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Madero v. Peters Engineering, Inc.

United States District Court, N.D. Illinois, Western Division

May 12, 2015

Daniel A. Madero, et al., Plaintiffs,
Peters Engineering, Inc., et al., Defendants.


PHILIP G. REINHARD, District Judge.

For the reasons stated below, defendants' motion [116] for partial summary judgment is granted in part and denied in part. Summary judgment is granted on any IPWA claims plaintiffs are making for work performed by plaintiffs for PEI on jobs PEI performed for KDL Windstream in furtherance of KDL Windstream providing services to its customers pursuant to master services agreements (containing the provisions discussed above found in Dkt # 120-8 and 120-9 or provisions substantially similar thereto) that KDL Windstream entered with its customers. Defendants also are entitled to summary judgment on any IPWA claims plaintiffs are making for work performed by plaintiffs for PEI on jobs PEI performed for Comcast in furtherance of Comcast providing services to its customers pursuant to any agreement (containing the Terms discussed above found in Dkt # 131-4 pp. 31-35 or provisions substantially similar thereto) that Comcast entered with its customers. Otherwise, the motion for partial summary judgment is denied. The parties are ordered to contact Magistrate Judge Johnston within 28 days to arrange a settlement conference or mediation.


Plaintiffs, Daniel Madero, John Buffo, Paul Crager, Adam Dezran, Jovani Dorta, Jeff Jaenecke, Jamie Martin II, Nathan Sebright, Joe Stubenrauch, Robert Thor II, Peter Walker, and Larry Winchester bring this action against defendants, Peters Engineering, Inc. ("PEI"), Dean A. Peters, and Joshua A. Peters alleging claims under the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §201 et seq. (Count I), the Illinois Minimum Wage Law ("IMWL"), 820 ILCS 105/1 et seq. (Count II)., and the Illinois Prevailing Wage Act ("IPWA"), 820 ILCS 130 et seq. (Count III). Madero also brings a claim of retaliation under the FLSA, 29 U.S.C. § 215(a)(3) (Count IV). The court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367(a). Defendants move [116] for partial summary judgment. They seek summary judgment on plaintiffs' IPWA claims (Count III) and Madero's FLSA retaliation claim (Count IV). They also seek summary judgment as to all claims against Joshua Peters ("Josh").

"It is the policy of the State of Illinois that a wage of no less than the general prevailing hourly rate as paid for work of a similar character in the locality in which the work is performed, shall be paid to all laborers, workers and mechanics employed by or on behalf of any and all public bodies engaged in public works." 820 ILCS 130/1. "Any laborer, worker or mechanic employed by the contractor or by any sub-contractor under him who is paid for his services in a sum less than the stipulated rates for work" under a contract for public works "shall have a right of action for whatever difference there may be between the amount so paid, and the rates provided by the contract together with costs and such reasonable attorney's fees as shall be allowed by the court." 820 ILCS 130/11.

Plaintiffs are former employees of PEI. PEI installed fiber optic and coaxial cable. PEI performed this work under contracts with Comcast and KDL Windstream.[1] Plaintiffs claim that some of the jobs they worked on while employed by PEI were subject to the IPWA but that they were not paid the prevailing wage for this work. The work plaintiffs performed included aerial, underground, ground hand, splicing, and multi-dwelling unit work. In these positions plaintiffs performed various duties relating to the installation and connection of fiberoptic and coaxial cable in commercial buildings. Their duties included digging holes and installing utility poles; hanging, running and anchoring cable fiber on utility poles; digging trenches and constructing ducts in those trenches; pulling cable through the ducts using a boring machine; clearing brush and providing traffic control; creating points of entry in preexisting structures; splicing cable fiber; and pulling and running cable fiber into and through commercial buildings. Plaintiffs also dug trenches, exposed building foundations, and bored holes on public school property. Plaintiffs worked on school property and in school buildings of a number of Illinois school districts.

The IPWA "applies to the wages of laborers, mechanics and other workers employed in any public works, as hereinafter defined, by any public body and to anyone under contracts for public works." 820 ILCS 130/2. The IPWA defines "public body" to mean "the State or any officer, board, or commission of the State or any political subdivision or department thereof, or any institution supported in whole or in part by public funds, and includes every county, city, town, village, township, school district, irrigation, utility, reclamation improvement or other district and every other political subdivision, district or municipality of the state whether such political subdivision, municipality or district operates under special charter or not." Id . "Section 2 of the [IPWA] defines public works' as all fixed works constructed or demolished by any public body, or paid for wholly or in part out of public funds." 820 ILCS 130/2.[2]"

"Section 2 defines construction' as all work on public works involving laborers, workers or mechanics' including any maintenance, repair, assembly, or disassembly work performed on equipment whether owned, leased, or rented.'" Section 3 provides "[n]ot less than the general prevailing rate of hourly wages for work of a similar character on public works in the locality in which the work is performed, and not less than the general prevailing rate of hourly wages for legal holiday and overtime work, shall be paid all laborers, workers and mechanics employed by or on behalf of any public body engaged in the construction or demolition of public works. Only such laborers, workers and mechanics as are directly employed by contractors or subcontractors in actual construction work on the site of the building or construction job, and laborers, workers, and mechanics engaged in the transportation of materials and equipment to or from the site... shall be deemed to be employed upon public works.[3]" 820 ILCS 130/3.

Summary judgment is appropriate only if the evidence presented, taken most favorably to the non-moving party, reveals no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Goodman v. Nat'l Security Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010). "Evidence supporting or opposing summary judgment must be admissible if offered at trial, except that affidavits, depositions, and other written forms of testimony can substitute for live testimony." Widmar v. Sun Chemical Corp., 772 F.3d 457, 460 (7th Cir. 2014). The "opponent of summary judgment need only point to evidence that can be put in admissible form at trial, and that, if believed by the fact-finder, could support judgment in his favor." Marr v. Bank of America, N.A., 662 F.963, 966 (7th Cir. 2011). The issue is whether plaintiffs have presented evidence that, if believed, shows they were engaged in the construction of public works- "fixed works constructed by any public body... or paid for wholly or in part out of public funds." 820 ILCS 130/2.

Plaintiffs worked for PEI on projects PEI did for KDL Windstream. These projects were related to certain KDL Windstream master services agreements it entered with its customers. Plaintiffs worked on projects for Comcast. These projects were related to certain Comcast service agreements it entered with its customers. Collectively, the court will refer, at times, to these KDL Windstream and Comcast customer agreements as the "Customer Contracts." Plaintiffs also claim to have worked for PEI on projects related to a contract KDL Windstream made with the State of Illinois. This contract was entered by Cinergy Communications and the state. The court will refer, at times, to this contract as the "State Contract." The court will address plaintiffs' claims for work on projects related to the Customer Contracts first. Those related to the State Contract will be discussed later.

Comcast and KDL Windstream are providers of cable and internet services. Looking to the Customer Contracts, the record contains master service agreements entered by KDL Windstream with public school districts in Illinois to provide cable and internet services to those districts. (Dkt # 120-8, 120-9) The terms of those agreements provide that the schools, as customers, are purchasing services from KDL Windstream. "Service" is defined as transmission capacity. The master service agreements provide that the term of the agreement is five years with automatic annual renewal thereafter unless prior notice of cancellation is given. As part of the agreement, the customers granted KDL Windstream "an irrevocable and indefeasible right to occupy, use and maintain however much space and power at each CUSTOMER Location as [KDL Windstream] reasonably desires to satisfy its obligations under this Agreement (the "Licensed Space"), for the term of this Agreement or any then-existing Service Order as long as such Service Order is in effect. From and after the date efforts to ready the Licensed Space for [KDL Windstream]'s occupancy are commenced, CUSTOMER may not relocate, or cause [KDL Windstream] to relocate any of [KDL Windstream]'s equipment or facilities from any CUSTOMER Location during the term. [KDL Windstream] and its affiliates shall have 24 hour/7 day per week unescorted access to such space, including any necessary easement and building entrance rights to extend [KDL Windstream]'s network from public rights of way into the CUSTOMER Location. No fees or charges shall be imposed on [KDL Windstream] in connection with, or related to, the License."

The master service agreements also provided that "[t]itle to [KDL Windstream]'s equipment and other facilities located in or at each CUSTOMER Location shall remain with [KDL Windstream] and its subtenants, sublicensees, successors and assigns, as applicable. From time to time throughout the term [KDL Windstream] may remove, or cause to be removed, from any CUSTOMER Location, any or all of [KDL Windstream]'s equipment or other facilities. Upon expiration or termination of the License, [KDL Windstream] shall remove, or cause to be removed, from each CUSTOMER Location, any and all of [KDL Windstream]'s equipment and other facilities. CUSTOMER hereby acknowledges and agrees that only [KDL Windstream] authorized personnel shall be allowed to access the [KDL Windstream] equipment and other facilities."

The agreements do not define "facilities." "[A]n undefined term in a contract will be given its plain and ordinary meaning, which is found in its standard dictionary definition." LaPort v. MB Financial Bank, N.A., 983 N.E.2d 1055, 1059 (Ill.App. 2012). The word "facility" is defined in the dictionary as "something that makes an action, operation, or course of conduct easier." "Something (as a hospital) that is built, installed, or established to serve a particular purpose." Merriam-Webster Online Dictionary (2015), available at (last visited May 5, 2015). In the context of the master services agreements, the plain and ordinary meaning of "facilities" is those items "built, installed or established" by KDL Windstream in order to enable KDL Windstream to provide the services it was required to provide under the master services agreements. It is clear from these agreements that KDL Windstream was at all times the owner of everything that was installed on and in the customer's property and that it was the agreement of the parties to those agreements that what KDL Windstream installed, it would remove at the termination of the master service agreements and any service orders issued thereunder.

The record contains Comcast's Network services agreement with the Harlem School District dated March 21, 2011 for the provision of Ethernet Dedicated Internet Service. (Dkt # 131-4, pp. 29-35) This agreement included "the standard Comcast Business Communications, LLC General Terms and Conditions ("Terms") (Dkt # 131-4 pp. 31-35)." The Terms provide that Comcast will provide "to Customer the Service" at prices and locations set forth in attached schedules. "The Service is provisioned by utilizing fiber optic cable, associated with electronics and other equipment (Network'), which transports and distributes digital signals... to Customer's Building." "The Network is provisioned into Customer's Building at the point of Interconnection between the Network and Customer's provided equipment located at Customer's Building (Demarcation Point'). "The Service does not include connection... on the Customer's side of the Demarcation Point." The Terms provide the "Network is and shall remain the property of [Comcast] regardless of whether installed between, within or upon the Buildings and whether installed overhead, above, or underground and shall not be considered a fixture or an addition to the land or the Buildings located thereon. Customer agrees that it shall take no action that directly or indirectly impairs [Comcast]'s title to the Network." "Nothing in this Agreement shall preclude [Comcast] from using the Network for services provided to other [Comcast] customers." "For a period of twelve (12) months ...

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