throbber
Case: 1:13-cv-05004 Document #: 37 Filed: 10/21/14 Page 1 of 17 PageID #:503
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
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`Case No. 13 C 5004
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`JULIO REYNOSO, LUIZ GONZALEZ,
`and MANUEL GONZALEZ, on behalf of
`themselves and all other plaintiffs similarly
`situated, known and unknown,
`
`Plaintiffs,
`
`v.
`
`MOTEL LLC, an Illinois Limited Liability
`Company, d/b/a MOTEL BAR, and
`HERBERT GREENWALD, an individual,
`
`Defendants.
`
`MEMORANDUM OPINION AND ORDER
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`Julio Reynoso, Luis Gonzalez and Manuel Gonzalez have sued their employer Motel
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`LLC ("Motel") and its managing member, Herbert Greenwald ("Greenwald"), charging that
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`Motel and Greenwald violated the Fair Labor Standards Act ("FLSA," 29 U.S.C. §§ 201 et seq.1)
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`and the Illinois Minimum Wage Law ("Wage Law," 820 ILCS 105/1 to 105/15) by failing to pay
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`them overtime. Plaintiffs now move for summary judgment on all counts under Fed. R. Civ. P.
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`("Rule") 56. Defendants admit Motel's liability but argue that Greenwald is not individually
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`liable, that liquidated damages should not be assessed under the FLSA because defendants acted
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`reasonably and in good faith, that any violations of the FLSA were not willful or in bad faith and
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`that plaintiffs' damages calculation is incorrect.
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`______________________________
`1 All further references to the FLSA will take the form "Section --," using the Title 29
`numbering rather than the statute's internal numbering.
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`

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`Case: 1:13-cv-05004 Document #: 37 Filed: 10/21/14 Page 2 of 17 PageID #:504
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`For the reasons stated below, plaintiffs' motion is granted as to Greenwald's liability and
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`as to liquidated damages but denied as to defendants' purported willfulness. As for the
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`calculation of damages, this Court finds that defendants have not raised any issue of fact as to the
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`amount owed to Luis Gonzalez (apart from the willfulness question) or as to the amount owed to
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`Manuel Gonzalez, but they have put the amount due to Reynoso in dispute. Accordingly
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`plaintiffs' motion is granted in part and denied in part as to damages.
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`Factual Background
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`What follows is a summary of the undisputed (except where noted) facts.2 Motel
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`operates a bar and restaurant where Manuel and Luis Gonzalez work currently (P. St. ¶¶ 23, 33)
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`and where Reynoso worked until July 9, 2013 (P. St. ¶ 48). All three regularly worked many
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`more than 40 hours per week (P. St. ¶¶ 25, 28, 34, 49). Motel did not pay plaintiffs at the
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`statutorily mandated overtime rate of 1-1/2 times the regular rate of pay for plaintiffs' work in
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`excess of 40 hours per week3 until plaintiffs filed this lawsuit in June 2013 (P. St. ¶¶ 30, 45, 61).
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`Greenwald is the managing member of Motel LLC and had ultimate authority over
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`plaintiffs' work and wages throughout the relevant time period of June 30, 2010 through June 30,
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`2013 (Greenwald Dep. at 28:9-28:11, 32:19-36:17). Robert Van Bruggen ("Van Bruggen") was
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`Motel's financial manager and bookkeeper during that time, and he shared with Greenwald the
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`______________________________
`2 LR 56.1 requires parties to submit evidentiary statements and responses to such
`statements to highlight which facts are disputed and which facts are agreed upon. This opinion
`identifies plaintiffs' and defendants' respective submissions as "P." and "D." followed by
`appropriate designations: LR 56.1 statements as "St. ¶ --," responsive statements as "Resp. St.
`¶ --," and memoranda as "Mem.--," "Resp. Mem.--" and "Reply Mem.--."
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`3 Both the FLSA and the Wage Law mandate that overtime payment (Section 207(a)(1)
`and 820 ILCS 105/4a(1)).
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`- 2 -
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`

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`Case: 1:13-cv-05004 Document #: 37 Filed: 10/21/14 Page 3 of 17 PageID #:505
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`responsibility for paying Motel's employees (D. St. ¶ 13).4 Matt Sokol ("Sokol") was Motel's
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`general manager, with responsibility for overseeing non-kitchen staff and reporting all employee
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`work-hours to Van Bruggen (P. St. ¶ 9, D. St. ¶ 4). Reynoso was the kitchen manager, although
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`the parties dispute the extent to which his duties were really managerial (P. Resp. St. ¶ 5). Luis
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`and Manuel Gonzalez were kitchen workers (P. St. ¶ 10).
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`Greenwald and Sokol attested, and plaintiffs dispute, that Van Bruggen was solely
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`responsible for the decisions (1) not to pay plaintiffs overtime and (2) to pay them partially in
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`cash so as to avoid reporting their hours accurately to public authorities (D. St. Ex. A ¶¶ 12-13,
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`Ex. B ¶¶ 14-16). Defendants assert that Van Bruggen's actions on that score were just one part
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`of a scheme, born out of personal hatred for Greenwald, under which Van Bruggen intentionally
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`mishandled Motel's finances -- either to drive down Motel's value so that he could purchase it or
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`to revenge himself on Greenwald for obscure reasons (D. Resp. Mem. 8-9). Plaintiffs point to
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`sworn statements of their own that Greenwald, not Van Bruggen, instituted the part check, part
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`cash payment system (P. Resp. St. Ex. C ¶ 12, Van Bruggen Dep. at 18:15-19:6).
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`As for Reynoso, he was also responsible for cleaning in addition to his work cooking and
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`managing the kitchen (P. St. ¶ 49). He did that every day (all seven mornings each week) and
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`was paid a flat weekly fee of $250 in cash for cleaning, a payment that was over and above his
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`hourly pay for kitchen work (P. St. ¶ 60). It is unclear how much time Reynoso spent in cleaning
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`each week: He attested that he spent about 14 hours a week on that work (P. St. Ex. C ¶ 7),
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`______________________________
`4 Defendants' attempts to relieve Greenwald of liability on the theory that he delegated
`his authority over employee wages to Van Bruggen (e.g., D. Resp. St. ¶¶ 7-8) are unavailing, as
`will be seen.
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`- 3 -
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`

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`Case: 1:13-cv-05004 Document #: 37 Filed: 10/21/14 Page 4 of 17 PageID #:506
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`while a fair reading of defendants' confused submissions is that that Motel's hodgepodge of wage
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`records reflects the true amount of time that Reynoso spent in cleaning.5
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`Legal Standard
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`Every Rule 56 movant bears the burden of establishing the absence of any genuine issue
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`of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose courts
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`consider the evidentiary record in the light most favorable to nonmovants (here the defendants)
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`and draw all reasonable inferences in their favor (Lesch v. Crown Cork & Seal Co., 282 F.3d
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`467, 471 (7th Cir. 2002)). Courts "may not make credibility determinations, weigh the evidence,
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`or decide which inferences to draw from the facts" in resolving motions for summary judgment
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`(Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003)). But a nonmovant must produce more than
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`"a mere scintilla of evidence" to support the position that a genuine issue of material fact exists,
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`and "must come forward with specific facts demonstrating that there is a genuine issue for trial"
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`(Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008)). Ultimately summary judgment is
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`warranted only if a reasonable jury could not return a verdict for the nonmovant (Anderson v.
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`Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
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`______________________________
`5 In response to plaintiffs' statement that Reynoso worked about 14.5 hours per week in
`cleaning, defendants aver that they "do not have information sufficient to either admit or deny"
`the statement (D. Resp. St. ¶ 58) -- a bastardized version of Rule 8(b)(5)'s pleading disclaimer
`that would be rejected as a Rule 56 submission even if it were framed properly. Defendants have
`also agreed to plaintiffs' statement that Reynoso "averaged" 14 hours per week in his cleaning
`work (D. Resp. St. ¶ 49). This Court might essay to treat those responses as totally sinking
`defendants' effort to dispute Reynoso's estimate of the hours that he spent in cleaning (Rule
`56(e)(3)). But defendants are saved by a footnote in their memorandum (D. Resp. Mem. 15 n.9)
`that refers to a separate attestation from Greenwald that Reynoso clocked in when he cleaned, so
`that Motel's time logs accurately record the hours Reynoso actually spent cleaning before his
`kitchen shift started at 9:30 a.m. (Greenwald Dep. at 40:22-41:6).
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`- 4 -
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`

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`Case: 1:13-cv-05004 Document #: 37 Filed: 10/21/14 Page 5 of 17 PageID #:507
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`Is Greenwald an Employer?
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`Plaintiffs and defendants first lock horns over Greenwald's status: Does he qualify as an
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`"employer" under the FLSA -- so that he can be held personally liable to plaintiffs -- or not?6
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`Certainly the FLSA's definition of "employer" is capacious: "any person acting directly or
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`indirectly in the interest of an employer in relation to an employee" (Section 203(d)). That is an
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`invitation for courts to consider the full spectrum of "economic realities" in determining whether
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`a particular individual is an employer within the FLSA meaning (see Reyes v. Remington Hybrid
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`Seed Co., 495 F.3d 403, 407-09 (7th Cir. 2007) for a thorough exploration of the so-called
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`economic realities "test"). And the statute includes "an individual" in its definition of "person"
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`(Section 203(a)).
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`Hence there is no question that an individual such as Greenwald can be liable for FLSA
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`violations. Joint liability, in which more than one employer is liable for the same underpayment
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`of wages, is also contemplated by the FLSA (see generally Section 791.2). Thus, as Donovan v.
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`Agnew, 712 F.2d 1509, 1511 (1st Cir. 1983) (citing numerous cases) said some 30 years ago:
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`The overwhelming weight of authority is that a corporate officer with operational
`control of a corporation's covered enterprise is an employer along with the
`corporation, jointly and severally liable under the FLSA for unpaid wages.
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`______________________________
`6 As for the Wage Law, it uses essentially the same definition of "employer" as the
`FLSA (see 820 ILCS 105/3(c)). Because the Illinois Supreme Court appears never to have
`addressed the meaning of "employer" head-on, this opinion's analysis of the term within the
`meaning of the FLSA will hold for the Wage Law too. As Lewis v. Giordano's Enters., Inc., 397
`Ill. App. 3d 581, 588, 921 N.E.2d 740, 746 (1st Dist. 2009) teaches in that respect:
`
`Therefore federal cases interpreting the FLSA, while not binding on this court, are
`persuasive authority and can provide guidance in interpreting issues under the
`Wage Law.
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`- 5 -
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`Case: 1:13-cv-05004 Document #: 37 Filed: 10/21/14 Page 6 of 17 PageID #:508
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`Given the plain meaning of the statutory texts and the economic realities at Motel, it is
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`beyond dispute that Greenwald was plaintiffs' employer at all relevant times for the purposes of
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`both statutes. By his own account he was either the "owner" or the managing member of Motel
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`LLC at all times relevant to this litigation (Greenwald Dep. at 28:9-28:16).7 He had final
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`authority over the terms and conditions of plaintiffs' employment, including the amount and form
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`of their wages (id. at 32:19-33:14, 36:13-36:17). He regularly worked at Motel, where he
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`oversaw all day-to-day operations (id. at 30:2-30:15). He hired and supervised Van Bruggen,
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`who was in charge of payroll and made out the paychecks to plaintiffs (id. at 36:1-36:6). In sum,
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`there was no one with more authority over the terms and conditions of employment -- anyone's
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`employment -- at Motel. Greenwald was the boss.
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`Greenwald argues to the contrary that he effectively delegated all of his control over
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`plaintiffs to others and that he was "not an owner, shareholder, member, officer, or director of
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`Motel" (D. Resp. Mem. 4). Greenwald submitted an affidavit in support of those assertions
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`(D. St. Ex. A (Greenwald Decl.) at ¶ 4). But as plaintiffs correctly point out, that affidavit is
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`directly contradicted by Greenwald's prior deposition testimony that he was the managing
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`member of Motel LLC, possessed ultimate authority over all employment matters and personally
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`supervised the work at Motel six days each week (see Greenwald Dep. at 28:9-28:11,
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`32:19-36:17). As Bank of Ill. v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1168-69 (7th
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`Cir. 1996), quoted with approval in Ineichen v. Ameritech, 410 F.3d 956, 963 (7th Cir. 2005),
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`has put the well-known principle:
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`______________________________
`7 Although Greenwald transferred his ownership interest in the LLC to his father, that
`did not put an end to his status as managing member (P. Resp. St. Ex. A).
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`- 6 -
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`Case: 1:13-cv-05004 Document #: 37 Filed: 10/21/14 Page 7 of 17 PageID #:509
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`We have long followed the rule that parties cannot thwart the purposes of Rule 56
`by creating "sham" issues of fact with affidavits that contradict their prior
`depositions.
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`That rule clearly applies here, where Greenwald points to nothing outside of his declaration that
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`could create a genuine dispute of fact as to his role at Motel. In sum, Greenwald was plaintiffs'
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`employer within the meaning of the FLSA and Wage Law for the relevant time period of this
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`lawsuit.8
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`Reynoso as a Covered Employee
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`Employees are generally covered by the FLSA unless they fit one of a handful of
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`statutory exemptions. Defendants argue that Reynoso is not covered by the FLSA, and so he is
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`not owed any overtime at all, because he fits the "executive" exemption found at Section
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`213(a)(1). That exemption comprises several elements, but as it happens only one is important
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`here: the form and amount of payment, which is set out in an implementing regulation
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`promulgated by the Secretary of Labor. That regulation reads in relevant part (29 C.F.R.
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`§541.600(a)):
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`To qualify as an exempt executive, administrative or professional employee under
`section 13(a)(1) of the Act, an employee must be compensated on a salary basis at
`a rate of not less than $455 per week . . . exclusive of board, lodging or other
`facilities.
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`As for the meaning of "salary basis," another regulation lays it out, again in relevant part (29
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`C.F.R. §541.602(a)):
`______________________________
`8 For the sake of completeness, this opinion notes that defendants also attack plaintiffs'
`Amended Complaint for containing what defendants call a conclusory allegation of Greenwald's
`status as employer (D. Resp. Mem. 3). Aside from its frivolousness in light of the earlier
`analysis, that argument is inappropriate in the context of a Rule 56 motion. Attacks on pleadings
`cannot, in the words of the Advisory Committee, "stand in the way of granting an otherwise
`justified summary judgment" (Rule 56 Advisory Comm. note (1963 Amendment)). Greenwald
`should have raised that argument, if at all, much earlier in this litigation under Rule 12.
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`- 7 -
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`

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`Case: 1:13-cv-05004 Document #: 37 Filed: 10/21/14 Page 8 of 17 PageID #:510
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`[A]n exempt employee must receive the full salary for any week in which the
`employee performs any work without regard to the number of days or hours
`worked.
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`To be exempt, then, Reynoso must have received at least $455 each week without regard to the
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`number of hours he worked.
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`As plaintiffs correctly point out, Reynoso obviously does not meet that criterion.
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`Although he was paid $250 per week in salary for his cleaning work, and although his hourly
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`earnings exceeded $455 per week, he was never paid the minimum $455 per week in salary as
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`required by the regulations. Defendants walked carefully through all the other requirements of
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`the executive exemption, showing how they assertedly applied to Reynoso, but conspicuously
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`failed to mention anything that might support a factual finding that Reynoso earned at least $455
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`per week in salary. That is because no such evidence exists. Reynoso is covered by the overtime
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`provisions of the FLSA.9
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`Defendants' Liability for Liquidated Damages under the FLSA
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`Plaintiffs demand liquidated damages, which the FLSA provides for in Section 216(b).
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`Liquidated (i.e. double) damages are an ordinary rather than extraordinary remedy under the
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`FLSA (see, e.g., Uphoff v. Elegant Bath, Ltd., 176 F.3d 399, 405 (7th Cir. 1999). They are not
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`meant to punish the employer, but rather to make employees whole for wages not paid on time
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`(29 C.F.R. §790.22 n.137).
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`Section 260 affords employers a defense to the imposition of double damages in limited
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`circumstances. Defendants argue that defense applies. Here is the relevant text of Section 260:
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`______________________________
`9 And he is also covered under the Wage Law, which expressly adopts the United States
`Secretary of Labor's regulations governing exemptions (820 ILCS 105/4a(2)(E)).
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`- 8 -
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`

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`Case: 1:13-cv-05004 Document #: 37 Filed: 10/21/14 Page 9 of 17 PageID #:511
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`[I]f the employer shows to the satisfaction of the court that the act or omission
`giving rise to such action was in good faith and that he had reasonable grounds for
`believing that his act or omission was not a violation of the Fair Labor Standards
`Act . . . the court may, in its sound discretion, award no liquidated damages.
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`Thus Section 260 requires a showing of both good faith and reasonable belief (Uphoff, 176 F.3d
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`at 405), and the employer has the burden of demonstrating both (id.).
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`Defendants suggest that they come under the protection of Section 260 because they
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`acted reasonably and in good faith by entrusting Van Bruggen with the task of paying plaintiffs.
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`They say Van Bruggen and Van Bruggen alone chose not to pay plaintiffs overtime.
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`Unfortunately for defendants, Shea v. Galaxie Lumber & Const. Co., 152 F.3d 729, 733 (7th Cir.
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`1998), quoting LeCompte v. Chrysler Credit Corp., 780 F.2d 1260, 1263 (5th Cir. 1986) , has
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`explicitly foreclosed that type of defense:
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`[A]n employer cannot satisfy its dual burden under § 260 solely by suggesting
`that lower-level employees are responsible for the violations.
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`Here, although Van Bruggen was a manager according to defendants, he was a
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`"lower-level employee" as compared to both Motel and Greenwald.10 They had responsibility
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`for overseeing Van Bruggen and ultimate authority for ensuring that their employees were paid
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`in accordance with the law. Defendants never did so, however. Greenwald stated he never
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`______________________________
`10 Our Court of Appeals appears not to have squarely addressed the situation before this
`Court, in which employers try to escape liquidated damages by blaming a manager entrusted
`with broad discretion (Shea involved an office secretary). But every other Court of Appeals to
`address the issue, in the context of either Section 260 or a purported third-party indemnification
`claim, has found that it would violate the policies of the FLSA to permit employers to shift the
`blame even to individuals with significant authority in the employer's corporate structure (see
`Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 144 (2d Cir. 1999), collecting cases in the
`indemnification context). Indeed, the very case from which Shea quoted its rule (LeCompte, 780
`F.2d at 1262) involved a corporate defendant trying to shift responsibility, in the Section 260
`context, onto supervisory employees. This Court finds those cases persuasive, and it therefore
`applies the rule in Shea to defendants' attempt to escape liquidated damages.
`
`- 9 -
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`

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`Case: 1:13-cv-05004 Document #: 37 Filed: 10/21/14 Page 10 of 17 PageID #:512
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`checked employee pay from the day he hired Van Bruggen as financial manager until the day he
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`was served with plaintiffs' complaint -- a period of about five years (Greenwald Dep. at
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`25:1-26:4, 35:22-37:18). Defendants simply cannot satisfy their burden under Section 260 by
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`pointing the finger at Van Bruggen, and both defendants are liable to plaintiffs for liquidated
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`damages.
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`Were Defendants' Violations Willful?
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`Plaintiffs urge this Court to find that defendants acted willfully as a matter of law, and
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`defendants urge it not to. Employers who willfully violate the FLSA stretch their period of
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`liability back an extra year (they increase the typical two-year limitations period to three -- see
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`Section 255(a)). Because Reynoso and Luis Gonzalez are the only plaintiffs who were working
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`for defendants more than two years before filing this suit, the question is relevant only as to the
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`determination of damages owed them (P. St. ¶¶ 23, 33, 48). It is also worth noting that the
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`Wage Law, although it does not provide for double damages, does have a three year statute of
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`limitations (820 ILCS 105/12(a)) -- so the issue of willfulness here questions only whether
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`defendants will be liable for the FLSA's double damages for work performed between June 30,
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`2010 and June 30, 2011, or for the Wage Law's single damages for that period.
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`Section 255(a)'s meaning of "willful" has a well-settled interpretation thanks to
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`McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988) (some internal punctuation
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`omitted):
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`[T]hat the employer either knew or showed reckless disregard for the matter of
`whether its conduct was prohibited by the statute is surely a fair reading of the
`plain language of the Act.
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`- 10 -
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`

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`Case: 1:13-cv-05004 Document #: 37 Filed: 10/21/14 Page 11 of 17 PageID #:513
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`Unlike Section 260, Section 255(a) imposes on the plaintiff the burden of showing willfulness,
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`and a jury typically determines whether an employer acted willfully (see Bankston v. State of Ill.,
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`60 F.3d 1249, 1253 (7th Cir. 1995)).
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`Plaintiffs have not presented sufficient evidence for this Court to find defendants acted
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`willfully as a matter of law. But it is surely a close question, because even assuming a jury
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`credited defendants' side of the story, Greenwald's admitted failure (lasting fully five years) ever
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`to check whether his employees were being paid in accordance with the FLSA appears awfully
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`close to recklessness as a matter of law. Still, defendants have produced evidence that they did
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`not know "whether [their] conduct was prohibited by the statute" in that, at the time plaintiffs
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`were being underpaid, defendants did not know what that "conduct" (carried out by Van Bruggen
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`but also ascribed to them under the FLSA) even was. Thus there is a genuine dispute as to
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`exactly how culpable defendants' ignorance of Van Bruggen's actions was. Accordingly
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`plaintiffs' motion for summary judgment is denied as to whether defendants acted willfully, an
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`issue that must be resolved by a factfinder.
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`2% Monthly Interest under the Wage Law
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`There is also a hefty added cost under the Wage Law: Wages left unpaid under it are
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`subject to a 2% monthly interest charge (820 ILCS 105/12(a)). Defendants use their Response to
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`Plaintiffs' Statement of Facts to suggest that the charge should not be assessed against them.11
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`Because they did not act in bad faith, as defendants would have it, they should not be subject to
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`"exemplary" damages under the Wage Law (e.g., D. Resp. St. ¶ 63). But the statutory language
`______________________________
`11 Using a response to a statement of facts to make legal arguments contravenes the
`purpose of Local Rule 56.1; which is to identify facts that are actually in dispute (see Bordelon v.
`Chicago Sch. Reform Bd. of Trustees, 233 F.3d 524, 528 (7th Cir. 2000)). This opinion
`addresses the issue for the sake of completeness.
`
`- 11 -
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`

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`Case: 1:13-cv-05004 Document #: 37 Filed: 10/21/14 Page 12 of 17 PageID #:514
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`denominating the 2% monthly charge as punitive damages was deleted in 2006 (contrast the
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`West 2002 version of 820 ILCS 105/12(a) with the West 2006 version). Although no Illinois
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`court appears to have addressed the question whether bad faith (or any other traditional
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`prerequisite for such a charge) is still required for the 2% monthly interest charge to be applied,
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`the plain sense of the statutory revision is that the charge is now automatic. It is axiomatic that
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`when a legislature amends a statute, those amendments are presumed to be significant and not
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`due to some "oversight or inadvertence on the part of the legislature" (McLaughlin v. People,
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`403 Ill. 493, 501, 87 N.E. 2d 637, 641 (1949)). Thus plaintiffs are entitled to add the 2%
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`monthly statutory interest to the damages (that is, single damages) contemplated by the Wage
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`Law.
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`Calculating Damages
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`All that is left is the calculation of damages. Although a final calculation of damages
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`owed to Reynoso and Luis Gonzalez will obviously require the resolution by a factfinder of the
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`question of willfulness, there are other areas where there is no genuine dispute of material fact so
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`that summary judgment for plaintiffs in those respects is called for.
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`Defendants' Proposed Damages Total
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`First off, plaintiffs and defendants submitted spreadsheets supporting competing totals of
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`unpaid overtime wages currently owing. Plaintiffs laid out their method of calculating damages
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`(P. St. ¶¶ 23-63, P. St. Ex. I), while defendants admitted that plaintiffs' method of calculation was
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`proper as to Luis and Manuel Gonzalez (D. Resp. St. ¶¶ 23-4712) but disputed plaintiffs'
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`______________________________
`12 Defendants unhelpfully respond to Plaintiffs' Statement ¶¶ 32 and 47 by simply
`asserting that defendants acted in good faith. That is nonresponsive to plaintiffs' statements, and
`in any case defendants violate LR 56.1(b)(3)(B) by failing to cite specific facts in the record to
`(continued)
`
`- 12 -
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`

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`Case: 1:13-cv-05004 Document #: 37 Filed: 10/21/14 Page 13 of 17 PageID #:515
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`calculation as to Reynoso (D. Resp. St. ¶¶ 48-63). Meanwhile, defendants' own proposed
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`calculation of damages is without any evidentiary foundation aside from a declaration by Sokol
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`that he assembled a spreadsheet based upon unidentified "books and records"13 and he is
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`available to testify (Def. St. Ex. B ¶¶ 18-20).
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`Defendants are playing coy, and parties cannot play coy at the summary judgment stage.
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`As the rather bracing language in Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008)
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`(internal punctuation omitted) has put it:
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`[S]ummary judgment is the put up or shut up moment in a lawsuit, when a party
`must show what evidence it has that would convince a trier of fact to accept its
`version of the events.
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`Here defendants have totally failed to come forward with evidence undergirding their proposed
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`damages amounts.
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`More shocking, an examination of the spreadsheet submitted by defendants (D. St. Ex. G)
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`reveals that they arrived at their lower damages calculation by actually omitting certain pay
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`periods, apparently at random.14 Defendants' aim appears to be, not to arrive at an accurate
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`valuation of unpaid overtime, but simply to arrive at a lower valuation.
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`______________________________
`(footnote continued)
`support that (or any other) assertion. This Court therefore exercises its discretion to treat
`defendants' nonresponses at D. Resp. St. ¶¶ 32 and 47 as admissions that plaintiffs properly
`calculated interest as provided for in the Wage Law, based upon the unpaid overtime totals that
`plaintiffs otherwise set forth.
`
`13 In light of defendants' failure to say otherwise, it must be assumed that such records
`are the same records plaintiffs used, given that defendants agreed with plaintiffs' reliance on
`certain wage records in establishing how many hours Luis and Manuel Gonzalez worked (see
`Def. Resp. St. ¶¶ 23-47).
`
`14 For example, they omit overtime hours worked for the pay period ended December 30,
`2012 in their calculation of all three plaintiffs' tallies of back wages and do not count any
`(continued)
`
`- 13 -
`
`

`
`Case: 1:13-cv-05004 Document #: 37 Filed: 10/21/14 Page 14 of 17 PageID #:516
`
`In effect, defendants' spreadsheet and proposed damages totals are nothing better than an
`
`attempted bargaining position. That is not enough for Rule 56, and especially not for Rule
`
`56(c)(4), which requires that affidavits such as Sokol's be made on personal knowledge and be
`
`capable of admission into evidence. Bargaining positions do not meet those requirements.
`
`Therefore defendants' spreadsheet and the proposed damages totals derived from it therefore fail
`
`to raise any issue of fact and will be ignored.
`
`Damages for Individual Plaintiffs
`
`With defendants' proposed damages totals thus out of the way entirely, this opinion now
`
`examines whether there is anything to preclude the grant of summary judgment to the individual
`
`plaintiffs as to the amount of damages. On that score it will be seen that defendants have raised
`
`sufficient evidence to create a factual dispute as to the proper calculation of unpaid overtime due
`
`Reynoso. As for Luis Gonzalez, this opinion's earlier determination that there is a dispute of fact
`
`as to willfulness means that the total amount of damages due him cannot be determined on
`
`summary judgment, although there is no dispute of material fact as to all other aspects of the
`
`damages due him. Lastly, as to Manuel Gonzalez, defendants have raised no dispute of material
`
`fact relevant to the determination of damages due him, and he is entitled to summary judgment.
`
`To return to Reynoso's situation, defendants effectively contest the amount of overtime
`
`due him in two ways. First they say that Reynoso often clocked in to do his morning cleaning
`
`work, so that Motel's few surviving time logs already include the hours Reynoso spent in
`
`cleaning (Greenwald Dep. at 40:22-41:6). Although Reynoso made a sworn declaration that he
`
`______________________________
`(footnote continued)
`overtime hours worked by Luis Gonzalez before June 30, 2012. Nor does the Sokol declaration
`even attempt to explain those aberrations.
`
`- 14 -
`
`

`
`Case: 1:13-cv-05004 Document #: 37 Filed: 10/21/14 Page 15 of 17 PageID #:517
`
`did not clock in while doing cleaning work (P. Resp. St. Ex. C ¶ 12), the time logs from Motel
`
`that show clock-in and clock-out times often reflect a Reynoso clock-in about two hours before
`
`what Greenwald said was his scheduled start time of 9:30 a.m. (P. St. Ex. H). That is enough to
`
`support an inference that Reynoso was clocking in early to clean. Second, defendants also aver
`
`that Reynoso often had someone else do his cleaning work for him -- Greenwald stated in his
`
`deposition that he personally saw someone cleaning for Reynoso "plenty of times" (Greenwald
`
`Dep. at 42:15-42:20). Obviously Reynoso would not be entitled to overtime for work that he did
`
`not perform personally. So there is also a dispute as to how often, if at all, Reynoso assigned his
`
`cleaning work to others. With two live disputes about the number of hours Reynoso actually
`
`worked, it is clearly impossible to enter summary judgment for him as to a specific amount of
`
`damages.
`
`So much for Reynoso's damages claim, but the story is different for Luis and Manuel
`
`Gonzalez. As to both of them plaintiffs present a thorough description of the evidence
`
`underpinning their calculations of unpaid overtime (P. St. Ex. I ¶¶ 4-6, 10-13) and of the method
`
`of calculating the Wage Law's interest charge (P. St. Ex. I ¶¶ 23-24). As already stated,
`
`defendants disputed none of that evidence and explicitly agreed with plaintiffs as to the method
`
`of calculating damages -- and once one admits both the underlying numbers and the method of
`
`calculation, precise damages become a matter of simple (albeit ineluctable) arithmetic.15
`
`______________________________
`15 This Court's own review of the submissions of both parties also failed to turn up
`anything that could cast doubt on plaintiffs' calculations.
`
`- 15 -
`
`

`
`Case: 1:13-cv-05004 Document #: 37 Filed: 10/21/14 Page 16 of 17 PageID #:518
`
`Accordingly, as set forth by plaintiffs, this Court enters summary judgment for Manuel
`
`Gonzalez in the amount of $12,248.55.16 As for Luis Gonzalez, there is no dispute that he is
`
`entitled to $23,266.78 in unpaid overtime and to $12,649.42 in interest under the Wage Law
`
`(P. St. Ex. I ¶¶ 14-15). Though he is also entitled to liquidated damages, it is unclear exactly
`
`how much -- that depends, it will be recalled, on a factfinder's determination as to willfulness. If
`
`no willfulness is found, Luis Gonzalez will be entitled to liquidated damages only for work
`
`performed from June 30, 2011 to the date of filing two years later (still a substantial sum). But if
`
`one or both defendants did act willfully, he will be entitled to recover fully $23,266.78 as
`
`additional liquidated damages.
`
`Conclusion
`
`For the foregoing reasons, plaintiffs' motion for summary judgment is granted as to
`
`(1) Greenwald's personal liability, (2) both defendants' liability for liquidated damages, (3) both
`
`defendants' liability for the Wage Law's 2% monthly interest, and (4) Reynoso's coverage under
`
`the FLSA and Wage Law. Plaintiffs' motion is denied as

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