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Colleen Drew v. Shoe Show

December 15, 2011

COLLEEN DREW, PLAINTIFF,
v.
SHOE SHOW, INC., D/B/A SHOE SHOW AND D/B/A SHOE DEPT. AND D/B/A BURLINGTON SHOES, DEFENDANT.



The opinion of the court was delivered by: J. Phil Gilbert U.S. District Court Judge

MEMORANDUM AND ORDER

This matter comes before the Court on defendant Shoe Show, Inc.'s motion for summary judgment (Doc. 65). Plaintiff Colleen Drew has responded to the motion (Doc. 80), and Shoe Show has replied to that response (Doc. 81).

The Court has set forth the background of this case in its September 19, 2011, order (Doc. 67):

Drew worked as a store manager for a Shoe Dept. retail shoe store in Wood River, Illinois, from 2007 to February 2010. Shoe Dept. is one of the divisions of defendant Shoe Show Inc.; Shoe Show is the other division. As a store manager, Drew was required to work at least forty-eight hours per week, and often worked more than that. Drew alleges that her primary or significant duties were non-managerial and were of the sort typically performed by hourly workers. For example, she alleges she did not have any responsibility for hiring or firing the employees who worked in her store, was not given access to the information and did not have the authority necessary to develop her store, and was monitored, instructed and supervised by a district manager who was the de facto store manager. Nevertheless, Shoe Show Inc. classified Drew as "exempt" under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 213(a)(1).*fn1 Consequently, it did not pay Drew at a rate of one and one-half times her normal pay rate for hours worked over forty hours in one week as ordinarily required by 29 U.S.C. § 207(a)(1).*fn2 Drew believes her classification as exempt was erroneous, was a willful attempt by Shoe Show Inc. to pay her less than the FLSA required and was part of a nationwide company practice. She believes other Shoe Show Inc. store managers in the Shoe Dept. and Shoe Show divisions share her plight.

Drew filed this lawsuit in August 2010 asserting the following claims: Count I: a claim for failure to pay overtime wages in violation of the FLSA, 29 U.S.C. §§ 207(a)(1) and 215(a)(2);

Count II: a state law claim for money had and received; and Count III: a state law claim for unjust enrichment.

In its September 19, 2011, order the Court denied conditional collective action certification of Count I under 29 U.S.C. § 216(b), so this action is now proceeding with a sole plaintiff.

In its pending motion, Shoe Show asks for summary judgment on Count I on the grounds that Drew's action was filed beyond the two-year statute of limitations applicable to non-willful unpaid overtime FLSA violations. See 29 U.S.C. § 255(a). It also seeks summary judgment on Counts II and III on the grounds that those claims require the same proof -- failure to pay required overtime wages -- as Count I and are therefore impliedly preempted by the FLSA. It also requests summary judgment on Counts II and III on alternate grounds.

In response, Drew argues that the three-year statute of limitations applies to Count I because Shoe Show's FLSA violation was willful but that it is premature to decide the statute of limitations issue because merits-based discovery has not occurred yet in this case. To this point, discovery has focused on collective action issues. Accordingly, she asks the Court to deny or defer ruling on Shoe Show's motion pursuant to Federal Rule of Civil Procedure 56(d). Drew also concedes that Counts II and III are preempted by the FLSA.

Shoe Show replies that it does not object to the Court's deferring ruling on its summary judgment motion as to Count I pending further discovery but that it still requests immediate summary judgment on Counts II and III.

Count I

The Court will deny Shoe Show's motion for summary judgment on Count I without prejudice pursuant to Rule 56(d)(1). Rule 56(d) (formerly Rule 56(f)) provides:

If a non-movant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to ...


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