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Palar v. Blackhawk Bancorporation, Inc.

United States District Court, Seventh Circuit

September 25, 2013

BRYCE PALAR, Plaintiff,


SARA DARROW, District Judge.

Plaintiff Bryce Palar is a former employee of Defendant Blackhawk Bancorporation, Inc. Palar was originally offered a job by his mentor and fellow baseball enthusiast, Gerry Huiskamp, who also happens to be the President of Blackhawk. After Palar was fired from his junior loan officer position, he filed a four-count complaint against Blackhawk. Blackhawk now moves for summary judgment on all four counts. The Court held oral argument on the motion on September 5, 2013. For the reasons explained below, Blackhawk's motion for summary judgment, ECF No. 28, is GRANTED in part and DENIED in part. Blackhawk is granted summary judgment on all issues except for Blackhawk's alleged violation of the Illinois Wage Payment and Collection Act, as explained below.


Each party submits close to 100 paragraphs of purportedly relevant facts. Because of the copious mix of facts and evidence, the Court will attempt to achieve some clarity by first summarizing the events and circumstances leading up to Palar's termination. The Court will then delve into the specific facts and evidence necessary to resolve each cause of action separately.

Palar was a freshman in high school playing on the Rock Island American Legion baseball team when he first met Gerry Huiskamp. The two bonded over baseball and remained friends throughout Palar's high school and college baseball seasons. After Palar graduated college, Huiskamp offered him a job at Blackhawk. Palar accepted. He started in 2005 as a management trainee and held the position of junior loan officer when he was fired in 2010.

The bulk of the events leading up to this lawsuit occurred after an internal audit in 2010 showed some suspicious activity on Palar's personal Blackhawk banking accounts. As was standard practice, Blackhawk employee Brad Ford ordered a credit report on Palar in light of the suspicious activity. Blackhawk employees, including Huiskamp, reviewed the credit report and interviewed Palar about the suspicious activity. Blackhawk also monitored Palar's computer usage for a period of time. The suspicious activity on Palar's account was determined not to be a cause for concern, as everything Palar told Blackhawk checked out.

On October 18, 2010, shortly after the investigation of Palar ended, Huiskamp informed Blackhawk's board of directors that the suspicious activity on Palar's account was no problem but nonetheless recommended that Palar be terminated. Blackhawk employees had been complaining about Palar's job performance since 2008. Huiskamp testified in his deposition that he had essentially been vouching for Palar for some time, hoping that Palar would mature into a quality employee. When the complaints continued, including in the months before the board meeting, Huiskamp ultimately concluded that despite clearing Palar from any wrongdoing based on the suspicious activity on his account, it was time to let Palar go. Huiskamp claims that his decision to recommend termination was based solely on Palar's poor performance and had nothing to do with the recent investigation into Palar's finances. The board of directors voted to terminate Palar's employment that day, but Palar was not immediately told about this decision.

On October 19, 2010, the very next day, Palar delivered a letter to Blackhawk that made a claim for approximately $19, 000 of unpaid overtime wages under the FLSA. Palar argued that Blackhawk misclassified him as an exempt employee and that since he was actually non-exempt, he was eligible for overtime pay. Palar argued that Blackhawk should have paid him overtime for the time he spent coaching the Orion High School baseball team because he was essentially forced to coach as a condition of employment. When Palar delivered his FLSA complaint on the 19th, Palar did not know that Blackhawk had already voted for his termination, though some evidence suggests he knew that the issue was going to be discussed at the board of directors meeting the day before.

After delivering the FLSA complaint on the 19th, Palar left the premises. He was not scheduled to work on October 20th.On October 21, 2010, Huiskamp and another Blackhawk employee, T.J. Hoffman, informed Palar that he was fired. They offered him a severance package in exchange for a release of claims. Palar counteroffered for increased severance pay, citing the FLSA complaint as leverage. Blackhawk refused and terminated him without any severance pay.

Palar later sued Blackhawk on a variety of grounds. Blackhawk now moves for summary judgment on each count Palar brings against it:

(1) Violation of the Fair Labors Standards Act, 29 U.S.C. §§ 201, et seq.,
(2) Violation of the Illinois Wage Payment and Collection Act, 820 ILCS 115/5,
(3) Violation of the Fair Credit Reporting Act, 15 U.S.C. §§ 1681, et seq., and
(4) Violation of the Illinois Personnel Record Review Act, 820 ILCS 40/1, et seq.


Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). On a motion for summary judgment, the Court will construe all facts and draw all reasonable inferences in favor of the nonmoving party. See Srail v. Vill.of Lisle, Ill., 588 F.3d 940, 948 (7th Cir. 2009). When analyzing a motion for summary judgment, the Court does not scour the record in search of evidence to defeat the motion; rather, "the nonmoving party must identify with reasonable particularity the evidence upon which the party relies." Winters v. FruCon Inc., 498 F.3d 734, 744 (7th Cir. 2007). To defeat summary judgment, the nonmoving party must present "definite, competent evidence in rebuttal" such that a reasonable jury could find in his favor. Parent v. Home Depot U.S.A., Inc., 694 F.3d 919, 922 (7th Cir. 2012).

I. Fair Labor Standards Act

Palar raises two issues under the Fair Labor Standards Act ("FLSA"): (A) Blackhawk owes him overtime pay because it misclassified him as an exempt employee and (B) Blackhawk fired him in retaliation for filing a complaint for unpaid wages.

A. Palar's Claim for Overtime

Palar's claim for unpaid overtime is dependent on two findings: (1) that he was a non-exempt employee and (2) that Blackhawk should have paid him for the time he spent coaching baseball. The Court declines to analyze whether Palar was a non-exempt employee because Blackhawk had no obligation to pay Palar for the time he spent coaching, as will be explained below. While Palar's counsel suggested at oral argument that Palar's claim for overtime pay under the FLSA could survive even without the coaching hours, Palar has offered no evidence that shows he worked any non-coaching overtime, nor could counsel identify any such evidence at oral argument or even confirm that any such evidence exists. See Winters, 498 F.3d at 744 (explaining it is the nonmoving party's burden to identify the evidence upon which he relies). Summary judgment is the "put up or shut up" moment in a lawsuit. Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 901 (7th Cir. 2003). Blackhawk is entitled to summary judgment because, without counting coaching hours, no evidence suggests that Palar worked any overtime-an essential element of his FLSA claim for overtime pay. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (explaining that courts should enter summary judgment against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial"). Without any evidence that Palar worked overtime for which he was not properly compensated, no evidence suggests that Blackhawk violated 29 U.S.C. § 207. Accordingly, Palar cannot argue to a jury that Blackhawk violated § 207. Blackhawk is therefore entitled to summary judgment as a matter of law. See Harris NA v. Hershey, 711 F.3d 794, 798 (7th Cir. 2013) ("A mere scintilla of evidence in support of the nonmoving party's position is not sufficient; there must be evidence on which the jury could reasonably find for the non-moving party.").

Turning to Palar's argument that Blackhawk should have paid him overtime for the time he spent coaching baseball, Palar seeks to cast Blackhawk's encouraging and accommodating volunteerism in the local community as forced volunteerism.[1] Blackhawk effectively subsidizes local volunteerism. Blackhawk employees who are interested in volunteering are permitted to leave the bank early without penalty. For example, in Palar's case, if his baseball team had a game or practice during the week, Palar was permitted to leave the bank before bank hours were over so that he could coach the event. Opp. to Mot. for Summ. J., Ex. 21 at 119-25, ECF No. 32. But even though Palar left before his shift was up, he was never docked any pay or charged any vacation time. Blackhawk always permitted Palar to leave the bank early to go coach. Id., Ex. 21 at 122.

From what the Court can tell, Palar presents a novel argument. Instead of arguing that he is an employee of Orion High School because he coaches their baseball team, Palar instead argues that he is an employee of Blackhawk because he coaches the Orion baseball team. If Palar was not otherwise employed by Blackhawk as a loan officer, his claim would of course be ridiculous. But since Palar is employed by Blackhawk, he argues that Blackhawk was able to exert sufficient influence over him to force him to coach high school baseball. He further argues that Blackhawk reaps the incidental reward of enhanced reputation in the community as a result of having one of its employees coach baseball. Palar now wants additional payment for all of the time he spent coaching-including time-and-a-half for any time over 40 hours in a week (when combining his time spent coaching and at the bank). While the Court acknowledges that it is theoretically possible for an employer to create an abusive "community involvement" volunteerism policy that would violate the FLSA, this is far from that case.[2] See 29 C.F.R. § 553.101(b) ("Congress... expressed its wish to prevent any... abuse of... overtime requirements through coercion or undue pressure upon individuals to volunteer' their services."). This is a case where an employee approached an employer about coaching high school baseball and the employer not only encouraged-without requiring-the employee's involvement in the local community, but also accommodated the employee's volunteerism schedule.

Palar's ties to baseball are apparent. He played for his high school's baseball team. While in high school, Palar also played for the Rock Island American Legion baseball team. See Mot. for Summ. J., Ex. A at 14, ECF No. 28. In fact, Palar first met Huiskamp while playing for the American Legion team. Id., Ex. A at 15-16. Palar continued playing baseball in college and then also started to coach. Id., Ex. A at 21. He was a student coach for Bradley University for a year and the head coach for the Rock Island High School summer team. Id., Ex. A at 21, 41.

Knowing about Palar's ties to baseball, Huiskamp asked about Palar's general interest in coaching baseball when he first approached Palar about working at Blackhawk. Id., Ex. A at 70-74. Palar said that he was interested, though during his deposition, Palar explained that he did not seek a job at Blackhawk with the intention of coaching baseball-he only expressed his interest once asked. Id. Regardless of whether he brought it up or Huiskamp brought it up, Palar had previous coaching experience and told Huiskamp that he was interested in continuing to coach baseball.

An opportunity soon presented itself. Importantly, Palar learned of the coaching position at Orion high school not through anyone at Blackhawk, but through an Orion school board member. Id., Ex. A at 107. It was Palar who brought the knowledge of the coaching position to Huiskamp, ...

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