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December 7, 1990


The opinion of the court was delivered by: SHADUR

 All eight plaintiffs in this action are former employees of Monroe Street City Club, Inc. ("Monroe") who have sued Monroe alleging the following violations of the Fair Labor Standards Act ("FLSA"): *fn1"

1. Monroe refused to pay Manuel Cuevas ("Cuevas") overtime wages in violation of Sections 207 and 215(a)(2) and discharged him in retaliation for asserting his right to overtime wages in violation of Section 215(a)(3).
2. Monroe discharged Michael Robinson ("Robinson") and Prince Lewis, Jr. ("Lewis") in retaliation for asserting their right to minimum wage compensation for time worked "off the clock," also in violation of Section 215(a)(3). *fn2"
3. Monroe willfully refused to pay minimum wages to Lewis, Robinson, Dirk Culpepper ("Culpepper"), Anthony Calhoun ("Calhoun"), Thomas Feeney ("Feeney"), Bethany Ertel ("Ertel") and Alfred Hurd ("Hurd") (collectively "Minimum Wage Plaintiffs") in violation of Sections 206 and 215(a)(2).

 Monroe now moves under Fed. R. Civ. P. ("Rule") 56 for summary judgment on all claims. *fn3" For the reasons stated in this memorandum opinion and order, Monroe's motion is granted in principal part, but it is denied solely as to Ertel's minimum -- and minimal -- wage claim (which is resolved in the course of this opinion).


 Monroe is a private dining club located at 111 West Monroe Street, Chicago, Illinois and is a wholly-owned subsidiary of Club Corporation of America, Inc. a/k/a CCA International, Inc. ("CCA"). What follows is a statement of the relevant facts as to each plaintiff's employment with Monroe.

 Manuel Cuevas

 Cuevas was continuously employed by Monroe from November 17, 1978 until August 11, 1988. From that earliest date until June 1988, *fn5" Cuevas worked as a sous chef in Monroe's kitchen. Then from June until the date of his departure, Cuevas worked as a buffet chef in Monroe's dining room.

 Pursuant to an agreement with the Wage and Hour Division ("W&H Division") of the United States Department of Labor ("DOL"), CCA conducted an internal audit of Monroe's wage and hour practices in 1988. On March 21 Cuevas met with auditor Dennis Norman ("Norman"), an independent certified public accountant serving as a paid representative of CCA. Norman determined that Cuevas was non-exempt from overtime wages and was due $ 818 in back wages for overtime worked for a period of two years before the date of the audit. *fn6"

 When in June Cuevas was transferred from his position as sous chef in the kitchen to buffet chef in the dining room, the change of position did not involve a reduction in pay. In fact Cuevas received a raise from $ 10.40 per hour to $ 10.80 per hour on March 31, and he continued to receive that hourly wage until his last day of work on August 11.

 On August 1 Haire went on maternity leave and was replaced by interim manager Graylin "Sam" Mears ("Mears"). On August 10 Mears gave Cuevas a job description for buffet chef that was signed by both Cuevas and the executive chef. On August 11 Mears gave Cuevas a written warning that his personal appearance was not satisfactory because he had failed to shave. Although Cuevas explains he cannot shave every day because of a skin problem, he did not mention that to Mears at the time.

 On August 10 or 11 Mears and Cuevas had a conversation that resulted in Cuevas' termination -- either Mears fired Cuevas or Cuevas resigned. *fn7" Upon his separation Cuevas received his accrued vacation pay, sick pay, Christmas bonus and profit sharing. At that time he was also given a check for $ 818 for the back overtime wages that Norman had concluded were due. Upon receipt of that check Cuevas signed a "receipt for payment of back wages."

 Michael Robinson

 Robinson worked at Monroe as a waiter from September 29, 1986 to about February 10, 1988. At a staff meeting on October 31, 1987 Robinson complained about the fact that he was not getting paid for certain things he was doing, such as training other waiters (which he says was not part of his job) and making bread baskets and shining silver, which he did off the clock. Robinson says that was not the first time he complained about those things. Robinson also says his complaints were ignored.

 In the fall of 1987 Robinson's schedule was cut from working three breakfast shifts per week to two, then to one, and eventually his breakfast shifts were cut out altogether. Robinson does not know if that was due to his complaints -- he admits he was orally reprimanded three or four times for being tardy. On that score, Brandy Pratt ("Pratt") was the maitresse d' at Monroe and began scheduling Robinson for several breakfast shifts per week in July 1987. Pratt says that Robinson was repeatedly late for the shifts in August and September 1987 and failed to appear several times. Pratt orally warned Robinson on September 3, 1987 that if he was late or failed to appear again, he would no longer be scheduled for breakfast shifts. She followed through on that warning the next time he was late.

 In addition Robinson says (Dep. 44) that Emerson Frith ("Frith"), supervisor and captain of the waiters, "was hard on me" and "on quite a few of the people that worked there." Robinson pointed specifically to the fact that Frith repeatedly told him that he had to wear a particular T-shirt. About February 9 or 10, 1988 Robinson recalls a conversation (Robinson Dep. 73) in which Frith said, "So you going home?" and Robinson responded, "Well, yes, I am, I guess so, because I guess you're asking me to leave anyway." Then Frith asked Robinson to sign what he assumed -- but did not know for certain -- were termination papers, and Robinson refused. Then at some point Frith said "Well, we got to let you go" (id. 75), and Robinson left Monroe's employ that day.

 Prince Lewis, Jr.

 Lewis was employed by Monroe in September 1988. On one occasion in October 1988 Lewis told Pratt that he should be paid for work done before punching in at 10:45 a.m. That was the only time Lewis voiced that complaint. In February 1989 Pratt warned Lewis orally about violating a Monroe policy against eating while totalling checks. Lewis says Pratt also asked him to move more quickly, told him she would write him up for rule violations and stated "You're not going to be around here long at the rate you're going" (Lewis Dep. 71). Pratt says that "while Lewis was a pleasant person, he was a slow worker and failed to adequately serve the tables he was assigned" (Pratt Aff. para. 6). She repeatedly warned him of those problems. Lewis resigned on March 1, 1989 so that he would be able to get a good reference from Monroe, telling Monroe that he had a new job even though it was not true.

 Minimum Wage Plaintiffs

 Minimum Wage Plaintiffs waited on tables at Monroe. They were part-time employees and had written agreements with Monroe (P.12(n) Ex. G) for "wages of $ 2.01 [or $ 2.11] per hour, plus gratuity for all hours actually worked during any one work week." They were required to set up tables "off the clock" for approximately 45 minutes before they were authorized to "punch in" between 10:40 and 10:45 a.m. Then they were required to "punch out" at approximately 1:15 p.m., after which they had to tally their luncheon checks for the day (Monroe was not open for dinner). Each of the Minimum Wage Plaintiffs was instructed to report early for work by a club supervisor. Frith also instructed them to arrive early, and Haire knew of that practice.

 Retaliatory Discharge Claims

 Under Section 215(a)(3):

It shall be unlawful for any ...

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