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Prange v. Borders

September 11, 2006


The opinion of the court was delivered by: Judge Robert W. Gettleman


Plaintiff Clarice Prange has sued defendant Borders, Inc. for failing to pay her for hours worked and for firing her in retaliation for complaining about not receiving the pay. On February 9, 2005, defendant agreed to toll the statutes of limitation for plaintiff's wage claims until March 9, 2005. The tolling was further extended to March 23, 2005, at which time plaintiff filed a complaint in the Circuit Court of Cook County, Illinois, alleging that defendant had not paid her for all her hours worked, in violation of the Illinois Minimum Wage Act ("IMWA"), 820 ILCS 105/4(a), and the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 206. On April 13, 2005, plaintiff's action was removed to this court.

In Counts I and II, plaintiff alleges that defendant violated the IMWA and FLSA, respectively, by not paying her for all the hours she worked from July 1, 2001 through May 1, 2004. In Count III, plaintiff alleges that defendant illegally terminated her in retaliation for her complaint about not being paid appropriately, in violation of the FLSA. Defendant now moves for partial summary judgment. Defendant seeks full judgment on Count III and partial judgment on portions of Counts I and II.


Plaintiff was formerly an employee in defendant's Oak Park, Illinois store. Plaintiff was hired in July 2000 and worked as a Corporate Sales Representative ("CSR") and a floor employee until her termination on August 31, 2005. The parties do not dispute that plaintiff worked "off-the-clock" hours at the Oak Park Borders store. Off-the-clock hours are hours worked by an employee outside of her scheduled hours that are not recorded or paid by an employer. Store manager Miriam Krekeler testified that she had seen plaintiff at the store when she was not scheduled to work. Lorin Burte, a Borders loss prevention analyst, uncovered plaintiff's off-the-clock hours during an audit in May 2002.

Burte discussed his findings with Krekeler, indicating that plaintiff needed to be documented in payroll and paid for her work. Krekeler then instructed Christina Ziegler, who was in charge of the store's payroll, to alter plaintiff's time records through payroll change procedures in order not to indicate all actual work time. Due to these alterations, plaintiff was forced to obtain other records to reconstruct her actual work hours. Robert Bales, then defendant's regional human relations manager, told plaintiff that he would look into seeing whether there was a way to check log in and log off times via the computer and email. Bales did not inform plaintiff that this was not possible, but he intended to compensate her for her off-the-clock work. During this period, plaintiff believed she did not need to be concerned about the statute of limitations for filing a lawsuit because she was led to believe defendant would voluntarily compensate her for all hours for which she worked but had not been paid.

Plaintiff was never compensated and eventually filed this lawsuit. Defendant claims that during plaintiff's deposition on August 16, 2005, she admitted lying on her employment application by identifying Berwyn Pharmacy as her last employer from 1985 to 1993. Plaintiff listed her position as a "pharmacy assistant and store clerk" at a wage of $8.00 per hour. During her deposition, plaintiff admitted that she "lied about the fact that [she] was getting paid." The parties dispute whether this admission was a lie about being employed by Berwyn Pharmacy. On August 31, 2005, plaintiff was informed that she had been fired by defendant "[b]ecause of [her] false and misleading statement of [her] relationship with Berwyn Pharmacy as that of an employee receiving compensation."

The parties dispute whether it is defendant's policy to fire employees who lie on their job applications. Plaintiff's employment application, which she signed, contained language that obligated her to be "true and complete" on her application and that "any false or misleading information . . . may lead to . . . immediate discharge if discovered at a later date." Plaintiff also admitted to having received and read a copy of defendant's Employee Store Handbook. The handbook, effective August 1, 2000, contains a Standard of Conduct section providing examples of employee activities that may lead to termination, including "[l]ying or falsifying company records or documents" and "[t]he committing of a fraudulent act or a breach of trust under any circumstances." Defendant's Group Employee Handbook, effective February 2003, contains similar language. Defendant claims its company policy is to terminate any employees who violate the policies reflected in the Employee Handbook, and that it was following these policies when it fired plaintiff. Plaintiff disputes this, arguing that defendant does not consistently follow its own policies.

Typically, termination decisions are made the store level, but in the instant case, the decision was made by corporate officials. Lois Thieme, former Borders Senior Manager of Human Resources, received a copy of plaintiff's deposition transcript, which revealed plaintiff had lied on her employment application. Thieme testified that she had a conversation with Gloria Miller, Senior Manager of Field Human Resources, during which it was decided that plaintiff would be fired. Thieme believed Miller made the final decision to terminate plaintiff, but Miller testified that the decision was implicit and assumed as between herself and Thieme. Thieme drafted a termination notice, which Bob Bales used to implement the decision to fire plaintiff.

Prior to the lawsuit, plaintiff was one of defendant's top CSR's, according to Stephen Poirier. After her suit, former Borders Oak Park General Manager Christine Zarzar, at the direction of new District Manager Linda DiMaggio, cut plaintiff's hours as a CSR in half, rescheduling her to work on the floor, although plaintiff's CSR sales goals remained the same. Poirier and Heather Steenrod, head of the corporate sales department, testified that there is a correlation between the number of CSR hours worked and the volume of sales attained, and that reducing a CSR's hours would be counter productive to her corporate sales. Following her cut in CSR hours, Steenrod labeled plaintiff a "leaner," one of the bottom ten Borders' CSR's during one month in 2005.


A movant is entitled to summary judgment under Rule 56 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. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Unterreiner v. Volkswagen of America, Inc., 8 F.3d 1206, 1209 (7th Cir.1993). Once a moving party has met its burden, the nonmoving party must go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); Becker v. Tenenbaum-Hill Associates, Inc., 914 F.2d 107, 110 (7th Cir.1990). The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the party opposing the motion. See Fisher v. Transco Services-Milwaukee, Inc., 979 F.2d 1239, 1242 (7th Cir.1992).

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); Stewart v. McGinnis, 5 F.3d 1031, 1033 (7th Cir.1993). However, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "The mere existence of a scintilla of evidence in support of the [nonmoving party's] position ...

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