The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge
MEMORANDUM OPINION AND ORDER
The Court conducted a two-day bench trial on January 14 and 15, 2004,
to consider the claims of Sabrina Harper ("Harper") and Otis Emerson
("Emerson") (collectively "Plaintiffs") against Robert Wilson ("Mr.
Wilson"), Tammy Wilson ("Mrs. Wilson") and Professional Protection
Specialists, L.L.C., ("Protection") (collectively "Defendants") for
overtime pay, unpaid wages and retaliatory discharge under the federal
Fair Labor Standards Act ("FLSA"), the Illinois Wage Payment and
Collection Act and the Illinois Minimum Wage Law, The Court has carefully
considered the testimony of the six witnesses who appeared at trial, the
exhibits introduced into evidence, and the closing arguments of counsel.
The following constitute the Court's findings of fact and conclusions of
law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. To
the extent certain
findings of fact may be deemed conclusions of law, they shall also
be considered conclusions of law. Similarly, to the extent matters
contained in the conclusions of law may be deemed findings of fact, they
shall also be considered findings of fact
This case raises the following issues regarding Harper's claims:
1) Whether Harper began work the week of December
9, 2002, or the week of December 16, 2002.
Answer: The week of December 16, 2002.
2) Whether Harper was a salaried or an hourly
employee. Answer: Salaried.
3) Whether she worked more than 40 hours per week
during her employment with Defendant. Answer:
4) Whether she was an employee or an independent
contractor. Answer: Employee.
5) If she was an employee, whether she was exempt
from overtime because she was an executive or
an administrative employee. Answer: She was
exempt as an executive employee.
This case raises the following issues regarding Emerson's claims:
1) Whether he was compensated at the rate of time
and one-half for all of the overtime he worked.
2) Whether he was terminated in retaliation for
complaints he made regarding Defendants'
failure to pay him proper overtime. Answer: No.
3) Whether Robert Wilson and Tammy Wilson were
corporate officers of Protection. Answer: Yes.
II. FINDINGS OF FACT
A. SABRINA HARPER'S CLAIM
1. Sabrina Harper was employed by Professional Protection Specialists,
L.L.C., as a Lieutenant for less than two months. She claims that she
worked and was not paid for the week of December 9, 2002, and that she
was not paid for approximately thirty-seven hours of overtime in January
2003. Defendants contend that Harper did not commence work until the week
of December 16, 2002, that she did not work any overtime, that she was an
independent contractor, and that if she was an employee, she was exempt
from overtime as an executive or an administrative employee.
2. Harper did not begin work the week of December 9, 2002, as she
contends, but rather she began work on December 16, 2002. The Court does
not find Harper to be a credible witness. On December 9, 2002, she was in
court in connection with a foreclosure proceeding in the Circuit Court of
Cook County, Case No. 02 CH 9798. Dx 7 and Px 3 (see calendar entry for
December 9, 2002).*fn1 This is further corroborated by her failure to
claim unpaid wages for the week of December 9, 2002, in her complaint
before the Illinois Department of Labor filed on March 4, 2003, in which
she claimed unpaid wages for the period of January 16, 2003, through
January 31, 2003. Dx 3. There is no reason why she
would not have made a claim for the week of December 9, 2002, if
she believed that she was not paid for that week.
3. Harper was paid as a salaried employee on the basis of $700.00 every
pay period. The pay periods were the 1st and 15th of each month. She
received a check for $550.00 on January 15, 2003, that was reduced by
reason of the repayment of a $150.00 loan from Protection. Px 3 (check
no. 2210 dated 1/15/03 and check deduction agreement dated December 31,
2002). She received a $700.00 check on January 31, 2003. Dx 6.
4. Harper did not work more than 40 hours per week. Her purported time
sheets are self-serving and were never verified and confirmed by anyone
at the company. Px 4. In addition, her time records are totally
inconsistent with the time records maintained for her at the company. Px
5. Harper was an employee of Protection and not an independent
contractor. She was hired as a Lieutenant. She was hired to work
6. Harper was an executive employee of Protection. She was a Lieutenant
who was responsible for up to five work sites. Her duties included
supervising security operations on assignment shifts, supervising
activities and training of assigned personnel, establishing regular
inspections on all accounts and dealing with client issues. Dx 1, 5. She
also set up work schedules for guards, met with sergeants and performed
administrative duties. She did not perform any guard duties. She was part
of Protection's management. Dx 3.
7. Otis Emerson was employed by Protection as a security guard from
approximately October 1, 2001, through January 15, 2003. His rate of pay
increased during that time from $7.00 per hour to $10.00 per hour.
8. Protection's time keeping procedures were as follows: once a guard
arrived at a site, he would call in to the dispatcher who would stamp in
the time. Once the replacement guard reported, the dispatcher would log
out the first guard and log in the second guard.
9. Emerson worked 268 hours of overtime during the period in dispute,
January 23, 2001, through June 29, 2002. Px 1, 5. Emerson acknowledges
receiving straight time for the overtime he worked. Protection paid
Emerson not less than straight time for the overtime he worked. Px 1.
Protection has failed to produce sufficient evidence to demonstrate that
it paid him time and one-half for all of the overtime. The evidentiary
issue was created in part by Emerson's failure to itemize his damages
until the day before trial and the failure to provide that information to
Defendants as part of the final pretrial order process.
10. Emerson is owed 268 hours of overtime at $5.00 per hour for a total
of $1,340.00. Protection did not knowingly underpay Emerson for his
11. On or about December 21, 2002, Emerson was found intoxicated and
sleeping on the job at the Robert Taylor Homes by Mr. Wilson,
Protection's Vice-President and Henry Nickson, Protection's Field
Supervisor. Shortly thereafter, Protection lost its security contract at
the Robert Taylor Homes.
12. Emerson was not called back to work after December 23, 2002,
because Protection lost the Robert Taylor contract.
13. Emerson was requested to turn his badge in on January 15, 2003, at
which time he was terminated. Emerson was not terminated in retaliation
for complaining about the failure of Protection to properly pay overtime.
14. Mr. Wilson was a Vice President of Protection. Px 3 (1tr. dated
15. Mrs. Wilson was the President and CEO of Protection. Px 3 ...