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Sanders v. Mid City Salon Resources

September 5, 2008


The opinion of the court was delivered by: Joan Humphrey Lefkow United States District Judge

Judge Joan H. Lefkow


Ernest Sanders, Gloria Cobbs, and Christine Tuzzolino (collectively, "plaintiffs") brought suit against their former employer, Mid City Salon Resources, LLC ("Mid City"), and David Montague (collectively, "defendants"), alleging three counts of employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3, and the Fair Labor Standards Act ("FLSA"), 29 § U.S.C. 215(a)(3). On January 23, 2008, the court granted in part and denied in part defendants' motion for summary judgment. Now before the court is defendants' motion for Rule 11 sanctions. Defendants' motion is based on (1) defendants' allegation that plaintiffs' counsel deliberately maintained a claim-Cobbs's FLSA retaliation claim-that plaintiffs' counsel knew was frivolous and lacking in evidentiary support, and (2) for plaintiffs' counsel's conduct during discovery. Rule 11 provides, in relevant part:

By presenting to the court a pleading, written motion, or other paper-whether by signing, filing, submitting, or later advocating it-an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

Fed. R. Civ. P. 11(b).

Defendants' allegations regarding discovery stem from conduct by plaintiffs' counsel at two depositions: (a) defendants' deposition of plaintiff Cobbs and (b) plaintiffs' deposition of Antonio Romiro, a non-party. With respect to the latter, defendants allege that plaintiffs' counsel harassed and attempted to intimidate Romiro about his national origin and immigration status. Although such allegations of witness harassment are serious, they do not generally fall within the rubric of Rule 11, which requires that attorneys present pleadings, motions, and other written documents to the court only if they believe, after reasonably inquiry, that they have a sufficient basis in law and fact to support their claims and contentions.

Defendants' allegations regarding Cobbs's deposition, on the other hand, do relate to the validity of a claim-Cobbs's FLSA retaliation claim. The court granted summary judgment in favor of the defendants on that claim because plaintiffs failed to cite any competent evidence showing that Cobbs either had or expressed a good-faith belief that Mid City might be violating overtime laws.

As defendants correctly noted in their motion for summary judgment, in order to support a prima facie claim of retaliation under the FLSA, a plaintiff must show that she "report[ed] conduct 'under' or 'related to' violations of the federal minimum wage or maximum hour laws, whether or not the employer's conduct did in fact violate those laws," and that she "had a good-faith belief that [the FLSA] might be violated." Sapperstein v. Hager, 188 F.3d 852, 857 (7th Cir. 1999). Plaintiffs' counsel is well aware that an FLSA claim requires a showing that, in plaintiffs' counsel's own words, "an employee . . . opposed any practice made unlawful" by the FLSA. Pls.' Resp. to Defs.' Mot. for Summary Judgment at 13 (emphasis added). However broad the proscriptions of the FLSA may be, plaintiffs have failed to present any evidence showing that Cobbs believed that Mid City was violating any laws related to overtime.

Cobbs allegedly inquired about overtime with her employers on two separate occasions-first with Montague on or about November 4, 2005 and then with Nancy Manna and Forest Colburn on November 8, 2005. As discussed in the court's January 23, 2008 memorandum opinion and order regarding summary judgment, Cobbs's deposition testimony concerning her alleged overtime complaint is at times unclear, with Cobbs referring to both "time and a half" and "double time," as well as "double time and a half." The court found that Cobbs's testimony is clear enough, however, about the nature of her inquiry, which was, in her words, about time and half, double time on Sunday used to give some companies. It is not mandatory that they have to give it to you, but it was just a question. It wasn't like you going to pay me. I'm going to make you pay me. No, it was a question. Are we going to get paid -- since we get time and a half on Saturday, do Sundays runs over to double time? He said no and that was the inventory.

Defs.' Statement, Ex. 2 (Cobbs's Dep., Pt. II), at 182--83 (emphasis added). This testimony indicates that when she inquired on November 4, 2005 about receiving overtime wages for working on Sunday, Cobbs did not have a good-faith belief that she was legally entitled to double time wages; rather, she was inquiring about whether the company had a discretionary policy of paying double time on Sundays, which she understood not to be mandatory.

Later in Cobbs's deposition, while still under questioning by defendants' counsel, Christopher Garcia, Cobbs discussed her November 8 inquiry. She initially denied that she had brought up any overtime issues with Manna or Colburn at the November 8, 2005 meeting:

Q: At the meeting of November 8, 2005, you never brought up any overtime issues with Nancy Manna ...

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