¶ 9-

10, Prunty Decl. ¶¶ 9-10, Robbins Decl. ¶¶ 9-10, Miles Decl. ¶ 9, Turner Jr. Decl. ¶¶

9-10.)

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 2. Plaintiffs have produced declarations showing a common policy or plan
creating the underlying violation.

Plaintiffs have produced declarations showing that the violation at issue is

not limited conditions specific to a particular Plaintiff; rather the violation spans

the workforce of the public works division. Plaintiffs have provided declarations

from both supervisors and crewmembers showing the identical violation. (Horton

Decl. ¶ 5, Spurgin Decl. ¶ 5, Ratcliff Decl. ¶ 5, Bigham Decl. ¶ 5, Pettit Decl. ¶ 5,

Goode Decl. ¶ 5, Toberman Decl. ¶ 5, Coughlin Decl. ¶ 5, Turner Sr. Decl. ¶ 5,

Prunty Decl. ¶ 5, Robbins Decl. ¶ 5, Miles Decl. ¶ 5, Turner Jr. Decl. ¶ 4.) Indeed,

the corporate representative testified that supervisors were supposed to

automatically deduct lunchtime hours. (Upchurch Dep. 56:18-21, 77:16-22.)

Plaintiffs’ declarations also show that this violation occurred across the various

divisions within the public works department; including utility operations. (Horton

Decl. ¶ 5, Spurgin Decl. ¶ 5, Ratcliff Decl. ¶ 5, Bigham Decl. ¶ 5, Goode Decl. ¶ 5,

Toberman Decl. ¶ 5, Prunty Decl. ¶ 5), streets, (Pettit Decl. ¶ 5, Turner Sr. Decl. ¶

5, traffic (Robbins Decl. ¶ 5, Miles Decl. ¶ 5, Turner, Jr. Decl. ¶¶ 4-5).

3. Plaintiffs have shown a reasonable basis to believe that aggrieved

individuals exist.

There is a reasonable basis to believe that others had lunch hours improperly

deducted. Indeed, Plano has identified 234 individuals who appear to meet the five

criteria listed. (Spreadsheet.) The attached list shows 234 individuals who are (1)

non-exempt from overtime, (2) have worked in the public works department, (3) and

were charged with monitoring a radio. (Id.) Although these criteria are not

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identical to the five factors for class membership, they are quite close. Thus there is

a reasonable basis to believe that aggrieved individuals exist.

4. Plaintiffs have shown that putative class members would be similar to

the Plaintiffs.

Plaintiffs only seek to include employees who meet all five factors. These

factors ensure that the individuals (1) work in the same department, (2) were paid

the same way, (3) and have similar, if not identical, violations. Thus the putative

class members would be similar to the Plaintiffs.

5. Plaintiffs have shown that putative class members would want to opt-
in to the lawsuit.

As a threshold matter, this suit was not brought by one employee but six.

[Pls’ Orig. Compl. – Class Act., Docket No. 1]. Ten employees have already filed

consents with this Court. [Notice of Filing of Additional Consents, Document No.

8.] Plaintiffs have provided declarations stating that they did not know of potential

overtime pay violations until consulting with an attorney. (Horton Decl. ¶ 22,

Spurgin Decl. ¶ 23, Ratcliff Decl. ¶ 25, Bigham Decl. ¶ 23, Pettit Decl. ¶ 12, Goode

Decl. ¶ 16, Toberman Decl. ¶ 23, Coughlin Decl. ¶ 22, Turner Sr. Decl. ¶ 25, Prunty

Decl. ¶ 23, Robbins Decl. ¶ 19, Miles Decl. ¶ 18, Turner Jr. Decl. ¶ 19.) Plaintiffs

have provided declarations stating that other Plano employee do not know of these

potential overtime pay violations. (Horton Decl. ¶ 22, Spurgin Decl. ¶ 23, Ratcliff

Decl. ¶ 25, Bigham Decl. ¶ 23, Pettit Decl. ¶ 12, Goode Decl. ¶ 16, Toberman Decl. ¶

23, Coughlin Decl. ¶ 22, Turner Sr. Decl. ¶ 25, Prunty Decl. ¶ 23, Robbins Decl. ¶

19, Miles Decl. ¶ 18, Turner Jr. Decl. ¶ 19.) Plaintiffs have provided declarations

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that these other Plano employees would join the suit if informed of their rights.

(Horton Decl. ¶ 22, Spurgin Decl. ¶ 23, Ratcliff Decl. ¶ 25, Bigham Decl. ¶ 23, Pettit

Decl. ¶ 12, Goode Decl. ¶ 16, Toberman Decl. ¶ 23, Coughlin Decl. ¶ 22, Turner Sr.

Decl. ¶ 25, Prunty Decl. ¶ 23, Robbins Decl. ¶ 19, Miles Decl. ¶ 18, Turner Jr. Decl.

¶ 19.)

C. The Court should certify a subclass of members that monitored radios after
hours.

Factually distinct plaintiffs are often divided into subclasses to promote

judicial efficiency at trial. See, e.g., Thiebes v. Wal-Mart Stores, Inc., No. 98-802-KI,

1999 WL 1081357, at *3 (D. Or. Dec. 1, 1999) (noting that the court could “divide

the class into subgroups” in a FLSA action); Takacs v. Hahn Auto. Corp., 1999 WL

33127976, at *1-*3 (S.D. Ohio Jan. 25, 1999) (finding that, where plaintiff-

employees in a FLSA case could be divided into several job categories, they could be

divided into subclasses); Gjurovich v. Emmanuel’s Marketplace, Inc., 282 F.Supp.2d

91, 96 n. 1 (S.D.N.Y. 2003) (noting that if discovery revealed that the meat cutter

was not similarly situated with other employees within different sections of the

grocery store, the court may “divide the class into subgroups, if appropriate.”); Coan

v. Nightengale Home Healthcare, Inc., 2006 WL 1994772 (S.D.Ind. July 14, 2006) (4

subclasses used among 66 opt-in plaintiffs with differing job responsibilities); Rawls

v. Augustine Home Health Care, Inc., 244 F.R.D. 298 (D. Md. 2007).

In the instant case, Plaintiffs contemplate that the main class would include

all Plaintiffs and class members and concern lunch hours. The subclass would be a

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subset of class members. The subclass would contain class members who also

worked after hours monitoring the radio. This is a separate claim in addition to the

main class claim.

Creating a subclass has been used in similar cases where certain members

have an additional claim. In Maynor v. Dow Chemical Co., the plaintiffs claimed

that they were not compensated for all hours worked – the same violation at issue

in this case. 671 F.Supp.2d 902 (S.D.Tex. 2009). The main class, which included all

members, consisted of unpaid training time attending classes, computer labs, or

tutoring. The subclass consisted of members who also engaged in self-study

training. The Court concluded:

The inquiry into Dow’s information about self-study training hours

raises issues that are not present in the claims for compensation for
attending classes, computer labs, or tutoring. Those differences are
best addressed by treating the plaintiffs claiming compensation for
self-study training hours as a subclass. But these differences do not
defeat collective action treatment either generally or as to this
subclass.

Id. at 933. The Maynor Court went on to discuss that the Fifth Circuit has

approved various ways of trying such cases, including bifurcation. Id. at 934 (citing

Moreau v. Klevenhagen, 956 F.2d 516, 521-23 (5th Cir. 1992)).

Thus this Court should conditionally certify a subclass of members who also

meet the requirement of monitoring a radio after hours.

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D. If this Court does not grant conditional class certification, the Court should
enter an order tolling the statute of limitations and allow the eleven potential
opt-in plaintiffs to file individual suits.

In the event that this Court does not certify this case to conditionally proceed

on a collective basis, the Court should toll the statute of limitations for the eleven

employees who signed consents but are not named plaintiffs. Such tolling should be

from the date they “opted in” to thirty days after the order denying this motion for

conditional class certification. Such an order would allow these employees to

proceed in separate, individual actions. See Lusardi, 118 F.R.D. at 354 n. 5

(suggesting, in the event of failed certification, tolling the statute of limitations from

the date of opt-in and providing notice that the parties can proceed individually); see

also Acevedo v. Allsup’s Convenience Stores, Inc., 600 F.3d 516, 519 (5th Cir. 2010)

(reviewing the district court’s earlier action that “dismissed without prejudice all

plaintiffs from the case except the [named plaintiffs], and tolled the statute of

limitations for thirty days to allow the dismissed plaintiffs to refile individually.”).

VI.
THIS COURT SHOULD APPROVE PLAINTIFFS’ PROPOSED NOTICE

The United States Supreme Court gave district courts the authority to

manage the process of joining multiple parties, including authority to consider a

motion for collective action certification. See Hoffman-La Roche Inc. v. Sperling,

493 U.S. 165 (1989). The Supreme Court has held that the benefits to the judicial

system of collective actions “depend upon employees receiving accurate and timely

notice concerning the pendency of the collective action, so that they can make

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informed decisions about whether to participate.” Id., at 170. In a case brought

under §216(b), a district court has both the duty and the broad authority to exercise

control over a class action and to enter appropriate orders governing the conduct of

counsel and the parties because of the potential for abuse of the class action

mechanism. Id., at 171. District courts “have discretion to intervene by approval

and facilitation of the notice process . . . to alleviate the potential misuse of [notice]

by misleading communications” and are encouraged to begin their involvement

early in the litigation. Id., at 171-72.

Short of providing an applicable standard, the Court in Hoffman-La Roche

established that a court-approved notice to potential plaintiffs in FLSA collective

actions is proper in “appropriate cases.” Id., at 169-70. The Court ruled that

determining what is an “appropriate case” lies within the discretion of the district

court. Id. This case is an “appropriate case” for the Court to approve the sending of

a notice for several reasons.

A. Plaintiff’s proposed notice is accurate and informative.

Plaintiff’s proposed Notice should be approved by the Court. (See Proposed

Notice.) As required, it is “timely, accurate, and informative.” Id., 493 U.S. at 172.

It makes clear that only those who were denied overtime pay during the three year

statute5 are eligible for the case. As such, the proposed notice achieves the ultimate

5 In FLSA cases, plaintiffs collect damages within a two-year statute of limitations, but may collect
damages incurred within a third year if the jury determines that Defendants’ violation of the
overtime laws were “willful.” 29 U.S.C. § 255(a); Fowler v. Land Mgmt. Groupe, 978 F.2d 158, 163
(4th Cir. 1992); Bankston v. Illinois, 60 F.3d 1249, 1253 (7th Cir. 1995). A violation of the FLSA is

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goal of providing employees accurate and timely notice concerning the pendency and

scope of the collective action.

B. This Court should promptly approve the proposed notice so that similarly
situated employees can join before the statute of limitations runs on their
unpaid wages.

Prompt action is needed here because claims of the potential opt-in Plaintiffs

in this case are being extinguished or diminished due to the running of the statute

of limitations on their claims. See Redman v. U.S. West Business Resources, Inc.,

153 F.3d 691, 695 (8th Cir. 1998). Unlike Rule 23 class actions, the statute of

limitations for those who have not filed consent forms is not tolled with the

commencement of this action. See id. As a result, the statute continues to run on

each individual’s claim until they file a consent form with the Court. See id. The

consequence of this difference is self evident: every day that passes is a day of

damages each potential opt-in Plaintiff will be unable to recover. Court-facilitated

notice will prevent the continued erosion of these claims. See Schewd v. Gen. Elec.

Co., 159 F.R.D. 373, 375 (N.D.N.Y. 1995).

C. Approval of the proposed notice will promote judicial economies.

Judicial notice providing crewmembers and supervisors with an opportunity

to pursue their claims in one forum will create the significant judicial economies

recognized in Hoffman-La Roche. Indeed, by including all the individuals who wish

to pursue their claims in one action, the judicial system will benefit by resolution of

“willful” when the “employer either knew or showed reckless disregard for the matter of whether its
conduct was prohibited by the statute.” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988).
Plaintiffs allege in their Complaint that Defendants’ actions were “willful.”

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this case as a collective action at least through the discovery phase, since identical

issues of law and fact exist among all crewmembers and supervisors who were not

compensated properly for their hours worked. See Hoffman-La Roche, 493 U.S. at

170. Such collective adjudication will avoid the proliferation of individual lawsuits

that could result in disparate rulings and wasting of judicial and party resources.

Requiring Plaintiff and the opt-ins to file separate cases in multiple federal district

courts would not be an economical use of resources under the circumstances.

D. The proposed notice will ensure only those similarly situated join.

The carefully drafted Notice proposed by Plaintiff will be sent to those on the

list provided by Defendants, and specifically explains that only those crewmembers

and supervisors who were denied overtime pay or the federal minimum wage may

join. (Proposed Notice.) This will ensure that only those similarly situated will join.

VII.
CONCLUSION

At this notice stage, the evidence far exceeds the lenient standard in showing

that the proposed putative class members are “similarly situated” for purposes of

collective discovery and judicial notice. As such, Plaintiffs respectfully request that

this Court grant their motion for conditional class certification and judicial notice.

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 Respectfully submitted,

/s/ Robert J. Wiley

ROBERT J. WILEY
Texas Bar No. 24013750
Board Certified in Labor & Employment
Law, Texas Board of Legal Specialization
GREGORY PLACZEK
Texas Bar No. 24070424
JUSTIN G. MANCHESTER
Texas Bar No. 24070207

Law Office of Rob Wiley, P.C.

1825 Market Center Blvd., Ste. 385
Dallas, TX 75207
Telephone: (214) 528-6500
Facsimile: (214) 528-6511
jmanchester@robwiley.com
www.robwiley.com
Attorneys for Plaintiffs

CERTIFICATE OF CONFERENCE

I certify that on April 11, 2011 a telephone conference was conducted in

which the merits of the motion were discussed with counsel for the City of Plano.
The City of Plano is OPPOSED to the requested relief.

/s/ Robert J. Wiley

CERTIFICATE OF SERVICE

I certify that on April 12, 2011, I served a copy of the foregoing on opposing
counsel via first class mail and electronically.

/s/ Robert J. Wiley

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