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HARPER v. WILSON

February 12, 2004.

SABRINA HARPER and OTIS EMERSON, Plaintiffs
v.
ROBERT WILSON, TAMMY WILSON and PROFESSIONAL PROTECTION SPECIALISTS, L.L.C., Defendants



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 Page 2 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

I. ISSUES PRESENTED

  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: No.
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. Answer: No.
  2) Whether he was terminated in retaliation for complaints he made regarding Defendants' failure to pay him proper overtime. Answer: No. Page 3
 
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 Page 4 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 3.

  5. Harper was an employee of Protection and not an independent contractor. She was hired as a Lieutenant. She was hired to work full-time.

  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. Page 5

 B. OTIS EMERSON'S CLAIM

  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 overtime. Page 6

  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 6/20/03).

  15. Mrs. Wilson was the President and CEO of Protection. Px 3 ...


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