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
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:
1 NOTICE TO EMPLOYEE UNDER THE FAIR LABOR STANDARDS ACT
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
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
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
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 ...