United States District Court, N.D. Illinois, Eastern Division
July 1, 2004.
TONY SHERMAN, individually, and DAN RINGIER, individually, and on behalf of employees similarly situated, Plaintiffs,
PREMIUM CONCRETE CUTTING, INC., and BRYAN MRAZ, Defendants.
The opinion of the court was delivered by: CHARLES NORGLE, District Judge
OPINION AND ORDER
Before the court is Defendants' Motion for Partial Summary
Judgment, brought pursuant to Federal Rule of Civil Procedure 56.
For the following reasons the Motion for Partial Summary Judgment
is granted in part, and the court relinquishes its supplemental
jurisdiction over the remaining state law claims.
Plaintiffs, Tony Sherman and Dan Ringier, on behalf of a class
of similarly situated employees, ("Plaintiffs") originally filed
suit against Premium Concrete Cutting Inc. and Brian Mraz
("Defendants") alleging various violations of the Fair Labor
Standards Act ("FLSA"), 29 U.S.C. § 201-262, the Illinois
Minimum Wage Law ("IMWL"), 820 ILCS 105, and the Illinois Minimum
Wage Payment and Collection Act ("IMWPCA), 820 ILCS 115.
Defendants are engaged in the practice of cutting concrete.
Defendants required Plaintiffs, former and current employees, to
arrive at their office, receive the paper work for a given day,
load up the work truck with the necessary tools and drive to the
corresponding job site. Defendants did not pay Plaintiffs for the
time spent at the office preparing for work or for the first hour
of travel to the job site, which the parties refer to as "gap
time." If the travel time took more than an hour, Plaintiffs were
compensated. Additionally, Plaintiffs were required to return to
the office at the end of the work day, unload the truck, clean
the tools and fix or repair any of the tools used that day.
Again, Plaintiffs were not paid for the time spent driving to the
office or the time spent at the office at the end of the day.
These facts are undisputed.
On September 19, 2001, Plaintiffs filed suit alleging
violations of the FLSA, the IMWL and the IMWPCA. Specifically,
Plaintiffs allege: Count I, Defendants violated the IMWL by
failing to pay all hours worked and time and one-half for all
hours worked over 40 in a week; Count II, Defendants failed,
neglected or refused to pay Plaintiffs for all their wages during
the period of June 1, 1998 to the present in violation of the
IMWPCA; Count III, Plaintiffs were not paid for all hours worked
and their wage at the rate of one and one-half their regular rate
for all hours worked in excess of 40 hours in violation of the
FLSA; and Count IV, Defendants willfully and wantonly violated
On July 11, 2003, Defendants filed a motion for partial summary
judgment. In that motion, Defendants seek partial summary
judgment on three issues: (1) whether uncompensated travel time
in weeks in which Plaintiffs did not work in excess of 40 hours
violated the FLSA and or the IMWL; (2) whether Plaintiffs are
entitled to punitive damages under the IMWL; and (3) whether a 3
year statute of limitations applies to the alleged FLSA
violations. Subsequent to the filing of the motion for partial
summary judgment, the parties entered into a joint Stipulation of
Facts. All additional matters in this case have been settled, and
the court need only address the issues presented in the motion for partial summary judgment. The matter is now fully
briefed and ripe for ruling. The court will analyze the asserted
FLSA violations and then turn to Plaintiffs' state claims.
A. Summary Judgment Standard
Summary judgment is permissible when "there is no genuine issue
as to any material fact and . . . the moving party is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(c). The
nonmoving party cannot rest on the pleadings alone, but must
identify specific facts, see Cornfield v. Consolidated High
School District No. 230, 991 F.2d 1316, 1320 (7th Cir. 1993),
that raise more than a mere scintilla of evidence to show a
genuine triable issue of material fact. See Murphy v. ITT
Technical Services, Inc., 176 F.3d 934, 936 (7th Cir. 1999);
see also Shank v. William R. Hague, Inc., 192 F.3d 675, 682
(7th Cir. 1999) (stating that a party opposing summary judgment
must present "what evidence it has that would convince a trier of
fact to accept its version of events"). A genuine issue of
material fact exists when there is sufficient evidence favoring
the nonmoving party for a jury to return a verdict for that
party. See Puckett v. Soo Line Ry. Co., 897 F.2d 1423, 1425
(7th Cir. 1990) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986)). Summary judgment is inappropriate when
alternate inferences can be drawn from the available evidence.
See Hines v. British Steel Corp., 907 F.2d 726, 728 (7th Cir.
1990). A defendant is entitled to put the plaintiff to his proofs
and demand a showing of the evidence. See, e.g., Navarro v.
Fuji Heavy Industries, Ltd., 117 F.3d 1027, 1030 (7th Cir.
1997). If the plaintiff fails to come up with the required proof,
the defendant is entitled to summary judgment. See id. B. Compensation for "Gap Time" in which the Employee did not
Work Forty Hours a Week
The first issue raised by Defendants is whether Plaintiffs are
entitled to compensation for "gap time," pursuant to the FLSA,
even though they did not work a 40 hour work week. If an employee
works over 40 hours a work week the employer is required to pay
him "not less than one and one-half times the regular rate at
which he is employed." 29 U.S.C. § 207(a)(1). Defendants contend
that because Plaintiffs failed to work the requisite 40 hour work
week, even if travel time was computed, that they are not
entitled to additional compensation because their pay was well
over the minimum wage. Plaintiffs pay ranged from $10.00 an hour
to $27.91 an hour for all of the relevant time periods in this
action, with the minimum wage being merely $5.15 an hour.
In what has become commonly known as the Klinghoffer Rule, a
plaintiff cannot state a claim under the FLSA if he, working less
than 40 hours a week, receives payment in excess of what he would
have been paid had he worked 40 hours a week at minimum wage.
See United States v. Klinghoffer Brothers Realty Corp.,
285 F.2d 487, 490 (2d Cir. 1960); see also Dove v. Coupe,
245 U.S.App.D.C. 147, 759 F.2d 167, 171-72 & n. 8 (D.C. Cir. 1985);
O'Brien v. Town of Agawam, 350 F.3d 279, 298 (1st Cir. 2003);
Monahan v. County of Chesterfield, 95 F.3d 1263, 1270 (4th Cir.
1996); Hensley v. MacMillan Bloedel Containers, Inc.,
786 F.2d 353, 357 (8th Cir. 1986); Birch v. Kim, 977 F. Supp. 926,
930-31 (S.D. Ind. 1997); Cuevas v. Monroe Street City Club,
Inc., 752 F. Supp. 1405, 1416-17 (N.D.Ill. 1990); but see
Lamon v. City of Shawnee, Kan., 972 F.2d 1145, 1155 (10th Cir.
1992), cert. denied, 507 U.S. 972, 122 L.Ed.2d 785,
113 S.Ct. 1414 (1993) (adopting opinion below, 754 F. Supp. 1518, 1521 & n.
1 (D. Kan. 1991)). For example, if an employee was paid $10.00 an
hour and only worked 32 hours, he would receive $320.00 as
compensation for his work. Even if he were to have worked 40 hours and not been fully
compensated for the additional 8 hours, there would not be a
violation of the FLSA because he would have been paid more than
the mandatory minimum wage of $206.00, 40 hours at $5.15 an hour.
It is undisputed that Plaintiffs were compensated at the very
least $10.00 an hour and as much as $27.91 an hour for the time
in dispute. Plaintiffs would have the court look at the
collective bargaining agreement to determine whether or not their
has been a contractual violation in the way that wages were or
were not paid for "gap time." The court will not scour the
collective bargaining agreement, attempting to determine the
validity or invalidity of clauses that were bargained for with a
union, which is not a party to this action; a job which is better
left to the union, employer and the National Labor Relations
Board. See, e.g., Allis-Chalmers Corp. v. Lueck,
471 U.S. 202 (1985); San Diego Building Trade Counsel, Local 2020 v.
Garmon, 359 U.S. 263 (1959); Gibson v. AT&T Tech., Inc.,
782 F.2d 686 (7th Cir. 1986).
In this action, brought by individual employees and former
employees, the court will only address whether Defendants'
actions violated the FLSA. The court finds that based the
Klinghoffer Rule and its progeny, and the undisputed facts,
Defendants did not violate the FLSA by failing to compensate
Plaintiffs for "gap time." Plaintiffs were adequately compensated
for their work and were paid well over the minimum wage
requirements under the FLSA. Therefore, Defendants' Motion for
Partial Summary Judgment is granted on this point.
C. Determination of Willfulness for the Purposes of the FLSA
Additionally, Defendants ask the court to determine whether or
not their actions were done "willfully" for the purposes of the
FLSA. If the court were to determine that Defendants acted
willfully, as defined by the FLSA, Defendants could be liable for
unpaid compensation for three years as opposed to two. The Supreme Court ruled that the word
"willful" as used in the FLSA, 29 U.S.C. § 255(a), has the same
meaning for purposes of determining both the statute of
limitations and liquidated damages. See McLaughlin v. Richland
Shoe Co., 486 U.S. 128, 133 (1988). Trans World Airlines, Inc.
v. Thurston, 469 U.S. 111, 128 (1985) (noting the
pre-McLaughin division between courts of appeals on whether the
standard was identical). An employer's violation of the FLSA is
"willful," for purposes of determining the limitations period, if
the employer either knew or acted with reckless disregard for
whether its conduct was prohibited by the Act. See id.
Willful behavior is conduct that is more than simply negligent or
unreasonable. See id. In Walton v. United Consumers Club,
Inc., 786 F.2d 303 (7th Cir. 1986), a FLSA case, the Seventh
Circuit described willfulness as "denoting a range of culpability
from gross negligence to actual knowledge plus malice depending
on the context." Walton, 786 F.2d at 308 (citation omitted).
"Usually it denotes some highly culpable mental state either
actual knowledge that one's acts violate the law or reckless
indifference to the law." Id. at 308-09 (citation omitted). The
plaintiff in a FLSA case bears the burden of establishing
willfulness, id. at 308, which "requires proof that `the
defendant's actions were knowing and voluntary and that he knew
or reasonably should have known that those actions violated' the
statute," id. at 312 (quoting Herman v. National Broadcasting
Co., 744 F.2d 604, 607 (7th Cir. 1984)).
Plaintiffs have failed to establish that Defendants knowingly
violated the FLSA or that they acted with reckless indifference
to the law. It is undisputed that Defendants did not compensate
Plaintiffs for "gap time." It is also undisputed that various
other concrete companies did not compensate their employees for
gap time, while other companies did compensate their employees.
Plaintiffs have failed to provide any other evidence that
Defendants acted willfully. Although, normally in a summary judgment motion all evidence is construed
in favor of the non-moving party, the plaintiff in a FLSA case
must establish willfulness in order to extend the statute of
limitations from two to three years. Plaintiff has failed to
establish that Defendants acted willfully within the meaning of
the FLSA. Therefore, Defendants' Motion for Partial Summary
Judgment on this issue is granted.
D. Plaintiffs IMWL and IMWPCA Claims
Having granted Defendants' Motion for Partial Summary Judgment
on Plaintiffs' FLSA claims, the court relinquishes its
supplemental jurisdiction over the remaining state law claims
brought by Plaintiffs. When the court grants summary judgment on
all federal claims before trial, the general rule is that the
court should relinquish supplemental jurisdiction over state law
claims. See, e.g., Van Harken v. Chicago, 103 F.3d 1346,
1354 (7th Cir. 1997).
For the foregoing reasons Defendants' Motion for Partial
Summary Judgment is granted in part, and the court relinquishes
its supplemental jurisdiction over the remaining state law
IT IS SO ORDERED.
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