United States District Court, N.D. Illinois, Eastern Division
JAMES BLAKES, et al., for themselves and on behalf of similarly situated others, Plaintiffs,
ILLINOIS BELL TELEPHONE COMPANY, d/b/a AT& T Illinois, Defendant
For James Blakes, Steven Clark, Herman Deckys, Bradley Hunt, Phillipe Porter, Ernest Roberts, Jr., Larry Williams, for themselves and on behalf of similarly situated others, Plaintiffs: Aaron Benjamin Maduff, LEAD ATTORNEY, Michael Lee Maduff, Walker R. Lawrence, Maduff & Maduff, LLC, Chicago, IL.
For Illinois Bell Telehone Company, doing business as AT& T Illinois, Defendant: Stephen Boyd Mead, LEAD ATTORNEY, AT& T Services, Inc., Chicago, IL; Erin Jewel Hendrix, Morgan, Lewis & Bockius, Chicago, IL; George A. Stohner, PRO HAC VICE, Morgan, Lewis & Bockius, Los Angeles, CA; Gregory P Abrams, Ritu Srivastava, Morgan, Lewis & Bockius LLP, Chicago, IL.
MEMORANDUM OPINION and ORDER
Young B. Kim, United States Magistrate Judge.
James Blakes, Steven Clark, Herman Deckys, Bradley Hunt, Phillipe Porter, Ernest Roberts, Jr., and Larry Williams (collectively, " the named plaintiffs" ) brought this action against Illinois Bell Telephone Company (" Illinois Bell" ) under the Fair Labor Standards Act (" FLSA" ), 29 U.S.C. § 201, et seq., claiming that Illinois Bell systematically fails to pay its cable splicers for all of their overtime work. The parties have consented to this court's jurisdiction. See 28 U.S.C. § 636(c); (R. 21). This court previously granted in part and denied in part Illinois Bell's motion to decertify the named plaintiffs' conditionally certified class of cable splicers. (R. 233.) Illinois Bell now moves for summary judgment on both the individual and certified claims pursuant to Federal Rule of Civil Procedure 56. (R. 257 to 283.) For the following reasons, Illinois Bell's motions regarding the named plaintiffs are granted as to Blakes, Deckys, Porter, Roberts, and Williams, and denied as to Clark and Hunt:
As an initial matter, it must be noted that there are repeated instances in the parties' Local Rule (" L.R." ) 56.1 statements in which a party states that a fact is disputed, but either cites record evidence that does not contradict the fact or relies on inferences that might contradict the fact rather than actual conflicting evidence. For example, although the named plaintiffs " dispute" many of Illinois Bell's facts, they fail in some instances to cite record evidence actually demonstrating the dispute, as required by L.R. 56.1(b)(3)(B)-(C). (See, e.g., R. 299, DSOF Blakes ¶ ¶ 27, 32, 36, 38-39, 42-43, 67). The named plaintiffs also state in some of their responses that they deny the implications of a listed
fact, (see, e.g., id. ¶ ¶ 6, 20, 27, 35, 38, 39, 43, 47, 58, 64, 67, 73), but arguing over the possible implications stemming from an otherwise undisputed fact does not render that fact in dispute, see Sommerfield v. City of Chi., No. 08 CV 3025, 2013 WL 4047606, at *2 (N.D. Ill. Aug. 9, 2013). Illinois Bell also commits some of the same errors in its responses to the named plaintiffs' additional facts. (See, e.g., R. 333, PSOF Blakes ¶ ¶ 3, 30.) To the extent these facts are not otherwise properly disputed, the court deems them admitted.
Furthermore, where the named plaintiffs include additional facts in their responses that do not bear on whether a dispute exists as to the fact listed by Illinois Bell, these facts should instead have been listed in the named plaintiffs' statements of additional facts. (See, e.g., R. 299, DSOF Blakes ¶ ¶ 17, 23, 36, 38-39, 41, 44-45, 52, 57-58, 62, 64, 69, 72-73); see Sommerfield, 2013 WL 4047606, at *2. That said, many of the facts the named plaintiffs assert in their responses to Illinois Bell's facts also are set forth in their own responding statements of material facts, and thus are before the court. See Rasic v. City of Northlake, No. 08 CV 104, 2009 WL 3150428, at *3 (N.D. Ill. Sept. 25, 2009).
Although the court previously set forth this case's factual background in its decertification opinion, see Blakes v. Ill. Bell Tel. Co., No. 11 CV 336, 2013 WL 6662831, at *2-4 (N.D. Ill.Dec. 17, 2013), for purposes of the current motions the court will restate the facts and also include relevant facts that have since developed in the record. The following undisputed facts are taken from the parties' L.R. 56.1 statements of facts (unless otherwise indicated), and will be viewed, as they must be at this stage, in the light most favorable to the named plaintiffs. See O'Leary v. Accretive Health, Inc., 657 F.3d 625, 630 (7th Cir. 2011).
A. The Parties
Defendant Illinois Bell is one of the largest providers of local telephone services in Illinois. (R. 299, DSOF Blakes ¶ 2.) The named plaintiffs are cable splicers who work or have worked for Illinois Bell's Construction and Engineering division. (See, e.g., id. ¶ 5.) Cable splicers install, maintain, and repair Illinois Bell's network of cable, fiber optics, and telephone services. (Id. ¶ 6.) As part of their duties, the named plaintiffs sometimes work underground in manholes. (See, e.g., id. ¶ ¶ 9, 63.) They typically begin their scheduled shifts at 7:00 a.m. in one of Illinois Bell's garages but then spend the majority of their day out in the field at job sites outside the direct observation of their supervisors. (See, e.g., id. ¶ ¶ 7-8.) During the relevant time period, each of the named plaintiffs was a non-exempt employee paid on an hourly basis, and was typically scheduled to work an eight and one-half hour day, five days a week, including a half-hour unpaid lunch. (See id. ¶ ¶ 11, 14.)
B. Illinois Bell's Official Policies and Guidelines
Illinois Bell's official policies regarding compensation and time-reporting are set out in code of conduct and employee " expectations" documents, and are also codified in a collective bargaining agreement (" CBA" ) with the cable splicers' union. (R. 299, DSOF Blakes ¶ ¶ 19-28.) These
policies state that employees should accurately report all hours worked and that any overtime must be approved by a supervisor in advance. (Id. ¶ ¶ 23, 25-28.) The policies also provide that all overtime hours worked by employees must be paid regardless of whether they were pre-approved, and managers are prohibited from " requiring or permitting nonexempt employees to work 'off the clock.'" (Id. ¶ ¶ 23-24.) Overtime hours include any time worked in excess of eight hours a day or forty hours a week. (Id. ¶ 22.)
Illinois Bell also has policies that govern lunch breaks for cable splicers. Lunch breaks are expected to be taken sometime between the third and sixth hour of a shift. (Id. ¶ 31.) When cable splicers are working at a job site with a manhole, policies dictate that they cannot leave open manholes unattended, so " lunches should be carried in this situation." (R. 333, PSOF Blakes ¶ 4.) According to the CBA, if an employee cannot leave a job site, " it is assumed no lunch period has been taken" and the employee " will be permitted reasonable paid time to eat on the job." (See id.)
C. Illinois Bell's Time-Recording System
In December 2009, Illinois Bell introduced electronic time reporting as part of its Jobs Administration Management (" JAM" ) system. (R. 299, DSOF Blakes ¶ 35.) Illinois Bell uses " task codes" to track time recorded for various types of work assignments instead of a traditional punch-in-punch-out system. (R. 333, PSOF Blakes ¶ 6.) For example, certain task codes are associated with underground work. (See id. ¶ 2.) After a cable splicer enters his time and submits it, the timesheet is then sent to a manager for approval before it is uploaded into " eLink," Illinois Bell's payroll system. (Id. ¶ ¶ 7-8.)
In February 2010, Illinois Bell implemented a system called Management System and Operating Control (" MSOC" ) which was intended to measure, among other things, how efficiently a cable splicer performs his or her job. (See id. ¶ 5.) Although the parties dispute whether or how time that is tracked for MSOC purposes translates into how technicians are paid, the parties agree that Illinois Bell keeps track of how much time technicians report spending on a particular task and compares that time with the allocated or expected time it should take to complete that task. (See id. ¶ ¶ 5-6, 12, 23.)
D. Named Plaintiffs
1. James Blakes
Blakes has worked as a cable splicer for Illinois Bell since 1992. (R. 299, DSOF Blakes ¶ 1.) In addition to his typical 7:00 a.m. to 3:30 p.m. shift, Blakes sometimes works a " buzz shift" from 7:00 p.m. to 7:00 a.m. (Id. ¶ ¶ 15-16.) He asserts that he sometimes performed pre-shift work for which he was not paid. (See id. ¶ ¶ 48, 53; R. 333, PSOF Blakes ¶ 31.) He estimates that he performed various pre-shift work activities at least twice a week, usually beginning 15 to 20 minutes before 7:00 a.m. (R. 333, PSOF Blakes ¶ 30.)
Blakes also alleges that he sometimes worked through lunch, and he estimates that he did so at least two days out of every five-day work week. (R. 299, DSOF Blakes ¶ 62.) He testified that on days when he worked at an open manhole, he would not take a lunch break because the manhole needed to be guarded. (Id. ¶ 63.) But if the manhole was not open he could take a lunch break, and if he worked with a partner at a manhole, it was possible for one person to guard the manhole while the other person ate lunch. (Id. ¶ ¶ 63-64.)
According to Blakes, he worked through lunch on days that his timesheets indicate underground work tasks. (See R. 333, PSOF Blakes ¶ 29.)
When he worked through lunch, Blakes did not get approval to do so in advance. (R. 299, DSOF Blakes ¶ 40.) He admitted that he knew he was violating Illinois Bell's written policies by not getting approval and by not accurately reporting his time with respect to working through lunch. (Id. ¶ ¶ 39, 72.) He said that he never told his supervisor which days he may have reported his time incorrectly, (id. ¶ 43), and he never explicitly told his supervisor or manager that he had worked through lunch, (id. ¶ 73). Blakes also testified that he was not aware of any instances in which he reported working overtime on his timesheet and was not paid for that overtime. (Id. ¶ ¶ 36-37.) Blakes never requested to be paid for the time he worked through lunch and did not report that time on his timesheets, except when he was on a buzz shift. (Id. ¶ ¶ 70-71.)
Blakes further testified that he worked through lunch in order to meet his MSOC efficiency numbers, but was not aware of any document that would allow him to determine which jobs might have caused him to work through lunch to meet his MSOC goals. (See id. ¶ 69.) He said he would sometimes subtract time from a job task to artificially increase his efficiency numbers, but the parties dispute whether doing so affected the total amount of time for which he was actually paid. (See id. ¶ 44.) Blakes does not claim that he performed any post-shift work which would entitle him to compensation. (Id. ¶ ¶ 74-76.)
2. Steven Clark
Clark worked as an Illinois Bell cable splicer from 2000 until his termination in February 2011. (R. 328, DSOF Clark ¶ 1.) His tasks included splicing copper wires underground or at cross boxes. (Id. ¶ 7.) He testified that he sometimes performed various work activities pre-shift, but that such time was not reflected on his timesheets. (Id. ¶ ¶ 43-44.)
Clark also alleges that he worked through lunch about three times a week. (R. 343, PSOF Clark ¶ 30.) He testified that when he performed manhole work with a partner, one of them had to stay at the manhole and guard it for safety reasons. (R. 322, Ex. 35, Clark Dep. at 88-89.) He explained that he did not take a lunch break when he had to guard the manhole. (See id.) He also explained that for the most part, he worked with at least one other cable splicer on every job. (See R. 328, DSOF Clark ¶ 54.) Clark testified that he could not determine from his timesheets whether he took a lunch break or not on a given day, (id. ¶ 59), but he asserts that his time records at least show what days he performed certain underground tasks, (R. 343, PSOF Clark ¶ 2).
Clark said he knew that according to Illinois Bell's policies, he was responsible for accurately recording all the hours he worked and that he would get paid for all the time he reported, whether approved ahead of time or not. (R. 328, DSOF Clark ¶ ¶ 35-37.) He testified that whenever he recorded his overtime he was paid for it, (see id. ¶ ¶ 39, 41), and he admitted that he never told his supervisors or managers that he worked unreported overtime, (id. ¶ 42). However, Clark asserts that when he complained to his supervisor, Daniel Graham, about working through lunch, Graham told him he had to " make a sacrifice for the team," which Clark understood to mean that he would not be paid for his overtime. (R. 343, PSOF Clark ¶ 23.) Clark also said that a different supervisor, Peter Velez, told him that
some jobs " didn't have overtime" but still needed to be completed. (See id. ¶ 22.)
Clark further testified that MSOC numbers were " not so easily attainable," and that some of his managers were " creative in the way they would spread hours" among different tasks to improve the appearance of the technicians' efficiency numbers. (See R. 322, Ex. 35, Clark Dep. at 42, 44-45.) But he went on to testify that this practice did not affect their pay for that day. (See id. at 45.) He noted that while his managers did not directly tell him to record fewer hours than he actually worked, Clark inferred from the managers' practice of spreading hours that he should not report all his time worked. (Id. at 42-44.)
Finally, Clark asserts that he sometimes performed post-shift work after completing his timesheets without receiving overtime pay, and on those occasions he worked for an additional 20 to 25 minutes after his shift. (See R. 343, PSOF Clark ¶ ¶ 33-34.) He stated that his managers saw him getting supplies for his truck post-shift, but he could not specify which managers might have seen him or what he was doing when a supervisor saw him after his shift. (R. 328, DSOF Clark ¶ ¶ 46-48).
3. Herman Deckys
Deckys has worked at Illinois Bell as a cable splicer since 2001. (R. 303, DSOF Deckys ¶ 1.) Deckys is not claiming that he performed any pre-shift work, (id. ¶ 50), but he alleges that he worked through three to four lunches a week. (R. 330, PSOF Deckys ¶ 31.) Like the other named plaintiffs, he testified that every time he worked at an open manhole he was forced to work through lunch, but if a job did not involve opening a manhole, he did not have to work through lunch. (R. 303, DSOF Deckys ¶ 51.) According to Deckys, there are always two people assigned to do underground work. (R. 301, Ex. 9, Deckys Dep. at 83.) He testified that on days when he worked at an open manhole, both he and his partner did not have to stay at the manhole, and that one person could leave and grab lunch. (Id. at 185-186.) Deckys could not remember or estimate how many days he worked underground, but like the other named plaintiffs, he asserts that his time records at least show what days he performed underground work tasks. (R. 303, DSOF Deckys ¶ 52.)
Deckys said he understands Illinois Bell's time-reporting policies. (Id. ¶ ¶ 32-34.) He testified that whenever he did record his overtime, he was paid for it, (see id. ¶ ¶ 35, 37-39), and he admitted that he never told his supervisors or managers that he was underreporting his time, (id. ¶ 72). However, Deckys said he believes he told all of his managers " probably at some point" that he had worked through lunch. (R. 330, PSOF Deckys ¶ 21.)
Deckys further testified that he sometimes did not record all his time worked in order to improve his efficiency numbers. (See R. 303, DSOF Deckys ¶ 45.) He said that he did so to avoid being coached about efficiency or suspended from work. (Id. ¶ ¶ 46-47.) Like the other named plaintiffs, Deckys asserts that he sometimes had to record time spent on other tasks that he did not actually do because no allotted time was left for the tasks he performed. (R. 330, PSOF Deckys ¶ 14.) He noted that while his managers did not expressly tell him to record fewer hours
than he actually worked, (R. 303, DSOF Deckys ¶ 48), on one occasion Velez instructed him to " get [the job] done within the time frame," which Deckys understood to mean that he should only report the allotted task time, (R. 330, PSOF Deckys ¶ 25). He also said he told his managers on more than one occasion that certain assigned tasks could not be done in the allotted time. (Id. ¶ 20.)
Lastly, Deckys asserts that he performed post-shift work other than completing his timesheets about three times a week, and that on those occasions he worked for an additional 15 minutes after his shift. (See R. 303, DSOF Deckys ¶ 64.) While he admits that he did receive some overtime pay for cleaning out his truck and throwing away garbage after his shift, (id. ¶ 70), Deckys claims he did not get paid for other times he did unreported post-shift work, (id. ¶ 67). He stated that Velez has seen him come back to the garage after 3:30 p.m. (R. 330, PSOF Deckys ¶ 28.)
4. Bradley Hunt
Hunt worked for Illinois Bell as a cable splicer from 2001 until December 2011, when he became a " premises technician." (R. 306, DSOF Hunt ¶ 1.) He testified that he sometimes performed various work activities pre-shift, such as checking on supplies for his truck, but that such time was not always reflected on his timesheets. (Id. ¶ ¶ 35-38.) Hunt also said that during the relevant time period, he worked through lunch " 99.9 percent of the time." (Id. ¶ 49.) The reasons he gave for working through lunch included setting up and breaking down job sites, meeting efficiency standards, avoiding discipline, and guarding manholes. (See id. ¶ 50.) He said he could not remember what he reported in his timesheets or how much he was paid on the days he worked through lunch. (Id. ¶ ¶ 52-53.) He testified that he did not know whether he was less likely to take a lunch break when he performed manhole work, but noted that " somebody has to be at the manhole." (R. 301-1, Ex. 20, Hunt Dep. at 108-09.) He explained that while one person is at the manhole, another technician assigned to the job site might be elsewhere. (R. 336, PSOF Hunt ¶ 6.)
Hunt said he understood that his pay was based on the hours he reported and that Illinois Bell's policy requires technicians to record all hours worked. (R. 306, DSOF Hunt ¶ 32.) But Hunt testified that when he told one of his supervisors, Robert Stokes, that he did not take a lunch break, Stokes said something to the effect of " I'm not eating that time." (Id. ¶ 56.) Hunt said he interpreted that to mean that the time was " lost" and that he would not be paid for it. (See R. 301-1, Ex. 20, Hunt Dep. at 84.) He explained that he stopped telling his supervisors about working through lunch because he believed it was a " waste of time" and that " they weren't going to acknowledge it." (Id. at 95.) Hunt also testified that Juan Cordova, his second-level supervisor above Stokes, announced to him and other technicians that there would be " no overtime in [Hunt's] garage whatsoever," regardless of any other garage's practice. (Id. at 170-71.) Hunt understood this to mean that he should not report any overtime because he would not be paid for it. (Id. at 171-72.) He noted that while no one ever directly told him to work through lunch or record fewer hours than he actually worked, Hunt took his supervisors' instructions to mean that he should not report all of his time. (See R. 306, DSOF Hunt ¶ 59.)
Hunt further testified that he sometimes worked overtime to meet his MSOC numbers. (R. 301-1, Ex. 20, Hunt Dep. at 139-40, 263-64.) He said Stokes told him that " everybody's timesheet should be the
same" and that time should be split among the technicians. (See R. 336, PSOF Hunt ¶ 19; R. 301-1, Ex. 20, Hunt Dep. at 409.) But Hunt also said he did not know whether such instructions resulted in him being paid less than all the hours he worked. (R. 301-1, Ex. 20, Hunt Dep. at 138.)
Hunt also asserts that he sometimes performed post-shift work other than completing electronic timesheets for 12 to 20 minutes, but could not estimate how many times he did so. (R. 306, DSOF Hunt ¶ ¶ 70-71, 73-74.) He was unsure whether he ever told a manager or supervisor that he completed paper timesheets after his shift, (id. ¶ 72), but he stated in an interrogatory response that his ...