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ZOLTEK v. SAFELITE GLASS CORP.

April 28, 1995

STEVEN ZOLTEK, Plaintiff,
v.
SAFELITE GLASS CORP., a Delaware Corporation, Defendant.



The opinion of the court was delivered by: CHARLES RONALD NORGLE, SR.

 CHARLES R. NORGLE, SR., District Judge:

 Before the court are the parties' cross motions for summary judgment. For the reasons stated below, Defendant's motion is granted and plaintiff's motion is denied.

 FACTS1

 Plaintiff Steven Zoltek ("Zoltek") brought this action against Defendant Safelite Glass Corporation ("Safelite") alleging that Safelite did not pay him overtime wages to which he was entitled in violation of the Fair Labor Standards Act 29 U.S.C. § 206, 207 (the "Act"). This court has jurisdiction pursuant to 29 U.S.C. § 216(b).

 Safelite is a Delaware corporation engaged in the business of distributing and installing automotive glass. Zoltek has been employed by Safelite since November 26, 1990. From that date to April 18, 1993, with the exception of a three and one-half month period, Zoltek should have been classified and compensated as a non-exempt employee under the overtime and minimum wage requirements of the Act. However, during this time period, he was hired by Safelite as an exempt employee, compensated on a salaried basis, and the parties acted as though he were properly classified as exempt from the overtime and minimum wage requirements.

 From the date he was hired until October 7, 1991, Safelite paid Zoltek at annual salary rate of $ 35,000. From October 7, 1991 through November 1, 1992, he was paid at an annual rate of $ 36,500. From November 1, 1992, through April 18, 1992, Safelite paid Zoltek at an annual rate of $ 37,800. Throughout the entire period between the date he was hired until April 18, 1992, Zoltek was paid twice per month.

 On April 18, 1993, Zoltek's pay status was changed from exempt to non-exempt, and from that date onwards he has been properly compensated for overtime hours worked after that date.

 From November 26, 1990, to April 18, 1993, the parties never expressly agreed that (1) Zoltek would be compensated for overtime on a fluctuating work week basis, (2) that his salary was paid to compensate him for all hours worked, or (3) that his salary was paid to compensate him for all hours worked on a straight-time basis. Nonetheless, during this time period, Zoltek was compensated as described above on a salaried basis. He accepted his paychecks and continued his employment without protesting or questioning his compensation.

 Zoltek states in his Response to Defendant's Statement of Material Facts that he periodically questioned his compensation. He does so without citation to anything in the record supporting his assertion. Local Rule 12(N) of the United States District Court for the Northern District of Illinois states that a party opposing summary judgment must file:

 
A concise response to the movant's [12(M)] statement that shall contain . . . a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon . . . .

 Local Rule 12(N)(3)(a). All material facts properly set forth in the movant's 12(M) Statement will be deemed admitted if not properly controverted by the non-movant's 12(N) statement. Local Rule 12(N)(3)(b). The Seventh Circuit has consistently upheld strict application of Local Rule 12(N). Rosemary B. v. Board of Educ., 1995 U.S. Dist. LEXIS 7845, No. 94-3406, 1995 WL 156912, at *2 (7th Cir. Apr. 7, 1995); Johnson v. Gudmundsson, 35 F.3d 1104, 1108 (7th Cir. 1994); Flaherty v. Gas Research Inst., 31 F.3d 451, 453, 455 n.4 (7th Cir. 1994); Waldridge v. American Hoechst Corp., 24 F.3d 918, 921-22 (7th Cir. 1994); Highlands Ins. Co v. Lewis Rail Serv. Co., 10 F.3d 1247, 1251 n.6 (7th Cir. 1993); Stewart v. McGinnis, 5 F.3d 1031, 1034 (7th Cir. 1993); Tobey v. Extel/JWP, Inc., 985 F.2d 330, 333 (7th Cir. 1993); Valenti v. Qualex, Inc., 970 F.2d 363, 368-69 (7th Cir. 1992); Appley v. West, 929 F.2d 1176, 1179-80 (7th Cir. 1991); Bell, Boyd & Lloyd v. Tapy, 896 F.2d 1101, 1103 (7th Cir. 1990). Therefore, Safelite's assertion that Zoltek accepted his paycheck without ever making a protest is admitted.

 DISCUSSION

 Federal Rule of Civil procedure 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Salima v. Scherwood South, Inc., 38 F.3d 929, 931 (7th Cir. 1994); Transportation Communications Int'l Union v. CSX Transp., Inc., 30 F.3d 903, 904 (7th Cir. 1994). Summary judgment is not a discretionary remedy and must be granted when the movant is entitled to it as a matter of law. Jones v. Johnson, 26 F.3d 727, 728 (7th Cir. 1994). Even though all reasonable inferences are drawn in favor of the party opposing the motion, Associated Milk Producers, Inc. v. Meadow Gold Dairies, Inc., 27 F.3d 268, 270 (7th Cir. 1994), presenting only a scintilla of evidence will not suffice to oppose a motion for ...


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