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Bulaj v. Wilmette Real Estate and Management Co.

October 21, 2010

REXHEP BULAJ, PLAINTIFF,
v.
WILMETTE REAL ESTATE AND MANAGEMENT COMPANY, LLC, AND CAMEEL HALIM, INDIVIDUALLY, DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Young B. Kim

MEMORANDUM OPINION and ORDER

Before the court is plaintiff Rexhep Bulaj's ("Bulaj") motion for summary judgment on the issue of liability. In his complaint, Bulaj alleges violations of the overtime wage provisions of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq., and Illinois Minimum Wage Law ("IMWL"), 820 ILL. COMP. STAT. ANN. 105/1 (West 2010) et seq., against defendants Wilmette Real Estate and Management Company, LLC ("Wilmette") and Cameel Halim ("Halim") (together "Defendants"). For the following reasons, Bulaj's motion is granted:

Facts

Wilmette is a real estate management company. (Pl.'s Facts ¶ 30.)*fn1 During the time period relevant to this case, 1996 to 2008, Wilmette's principal business was the management of residential properties in the Chicago metropolitan area. (Id.) Wilmette leased apartments in the properties it managed and hired contractors to maintain the various properties. (Defs.' Fact Resp. ¶ 31.) Halim was the President of Wilmette and responsible for Wilmette's dayto-day business operations. (Pl.'s Facts ¶ 32.) Halim had supervisory authority over Wilmette's employees, including those decisions involving the hiring and firing of employees and setting their compensation. (Id. ¶ 33.)

Bulaj worked for Defendants for 12 years as a janitorial and building maintenance worker from September 1996 through July 2008, when he was fired by Halim. (Pl.'s Facts ¶¶ 1, 34.) When Bulaj first began working for Defendants, he was responsible for providing janitorial and building maintenance services for two of Defendants' properties located at 301 Custer Avenue (the "Custer property") and 718 Simpson Avenue (the "Simpson property") in Evanston, Illinois. (Id. ¶ 2.) Defendants instructed Bulaj to perform certain maintenance duties at these two locations. (Id. ¶ 12.) Bulaj's responsibilities generally entailed overseeing building maintenance, including landscaping, cleaning, and repairing the Custer and Simpson properties. (Id. ¶ 4.) He also swept floors, mowed grass, uncloggd toilets, changed light fixtures, and cleaned gutters. (Id. ¶ 24.)

At some point, Bulaj's duties extended to the leasing of apartments at these properties. (Pl.'s Facts ¶¶ 5, 15.) Defendants advertised the availability of apartments at these locations and listed Bulaj's telephone number as the contact number. (Id. ¶ 16.) Bulaj then arranged to show the apartments to prospective tenants and also cleaned the apartments as directed by Defendants. (Id. ¶¶ 5, 15.)

In May 2006, Defendants again expanded Bulaj's responsibilities and directed him to respond to maintenance calls and to complete work orders at another property located at 6230 Kenmore Avenue (the "Kenmore property") in Chicago. (Pl.'s Facts ¶¶ 3, 6; Defs.' Fact Resp. ¶ 3.) Bulaj reported to work at the Kenmore property from 8:00 a.m. to 12:00 p.m. each weekday and maintained time sheets reflecting the number of hours he worked at the property.*fn2 (Pl.'s Facts ¶¶ 6, 13.) When Defendants added the maintenance duties at the Kenmore property to Bulaj's assigned responsibilities, his salary did not increase. (Id. ¶ 19.) Instead, Defendants presented a "take it or leave it" proposition to Bulaj that he would have to either accept the additional work or quit his job. (Id.)

Bulaj's day-to-day responsibilities required that he obtain various types of residential maintenance and cleaning supplies from Defendants in order to perform his daily work. (Pl.'s Facts ¶ 20.) Defendants maintained these supplies, which included cleaning products, washers, faucets, mops, medicine cabinets, and towels at one of its branch offices. (Id. ¶ 21; Defs.' Fact Resp. ¶ 21.) In addition to these supplies, Defendants also furnished Bulaj with a cell phone so that he could fulfill his janitorial and maintenance duties at the three properties. (Pl.'s Facts ¶ 23.) Defendants monitored the quality of Bulaj's work at the three properties and would discipline him when it fell below their expectations. (Id. ¶ 14.) Halim personally disciplined Bulaj on numerous occasions. (Id.)

Bulaj developed his maintenance skills before he began working for Defendants. (Defs.' Facts ¶ 8.) Bulaj received training in carpentry, plumbing, and electrical work while attending school and working for a union in New York. (Id.) At his deposition, Bulaj testified that his job with Defendants required "special skills," (id. ¶ 9), and that no one ever told him "how" to do his job, (id. ¶ 3). Bulaj had an extensive collection of tools, which included many different types of saws and drills, hammers, crow bars, wrenches, rod and pipe cutters, and a lawnmower. (Id. ¶¶ 6, 7.) Some of the duties Bulaj performed as a result of having certain special skills included changing pipes, valves, electrical outlets, and light fixtures, and repairing boilers, windows, and doors. (Id. ¶ 2.) When Defendants required work that was outside the scope of Bulaj's duties or expertise, they hired professional contractors, including electricians and carpet installers, to perform those tasks. (Pl.'s Facts ¶ 26; Defs.' Fact Resp. ¶ 26.)

During the course of his 12 years of employment with Defendants, Bulaj was paid a flat bi-weekly salary for his work. (Pl.'s Facts ¶ 7.) Bulaj's compensation also included a rent free apartment at the Custer property, which had a monthly lease value of $1,200. (Id. ¶ 18.) Defendants made regular bi-weekly payroll withholdings from Bulaj's salary for federal and state income taxes, Social Security and Medicare, and unemployment taxes.*fn3 (Id. ¶¶ 10, 29; Pl.'s Ex. C.) Bulaj was also a member of the Janitor's Union, Local 1 ("Janitor's Union") and participated in the Janitor's Union's health insurance program and pension fund. (Id. ¶ 11.) Defendants paid a portion of Bulaj's health insurance benefits, which was reflected on his bi-weekly pay statements. (Id. ¶ 29; Defs.' Fact Resp. ¶ 29; Pl.'s Ex. C.) Bulaj's pay statements listed Wilmette's name under the "Employer Information" section and noted the account as being a "Payroll Account." (Id.) Bulaj's name appeared under the "Personal Information" section, which also included his Social Security number, and employee and department numbers. (Id.) And, at the very bottom of Bulaj's pay statements, the name of the company that prepared Defendants' payroll accounts was listed as "Payrolls by Paychex, Inc." (Id.)

Defendants reported Bulaj's annual compensation to taxing authorities by using IRS Form W-2 Wage and Tax Statements ("W-2 Statements"). (Pl.'s Facts ¶ 10; Defs.' Ex. C.) The W-2 Statements list Bulaj as an "employee" and Wilmette as his "employer." (Id.) Bulaj's 2006 W-2 Statement shows that he earned $29,520 in wages from Wilmette. (Id.) In 2006, Bulaj also reported $4,800 in compensation he earned from "Freddies Building and Maintenance Service" using IRS Form 1099-Misc ("Form 1099"). (Id.) Bulaj also completed IRS Schedule C, Profit or Loss from Business (Sole Proprietorship) form ("Schedule C"), where he listed himself as a sole proprietor of a maintenance business. (Id., Defs.' Facts ¶ 14.) On Schedule C, Bulaj reported the following business expenses: (1) car and truck expenses of $4,429; (2) insurance expenses of $854; (3) legal and professional expenses of $450; (4) supply expenses of $365; and (5) utility expenses of $985. (Defs.' Ex. C; Defs.' Facts ¶ 15.) At his deposition, Bulaj explained that he did not own a business in 2006 and that the compensation totaling $4,800 he reported was for maintenance work he performed for his brother-in-law's business. (Pl.'s Fact Resp. ¶ 14; Bulaj Dep. at 82:3-83:20.) Defendants did not present any evidence tending to show that the expenses Bulaj reported in his 2006 Schedule C were related to the work he performed for Defendants.

At some point when Bulaj was considering another employment opportunity, Tom Herkes ("Herkes"), Defendants' Senior Property Accountant, wrote a letter dated December 27, 2006 verifying Bulaj's employment with Wilmette. (Pl.'s Facts ¶ 27, Pl.'s Ex. F.) The letter stated in pertinent part that "Rexhep Bulaj is employed by Wilmette Real Estate & Management as the building janitor at our locations at 301 Custer and 718 Simpson. His hire date is September 1st, 1996." (Id.) While Defendants admit that Herkes provided the letter on Bulaj's behalf, they dispute that he was their employee.

Bulaj testified that he worked a total of 66 hours each week at the Custer, Simpson, and Kenmore properties. (Pl.'s Facts ¶ 36.) He stated that he worked 20 hours each week at the Kenmore property and worked an additional 46 hours each week at the Custer and Simpson properties. (Id. ¶ 38.) Defendants did not maintain any records of the number of hours Bulaj worked in any individual work week. (Id. ¶ 35.) And, Defendants did not present any evidence to rebut Bulaj's testimony that he worked in excess of 40 hours per week. Furthermore, Halim testified that he never paid Bulaj overtime wages, (id. ¶ 40), and Bulaj's salary did not fluctuate from week-to-week depending on the number of hours he actually worked, (id. ¶ 42). Rather, Defendants' expectation was that Bulaj would complete his job duties no matter how many hours per week he was required to work. (Id. ¶ 41.)

Analysis

Summary judgment is appropriate when the record establishes that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In deciding whether genuine issues of material fact exist, the court must "review the record as a whole in the light most favorable to the nonmoving party and . . . draw all reasonable inferences in that party's favor." Vanasco v. National-Louis Univ., 137 F.3d 962, 964 (7th Cir. 1998). A genuine issue of material fact is not shown by the mere existence of "some alleged factual dispute between the parties," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986), or by "some metaphysical doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, 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, 477 U.S. at 248.

The moving party bears the burden of establishing the basis for its motion and "identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The moving party may satisfy this initial burden by presenting specific evidence on a particular issue or by pointing out that there is "an absence of evidence to support the nonmoving party's case." Id. at 325. Once the moving party has met its burden, the responsibility shifts to the nonmoving party to show that an issue of material fact exists. Keri v. Bd. of Tr. of Purdue Univ., 458 F.3d 620, 628 (7th Cir. 2006). However, the nonmoving party cannot simply rest on allegations in the pleadings, but "by ...


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