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Jose Manuel Chavez, et al v. Don Stoltzner Mason Contractor

February 28, 2011


The opinion of the court was delivered by: Matthew F. Kennelly United States District Judge


MATTHEW F. KENNELLY, District Judge:

Jose Manuel Chavez, Felipe Dejesus Pulido, Miguel Pulido, Francisco Contreras, Santiago Contreras, Ezekiel Pulido, and Alex Lukowski sued Don Stoltzner Mason Contractor, Inc. ("Stoltzner") and its officers, owners, and accountant, alleging violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207(a), and the Illinois Minimum Wage Law ("IMWL"), 820 ILCS 105/4 and 4a. Plaintiffs have moved to certify the case as a class action pursuant to Federal Rule of Civil Procedure 23(b)(3). For the reasons stated below, the Court grants plaintiffs' motion.


Plaintiffs are former employees of Stoltzner, an Illinois corporation that furnishes and installs masonry. On December 17, 2009, plaintiffs filed a class action complaint in the Circuit Court of Cook County, alleging that defendants violated the FLSA and the IMWL by failing to fully compensate them and other putative class members for overtime work. In Count 1 of their complaint, plaintiffs allege that defendants violated the IMWL by (1) adjusting workers' recorded overtime hours downward to effectively compensate them at the "straight-time" rate for overtime hours, as opposed to the timeand-a-half rate; (2) adjusting the records after August 17, 2009 to reflect one hour of work less per day than employees actually worked; and (3) requiring employees to work for free on Saturdays beginning in April 2009. In Count 2, plaintiffs allege parallel violations of the FLSA. On January 14, 2010, defendants removed the case to federal court.

Plaintiffs assert their IMWL claims on behalf of themselves and a putative class of similarly situated individuals. By contrast, they assert their FLSA claims individually and have not sought certification of a collective action pursuant to 29 U.S.C. § 216(b). Plaintiffs ask the Court to certify an IMWL class consisting of [a]ll individuals who were employed by Don Stoltzner Mason Contractors, Inc. in the State of Illinois to perform construction work at any time during the relevant statute of limitations period that were not paid one and one half times their regular rate of pay for all time worked over forty (40) hours in a week.

Pls.' Mot. to Certify Class 2 ("Pls.' Mot."). Defendants oppose plaintiffs' motion, arguing that plaintiffs do not meet the requirements of Rule 23.


Courts have "broad discretion to determine whether certification of a class action is appropriate." Keele v. Wexler, 149 F.3d 589, 592 (7th Cir. 1998). In making this determination, the Court need not rely on the allegations in plaintiffs complaint alone; rather, it "should make whatever factual and legal inquiries are required under Rule 23." Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675-76 (7th Cir. 2001).

The Court may grant plaintiffs' motion if plaintiffs demonstrate that they satisfy all of the requirements of Rule 23(a) and one of the requirements of Rule 23(b). Under Rule 23(a), the plaintiffs must demonstrate numerosity, commonality, typicality and adequate representation of the putative class. See Fed. R. Civ. P. 23(a). In this case, plaintiffs seek certification under Rule 23(b)(3), which requires them to show that "questions of law or fact common to class members predominate over any questions affecting only individual members" and "that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed. R. Civ. P. 23(b)(3). Plaintiffs bear the burden of proving they are entitled to class certification. Williams v. Chartwell Fin. Servs., Ltd., 204 F.3d 748, 760 (7th Cir. 2000).

1. Numerosity

Plaintiffs must first demonstrate that "the class is so numerous that joinder of all members is impracticable." Fed. R. Civ. P. 23(a)(1). "[P]laintiffs are not required to specify the exact number of persons in the class," but at the same time, they "cannot rely on conclusory allegations that joinder is impractical or speculation as to the size of the class in order to prove numerosity." Marcial v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir. 1989). "Courts rely on common sense to determine whether an estimate of class size is reasonable." Schmidt v. Smith & Wollensky, LLC, 268 F.R.D. 323, 326 (N.D. Ill. 2010) (internal quotation marks omitted).

A class consisting of more than forty members generally satisfies the numerosity requirement (the low-end threshold may in fact be lower than this, but for present purposes a threshold of forty will do). Barragan v. Evanger's Dog and Cat Food Co., 259 F.R.D. 330, 333 (N.D. Ill. 2009). Plaintiffs have produced time sheets indicating that from 2007 to 2009, defendants employed between seventy and 130 employees.

They also offer testimony, in affidavits and deposition excerpts, that defendants openly discussed and engaged in a common practice with respect to all employees-namely, failing to compensate them fully for hours worked over forty hours in a given week, either by requiring a "free hour" or a "free Saturday" or by adjusting the workers' time sheets to reflect fewer hours worked. Finally, plaintiffs provide an affidavit asserting that based on the affiants' review of defendants' ...

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