The opinion of the court was delivered by: SUZANNE CONLON, District Judge
MEMORANDUM OPINION AND ORDER
Susan Tjelle-Monferdini ("Tjelle") sues Caterpillar, Inc. for
retaliation in violation of the Fair Labor Standards Act
("FLSA"), 29 U.S.C. § 201 et seq. Tjelle claims she was
terminated by Caterpillar in retaliation for requesting overtime
pay. Caterpillar denies it engaged in retaliation and contends
Tjelle was terminated for over-reporting her overtime.
Caterpillar moves for summary judgment pursuant to Fed.R. Civ.
All facts are undisputed unless otherwise rioted. Caterpillar
manufactures and ships parts for excavators and trucks. In 1994,
Tjelle began working for Caterpillar at its Joliet, Illinois
facility as an industrial apprentice. She was a valued employee
and received several promotions. From 1999 to her termination in
February 2004, Tjelle worked as a logistics planning analyst.
Rollin Dilworth served as Tjelle's direct supervisor from August
2003 until one week before her termination. Oren Miller became
her supervisor during her last week of employment as part of a
departmental reorganization. Tjelle was paid every other week; as a salaried non-exempt
employee she was entitled to overtime pay at a rate of
time-and-a-half her regular pay rate. In 2003 and 2004,
Caterpillar encouraged employees in Tjelle's department to work
overtime. Caterpillar paid overtime to employees if more than
eight hours were worked in a weekday or if any hours were worked
on the weekend. Employees were required to submit their overtime
electronically via the electronic document routing ("EDR")
computer system. When employees reported overtime using the EDR
system, the overtime pay was automatically included in paychecks.
If overtime was not entered into the FDR system correctly or on
time, employees were required to complete a paper memo called a
"blue card" to submit requests for overtime pay. Unlike the EDR
system, blue cards required manual processing by payroll clerks.
Therefore, the FDR system was the preferred method for
Caterpillar employees to record their overtime. Tjelle was
responsible for reporting her own overtime.
Tjelle worked on Saturday, December 27, 2003. This was the only
day she worked during, the December 21-28, 2003 workweek. Tjelle
contends she worked 6.8 hours that day, but the EDR system was
not operating. On January 2, 2004, she requested a blue card from
Dilworth in order to report her overtime hours from the previous
Saturday. Dilworth approved the completed blue card and submitted
it to the payroll department. When Tjelle received her January
16, 2004 paycheck, she discovered she was not paid overtime for
the 6.8 hours worked on December 27th. She informed Dilworth and
he assured her he would look into it. When the overtime was not
included in her January 30th paycheck, Tjelle again spoke to
Dilworth and told him her overtime had been "messed up" since
November. She explained she had not received overtime pay in the
same workweek when she worked the overtime hours. Rather, she
usually received overtime pay in the following pay period. Tjelle
always received her overtime compensation, but believed timing of
the payments was erroneous. Dilworth again told her he would look into the absence
of the December 27th overtime pay.
Dilworth spoke to Monica O'Brien in Caterpillar's payroll
department to ensure Tjelle was paid for her overtime. O'Brien
was responsible for processing salaried employees' blue cards.
Tjelle also spoke to O'Brien about her overtime pay. O'Brien's
review of the payroll records caused her to believe Tjelle had
already been paid for the disputed overtime. Tjelle explained she
worked the same number of hours on December 13 and December 27,
which may have made it appear that overtime was already paid.
O'Brien processed the blue card and Tjelle received the overtime
for December 27th on her February 13th paycheck.
Bill Lawson was O'Brien's direct supervisor and oversaw payroll
operations. Tjelle never raised the overtime issue with Lawson.
O'Brien, however, kept Lawson apprised of the issue and Lawson
decided to review Tjelle's overtime himself Lawson attests he
wanted to ensure Tjelle was paid for all hours worked and to
avoid any further misunderstandings. Further, he sought
confirmation that Tjelle had not been paid twice, as O'Brien
originally suspected. Caterpillar Ex. E, ¶ 15. Tjelle asserts
Lawson's inquiry was unnecessary because the issue was resolved
when O'Brien issued her overtime payment. Tjelle Resp. to
Caterpillar Facts at ¶¶ 76-80. In any event, Lawson examined
Tjelle's payroll records and discovered she had submitted what
he believed to be an unusually high number of blue cards.
Caterpillar Ex. E, ¶ 17. Lawson found the records and blue cards
were confusing, so he obtained Tjelle's gate swipe data from
Caterpillar security.*fn1 Id. at ¶ 18. Lawson thought the gate swipe data recorded the exact time an
employee entered or left the facility; he intended to use the
gate swipe information to ensure Tjelle's hours and pay
balanced.*fn2 Id. at ¶¶ 19-20. Upon comparing the gate
swipes to Tjelle's claimed overtime, however, it appeared Tjelle
claimed overtime for hours not worked. Lawson showed his findings
to Dan Kaye, a logistics manager who told him to further review
and compile the data. Lawson reviewed additional gate swipes and
prepared a spreadsheet representing Tjelle's swipe-in times,
swipe-out times, overtime claimed, and overtime to which she was
actually entitled. Pay periods that Lawson believed showed Tjelle
over-reported overtime appeared in red. Tjelle denies she
over-reported her overtime and contends many of the spreadsheet
calculations were inaccurate. Tjelle Ex. D at ¶¶ 1, 10. She does
not know how Larson calculated the figures or whether the alleged
mistakes were intentional. Tjelle Resp. to Caterpillar Facts at ¶
Lawson also spoke to Dilworth about Tjelle's overuse of blue
cards and her failure to enter time through the EDR system.
Dilworth testified at his deposition:
[Lawson's] words to me were that it was the salaried
employee's responsibility to make sure they turned in
their overtime on EDR, on that system, in the
allotted time. And by showing me those blue cards
or while showing me those blue cards, he said that
this is totally unacceptable, it requires too many
man hours for my people to be working with these
cards so she needs to be turning her time in on the
EDR because that's part of her job responsibility.
Caterpillar Ex. D at 10. Lawson requested that Dilworth counsel
Tjelle about using too many blue cards instead of electronically
reporting her overtime because he felt, as payroll supervisor,
blue cards required additional employee work hours in the payroll
department. Tjelle responds that Dilworth merely told her "I'm just going to warn you that Bill
Lawson is going to turn you in to Jim Waters and you're going to
get reprimanded if you turn in any more blue cards . . . just be
careful." Caterpillar Ex. A at 99. When Tjelle asked whether she
would receive overtime if she did not turn in a blue card,
Dilworth told her to make sure she entered the time into the EDR
system because that was the accepted mode of submitting overtime;
blue cards were only to be used as an exception.
On February 24th, Kaye provided Miller, Tjelle's new
supervisor, with a copy of Lawson's spreadsheet. Kaye told Miller
the data reflected repetitive over-claiming of overtime. Miller
assumed the spreadsheet was accurate; he did not know how the
spreadsheet was compiled nor did he check its accuracy. After
discussing the spreadsheet's disparities between claimed and
earned overtime with Larson, Miller spoke to human resources
personnel. Over-claiming overtime is considered "stealing time."
Human resources confirmed Caterpillar had a zero tolerance policy
on stealing time and that Caterpillar had terminated other
salaried non-exempt employees for the same conduct. Miller
decided to terminate Tjelle's employment. On February 27th,
Miller and a member of the human resources department met with
Tjelle. Miller asked Tjelle to explain why Caterpillar had paid
her for overtime she had not actually worked; Tjelle replied she
did not know what he was talking about. Miller informed her
Caterpillar had a zero tolerance policy for stealing time and
terminated her employment. Miller did not show Tjelle the
spreadsheet he relied upon in deciding to terminate her, despite
her request for documentation of the alleged over-reporting.
Tjelle was not told she was terminated for complaining about
When Tjelle complained to Dilworth and O'Brien about not
receiving the December 27th overtime pay, and when she complained
to Dilworth that her overtime pay had not been timely paid since
November, she concluded Caterpillar's failure to pay was in
violation of federal overtime wage laws. Tjelle argues her termination was retaliatory because she
repeatedly complained about her December 27th overtime, was fired
for overtime, and "Bill Lawson didn't like it and decided, oh,
let's get rid of her. I don't know. This is all my assumption. I
have no idea what happened." Caterpillar Ex. A at 122-123. Tjelle
does not know of any other salaried non-exempt employees who
complained to Caterpillar supervisors or payroll about overtime.
Nor does she know of any employee who was accused of
over-reporting overtime. Tjelle has identified three purportedly
comparable employees who "did not complain about overtime, in
fact worked overtime for which they were [sic] not paid and were
not discharged for their silence." Tjelle Resp. to Caterpillar
Facts at ¶ 146.
Summary judgment is appropriate when the moving papers and
affidavits show there is no genuine issue of material fact and
the movant is entitled to judgment as a matter of law.
Fed.R.Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); King v. Nat'l Human Res. Comm., Inc., 218 F.3d 719, 723
(7th Cir. 2000). Once a moving party has met its burden, the
non-moving party must go beyond the pleadings and set forth
specific facts showing there is a genuine issue for trial.
Fed.R. Civ. P. 56(e); Silk v. City of Chicago, 194 F.3d 788, 798
(7th Cir. 1999). A genuine issue of material fact exists when
"the evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986); Insolia v. Philip Morris,
Inc., 216 F.3d 596, 599 (7th Cir. 2000). II. Retaliation
The FLSA prohibits employers from discharging or otherwise
discriminating against employees for filing a complaint or
instituting, or causing to be instituted, a proceeding under or
related to the FLSA. 29 U.S.C. § 215(a)(3). Tjelle may prove a
FLSA retaliation claim either directly or indirectly. Davis v.
Con-Way Transp. Cent. Express, Inc., 368 F.3d 776, 786 (7th Cir.
2004); Cichon v. Exelon Generation Co., No. 02 C 3441, 2003
U.S. Dist. LEXIS 16459, at *11-12 (N.D. Ill. Sept. 18, 2003)
(FLSA retaliation claim analyzed under same framework as Title
VII retaliation claim). To survive summary judgment using the
direct method, Tjelle must present "direct evidence (evidence
that establishes without resort to inferences from circumstantial
evidence) that [s]he engaged in protected activity . . . and as a
result suffered the adverse employment action of which [s]he
complains." Stone v. City of Indianapolis Public Utils. Div.,
281 F.3d ...