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LOMAS v. KOLB-LENA CHEESE CO.

September 12, 1989

HAROLD E. LOMAS, Plaintiff,
v.
KOLB-LENA CHEESE COMPANY, A Subsidiary Of KATY INDUSTRIES, INC., Defendant



The opinion of the court was delivered by: ROSZKOWSKI

 BACKGROUND

 STANLEY J. ROSZKOWSKI, UNITED STATES DISTRICT JUDGE.

 Plaintiff filed suit in the United States District Court for the Northern District of Illinois on November 16, 1984, alleging an overtime wage claim pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. and the Illinois Minimum Wage Law, Ill. Rev. Stat., ch. 48, para. 1001 et seq. Jurisdiction of this court is based upon 28 U.S.C. § 1331. On June 23, 1983, this court entered summary judgment in Plaintiff's favor on the question of liability for underpayment of overtime wages. Damages were subsequently awarded by court order on August 10, 1988 for the time period beginning November 16, 1981 and ending November 16, 1984. This court also awarded Plaintiff attorney's fees and costs pursuant to 29 U.S.C. § 216(b) and Ill. Rev. Stat. ch. 48, para. 1012(a). The case is now before the court on Defendant's post-trial motion to amend the judgment or, in the alternative, for a new trial in relation to the damages, attorney's fees and cost awards.

 DECISION

 Defendant first contends that this court erred in its damages determination by awarding Plaintiff $ 11,231.48 as the amount of underpayment of overtime wages and $ 6,750.00 as the amount of unrecorded, and therefore unpaid, Sunday work. This court had an admittedly difficult time in determining the exact amount of damages due Plaintiff. In fact, the court could not decipher the time cards submitted by Defendant. Accordingly, the court ordered Defendant to interpret the time cards stating the number of hours Plaintiff worked each week, the pay Plaintiff received, the actual amount owed Plaintiff for overtime at one-and-one-half times his regular hourly rate, the difference between the amount paid and the actual amount due, and the amount of time Management deducted each week for Plaintiff's break time.

 Defendant submitted to this court a summary chart purportedly interpreting Plaintiff's time cards as well as a supporting affidavit by Sue Lancaster, the account supervisor at Kolb-Lena Cheese Company. From this chart, as well as from Plaintiff's figures, the court concluded that the amount Plaintiff was underpaid for the relevant time period equalled $ 17,981.48. The court awarded Plaintiff damages in that amount.

 The court continues to be troubled by the lack of adequate documentation regarding Plaintiff's work hours. The problems center around Plaintiff's break times and Plaintiff's Sunday work hours. In its August, 1988 order, the court found that Plaintiff was required to punch out on the time clock for noon breaks. Plaintiff failed to do this. Accordingly, Defendant deducted one hour from Plaintiff's time cards when it "was able to verify that Plaintiff had, in fact, taken a lunch break." Defendant's summary chart shows varying hours deducted from Plaintiff's time cards; hours that are apparently unverifiable by this court or anyone else. The hours deducted thus appear to be arbitrary.

 Secondly, as stated in this court's August 10, 1988 order, Plaintiff's time cards reflect that he worked most Sundays. The court believes that not all of the Sundays Plaintiff worked are reflected on his time cards, however. This court's December 30, 1988 order states:

 
No record was made of the exact number of hours Plaintiff worked on any particular Sunday or of how many Sundays Plaintiff worked in any particular year. The court does, however, believe Plaintiff's testimony that he did, in fact, work some Sundays for which he was not paid.

 This court has stated before and will once again reiterate that any damage award rendered in this case will, of necessity, be estimated. This court has already spent an inordinate amount of time trying to interpret Plaintiff's time cards; an area in which the court lacks expertise and an area that should have been organized and coherently presented to the court by the parties. The court has examined Plaintiff's time cards, to the best of its ability, and has examined Defendant's summary chart as well as Plaintiff's expert's calculations. The court believes that the $ 11,231.48 figure representing the amount Plaintiff was underpaid in weekly wages and the $ 6,750.00 figure representing Plaintiff's unrecorded and unpaid Sunday work are reasonable damage figures. Resubmission of the same material does not give the court any reason to modify its previous decision. Accordingly, the court affirms its previous damages award.

 The Fair Labor Standards Act of 1938, 29 U.S.C. § 216(b), provides that courts shall award reasonable attorney's fees to prevailing plaintiffs. The policy behind requiring defendants in such cases to pay plaintiffs' reasonable attorney's fees is to ensure that plaintiffs retain the full recovery which they are due. Kirchoff v. Flynn, 786 F.2d 320, 323 (7th Cir. 1986). Plaintiffs usually cannot monitor the amount of hours and the quality of hours their attorneys have spent in their particular cases. An incentive is thus created for attorneys to "run up hours" when working on cases where defendants may be required to pay the prevailing party's attorney's fees. See, e.g., Kirchoff v. Flynn, 786 F.2d 320, 324 (7th Cir. 1986). The court is, therefore, left with the duty of monitoring the amount and quality of time an attorney puts into a case reflected by the resulting fee petition. The only guideline a court has is that the fees must be "reasonable." This is indeed a vague guideline.

 In Freeman v. Franzen, 695 F.2d 485, 494 (1982), cert. denied, 463 U.S. 1214, 77 L. Ed. 2d 1400, 103 S. Ct. 3553 (1983), the Seventh Circuit held that a district court has discretion in setting the amount of attorney's fees awarded. In so doing, a judge must use his experience in deciding whether the requested number of hours were reasonably expended. See, e.g., Chrapliwy v. Uniroyal, Inc., 670 F.2d 760, 765 (7th Cir. 1982), cert. denied, 461 U.S. 956, 77 L. Ed. 2d 1315, 103 S. Ct. 2428 (1983). Fee applicants bear the burden of proving to the satisfaction of the court the appropriate number of hours expended at reasonable hourly rates. In so doing, an applicant is expected to exercise "billing judgment." This means that no excessive, redundant or unnecessary hours should be included in the fee petition. Tomazzoli v. Sheedy, 804 F.2d 93, 96 (7th Cir. 1986). ...


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