case 3:12-cv JTM-CAN document 1 filed 07/16/12 page 1 of 5 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION

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1 case 3:12-cv JTM-CAN document 1 filed 07/16/12 page 1 of 5 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION ROBERT D. DELEE, Plaintiff, v. Civil Action No. CITY OF PL Yl\10UTH, INDIANA, Defendant. ~.. 11:01 o COl\1PLAINT AND JURY DEJ\1AND Plaintiff Robe11 D. DeLee (DeLee, by the undersigned attorneys, alleges as follows: INTRODUCTION 1. This is a civil action brought pursuant to the Uniforn1ed Services En1ployn1ent and Ree111ployn1ent Rights Act of 1994,38 U.S.C (USERRA. JURISDICTION AND VENUE 2. This Court has jurisdiction over the subject matter of this action pursuant to 38 U.S.C. 4323(b. 3. Venue is proper in this district under 28 U. S. C (b(2 because "a substantial part of the events or 0111issions giving rise to [plaintiff s] clain1 occurred" in this judicial district. PARTIES 4. Plaintiff DeLee resides in Marshall County, Indiana. Marshall County, Indiana is within the jurisdiction of this Court. 5. Defendant City of Plyn10uth, Indiana (Plyn10uth is a n1unicipal governn1ent entity \vithin the territorial and subject 111atter jurisdiction of this Court.

2 case 3:12-cv JTM-CAN document 1 filed 07/16/12 page 2 of 5 CLAIl\1 FOR RELIEF 6. DeLee has worked for PlY1110uth as a Patroln1an in the Police Departn1ent since on or about April 19, Ordinance No of the City of Plymouth, adopted on August 23,2010, continued Plyn10uth' s policy that police officers for Plyn10uth are entitled to longevity pay on the anniversary date of their en1ployn1ent of $225 per year of service up to a n1axin1un1 of $4, Pursuant to Ordinance No of the City ofplyn10uth adopted on Noven1ber 13, 1989, longevity pay "has long been recognized as an incentive for police and firen1en to ren1ain in the service of the City." 9. DeLee has served in the United States Air Force Reserve (Air Force Reserve since on or about July 7, 1997, and currently holds the rank of Technical Sergeant. 10. On April 20, 2010, DeLee received the full a1110unt of longevity pay to which he \vas entitled of $2,4 75 based on 11 years of continuous e111ployn1ent up to that date. 11. DeLee was n10bilized for active duty beginning on Septen1ber 1, 2010 and concluding on May 11, DeLee worked f1111 tin1e as a Patroln1an for Plyn10uth both before and after his active duty deployn1ent for the Air Force Reserve between Septen1ber 1, 2010 and May 11, DeLee notified Plyn10uth prior to his deployn1ent on Septen1ber 1, 2010, and at that ti111e PlY1110uth paid DeLee a prorated a1110unt of longevity pay of $900 for the four 1110nths he had worked for Plyn10uth since the anniversary date of his e111ployn1ent on April 19,2010. As of the date this C0111plaint \vas filed, PlY1110uth has not paid, and has 2

3 case 3:12-cv JTM-CAN document 1 filed 07/16/12 page 3 of 5 continued to refuse to pay, DeLee longevity pay of $1,800 for the eight n10nth period he was deployed. On the fourth page of a letter dated Decen1ber 19, 2011, Plyn10uth' s City Attorney adn1itted that Plyn10uth \vould have paid DeLee the additional $1,800 of longevity pay if DeLee had not been n10bilized for active duty \vith the Air Force Reserve between Septen1ber 1, 2010 and May 11, 20 II. 13. Pursuant to USERRA, 38 U.S.C. 4316(a, a person in a uniforn1ed service, which includes the Air Force Reserve, "is entitled to the seniority and other rights and benefits detenl1ined by seniority that the person had on the date of the con1n1encen1ent of service in the uniforn1ed services plus the additional seniority and rights and benefits that such person \vould have attained if the person had ren1ained continuously en1ployed." 14. Longevity pay that Plyn10uth provides to its police officers is a "right and benefit deten11ined by seniority." 15. Defendant Plyn10uth violated USERRA, 4316(a by ref1.1sing to pay DeLee longevity pay, \vhich is a seniority-based benefit of en1ployn1ent to which he otherwise would have been entitled but for his deployment by the Air Force Reserve, for his eight n10nth period of active service between Septen1ber 1, 2010 and May 11, 20 II. 16. Plyn10uth's violation of USERRA 4316(a, as described in the preceding paragtaph, \vas willful. 3

4 case 3:12-cv JTM-CAN document 1 filed 07/16/12 page 4 of 5 REQUEST FOR RELIEF WHEREFORE, DeLee requests that the Court enter judgn1ent against Plyn10uth as follows: A. Declare that Plyn10uth's denial of a senioloity-based benefit of en1ployn1ent to DeLee because he fulfilled a service obligation was unla wful and violated USERRA, 38 U.S.C. 4316(a; B. Declare that Plyn10uth's violations of38 U.S.C. 4316(a were willful pursuant to USERRA, 38 U.S.C. 4323(d(l(C; C. Require that Plymouth fully con1ply with USERRA by paying DeLee longevity pay for the til11e he was fulfilling his service obligation, and liquidated dan1ages pursuant to 38 U.S.C. 4323(d(l(C for Plyn10uth's \villful violation of US ERR A; D. Enjoin Plyn10uth fron1 taking any action against DeLee that fails to con1ply with the provisions of USERRA; E. Award DeLee prejudgn1ent interest on the an10unt of lost benefits found due; and F. Grant such other and further relief that is just and proper. 4

5 case 3:12-cv JTM-CAN document 1 filed 07/16/12 page 5 of 5 JURY DEl\1AND Plaintiff den1ands a jury trial on all issues so triable. Respectfully subn1itted, THOMAS E. PEREZ Assistant Attorney General Civil Rights Division DELgN41t=-- Chief, En1ployn1ent Litigation Section Civil Rights Division United States Departn1ent of Justice JODI B. DANIS Special Counsel En1ployn1ent Litigation Section DAVID CAPP United States Attorney N Olihern District of Indiana WAYN T.AULT Assistant United States Attorney 5400 Federal Plaza, Suite 1500 Han11110nd, Indiana Telephone: Telecopy: Internet Address: wayne.ault@usdoj.gov Counsel for Plaintiff Robert D. DeLee 5

6 case 3:12-cv JTM-CAN document 1-1 filed 07/16/12 page 1 of 1 ""-JS 44 (Rev. 12/07 CIVIL COVER SHEET 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 ot the United States in September 1974, is required for the use of the Clerk of Court for the purpose ofmitiating the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM. I. (a PLAINTIFFS Robert D. Delee DEFENDANTS City of Plymouth, Indiana \ :-"... J 5JO (b County of Residence of First Listed Plaintiff...;,M;..;.;;;a;..;rs..;.h;..;a..;.I1;... County of Residence of First Listed Defendant (EXCEPT IN U.S. PLAINTIFF CASES (c Attorney's (Firm Name. Address. and Telephone Number Wayne T. Ault; Assistant United States Attorney; Northern District of Indiana; 5400 Federal Plaza, Suite 1500; Hammond, Indiana 46320; Tele hone: (IN U.S. PLAINTIFF CASES ONLY NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND IN VOL YED. Attorneys (If KnO\\l1 Sean Surrisi, Plymouth City Attorney, 124 North Michigan Street, Plymouth, Indiana 46563; Telephone II. BASIS OF JURISDICTION (Place an"x" in One Box Only III. CITIZENSHIP OF PRINCIPAL PARTIES(Place an "x,. in One Box for Plaintiff o I o 2 U.S. Government Plaintiff U.S. Government Defendant l1 3 Federal Question (U.S. Government Not a Pany o 4 Diversity (Indicate Citizenship ofpanies in Item lll IV NATURE OF SUIT (PI ace an "X'" to 0 ne B ox 0 n Iv COllt'TRACT TORTS I 10 Insurance PERSONAL INJURY PERSONAL INJURY 120 Marine Airplane Personal Injury Miller Act Airplane Product Med. Malpractice 140 Negotiable Instrument Liability Personal Injury - o 150 Recovery of Overpayment Assault, Libel & Product Liability & Enforcement of Judgment Slander Asbestos Personal o 151 Medicare Act Federal Employers' Injury Product Recovery of Defaulted Liability Liability Student Loans Marine PERSONAL PROPERTY (Exc!. Veterans Marine Product Other Fraud Recovery of Overpayment Liability Truth in Lending of Veteran's Benefits Motor Vehicle Other Personal Stockholders' Suits Motor Vehicle Propeny Damage Other Contract Product Liability Propeny Damage Contract Product Liability Other Personal Product Liability Franchise 1niurv REAL PROPERTY CIVIL RIGHTS PRISONER PETITIONS 210 Land Condemnation Voting Motions to Vacate 220 Foreclosure C!!: 442 Employment Sentence 230 Rent Lease & Ejectment Housing! Habeas Corpus: 240 Tons to Land Accommodations General 245 Ton Product Liability Welfare 0 535' Death Penalty o 290 All Other Real Propeny Arner. wldisabilities Mandamus & Other Employment Civil Rights Arner. w/disabilities Prison Condition Other Other Civil Rights (For Diversity Cases Only and One Box for Defendant PTF DEF PTF DEF Citizen of This State 0 I o I Incorporated or Principal Place of Business In This State Citizen of Another State 0 0 Incorporated ond Principal Place of Business In Another State Citizen or Subject of a o 3 0 Foreign Nation Foreign Country FORFEITliREIPENALTY BANKRUPTCY OTHER STATUTES 610 Agriculture 422 Appeal 28 USC State Reapponionment 620 Other Food & Drug o 423 Withdrawal Antinust o 625 Drug Related Seizure 28 USC Banks and Banking of Propeny 21 USC Commerce 630 Liquor Laws PROPERTY RIGHTS Deponation 640 R.R. & Truck 820 Copyrights Racketeer Influenced and 650 Airline Regs. 830 Patent Corrupt Organizations o 660 Occupational o 840 Trademark Consumer Credit SafetylHealth o 690 Other CablelSat TV Selective Service LABOR SOCIAL SECURITY Securities/Commodities! o 710 Fair Labor Standards o 861 HIA (1395ft Exchange Act o 862 Black Lung ( Customer Chailenge o 720 Laboril\Igmt. Relations o 863 D1WOD!WW (405(g» 12USC3410 o 730 LaboriMgmt.Reponing o 864 SSlD Title XVI Other Statutory Actions & Disclosure Act o 865 RSI H05(g Agricultural Acts o 740 Railway Labor Act FEDER~L TAX SUITS Economic Stabilization Act o 790 Other Labor Litigation o 870 Taxes (U.S. Plaintiff Environmental Maners o 791 Ernpl. Ret. Inc. or Defendant Energy Allocation Act Security Act o 871 IRS-Third Pony Freedom of Information IMMIGRATION 462 Naturalization Application o 463 Habeas Corpus- Alien Detainee o 465 Other Immigration Actions 26 USC 7609 Act 0 900Appeal of Fee Detennination Under Equal Access to Justice Constitutionality of State Statutes V. ORIGIN (Place an "X" in One Box Only (ill Original. o 2 Removed from 0 3 Remanded from Proceedmg State Court Appellate Court o 4 Reinstated or 0 5 o 6 Multidistrict Litigation o 7 Appeal to District Judge from Magistrate Judgment VI. CAUSE OF ACTION ~~~~~~.;w:.~~i..!.2w"-2!.!.l:w..=~~~~~~~!...i...:i<~~::=.!..:u.=~~.:::::..:.l:::.:...;:j.:l;:43~0w.1;:;;!-4;:;;33~5,,-. Brief description of cause: Plaintiff seeks recove of lost wa es and benefits ursuant to USERRA. VII, REQUESTED IN o CHECK IF THIS IS A CLASS ACTION DEMAND S CHECK YES only if demanded in complaint COMPLAINT: UNDER F.R.C.P. 23 JURY DEI\ IAND:!If Yes 0 No VIII. RELATED CASE(S IF ANY (See instructions: JUDGE DOCKET NUMBER DATE 07/13/2012 ~([;J:t~O~ FOR OFFICE USE ONLY SIGNATURE OF ATTORNEY OF RECORD RECEIPT # AMOUNT APPL YING IFP JUDGE MAG. JUDGE