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WITTENBERG v. WHEELS

April 14, 1997

JENNIFER A. WITTENBERG, Plaintiff,
v.
WHEELS, INC., Defendant.



The opinion of the court was delivered by: COAR

 Defendant Wheels, Inc. ("defendant" or "Wheels") has moved to dismiss plaintiff Jennifer A. Wittenberg's ("plaintiff" or "Wittenberg") complaint, which alleges that Wheels unlawfully retaliated against her by discharging her for engaging in activity protected by Section 15(a)(3) of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 215(a)(3). In the alternative, Wheels has moved for summary judgment on Wittenberg's claim. In a separate motion, defendant has moved to strike plaintiff's references to the decision of the Board of Review of the Illinois Department of Employment Security regarding her claim for unemployment compensation. For the following reasons, defendant's motion to strike will be granted. Defendant's motion to dismiss, or in the alternative, for summary judgment, will be denied.

 I. Factual Background

 Defendant is an Illinois corporation and is licensed to do business in Illinois. Defendant hired plaintiff, Jennifer Wittenberg, in November 1987 as a Maintenance Assistance Program Advisor ("MAP Advisor"), which was designated as a full-time salaried position. (12(M) Stmt., PP 3-5). From the time she was hired until 1990, Wittenberg worked Monday through Friday from 8:30 a.m. to 5:00 p.m. From 1990 to August 1993, Wittenberg worked Monday through Friday and one Saturday per month. (Id. PP 6-7).

 On August 4, 1993, Eric Nygard, Wittenberg's supervisor, announced at a meeting of MAP Advisors that all MAP Advisors were expected to work extra hours. Nygard announced that those extra hours would consist of an extra hour on Mondays and an extra one-half hour on Tuesday through Fridays. (12(M) Stmt., PP 8, 10-11). At the August 4 meeting, Wittenberg announced that she "didn't like working extra hours" and told Nygard that she would have to get her babysitter to stay longer. Wittenberg also informed everyone at the meeting that there was no need for the extra hours. (Id. PP 12-14). The issue of whether Wheels would pay additional compensation for the extra work hours was never discussed by anyone during the August 4, 1993 meeting. All of the MAP Advisors began working the extra hours on the Monday following the August 4, 1993 meeting. (Id. PP 15-16).

 Approximately two weeks after the August 4, 1993 meeting, Wittenberg told Nygard that she was "not going to work the extra hours because we weren't getting paid for them." Nygard responded to Wittenberg's statement by stating that the MAP Department employees were salaried. (12(M) Stmt., PP 17-19). Wittenberg did not explain why she felt that she should receive additional compensation or identify the FLSA as a basis for her belief that she was entitled to additional compensation for the extra hours. It is disputed as to whether Wittenberg stated that she believed Wheels' failure to pay her was illegal. *fn1" (Id. P 20).

 Approximately one week after her last conversation with Nygard, Wittenberg approached him and asked to see John Frank, Assistant Vice President for MAP Operations. Nygard asked Wittenberg if there was anything that he could help her with, and she stated, "No. I already told you, you know, I'm not getting paid for these extra hours." Because Frank left for vacation on that day, Wittenberg never spoke with him about working additional hours without additional compensation. (12(M) Stmt., PP 21-25).

 On Monday, August 23, 1993, Wittenberg was scheduled to work from 9:00 a.m. to 6:00 p.m., which included one hour of extra work from 5:00 p.m. to 6:00 p.m. Prior to that date, Wittenberg had worked all overtime for which she had been scheduled. (12(M) Stmt., PP 26-27). At 5:00 p.m., Wittenberg turned off her computer and prepared to leave work. Nygard then asked her what she was doing, to which Wittenberg responded, "I'm leaving." When Nygard asked her for her reasons for leaving, Wittenberg stated, "Because I'm not getting paid. So I'm only working my regular hours." When Nygard asked to speak with Wittenberg about her refusal to work the extra hour, she stated that she would "talk to him tomorrow because this was [her] time." Wittenberg then left work prior to the completion of her scheduled work hours. (Id. PP 28-33).

 The next day, August 24, 1993, Wittenberg reported to work as scheduled at 9:00 a.m. (12(M) Stmt., P 34). In a meeting with Wittenberg that morning, Nygard asked her when she would make up the extra hour of work that she had missed the day before. *fn2" Wittenberg stated, "I don't know. I'm not getting paid for it," and then, "No, I'm not going to work the extra hour." (Id. PP 36-37). Nygard then told Wittenberg that she would have until noon that day to tell him when she would make up the extra hour of work. (Id. P 38). During the August 24, 1993 meeting, Wittenberg never mentioned the FLSA or said that Wheels was legally required to pay her additional compensation for the extra hours of work. Wittenberg also did not tell Nygard that she would file a complaint against Wheels regarding its failure to pay her additional compensation for the extra hours worked. (Id. PP 39-40).

 Wittenberg did not meet with Nygard or any other Wheels supervisor before noon on August 24, 1993. (12(M) Stmt., P 41). After her lunch break on August 24, 1993, Nygard and Jeff Lucas, another Wheels supervisor, met with Wittenberg. During that meeting, Nygard told Wittenberg that she was discharged for insubordination. (Id. PP 42-43). Approximately two weeks after Wittenberg's discharge, she contacted the Illinois Department of Labor for the first time regarding Wheels' failure to pay her additional compensation for the additional hours. That day, Wittenberg decided to file a claim against Wheels for its refusal to pay her additional compensation for the August 1993 mandatory overtime. (Id. PP 45-46).

 On June 7, 1995, Wittenberg filed a Complaint at Law in the Circuit Court of Cook County, Illinois. On January 25, 1996, the Circuit Court granted Wheels' motion to dismiss the complaint as insufficient in law. On February 27, 1996, the Circuit Court granted Wittenberg's motion to modify the dismissal order to allow her to file an amended complaint. Wittenberg filed a First Amended Complaint at Law on that day. That complaint alleged that Wheels had violated the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. Wheels then removed the action to this court pursuant to 28 U.S.C. § 1441(a). (See Notice of Removal (Mar. 25, 1996)).

 II. Motion to Dismiss

 Defendant first moves the court to dismiss Wittenberg's complaint pursuant to Rule 12(b)(6) because it fails to state a claim upon which relief may be granted. Defendant argues that the FLSA only prohibits retaliation against individuals who engage in conduct specifically enumerated in § 15(a)(3) of the FLSA, which provides that it is unlawful for any person

 
to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.

  29 U.S.C. § 215(a)(3). Because plaintiff's complaint does not allege that she engaged in any of the three groups of activity enumerated in § 15(a)(3), *fn3" defendant argues that plaintiff's complaint should be dismissed.

 A. Standards for Motions to Dismiss

 A motion to dismiss pursuant to Rule 12(b)(6) does not test whether the plaintiff will prevail on the merits but instead whether the claimant has properly stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974). The court may dismiss a complaint for failure to state a claim under Rule 12(b)(6) only if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232, 81 L. Ed. 2d 59 (1984); see also Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957). In deciding a motion to dismiss, the court must accept as true all well-pleaded allegations and draw all reasonable inferences in favor of the plaintiff. Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7th Cir. 1996).

 Defendant bases its motion to dismiss in large part on the Second Circuit's decision in Lambert v. Genesee Hospital, 10 F.3d 46 (2d Cir. 1993). In Lambert, the court focused on the difference between the respective anti-retaliation provisions of the FLSA and Title VII. It found Title VII's ...


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