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Turner v. Saloon

June 1, 2007


The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge


Following this Court's issuance of its May 25, 2007 memorandum opinion and order ("Opinion") addressing the bulk of the claims asserted by Paul Turner ("Turner") against his ex-employer The Saloon, Ltd. ("Saloon") and certain owners and members of management, this memorandum opinion and order speaks to Turner's remaining allegations (collectively "Wage Claims") that defendants violated the Fair Labor Standards Act ("FLSA," 29 U.S.C. §§201-219)*fn1 and the Illinois Wage Payment and Collection Act ("Illinois Act," 820 ILCS 115/1). Here too Saloon has moved for summary judgment under Fed. R. Civ. P. ("Rule") 56.*fn2 For the reasons stated here, Saloon's motion is granted as to Turner's Wage Claims as well.


Turner claims that during the period of late 2003 through 2004 ("Wage Claim Period"), one of his supervisors, Denise Lake ("Lake"), directed him to alter his time records to avoid being eligible for overtime payment (S. St. ¶67). Turner claims that Lake would request that he modify his time sheets when they worked together on Sundays (id. ¶¶67-68). Though he does not know the exact number of hours he assertedly worked without pay because of Lake's instructions, he says his records indicate a substantial amount of money was involved (T. Dep. 337).

But that unsupported ipse dixit is flatly refuted by the hard evidence proffered by Saloon. In fact Saloon's records, verified by the declaration of its General Manager Mark Braver, show that from July 2003 to December 2004 Turner worked with Lake on only four of the total of 33 Sundays that he worked (B. Declaration ¶14). For two of those four Sundays, Turner's total hours worked during the rest of the week were so low that it would have been literally impossible to exceed 40 hours overall by working on Sunday (id. ¶17). And Turner was actually paid overtime for the other two Sundays that he worked with Lake (id.).

That of course puts the lie to Turner's version. Yet even though Turner has had access to Saloon's management logs and time records since January 2005 (S. St. ¶14), he has offered nothing to support any purported alteration of records--only a denial that Saloon's records are accurate and a statement (but no evidence) that he has "information at home" about his number of uncompensated overtime hours and that "he will be able to calculate it later" (T. St. ¶24).

FLSA Claim

Under FLSA §207(a)(1) Saloon is required to pay its employees overtime compensation of 1-1/2 times their normal wages for hours worked in excess of 40 hours per week. As already stated, Turner asserts, without even a snippet of evidence to buttress that assertion, that Lake instructed him to clock in late and clock out early on Sundays and edited his time cards to avoid paying him overtime.*fn3 Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88 (1946) is the seminal authority that prescribes the analytical framework needed to support Turner's claim:

[W]e hold that an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence. If the employer fails to produce such evidence, the court may then award damages to the employee, even though the result be only approximate.

But before the Mt. Clemens burden-shifting framework can come into play, Turner must first show that Saloon's time records are either "inaccurate or inadequate" (id. at 687).

Late last month our Court of Appeals again reconfirmed the nature of the responsibility of a party such as Turner, facing a potentially dispositive Rule 56 motion (Steen v. Myers, No. 06-1771, 2007 WL 1461401, at *4 (7th Cir. May 21)):

But we have consistently held that summary judgment is "not a dress rehearsal or practice run; it is the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events." Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005)(internal citations omitted).

Here Turner has not done so--or perhaps more accurately, he has confirmed that he has no such evidence at all. At most his generalized and unsupported statement may be viewed as creating the kind of "metaphysical doubt" that Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) teaches is not enough to avert summary judgment.*fn4

Turner also argues that Saloon's business records "demonstrate an obsession with employees reaching the overtime limits" and that waiters who were nearing 40 hours in a week were cut first (T. Mem. at 18). But that contention, even if true, is only a red herring. Indeed, Mechmet v. Four Seasons Hotels, Ltd., 825 F.2d 1173, 1176 (7th Cir. 1987) instructs that an employer's aversion to having ...

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