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January 29, 2004.

OSCAR CARINO, on behalf of himself and all other plaintiffs similarly situated, known and unknown, Plaintiff

The opinion of the court was delivered by: CHARLES KOCORAS, District Judge


This matter comes before the court on the motion of Defendants B&M Collisions Center, Nisha Auto Center, and Bob Trytko*fn1 (collectively referred to herein as "B&M") for summary judgment. For the reasons set forth below, the motion is granted.


  Plaintiff Oscar Carino is a former employee of B&M. In 2002, the Department of Labor audited B&M. The audit determined that B&M owed back wages to its Page 2 employees, including Carino, for unpaid overtime work. The Department and B&M agreed to a settlement, which in relevant part required B&M to pay specified amounts to named employees. B&M was also required to submit Department-issued form receipts (Form WH-58) signed by the employees as evidence that payments had been made.

  On November 15, 2002, Monika Trytko, an officer of B&M and wife of Defendant Bob Trytko, called Carino into the office area of B&M. Because Carino, a citizen of Mexico, does not read or write English, also in attendance was an employee fluent in both English and Spanish. Mrs. Trytko showed Carino a check for $1779.77 made payable to him and told him, through the translating employee, that the check was for an amount of money that the Department of Labor had awarded him. She also told him that he had to sign a document in order to receive the check. Carino signed the document, which was the WH-58 that had been prepared for him. Above the signature block, the form stated the following:
  Your acceptance of backwages due under the Fair Labor Standards Act means that you have given up any right you may have to bring suit for such back wages under Section 16(b) of that Act. Section 16(b) provides that an employee may bring suit on his/her own behalf for unpaid minimum wages and/or overtime compensation and an equal amount as liquidated damages, plus attorney's fees and court costs. . . . Do not sign this receipt unless you have actually received payment of the backwages due. Page 3

 Carino took the check and cashed it four days later.*fn2

  On May 22, 2003, Carino filed the instant suit against B&M for overtime pay and liquidated damages under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., as well as a state-law cause of action for the same acts. B&M now moves for summary judgment of the FLSA claims.


  Summary judgment is appropriate when the record, viewed in the light most favorable to the nonmoving party, reveals that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party bears the initial burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548 (1986). The burden then shifts to the nonmoving party to show through specific Page 4 evidence that a triable issue of fact remains on issues on which the nonmovant bears the burden of proof at trial. Id. The nonmovant may not rest upon mere allegations in the pleadings or upon conclusory statements in affidavits; it must go beyond the pleadings and support its contentions with proper documentary evidence. Id. The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the party opposing the motion. Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000); Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). With these principles in mind, we consider the instant motion.


  B&M contends that it is entitled to summary judgment because Carino waived any right to assert the FLSA counts of his complaint, as evidenced by his signing the WH-58 receipt and cashing the check he received. It relies on Section 16(c) of the FLSA, which states that:

  The Secretary is authorized to supervise the payment of . . . unpaid overtime compensation owing to any employee or employees under [29 U.S.C. § 206, 207], and the agreement of any employee to accept such payment shall upon payment in full constitute a waiver by such employee of any right he may have under [29 U.S.C. § 216(b)] to such unpaid Page 5 minimum wages or unpaid overtime compensation and an additional equal amount as liquidated damages.

 29 U.S.C. § 216(c). According to B&M, all of the requirements of this statutory section are met in this case, and Carino correspondingly cannot seek the relief for unpaid overtime under the FLSA for the time period covered by the settlement between B&M and the Department. Carino does not dispute that the Department conducted an audit of B&M or that those parties reached a settlement regarding the unpaid overtime wages revealed by the audit. Nor does Carino dispute that the Department prepared the WH-58 form receipt that he signed, specifically the amount of money he was to receive. Nor does he contend that he did not sign the receipt. Nor does he argue that he did not receive the check that he later cashed.

  Rather than disputing these facts, Carino offers two arguments in opposition to summary judgment: 1) the Department did not properly supervise the payment of compensation in this case; and 2) he could not knowingly and voluntarily waive his rights by signing the receipt because he could not read the English in which it was written, and Mrs. Trytko did not inform him of the ...

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