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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS DALLAS DIVISION RICKY L. CURRY, JOHN D. BEAN, PAUL N. ELWELL, RICHARD L. HARRIS, JAMES R. THURMOND AND KEITH VESSELS Plaintiffs VS. CENTRAL FREIGHT LINES, INC. Defendant PLAINTIFFS ORIGINAL COMPLAINT AND JURY DEMAND Plaintiffs RICKY L. CURRY, JOHN D. BEAN, PAUL N. ELWELL, RICHARD L. HARRIS, JAMES R. THURMOND AND KEITH VESSELS (hereinafter Plaintiffs) file this Original Complaint and Jury Demand against Defendant Central Freight Lines, Inc. (hereinafter Defendant or Central), and respectfully show the following: Nature of the Action 1. This Complaint, brought pursuant to the Age Discrimination Employment Act

CIVIL ACTION NO: _______________

(hereinafter ADEA or the Act), 29 U.S.C. 621 through 634, seeks damages due to Defendants age-based discriminatory acts against Plaintiffs relating to their employment with Defendant. Jurisdiction and Venue 2. The Court has original jurisdiction over this lawsuit pursuant to 28 U.S.C. 1331,

with reference to the ADEA, 29 U.S.C. 621-34. 3. Venue is proper in this District because a substantial part of the events or omissions

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giving rise to this lawsuit occurred in this District. Additionally, one or more of the Plaintiffs reside in this District. Parties 4. 5. 6. 7. 8. 9. 10. Plaintiff Ricky L. Curry is an individual residing in Dallas County, Texas. Plaintiff John D. Bean is an individual residing in Dallas County, Texas. Plaintiff Paul N. Elwell is an individual residing in Tarrant County, Texas. Plaintiff Richard L. Harris is an individual residing in Dallas County, Texas. Plaintiff James R. Thurmond is an individual residing in Dallas County, Texas. Plaintiff Keith Vessels is an individual residing in Kaufman County, Texas. Defendant is a Texas Corporation with its principal place of business in Waco, Texas.

Defendant conducts a substantial business in Dallas County, Texas, and employed all Plaintiffs in Dallas County, Texas. 11. Defendant may be served with process by serving its registered agent Linda Kutni at

5601 West Waco Drive, Waco, Texas 76710. 12. Defendant is an employer pursuant to the ADEAs definition found at 29 U.S.C.

630(b). Specifically, Defendant is a corporation engaged in an industry affecting commerce which has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year. Facts 13. Plaintiffs were all loyal and competent employees of Defendant for a number of years.

Specifically, Defendant hired Plaintiff Curry on or around April 18, 1977, Plaintiff Bean on or around May 22, 1978, Plaintiff Elwell on or around September 8, 1978, Plaintiff Thurmond on or around March 5, 1979, Plaintiff Vessels on or around April 9, 1979 and Plaintiff Harris on or around
Plaintiffs Original Complaint and Jury Demand
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October 21, 1996. Plaintiffs were employed at Defendants Dallas Terminal in Dallas County, Texas as full-time Dockworkers. 14. At some point in time during 2005 2006, Defendant made a decision to terminate

certain Dockworkers due to an economic downturn in business. Defendants Reduction In Force (RIF) began with the termination of two employees, ages 50 and 63, on December 15, 2006. 15. On August 31, 2007, as part of its RIF, Defendant terminated Plaintiffs, along with

eight other Dockworkers. Ten of the fourteen terminated Dockworkers were over the age of 40. 16. During the months before Plaintiffs termination, Defendant assigned Plaintiffs and

other older workers more difficult tasks in an effort to cause Plaintiffs to not meet daily quotas. As a result, during this same timeframe, Plaintiffs were allegedly written up for various company violations. Prior to Defendants decision to initiate the RIF, Defendant had given Plaintiffs, few, if any, minor write-ups. 17. During Plaintiffs employment, older workers were referred to by derogatory age-

related names and epithets. At the time of Plaintiffs termination, Plaintiffs Curry, Bean, Elwell, Thurmond, Vessells and Harris were ages 50, 51, 50, 58, 54, and 53, respectively. All Plaintiffs were over the age of 40. 18. In the eighteen months leading up to Plaintiffs termination and despite the need for

a RIF, according to Defendants own records, Defendant hired a minimum of 200 part-time Dockworkers. A significant portion of these newly-hired Dockworkers were under the age of 40. In the months following Plaintiffs termination, Defendant continued to hire younger Dockworkers despite Defendants alleged economic downturn in business. Some of these part-time

Dockworkers worked over forty hours per week and, therefore, were entitled to overtime pay. 19. Furthermore, the newly-hired part-time Dockworkers performed the same duties
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and functions as Plaintiffs. In fact, Defendant requested some of the Plaintiffs to train the new, younger Dockworkers. 20. In conducting the RIF, Defendant did not follow its own policies as stated in its

Employee Handbook, which was in effect during Plaintiffs employment with Defendant. Defendant fabricated the need for corrective action against Plaintiffs and other older workers and created corrective action documents to support Plaintiffs and other older workers terminations. These such actions were taken because of Plaintiffs age and the age of other older workers. Specifically, Defendants Employee Handbook, indicated that in a situation of downturn in business: employees in Step II or higher levels of corrective action will be laid off or rolled back first, followed by the employee with the least company seniority within a work group. This process will continue, in reverse order of seniority, so long as the retained senior employees can perform the remaining work after a reasonable period of job training, which usually does not exceed 30 days. However, Defendant elected not to follow its published policy when initiating the RIF. Specifically, Defendant carved out certain younger workers with higher levels of corrective action than some of the Plaintiffs and other older workers. Defendant intentionally overlooked employees on certain shifts, with certain responsibilities or of part-time status, none of which were exceptions in Defendants Employee Handbook. Defendant made those decisions based on Plaintiffs and other older workers ages and in an effort to discriminate against Plaintiffs and other older workers. 21. Defendant deliberately, intentionally, knowingly and willfully violated the ADEA

when it terminated the employment of those older Dockworkers selected for the RIF. Plaintiffs were members of this group of older Dockworkers, who were discharged as part of the RIF. Plaintiffs and other older workers were discharged by Defendant because of their age. Plaintiffs were given no

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advance notice of their termination. Plaintiffs were replaced by younger Dockworkers. Defendants actions violate the ADEA and constitute a willful violation of the ADEA, within the contemplation of Section 7(b) of the Act, 29 U.S.C.A. 626(b). 22. Also, in conducting its RIF, Defendants Administrative Prerequisites and Conditions Precedent 23. Plaintiffs have complied with all administrative requirements for perfecting their

charges and all conditions precedent to Plaintiffs recovery have been performed or have occurred. 29 U.S.C. 626; Fed. R. Civ. P. 9(c). 24. Plaintiffs filed their charges alleging age discrimination in employment against

Defendant with the U.S. Equal Employment Opportunity Commission (EEOC) on or around the respective dates: Plaintiff Curry on or around November 26, 2007, Plaintiff Bean on or around December 28, 2007, Plaintiff Elwell on or around November 14, 2007, Plaintiff Thurmond on or around November 26, 2007, Plaintiff Vessels on or around December 5, 2007 and Plaintiff Harris on or around November 26, 2007. Each charge was timely filed pursuant to 29 U.S.C. 626(d). 25. On August 4, 2009, the EEOC issued a Determination for Plaintiffs Charge Nos.

450-2008-00571, 00637, 00639, 00811, 00981, indicating that its investigation revealed sufficient evidence to support Plaintiffs allegations. To date, no Right to Sue Letter has been issued by the EEOC; however, more than 60 days has passed since the filing of Plaintiffs Charges of Discrimination with the EEOC, thereby permitting the filing of this civil action by Plaintiffs. Causes of Action A. 26. 27. Age Discrimination in Violation of the ADEA Plaintiffs reallege and incorporate by reference the facts set forth above. This action is brought under the ADEA, which protects individuals forty years of age
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or older from discrimination in employment. 29 U.S.C. 631(a). 28. Plaintiffs were all over the age of forty at the time of their discharge and were thus

members of the protected class under the ADEA. Plaintiffs suffered an adverse employment action when Defendant discharged them. At the time of their discharge, Plaintiffs were qualified for their positions with Defendant because Plaintiffs had not suffered any physical disability, loss of necessary license, or other occurrence rendering them unfit for their positions. Defendants were then replaced by younger workers or were otherwise discharged because of their age. 29. Defendant may claim that Plaintiffs discharges were due to a reduction in force,

and thus Plaintiffs were not replaced by younger workers or otherwise discharged because of their age. However, both before and after Plaintiffs were discharged, Defendant hired and trained voluminous younger, part-time employees to do the same job that Plaintiffs had been doing. Thus, there was actually in increase in force rather than a reduction in force. Clearly then, Defendant discharged Plaintiffs with the intention to discriminate against them. 30. Plaintiffs were discharged by Defendant because of their ages. These actions violated

Section 4(a)(1) of the ADEA, 29 U.S.C. 626(b). 31. Defendants discharges of Plaintiffs were willful violations of the ADEA within the

contemplation of Section 7(b) of the Act, 29 U.S.C. 626(b). B. 32. 33. Disparate Impact Plaintiffs reallege and incorporate by reference the facts set forth above. Defendants actions relating to its alleged reduction in force also caused a disparate

impact on its older workers because the older workers were adversely impacted by Defendants practice in carrying out the reduction in force. 34. Defendant discharged Plaintiffs allegedly as part of the reduction in force.
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Defendant allegedly determined which employees it would include on the list of employees to be discharged in the reduction in force based on the employees full-time or part-time status. A majority of Defendants full-time employees were within the protected class under the ADEA. 35. Defendant did not offer Plaintiffs the opportunity to change their status from full-time to parttime. Defendant also did not offer Plaintiffs the opportunity to continue working for Defendant, but without benefits. Instead, Defendant included Plaintiffs, some of whom had worked for Defendant for over 25 years, on the reduction in force list. 36. If Defendants reduction in force was truly implemented to eliminate employees

based on reasonable factors other than age such as a need to cut benefits or to have part-time workers instead of full-time workers surely Defendant would have offered its most senior and loyal employees the opportunity to convert to either part-time or non-benefit employees rather than be discharged. Defendants failure to offer this option to Plaintiffs is not only disloyal, combined with its practice of hiring voluminous younger workers at the same time it was allegedly reducing its force, it shows that Defendants true intentions regarding the reduction in force was to eliminate its older employees. 37. Thus, Defendants practice of including only full-time employees in the reduction in

force clearly had an adverse impact on its older workers. 38. 39. Further, Defendants actions were not based on reasonable factors other than age. Therefore, Defendants actions regarding the alleged reduction in force caused a

disparate impact on Plaintiffs. Willful Violations 40. 41. Plaintiffs reallege and incorporate by reference the facts set forth above. By discharging Plaintiffs in the manner that it did, Defendant either knew or showed
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reckless disregard for the matter of whether its conduct was prohibited by the ADEA. Specifically, Defendant intentionally did not follow its own policies related to a RIF during a downturn in business, as alleged by Defendant. 42. Defendants discharges of Plaintiffs were willful violations of the ADEA within the

contemplation of Section 7(b) of the Act, 29 U.S.C. 626(b). Attorneys Fees and Costs 43. As a result of Defendants age discrimination, Plaintiffs were required to retain

attorneys to represent them in this action. Plaintiffs therefore seek recovery of their attorneys fees and costs as permitted under 29 U.S.C. 216(b), as made applicable to the Act by 29 U.S.C. 626(b). Request for Relief WHEREFORE, Plaintiffs respectfully request judgment and relief against Defendant as follows: a. b. A judgement that Defendant discriminated against Plaintiffs based on their age; Back pay, including, without limitation, Plaintiffs lost wages and benefits from August 31, 2007 to present; Liquidated damages in an equal amount to the back pay awarded to Plaintiffs for Defendants willful violations of the ADEA; Front pay for anticipate future losses; Attorneys fees and costs of court; Pre-judgment and post-judgment interest at the highest rate permitted by law; and All other relief to which Plaintiffs are justly entitled. Jury Demand 44. Plaintiffs request a jury trial as to all issues triable by a jury.
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c.

d. e. f. g.

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Case 3:10-cv-01954-K Document 1 Dated this 29th day of September, 2010.

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Respectfully submitted,

_______/s_____________________ Claudine G. Jackson State Bar No. 00793800 Andrea S. Cottrell State Bar No. 24059614 BRACKETT & ELLIS, P.C. 100 Main Street Fort Worth, Texas 76102 817-338-1700 817-348-0923 - fax cjackson@belaw.com ATTORNEYS FOR PLAINTIFFS

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