United States District Court, N.D. Illinois, Eastern Division
September 21, 2005.
JOAQUIN HERRERA, MARKO OSTOJIC, DOUGLAS ANDERSON, and JIM SHREWSBURY, individually, Plaintiffs,
CORN PRODUCTS INTERNATIONAL, INC. Defendant.
The opinion of the court was delivered by: AMY ST. EVE, District Judge
MEMORANDUM OPINION AND ORDER
On June 21, 2005, Plaintiffs Joaquin Herrera, Marko Ostojic,
Douglas Anderson, and Jim Shrewsbury filed a three-count First
Amended Complaint alleging violations of the Fair Labor Standards
Act ("FLSA"), 29 U.S.C. § 200 et. seq., the Illinois
Whistleblower Act ("IWA"), 740 Ill. Comp. Stat. 174/1 et. seq.,
and a state common law claim of retaliatory discharge against
Defendant Corn Products International, Inc. ("Corn Products").
Before the Court is Corn Products' Motion to Dismiss Plaintiffs'
First Amended Complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6). For the following reasons, the Court denies
Corn Products' motion.
A motion to dismiss pursuant to Rule 12(b)(6) tests the
sufficiency of the complaint and is not designed to resolve the
merits of case. Triad Assoc., Inc. v. Chicago Hous. Auth.,
892 F.2d 583, 586 (7th Cir. 1989); Berg v. B.C.S. Fin. Corp.,
372 F.Supp.2d 1080, 1088 (N.D. Ill. 2005). The Court will grant a
motion to dismiss only "if it appears beyond a doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle
him to relief." Centers v. Centennial Mortgage, Inc.,
398 F.3d 930, 933 (7th Cir. 2005) (quoting Conley v. Gibson,
355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed.2d 80 (1957)). When
ruling on a motion to dismiss, the Court must assume the truth of
the facts alleged in the pleadings, construe the allegations
liberally, and view the allegations in the light most favorable
to the plaintiff. Centers, 398 F.3d at 933.
I. Plaintiffs' Allegations
In June 1992, Defendant Corn Products hired Plaintiff Joaquin
Herrera as a Senior Operations Manager. (R. 1-1; Am. Compl. ¶ 4.)
In June 1982, Corn Products hired Plaintiff Marko Ostojic as an
Operations Manager. (Id. ¶ 5.) Corn Products hired Plaintiff
Douglas Anderson in January of 1991 as an Operations Manager.
(Id. ¶ 6.) In addition, Corn Products hired Plaintiff Jim
Shrewsbury as an Operations Manager in May of 2002. (Id. ¶ 7.)
Corn Products is an Illinois corporation authorized to do
business in the State of Illinois. (Id. ¶ 8.) Corn Products
produces corn-refined and starch-based ingredients. (Id.) Its
corporate headquarters are located in Westchester, Illinois, and
it has a facility in Bedford Park, Illinois ("Archer Facility").
B. Corn Products' Relationship with Total Facility
Corn Products subcontracted the janitorial work for its Archer
Facility to Total Facility Maintenance, Inc. ("TFM"). (Id. ¶
10.) Plaintiffs allege that TFM was an agent of Corn Products,
because Corn Products "derived benefit from its relationship"
with TFM, and Corn Products "substantially controlled the manner
in which TFM employees performed their work." (Id.) Through this agency relationship, Plaintiffs allege that
Corn Products agreed to pay the janitorial employees at its
Archer Facility. (Id. ¶ 11.)
B. Janitorial Employees
The janitorial employees complained on several occasions to
Plaintiffs, as Operations Managers at Corn Products, that TFM was
not paying them their proper wages. (Id. ¶ 13.) Specifically,
the janitorial employees complained that TFM was not paying them
time and one-half for the hours they worked in excess of the
normal forty hour work week. (Id. ¶ 12). Initially, Herrera
advised the employees to speak directly to their manager about
their wage problems. (Id. ¶ 13). In addition, TFM's owner told
the employees to stop complaining to Plaintiffs about their wages
or they would be fired. (Id. ¶ 17.)
Plaintiffs voiced concerns to Corn Products' management about
the janitorial employees' wages on several occasions. (Id. ¶
15.) Specifically, Plaintiffs told Corn Products' management that
"a violation of law was occurring by not paying the janitorial
employees the agreed upon wages." (Id.) Ostojic sent an e-mail
to Accounting Manager Judy Cox in April 2003 concerning the
janitorial employees, as well. (Id.) Plaintiffs also complained
to Purchasing Manager John Fitzsimmons that Corn Products,
through TFM, failed to properly pay the janitorial employees.
(Id.) Plaintiffs further allege that Corn Products instructed
them to dismiss any complaints from the janitorial employees
about their wages. (Id. ¶ 16.)
In response to continued complaints from the janitorial
employees, Plaintiffs increased the hours on the employees'
timesheets. (Id. ¶ 18.) Plaintiffs believed this would "correct
the unlawful acts of Corn Products through its agent TFM." (Id.
¶ 19.) Plaintiffs allege that increasing hours on employee
timesheets was common practice at Corn Products, and management recognized the practice as a legitimate method of
ensuring that Corn Products pays its employees properly. (Id. ¶
D. Plaintiffs' Termination
On or about January 21, 2005, Corn Products terminated
Plaintiffs for allegedly violating Corn Products' company
policies. (Id. ¶ 21.) Plaintiffs claim that Corn Products
terminated them because of their complaints about Corn Products'
failure to properly pay wages pursuant to the FLSA and their
efforts to comply with the FLSA's wage payment and overtime
requirements. (Id. ¶ 26.)
Corn Products argues that the Court should dismiss Plaintiffs'
FLSA claim because Plaintiffs committed fraud by adjusting the
janitorial employees timesheets, and the FLSA does not protect
such unlawful activity. Moreover, Corn Products maintains that
the Court should decline to exercise supplemental jurisdiction
over Plaintiffs' state law claims once it dismisses Plaintiffs'
FLSA claim. Plaintiffs, on the other hand, contend that they have
adequately alleged a claim for a FLSA retaliation claim under
Federal Rule of Civil Procedure 8(a).
Under the liberal federal notice pleading standard embodied in
Federal Rule of Civil Procedure 8(a), a plaintiff need only
allege "a short and plain statement of the claim showing that the
pleader is entitled to relief," which requires the plaintiff to
plead "the bare minimum facts necessary to put the defendant on
notice of the claim so that he can file an answer."
Fed.R.Civ.P. 8(a)(2); Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002).
Notice pleading does not require an exhaustive recitation of
facts or elements of the claims. Lekas v. Briley, 405 F.3d 602,
606 (7th Cir. 2005). With the liberal notice pleading standard in mind, the Court
turns to Corn Products' Motion to Dismiss Plaintiffs' FLSA claim.
A retaliation charge under the FLSA prohibits any person from
discharging or discriminating against any employee "because such
employee has filed any complaint or instituted . . . any
proceeding under or related to this chapter." Section 215(a)(3)
(emphasis added); see also Sapperstein v. Hager, 188 F.3d 852,
856 (7th Cir. 1999). The elements of a FLSA retaliation claim
are: (1) plaintiff engaged in statutorily protected expression;
(2) plaintiff suffered an adverse employment action; and (3) a
causal link between the protected expression and the adverse
employment action exists. Scott v. Sunrise Healthcare Corp.,
195 F.3d 938, 940 (7th Cir. 1999).
Here, Plaintiffs allege that they voiced concerns to Corn
Products' management on several occasions, including that "a
violation of law was occurring by not paying the janitorial
employees the agreed upon wages." (R. 1-1, Am. Compl. ¶ 15.) They
further allege that Ostojic sent an e-mail to Corn Products'
Accounting Manager and they complained to Purchasing Manager John
Fitzsimmons that Corn Products, through TFM, failed to properly
pay the janitorial employees. (Id.) Thus, Plaintiffs are basing
their FLSA retaliation claim on their informal complaints to Corn
Although the Seventh Circuit has yet to address whether an
informal complaint satisfies the "any complaint" requirement
under Section 215(a)(3), other circuit court decisions lend
guidance. For instance, the Ninth Circuit held that the FLSA
protects employees who file informal complaints, as well as
employees who file formal proceedings with the Department of
Labor or with a court. Lambert v. Ackerley, 180 F.3d 997, 1004
(9th Cir. 1999). In Lambert, the Ninth Circuit explained
that based on the FLSA's remedial nature, the statute must be
interpreted broadly to protect individual's rights. Id. Other
circuit courts have also held that Section 215(a)(3) protects the kind of informal conduct Plaintiffs allege
in the case at bar. See, e.g., Valerio v. Putnam Assocs, Inc.,
173 F.3d 35, 43 (1st Cir. 1999) (filing complaint with
employer is protected activity under the anti-retaliation
provision of FLSA); EEOC v. Romeo Cmty. Sch., 976 F.2d 985,
989-90 (6th Cir. 1992) (employee's assertion that employer
was "breaking some sort of law" fell within Section 215(a)(3)
protections); Brennan v. Maxey's Yamaha, Inc., 513 F.2d 179,
181 (8th Cir. 1975) (protesting what employee believed to be
unlawful conduct is a protected activity under Section
215(a)(3)); Love v. RE/MAX of Am., Inc., 738 F.2d 383, 387
(10th Cir. 1984) (FLSA applies to unofficial assertion of
rights through complaints); EEOC v. White & Sons Enters.,
881 F.2d 1006, 1011 (11th Cir. 1989) (unofficial employee
complaints regarding unequal pay qualify as protected assertion
of rights under FLSA).
In addition, courts in this district have also concluded that
informal complaints constitute "any complaint" within the meaning
of Section 215(a)(3) based on the FLSA's broad remedial purpose.
See, e.g., Skelton v. American Intercontinental Univ. Online,
___ F.Supp.2d ___, No. 03 C 9009, 2005 WL 2001281, *6 (N.D. Ill.
Aug. 19, 2005) (employee's internal verbal complaints to head of
human resources constituted protected activity); Wittenberg v.
Wheels, Inc., 963 F. Supp. 654, 658-59 (N.D. Ill. 1997)
(anti-retaliation provision of FLSA encompasses informal
These decisions are persuasive because they follow
well-established Supreme Court precedent that the FLSA "must not
be interpreted in a narrow, grudging manner." Tennessee Coal,
Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 550, 597,
64 S. Ct. 698, 88 L. Ed. 949 (1944); see also Mitchell v. Robert
DeMario Jewelry, Inc., 361 U.S. 288, 292-93, 80 S. Ct. 332,
4 L. Ed. 2d 323 (1960) (expansive reading of FLSA motivates employees
to report wage and hour violations). In Mitchell, the Supreme
Court reasoned that when enacting the FLSA, "Congress sought to foster a climate in which compliance with the
substantive provisions of the Act would be enhanced." Id. at
292. Therefore, Plaintiffs have sufficiently alleged a
retaliation claim under the FLSA based on their informal verbal
complaints to Corn Products' management.
Nonetheless, Corn Products contends that Plaintiffs have plead
themselves out of court because they allege that they changed the
janitors timesheets, and thus they have committed fraud. At this
procedural posture, however, the Court must view the facts and
all reasonable inferences in a light most favorable to
Plaintiffs. See Centers, 398 F.3d at 933. As such, the Court
cannot make the factual determination that Plaintiffs committed
fraud as Corn Products suggests.*fn1
Next, Corn Products argues that Plaintiffs failed to plead a
causal link between the alleged protected activity and the
adverse employment action of Corn Products terminating their
employment. Under the liberal notice pleading framework,
Plaintiffs need only allege the minimum facts necessary to put
Corn Products on notice of their claims, which they have done so
here. Walker v. Thompson, 288 F.3d 1005, 1007 (7th Cir.
2002) ("there is no requirement in federal suits of pleading the
facts or the elements of a claim"); see also Higgs,
286 F.3d at 439.
Because the Court denies Corn Products' Motion to Dismiss
Plaintiffs' FLSA claim, the Court need not address Corn Products'
argument that the Court should relinquish supplemental
jurisdiction and remand Plaintiffs' state law claims. CONCLUSION
For the foregoing reasons, the Court denies Defendant's motion
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