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Petina R. Thigpen, Individually and On Behalf of A Class of Persons Similarly Situated v. Illinois Bell Telephone Company

December 21, 2010


The opinion of the court was delivered by: Judge Virginia M. Kendall


Plaintiff Petina Thigpen ("Thigpen") filed suit in the Circuit Court of Cook County against Illinois Bell Telephone Company ("Defendant") individually and on behalf of others similarly situated alleging violation of the Illinois Minimum Wage Law, 820 ILCS 105/1 et seq. ("IMWL") for failure to pay overtime. Defendant removed the case to this Court on the grounds of federal preemption. Thigpen moves to remand the case to the Circuit Court of Cook County and Defendant moves to dismiss Thigpen's Amended Complaint. For the following reasons, the Court denies Thigpen's Motion to Remand and grants Defendant's Motion to Dismiss.


The following facts are taken from Thigpen's Amended Complaint and are assumed to be true for purposes of this Motion to Dismiss. See Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995).

Thigpen is an hourly telephone call center employee at Defendant's Arlington Heights, Illinois office. (Compl. ¶ 1.) Thigpen has been employed by Defendant as a customer service representative and call center worker from March 2004 through the present. (Compl. ¶ 3.)

Thigpen claims that she and similarly situated employees are forced to engage in numerous work-related activities before and after their scheduled shift for which they are not compensated. (Compl. ¶ 7.) For example, Thigpen must be "ready to work" by the time her shift begins, but being "ready to work" requires employees to boot up their computers, log onto the network, open relevant computer programs, review job-related memoranda, and complete other essential tasks. (Compl. ¶ 8.) Consequently, Thigpen claims she and other similarly situated workers are denied "a significant and material amount" of overtime pay each week. (Compl. ¶¶ 9, 29.)

In 2008, call center workers employed by Defendant filed a separate suit in the Northern District of Illinois alleging violations of the Fair Labor Standards Act ("FLSA"). (Compl. ¶ 12.) Thigpen chose not to "opt-in" to that lawsuit, which was recently settled. (R., Pltf.'s Combined Reply Memorandum at 8.)

Thigpen filed this suit in the Circuit Court of Cook County in August 2010. Defendant removed to this Court in September 2010 on the basis of federal preemption pursuant to the Collective Bargaining Agreements ("CBAs") in place governing Thigpen's and other similarly situated employees' employment.*fn1 (R., Def.'s Motion to Dismiss, Ex. A.) These CBAs define the type of work Thigpen performs, her hours of work, and her salary. (Id. at 60.) The CBAs also describe the grievance and arbitration procedures dissatisfied employees must follow before filing suit. (Id. at 42.)

Thigpen moves to remand her case back to the Circuit Court of Cook County. She claims her suit is not preempted by federal law and believes that over 1,000 similarly situated employees also chose not to "opt-in" to the FLSA lawsuit that recently settled. (Compl. ¶ 18.) These employees represent the potential class members in her current suit. Id.

Defendant moves to dismiss Thigpen's claim for failure to exhaust the grievance and arbitration procedures outlined in the CBAs before commencing this suit.


A defendant can remove a case from state court to a federal district court if the district court has original jurisdiction over the matter. 28 U.S.C. § 1441; Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). The party seeking removal has the burden of establishing federal jurisdiction. Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 447 (7th Cir. 2005). After a case is removed, but before the court renders a final judgment, if it "appears that the district court lacks subject matter jurisdiction, the case should be remanded" back to state court. 28 U.S.C. § 1447(c). When ruling on a motion to remand, "[c]courts should interpret the removal statute narrowly and presume that the plaintiff may choose his or her forum," with any doubt resolved in favor of remand. Doe v. Allied-Signal Inc., 985 F.2d 908, 911 (7th Cir. 1993).

When considering a motion to dismiss under Rule 12(b)(6), the Court accepts as true all facts alleged in the complaint and construes all reasonable inferences in favor of the plaintiff. See Murphy, 51 F.3d at 717. To state a claim upon which relief can be granted, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "Detailed factual allegations" are not required, but the plaintiff must allege facts that, when "accepted as true . . . 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In analyzing whether a complaint has met this standard, the "reviewing court [must] draw on its judicial experience and common sense." Iqbal, 129 S. Ct. at 1950. When there are well-pleaded factual allegations, the Court assumes their veracity and then determines if ...

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