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November 10, 1998

JAMES R. BAUDIN, Plaintiff,

The opinion of the court was delivered by: SHADUR


 James Baudin ("Baudin") has filed suit against Courtesy Litho Arts, Inc. ("Courtesy") under the Fair Labor Standards Act ("Act"), 29 U.S.C. §§ 201-219, the Illinois Minimum Wage Law ("Minimum Wage"), 820 ILCS 105/1 to 105/15 and the Illinois Wage Payment and Collection Act ("Wage Payment"), 820 ILCS 115/1 to 115/15. *fn1" Baudin seeks damages for Courtesy's failure to pay him for hours of overtime labor he assertedly performed for it and for two days' vacation pay for which he was not reimbursed after termination. Baudin also requests preliminary and permanent injunctive relief under Act §§ 215(a)(3) and 216(b) to restrain Courtesy from retaliating against him or any similarly situated employees for testifying or participating in the suit. Finally, Baudin seeks reasonable attorney's fees and costs as provided by Act § 216(b) and the Minimum Wage and Wage Payment statutes. Courtesy responds with an affirmative defense that Baudin was a salaried employee exempt from the overtime provisions of the Act.

 Baudin has now moved for summary judgment under Fed. R. Civ. P. ("Rule") 56, to which Courtesy has responded with a cross-motion for summary judgment based on its affirmative defense. Both parties have complied with this District Court's General Rules ("GR") 12(M) and 12(N), *fn2" which have been adopted to highlight the existence or nonexistence of any material factual disputes. Both parties' motions are fully briefed and ready for decision. For the reasons set out in this memorandum opinion and order, Baudin's motion for summary judgment is denied in its entirety, while Courtesy's motion for summary judgment is granted.

 Summary Judgment Standards

 Familiar Rule 56 principles impose on a party seeking summary judgment the burden of establishing the lack of a genuine issue of material fact ( Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). For that purpose this Court must "read[ ] the record in the light most favorable to the non-moving party," although it "is not required to draw unreasonable inferences from the evidence" ( St. Louis N. Joint Venture v. P & L Enters., Inc., 116 F.3d 262, 265 n. 2 (7th Cir.1997)). Where as here cross-motions for summary judgment are involved, it is necessary to adopt a dual perspective that sometimes forces the denial of both motions (see n.4). That potential for such a dual denial does not arise here, however, because with some possible exceptions the underlying material facts are really not in dispute. And even as to those potential exceptions, the parties have stipulated that should this Court find the existence of any material factual disputes, it may resolve those issues based on the documents submitted with the parties' motions.


 Courtesy is a commercial printing company headquartered in Bensenville, Ill. (B. 12(M) P6). It employed Baudin between March 1995 and July 1996. From March 1995 until November 18, 1995 Baudin worked at Courtesy as a film stripper, earning $ 18.75 per hour (id. PP4, 8). If he worked more than 40 hours in any week during that time, he received 1-1/2 times his regular hourly rate for the additional hours. Strippers' work involves camera film developing, actual stripping of the work, handling light table work and making plates (id. P5). Film strippers perform that work within Courtesy's pre-press department, which in late 1995 included stripping, proofing and plate-making (C. 12(M) P13).

 In late 1995 Courtesy did not have an employee supervising the pre-press department, as it usually did (id. P14). Plant manager Dennis Porto ("Porto") was attempting to supervise the pre-press department in addition to his other duties, and he was not succeeding in that dual role (id.). As a result, the department was not running smoothly or efficiently (id.). In November 1995 Baudin met with Courtesy's President David Curcio ("Curcio") to discuss the possibility of Baudin's taking on a supervisory role in the department (id. P 16).

 After the November 18 meeting Curcio elevated Baudin to a supervisory position in the pre-press department and began paying him a $ 900 weekly salary (id.). When Baudin received that pay increase he took on additional responsibilities within the department (B. 12(M) P10). For example, he implemented changes in how the department was run, distributed work to the other strippers, checked over others' work for errors, answered their questions, attended management meetings and ordered supplies (C. 12(M) P20(a)-(d)). Baudin also scheduled employees' vacation time, suggested that they go home when work was light and organized lunch breaks so that the department was always covered (id. P20(f)-(i)). Due at least in part to those added responsibilities, Baudin regularly worked significantly more than 40 hours per week after he took over the department (B. 12(M) PP17, 18).

 According to Curcio and others at Courtesy, Baudin was considered a part of the management team (C. 12(M) P14). Of the people who had previously held any supervisory role in the pre-press department, all but one also had been considered "management" and had been paid on a per-week basis regardless of the number of hours worked (id. ; Hacker Decl. P7).

 Courtesy terminated Baudin in July 1996 for an error in judgment on a printing project for the Chicago Cubs baseball team. Baudin filed suit on August 18, 1997, seeking (1) compensation under the Act for overtime hours worked between November 18, 1995 and July 15, 1996 and (2) compensation for two days' vacation pay under the Wage Payment statute. Courtesy responded with an affirmative defense alleging that Baudin was employed in an executive capacity from November 18, 1995 to July 15, 1996 and was therefore exempt from the Act's overtime provisions.

 Baudin's Federal Overtime Wage Claim

 Act § 207(a)(1) requires Courtesy to pay its employees overtime compensation of 1-1/2 times their normal wages for hours worked in excess of 40 hours per week. Courtesy does not dispute that Baudin often worked more than 40 hours per week after his elevation to supervisor. Rather it claims that Baudin was a "bona fide executive" and hence exempt from the Act's overtime requirements: Act § 213(a)(1) states that "any employee employed in a bona fide executive, administrative, or professional capacity" is not entitled to the protections of those requirements. Courtesy bears the burden of proving that Baudin falls within one of those exemptions (see Bankston v. Illinois, 60 F.3d 1249, 1252 (7th Cir. 1995)), all of which are to be construed narrowly (id.).

 Pursuant to Act § 213(a)(1)'s directive to the Secretary of Labor to define and delimit the Act's terms, Department of Labor regulations provide a detailed interpretation of the statutory phrase "employee employed in a bona fide executive...capacity" (Reg. §§ 541.1 to 541.119). Those regulations have "the force and effect of law" ( Haywood v. North Am. Van Lines, Inc., 121 F.3d 1066, 1069 (7th Cir. 1997)).

 Reg. § 541.1 sets forth a multi-factor "long test" for assessing whether a particular employee qualifies as an exempt executive employee. But for employees who are compensated on a salary basis at a rate of $ 250 or more per week, the regulations provide a "short test" with fewer requirements (Reg. §§ 541.1(f), 541.119). Under that short test Baudin is considered an exempt executive employee not entitled to overtime pay if (1) he was compensated on a salary basis at a rate of $ 250 or more per week, (2) his primary duty consisted of the management of the enterprise in which he was employed or of a customarily recognized department or subdivision thereof and (3) his duties included the customary and regular direction of the work of two or more employees. Each of those requirements will be addressed in turn.

 1. Compensation on a salary basis

 Courtesy must prove the threshold factor--that Baudin was compensated on a salary basis at $ 250 or more per week--for the short test to apply. There is no question that Baudin's compensation exceeded the minimum amount of $ 250 per week, but the parties part company over whether he ...

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